§ LORD DENMAN
presented a petition from a member of his own profession, Mr. Joshua Toulmin Smith, complaining that, on the 18th of December last, when he was home and at dinner, his family was intruded upon by an excise officer and his assistants, who were armed with a warrant, and stated that they came in search of an illicit still. They had no better information on which to ground their proceedings than the allegation of an anonymous letter; and the petitioner stated that the officers treated the females of his family very 580 roughly, and that his wife had never recovered from the shock she received. The petitioner had intended to bring an action against the parties; in that case, he (Lord Denman) should not have thought it his duty to present the petition; but he understood the law officers of the Crown had been consulted, and it was their opinion a person under such circumstances had no remedy by an action at law. There was certainly high authority, that of Lord Mansfield, for this opinion; he stated that the proceedings of an officer under such circumstances did not entitle the party aggrieved to the remedy of an action at law. This being the case, the petitioner wished their Lordships to consider whether or not the law should be continued which gave a power so easily liable to abuse, and which might lead to consequences of a very serious nature. All that had been done had been greatly at variance with the common law; and he (Lord Denman) thought it was of the greatest importance such cases should be brought before their Lordships and made public; and he expected the noble Lord who was connected with that department would rise and express the thorough reprobation of any individual who, on anonymous information, could subject parties to such treatment.
§ The petition having been read by the Clerk of the House at the Table,
The EARL OF DALHOUSIE
said, he should not have wished to address a single word to their Lordships beyond what applied to the facts of the case; but the petition in point of fact made a direct, and he ventured to think an unjust attack on an entire public department, which, if any one could be called well managed, deserved that commendation—the Excise Department. When the noble and learned Lord opposite called his attention to the case, he had taken the necessary steps to inform himself on the subject; and he found the petitioner had already presented a petition to the other House of Parliament on the same circumstances, which could hardly be called a petition of a similar character, as the petition that had just been read was infinitely more moderate and modified in its statements compared with the other one. With respect to the facts alleged as the foundation of the petition: that the gentleman's house was entered by officers of the Excise armed with a search warrant, was undoubtedly true. To that point he was ready to answer the appeal made by the noble and learned Lord, and to say that 581 the conduct of the officer in obtaining the warrant and making the entry was blame-able; it was so in the eyes of his superiors, for they had blamed him for it, and punished him. But the allegations of the petition went a great length beyond complaining of that individual; they inculpated his superior officers who issued the instructions. And, first, with respect to the manner in which the officer did his duty: it was stated in the petition that the entry of the House was made forcibly—that a demand to see the warrant was refused—that great dismay and consternation prevailed among the inmates—and that their health had been placed in jeopardy. He could give a positive contradiction to all those statements. The letter was received by the Commissioners of Excise; but no instructions whatever to act were sent upon that letter. On the contrary, it was remitted to the officer of the district, with directions to inquire carefully and report. The officer, believing he had good ground for suspicion, went to the nearest magistrate to make the required deposition; but that magistrate being from home, he proceeded to the next, and having obtained a warrant, proceeded to the premises; but he effected no forcible entrance. When the door was opened, he inquired for the master of the house, who happened then not to be at his chambers, but at home. The warrant was not demanded; indeed it was not necessary, for it was at once shown; and the officer proceeded in company with this gentleman to look over the house, and was satisfied that his suspicions were unfounded. Although there was great plausibility in the statement that inquiry in the neighbourhood concerning the petitioner, and the appearance of his house itself, ought to have protected him from suspicion, yet these circumstances were insufficient in themselves; for it happened that in the very same district there had been a house, far better in appearance than the one in question, and bearing more the aspect of a gentleman's house, in the drawing-room of which a small still had been found in full operation by the very same officer. The officer, therefore, did not think it wise to trust to appearances; but at the same time he did not search every apartment. Where he went he was accompanied by the master of the house, and when, he perceived there was no cause for suspicion, he declined to enter a room where the family were at dinner, and the females of the family never saw him. He then expressed his regret 582 at having caused any inconvenience, and left the house. Now he (the Earl of Dalhousie) was ready to produce the three officers at the bar of the House, to depose, on their oaths, to the falsehood of the allegations that had been made. So much for the facts on the Thursday. On the Friday Mr. Smith addressed a letter to the Commissioners of Excise. Before reading this letter, however, he must remind their Lordships that this matter had been mentioned in another place, and the correspondence had been printed. The petitioner stated that no redress or apology had been afforded to him, nor any wish evinced to afford them, and that the reasons for not giving them were futile, inasmuch as the Commissioners must have been in possession of the report at the time. That was not the fact. The Commissioners only knew that they had sent instructions to their officer to inquire carefully and report. The noble Earl here read an extract from the letter of the petitioner to the Commissioners, which, after detailing the circumstances, was to the effect that he desired no vindictive proceedings, but only such reparation as his position in society demanded for such an indignity and outrage; he desired to say, that if he received from them, before three o'clock on the same day, a specific written assurance that their officer should be reprimanded for the proceedings, and be instructed by the Commissioners to forward to the petitioner's chambers a full written apology before three o'clock on the Saturday, no proceedings would be taken by the petitioners; but that otherwise he should place the case in the hands of his attorney, and that public attention would be in other ways called to it. The letter concluded thus: "My clerk awaits your reply." The noble Earl, after reading this extract, observed, that although it was highly necessary that grievances of this kind, complained of by Her Majesty's subjects, should be brought under the consideration of the authorities; it was equally necessary that the conduct of an officer, charged with a responsible and often an odious duty, should not be lightly or unjustly impugned. To the demand of the petitioner the Commissioners make the following reply on the same day:—
§ "Excise Office, 19th December, 1845.
§ "Sir—The Commissioners of Excise having had before them your letter of this morning, complaining of the conduct of an officer of the revenue, in having searched your private residence accompanied by two police officers:
§ "I am directed to acquaint you that previous 583 to pronouncing any judgment on the conduct of the officer in question, the board have felt it necessary to call on him for an explanation, the result of which will be communicated to you without delay.
§ "I am to add, that the board are unable to offer any opinion on this case until they have heard both sides of the question; but they are desirous at the same time of assuring you, that they do not sanction any proceedings of an unjust or oppressive character.—I have, &c.
§ (Signed) "J. CLAYTON FREELING."
§ Surely nothing more than this could be required by any one. Was the officer to be punished without a hearing? Why, no gentleman would flog a hound unless there was reason to believe he had really committed a fault; yet this Mr. Smith remonstrated most violently, and abused the Commissioners most foully, because they would not act towards their officer as no gentleman would act towards his dog. This is his reply:—
§ "19th December, 1845.
§ "I have to state, that your reply to my letter of this morning, placed in my hands by Sir F. Doyle, cannot be received by me. This is not a case in which 'to pronounce judgment' or 'offer an opinion;' it is an outrage of the grossest nature, perpetrated by your officer, in your name, upon a private gentleman, and for which, as gentleman, you are bound to make, instantly, all the reparation in your power. Your own case avowedly stands only on a loose anonymous letter.
§ "I require an immediate and most distinct apology from you; and further, and besides the apology from your officer, I shall require the payment to me of the sum of 10l. before two o'clock to-morrow, to cover the expenses and costs to which I have been and shall be put in consulting counsel and other contingent expenses.
§ "The bearer waits reply."
§ In this letter Mr. Smith spoke of the expenses to which he had been put. Now, the letter was dated the 19th of December. On the 18th the circumstances occurred; and he (the Earl of Dalhousie) should like to know what possible expenses the petitioner could have incurred in the interval. Why, he had not even had to pay 6d. to a messenger with his first letter to the Excise, for it appeared by it that his clerk waited for a reply. Mr. Smith had received an answer that the matter was to be inquired into, and the result to be communicated to him; and what right had he to assume that he was to be under the necessity of consulting counsel; considering, moreover, as he (the Earl of Dalhousie) believed to be the case, that lawyers dealt charitably with one another in these matters, and, like doctors, in regard to ailments of the body, mutually charged no fees? Here was the reply of the Excise:—584
§ "19th December, 1845.
§ "Sir—Having already acquainted you, by desire of the board, in answer to your letter of this morning, that an immediate inquiry would be made into the conduct of the officer complained of, and that the result would be communicated to you, and having also stated that the Commissioners would not sanction any unjust or oppressive proceedings, I am directed to observe that your present demand of an apology and 10l., knowing that four hours only have elapsed since your complaint was received, and that the officer complained of, as you state, resides at Barnet, is totally inadmissible.—I have, &c.
§ (Signed) "J. CLAYTON FREELING."
§ To which letter on the same day, the gentleman made the following rejoinder:—
§ "1, Hare Court, Temple, 19th. Dec., 1845.
§ "Gentleman—Your letters to me, under the hand of Mr. Freeling, are no answer to my complaint.
§ "I charge you, the Commissioners of Excise, with an act of gross oppression and arbitrary tyranny. My complaint is not only of the manner in which your officer executed the instructions he received from you, but also of the illegal and wholly unjustifiable nature of those instructions.
§ "Those instructions are avowed to have been founded solely on an anonymous letter.
§ "Since my first letter to you I have ascertained that this document is in your possession; your solicitor, Sir Francis Doyle, himself showed it to me. It was addressed to you, and on it you instructed your officer.
§ "The wrong committed thereby becomes your act, respecting which no additional information could be supplied by your officer, were he at your board instead of at Barnet.
§ "Your delay in making the only reparation in your power does but aggravate the wrong committed. No man possessing the feelings of a gentleman could rest under the imputation you have wantonly thrown upon my character.
§ "It is to be regretted that such feelings cannot be appreciated by you.
§ "I decline to receive any 'judgment' which may be pronounced by you; I have required an apology: it has not been awarded to me. I have, therefore, instructed my attorney to take such steps as counsel may advise to vindicate my own character, and punish and bring under public indignation so gross an outrage and so wanton an infringement of the liberty of the subject.—I am, &c.
§ (Signed) "J. TOULMIN SMITH."
But there was a postscript to this last letter which he would read, and to which he requested their Lordships' attention:—
P. S.—Before receiving your last letter, I had written a note to withdraw so much of my last as requires payment of any money, considering that it would have been better to have left that point to your own sense of propriety. Though your last letter clearly shows such reliance would be vain, I shall still choose to withdraw the claim above mentioned, in order that there may be no possibility of public or private misunderstanding of my motives. "J. T. S.
Now, it was just possible that it might have occurred to this gentleman, being a
special pleader, that plain-spoken people on reading that letter might say it was a gross attempt at extortion: and also that if he were to continue his action, the jury, seeing that he had assessed his own damages before coming into court, might take him at his word, and give a verdict for 10l., to the exclusion of all hope of getting a higher amount. Now, all this happened on the Friday; and although this gentleman had received the answer of the Commissioners, stating that the matter should be inquired into and the result communicated to him, he thought proper to print and publish a paper, setting forth the correspondence, but with an omission; and what did their Lordships suppose the omission was? It was all allusion to the ten-pound note. This printing took place between the Friday and the Monday. On the Friday, Mr. Smith wrote to the Commissioners, and on the Monday, the answer he (the Earl of Dalhousie) was about to read was received from them, leaving only the Saturday to communicate with the officer, who resided at at distance. The following was the answer of the Commissioners:—
§ "Dec. 22, 1846.
§ "Sir—Referring to my two letters of the 19th instant, I am directed to inform you that the board have now ascertained that their express written instructions, which were 'to make the necessary inquires,' and report very fully upon the anonymous communication in question, were disobeyed; and that their decided censure has been communicated thereupon.
§ "They desire at the same time to express their regret, that, owing to the indiscreet zeal of those to whom the inquiry was directed, you should have been subject to the great annoyance of which you complain.
§ "I am directed to add that the board and their assistant solicitor have this day received a printed paper headed 'search warrants,' and purporting to contain the correspondence, so far as it is material, between yourself and this department.
§ "If the paper in question is circulated by your authority, the board cannot close this correspondence without remarking that they considered the suppressed portions to be material, and obviously calculated to convey a false impression.—I am, &c.
§ (Signed) "J. CLAYTON FREELING."
§ Why, this was more than the apology of the officer; it was the apology of the department under whose orders that officer acted. Here he should state to the House that that officer was a most respectable man, who had served in the Excise department between thirty and forty years, with a character standing as high as that of any man possibly could; and he would leave their Lordshps to conceive what a punishment to such a man the decided censure 586 of his superiors must have been. It was right, too, that he should state what the term "decided censure" really meant, and the extent of it. It meant suspension for three years from all chance of promotion or favour shown to him. And yet this gentleman came forward and declared to Parliament, that no apology or redress had been afforded to him. Upon the 23rd Mr. Smith wrote another letter to the Commissioners as follows:—
§ "1, Hare-court, Temple, Dec. 23, 1845.
§ "Gentlemen—I have to acknowledge the receipt this day of your communication of 22nd instant.
§ "While I have much satisfaction in perceiving that the impropriety of the proceedings is at length acknowledged, I cannot but remark that this is but a tardy mode of reparation, your first letter, and second, not even expressing any regret at those proceedings, though their nature and grounds (the anonymous letter), together with my position, were then before you, and the fact of the non-inquiries was made evident to you by my letter; beside which you must have been then, as much as now, aware that no 'report' had been received by you. Had the terms of your instructions been at first conveyed to me, instead of the letter of the 19th, together with an expression of regret, the dignity of your board could not have been compromised, while I should have felt and expressed very different sentiments to those expressed in my third letter of 19th instant.
§ "None of your board can, however, be surprised at the feelings of indignation felt and expressed at such an outrage, and at the delay in any reparation.
§ "As to the printed communication, I am not aware of any 'material' suppression. All I desired was to exhibit the facts. The only part of the last letter not printed was a clause expressly withdrawn; but I have to state in all copies sent out, except four (of which those sent you are two), the word 'extract' was written opposite that letter, it having occurred to me that such a remark might possibly (though hypercritically) occur.
§ "Desiring now wholly to separate my personal grievance from the fruits of a system, I venture to express the hope, that in the course I shall pursue I shall receive the support of yonr board; that course will be directed against a system, not against those who on particular occasions have been the instruments in carrying it into effect. No personal redress will be sought or accepted. I remain, &c.
§ (Signed) "J. TOULMIN SMITH."
§ On the 12th of January that gentleman wrote the following letter to the Commissioners:—
§ "1, Hare Court, Temple, January 12, 1846.
§ "Gentleman—It is proper that I should inform you that I have, within two days, ascertained that you were informed by a letter, posted on the 18th ult., of the very different state of facts found from those represented in the anonymous letter on which you issued your instructions of the 17th to Mr. Peter Mann, of Barnet: This letter must have reached you before mine of the 12th, and before your first reply thereto. I forbear all 587 further comment on these facts than this: it was before I learned these facts clear that you were aware, at the time of writing that reply, of all material facts, and of the atrocity of the outrage committed in your name. It now appears that such knowledge was not only then yours by necessary inference, but in positive shape. By evading all apology until alarmed at the steps I had taken, you have, were other facts wanting, made this case your own act. Your officer acted on the construction he must have felt was intended by and would be pleasing to you, and which would have been praised as unqualified 'zeal,' had not my resistance to an intolerable act of wanton oppression led you, while still calling it 'zeal,' to characterize it as 'indiscreet.'
§ "Should the officer, under such circumstances, be made the scape-goat (as is too often the case), it will only be an aggravation of the wrong. I will hope this is not contemplated or implied in your 'censure.' Should it prove so, I shall feel it an act of justice to one who I understand to have been a faithful servant for thirty-two years, to bring such a proceeding prominently under notice in the measures contemplated by me in reference to this case.
§ "Sincerely desiring to separate all personal feeling from a public wrong, I trust this part of my task will be unnecessary.—I am, &c.
§ (Signed) "J. TOULMIN SMITH."
§ Now, in that letter Mr. Smith transferred all his enmity from the officer to the board. He had desired to separate all personal feeling from public wrong, and had concluded a former letter by saying that no personal redress would be sought or accepted. This was on the 12th. Would their Lordships believe that immediately afterwards this gentleman commenced an attack upon the excise officer himself, demanding that he should not only sign an apology, but should pay to him the sum of 25l., upon condition of the action being withdrawn? Now the officer having been thirty-two years in the service of the Excise had a salary of 200l. a-year, out of which he had to pay his travelling expenses, so that what remained was at the outside 150l. a year. Yet this man demanded from him one-sixth of his income, and that he should sign an abject apology. This was to be done as a condition of stopping an action, or rather of not subjecting the officer to an action. On the 29th of January Mr. Smith again wrote to the Commissioners, in which he enclosed the following letter he had written to their officer:—
§ "January 27, 1846.
§ "Sir—With this you will receive a notice of action for your conduct in entering my house on the 18th December last.
§ "You are well aware that it is no hasty or vindictive feeling that forces me to take this step. Some parties, apparently highly respectable, waited on me some weeks ago, and strongly represented the 588 disastrous effects that would follow to you from legal proceedings. This was followed by Mr. George also waiting on me, who stated himself to be a solicitor at Barnet, but that he called on me as your friend. He fully admitted the grossness of the outrage, and the utter inxcusablenesss of your conduct, and that in case of action you had no defence, but most strongly begged of me, on similar grounds as above, not to take proceedings stating you would make any apology, and pay any damage required; at a subsequent interview you and he repeated the same. Unwilling to be the means of producing your 'utter ruin' (your own and Mr. George's words), I assented not to take proceedings if a satisfactory apology were handed me by a given day (long passed), together with a sum (to cover my expenses) most trifling in comparison with the outrage, and with what a jury would award: you left me with expressions of gratitude.
§ "I then imagined that you truly regretted your conduct, and desired to make amends. You have, however, since raised every quibble on the apology, and made every delay in raising the small sum required, and manifested anything but the feelings and desire for which I gave you credit.
§ "The law must now take its course. The gentlemen who waited on me on your behalf will bear testimony to my unwillingness to press hard on one whose distress and fears of utter ruin were represented by them, I have no doubt, in all sincerity.
§ "The course I am now compelled to take is necessary, as well for the vindication of my own character, as for the punishment of an outrage so intolerable and gross as that of which you were guilty, and which your recent conduct has greatly aggravated.—I am, &c.
§ (Signed) "J. TOULMIN SMITH."
Now, with regard to the 25l., the sum was tendered but not paid; and as to the apology, he would now read the part of it which the officer did sign:—
In reference to the unfortunate circumstances which occurred on the 18th of December last, when, without consideration or inquiry, I applied for a warrant to search your house in Wood-lane, Highgate, for a private still, on the suggestion of an anonymous letter, I beg most humbly to ask your pardon for the same, and for my conduct in the execution of the said warrant: and you having been advised to take proceedings at law against me, but having, on my representing the disastrous consequences to me which would follow from such proceedings, kindly consented to forbear so doing, I do hereby gratefully acknowledge your kindness and forbearance, fully acknowledging, at the same time, how improperly I acted in taking any measures on information derived merely from so cowardly and odious a source as an anonymous letter, without, at any rate, first making the fullest inquiries.
The concluding passage, which the officer declined to sign, and upon which the whole bargain was vitiated, was as follows:—
I admit that I made none, and did not even know your name or residence when I applied for the search warrant. My only excuse can be, that the law has entrusted the discretion in granting such warrants wholly to the magistrate, who, from
his position office, and should be better able to judge of the propriety of granting them than the mere executive officers of the Excise, and before whom, on this occasion, the anonymous letter was laid by me as the only ground of the application.
Now, in regard to this part of the document, the officer said he would make any apology as regarded himself, but he would not sign that which inculpated another man. He would not sign that which—the special pleader conceiving he had ground of action against the magistrate—would place that magistrate in his power; and in so acting, he (the Earl of Dalhousie) thought that the excise officer showed himself the honester man of the two. Everybody knew the odium which popularly attached to excise officers — they were considered the publicans and sinners of modern times; but they should be protected by their superiors when right, which they mostly were. So much for the facts of the case; and with respect to the general consideration as to the law which had been touched upon by the noble and learned Lord, the power he had adverted to had been in existence scores of years; and the question was whether, practically speaking, it had operated injuriously to the liberty of the subject. When it was remembered that there were 6,000 excise officers, and the nature of the duties they had to perform was considered, it was really marvellous that they so rarely erred; and the present case, brought forward in the manner it had been, was in itself a practical proof that no real abuse of the liberty of the subject could occur under this power of the Excise with impunity. He was quite ready to assure the noble and learned Lord that the Commissioners of Excise would not proceed upon anonymous information, because they had never done so. The officer inculpated in the proceedings was not directed to proceed, but only inquire carefully and report. He did not obey his instructions; he proceeded, and consequently was suspended and severely punished.
§ LORD DENMAN
remarked that the grievance he complained of was not that which occurred after, but which ended on the 18th of December, when, upon anonymous information, a person's private residence was entered by the officer. Notwithstanding what had been said of the unfortunate circumstances of the 10l. and the 25l., he (Lord Denman) did not believe that the petitioner meant to put a farthing in his pocket, but that he would have given the money to some charity. It was to be 590 hoped that the law giving these powers to excise officers would be revised, for, as it stood, private houses might be entered, and families put to the greatest alarm and inconvenience, upon merely anonymous information; and if an officer chose to make his visit at night instead of by day, every lock and door would be at his mercy.
§ House adjourned.