but in Ireland, the prosecution might be | renewed, and no mistake was allowed to operate against the prosecutor. It was a maxim of English law, Nemo testis esse debet in propria causa; but in Ireland, a revenue officer, who was to obtain a considerable portion of the fine, was allowed to be a witness, and in nine cases out of ten the conviction proceeded solely upon his testimony. Illicit distilleries were usually set up in places not ascertained to belong to any parish or township, or in the suburb of a city or town; so that, if the head of a still were found in an obscure part of Dublin, the chief justice, and even the members for that capital, would be called upon to pay a portion of the fine; which was imposed, even if a cask were found, and an officer hardy enough to swear, that from the smell he believed that it had contained illegal spirits. One clause of the bill of 1814 was without parallel in the history of legislation; for it was made a retrospective measure to the year 1810, and applied even to fines sus pended and annulled. Any minister who should attempt to apply such a law to smuggling on the coast of Kent, or to illicit distillation in Scotland, would not retain his seat for a month afterwards, the feeling of indignation at such injustice would be so turbulent. The Bill of Rights declared, that excessive fines should not be imposed even upon the guilty; but what would the framers of that instrument have said to this law, which imposed excessive fines upon the innocent? It had been said, that the laws of Alfred warranted this law; that the inhabitants of tithings were made responsible for each other, and the fact undoubtedly was so, but for very different offences and in a very different state of society. The same custom had prevailedamong the Jews and the Germans; it was known amongthe savages of Africa, and indeed was itself a proof of ignorance and barbarism. To illustrate this point, he read a passage from Miller's Saxon Tithings and from Hume's England. In truth, the crimes for which the inhabitants of tithings were made answerable were mala in se; but here the law was directed merely against mala prohibita: besides, though a distiller might be an offender against a prohibitory law, those who were compelled to pay the fines were offenders against no law at all; the act was for the safety of the guilty, and the punishment of the innocent. The mode in which the law was executed ren(VOL. XXXIX.)

dered it still more objectionable; and in order to establish this part of his argument, the hon. member begged to refer the House to several cases which proved that the inferior officers of the excise had been guilty of mal-practices and collusion. The first was that of two men of the name of Daniel, prosecuted by an officer named Hinching, and awarded to pay a fine of 40l. It afterwards turned out that the Daniels were not guilty, and application was made to the commissioners of excise to remit the fine. The officer, of course, reported against the remission, but secretly offered to take 30l. and to use his kind offices; and though this fact had come to the ears of the board, Hinching had merely been censured, but not removed. Another case was that of John Colquhoun, who had procured the suppression of six illicit stills upon town lands, and who had been cruelly beaten by some of the inhabitants; the excise officers, in gratitude for what he had done for them, seized all his cattle, and would not leave him a cow to give milk for his infant family. A third case regarded a person named Lowry, who had taken a farm under the assurance that all fines due had been paid, yet soon afterwards had been deprived of three horses and four cows, which were collusively sold among the officers for only 3l. In the report of Mr. Terry, one of the commissioners of excise in Ireland, it was stated, that upon 10,000l. of penalties the incidental expences amounted to 20,000l. The fines could not be levied without great difficulty, and the inhabitants were frequently harassed without any advantage derived to the revenue. Whilst the law pressed heavily on the innocent, it was despised by the illicit distiller, who had grown old in the practice of his occupation. It tempted him to commit perjury, and to throw the burden of his offence on others, well knowing that if detected he had no mercy to expect from the excise. This disposition to the crime of perjury not only affected parties and witnesses, but juries also; and cases might be mentioned in which the latter had returned verdicts grounded solely on their disapprobation of the law. cause of all this mischief was the erroneous policy upon which the law was passed, and the vain and useless attempt to overcome that characteristic of Irish peasantry, an aversion to become informers. The consequence was, that in its (5 D)

The

in the eyes of God and man for all the consequences.

operation it confounded the innocent with the guilty. Mr. Terry, alluding to the extensive prevalence of illicit distillation, Mr. Leslie Foster wished to call the atrecommended the erection of barracks tention of the House to a consideration between the different military stations. of the facts in this case; and if upon a It was by military force alone that the fair review of them, an alteration in the system was carried into execution. In mode of collecting the revenue on spirits the counties of Donegal and Derry prosecu- in Ireland should be deemed necessary, tions were often anticipated by the objects he would lend his cordial assistance to the of them lodging informations against the undertaking. The question was important townlands. Judge Fletcher had said, that in every respect, and it was right that the the system of which he complained was House should be aware that in its decision as repugnant to the principles of justice depended one-fourth of the Irish revenue. and the common sense of mankind as it In the last year the amount of this branch was to the general spirit of British law. It of it was 1,300,000l., being 239,000%. exappeared to have originated in a des- cess above the produce of the preceding perate attempt to collect revenue by any year. This improvement was a great fimeans and at any sacrifice. Amongst its nancial recommendation, although it had other evils it violated the first rule of evi- certainly no bearing on the moral part of dence, by allowing a party interested to the question. There was no system of reprove his own case; it encouraged per- gulation that could be devised under jury, and induced juries to find verdicts which this revenue could be collected against the clearest evidence. The ex- without some cases of violence and hardcise officer, seeking merely to put money ship. In the course of last year 1,300 into his own pocket, connived at the illicit illicit stills had been destroyed, but during still, and entered into stipulations; the the prevalence in 1811, 12, and 13, of effect of which was, that some old worn- the system of small stills, which it was out still was seized, and the town land now proposed to renew, 6,588 private prosecuted for the fine. Not only civil stills had been destroyed in one of those trespasses, but perjuries, conspiracies, years, and scarcely any left in the country. and assassinations, were multiplied to a Yet in the following year upwards of frightful degree; and in the county of 6,000 were again destroyed, and more than Donegal nearly the whole of the busi- 5,000 in the following. All this had been ness, public and private, arose from this accomplished by military force, and with source. This was the opinion of a a much greater degree of violence than learned judge, speaking from long ex- had been exercised since the change which perience, and upon mature consideration. had been effected in the law. The misWhy the system of small stills, which chief was before so extensive, that the was found so advantageous in Scotland, commercial chambers of Belfast and other should not be equally beneficial in Ireland, towns presented petitions, stating that surpassed his comprehension. If proper the regular distilleries could not be inspectors were appointed, and a severe carried on, and that the morals of the punishment inflicted upon the illicit dis- people were greatly deteriorated by the tiller himself the inhabitants at large dangerous practices which prevailed. would exert themselves, not to screen These petitions were referred to a comhim from, but to bring him to, justice. mittee, which was of opinion, that the If conciliatory instead of coercive mea- only efficacious mode of collecting the sures were adopted, he had no doubt revenue was the system of fining town that the character drawn by sir John lands, and a bill to that effect was accordDavis of the Irish people would be fully ingly introduced by an hon. namesake of realized. That writer had declared, that his, in the year 1814, and passed into a if protected against wrong, there was no law. The vice of illicit distillation had at nation on earth more attached to the prin- that time taken such fast possession of ciple of equal and impartial justice the champaign country, that the sufferings [Hear!]. He should conclude by se- produced in eradicating it were, during conding the motion for a committee, and the first year, of extraordinary severity. by expressing his feelings that unless the It was gratifying, however, to find, that right hon. the chancellor of the exche-the amount of fines had been rapidly dequer should apply some remedy to this creasing since, in all the counties of Ireenormous evil, he would be responsible land, except Donegal and Tyrone, the $

1509]

Illicit Distillation in Ireland. mountainous nature of whose situation could produce evidence that they had not But, from his own had always afforded peculiar opportunities connived at the illicit distillation, the fines for the commission of such offences. It would be remitted. appeared by the report of two officers, experience, limited as it was, he had Mr. Coffley and Mr. Logie, high in that reason to believe that the inhabitants of branch of the public service, that 51 stills the town lands were almost always conhad, however, been voluntarily surren-scious of the guilt. It had been said, that dered in Donegal: that more might be the system of small stills was likely to cure this evil, and the example of Scotexpected; and that the town lands were In Scotland there were 39 generally willing to enter into securities, land had been adduced in support of that if the law were not to undergo any altera- opinion. tion. It was true that the board of ex- small stills licensed, each paying upwards cise had had the misfortune to employ a of 500l., and yielding a total revenue of person in the first instance who had com- 20,000. Now in Ireland there were 12 mitted many unjustifiable acts in the small stills, larger indeed than the Scotch, county of Donegal; but he, together with but paying 9,600l. a-piece, and productwo of his assistants, had been subse- ing a gross revenue of 115,200l. There He had a great quently removed. He was sorry to say, certainly was something in this which he that much perjury was certainly committed could not understand. on account of the trials for illicit distilla- respect for Scotland, and did not wish to cast any reflections on the manner in tion; but at the same time he was convinced, that it would be greatly exceed- which the revenue was collected in that ed by the quantity of perjury which would country; but he could not but observe, be occasioned by that species of trial that the revenue derived from the Scotch which it was proposed to substitute for stills was far less than was derived from the present. It was clear, that if perjury the Irish. If the House were prepared prevailed under the present system, it to introduce the system of small stills the consequence altogether, must become still more prevalent if the into Ireland, and to renounce the reprosecutions were directed against the venue persons of offenders, and if the liberty of would be, that they would have the counthe individuals were at stake. Much had try filled with smugglers with licences, been said about the evils and expense instead of smugglers without them. occasioned by the employment of so great a military force under the present system; the House, however, ought to be in formed, that under the system of 1811, 12, and 13, when the present laws were suspended and small stills were licensed, great assistance had been derived from the military. From the report of the commissioners of excise, it appeared, that during these three years, there was paid to the military and the officers of excise no less a sum than 161,000l.; while at present the average charge might be taken at 50,000l. a year; so that the House were deceived if they thought that by substituting the small still system, they would get clear of military hunting and legal prosecutions. It had been said that the principle of the present system was to punish the innocent for the guilty; but in his opinion, its general operation was to give the innocent an inducement to prevent the guilt for which they were punished; and that indeed, was the only ground on which it could be defended. Besides, the board of excise had the power of remitting fines; and he was certain that whenever the parties convicted

Sir Henry Parnell trusted it was unneHe cessary to say, after all the House had heard, that the present system of law was most severe, unjust, and unwise. hoped the House would agree with him in thinking, that the time had now arrived for getting rid of that system altogether, The hon. gentleman for surely no case had been made out to justify the law. (Mr. Foster) had stated that the system of small distilleries had been tried, and failed-he (Sir H. Parnell) was satisfied that that statement was not correctevery gentleman who had attended to the subject knew that the small stills had never had a fair trial-they were impeded and discouraged in many ways; indeed it was impossible that they could have existed under the regulations that had been made-the interests of the small proprietors were always obliged to give way to those of the proprietors of large distilleries; but, above all, they laboured under the power the commissioners had of withholding licences, instead of giving every man a fair opportunity of employing his capital and his industry in the trade. The establishment of small stills would

tillation from grain was suspended; and it was not possible, therefore, for the small still system to be established, whẹn no distillation was allowed to go on. Was it fair, then, to say that this system was established in 1810, 11, and 12? The gentlemen from Ireland, not taking into consideration that all legal distillation was suspended, came to the chancellor of the exchequer by acclamation for the repeal of the system, who very properly listened to them. He did not blame the chancellor of the exchequer for acceding to their request, but he blamed the gentlemen of Ireland for allowing themselves to be run away with without experience. He had then opposed the recurrence to the fine system, but nearly all the Irish members divided against him. Mr. Gregory, now under secretary for Ireland, who was sent down to Innishowan, reported, that the effect of the fine system was such as to beggar all description. This was after the system had been in operation many years. In 1812, the same gentleman was sent down to the very same spot and the improvement under the new system was so great as to be hardly credible. Having paid much attention to this sub

have a powerful effect in putting down illicit distillation-the proprietors of small distilleries would find it their interest to put it down-the people would be induced to assist in putting down illegal distillation, and until they assisted, it could not be put down, though the country might be covered with military force and revenue officers. As to the statement made by the hon. gentleman, to show that illegal distillation was on the decline in Ireland, he would observe, that in the first year he referred to, corn bore a very low price in Ireland, there was no market, and it resulted, as a matter of course, that the superfluous corn should find its way into illicit distillation; the third year he referred to, there happened to be a high price, and a sure market for corn, and the Irish farmer naturally exported it. The same year was one of great distress in Ireland-besides, from the wetness of the season and the consequent want of fuel, illicit distilleries were not worked by the people. These reasons would tend to explain the statement made by the hon. gentleman; it was to these local, temporary, and incidental causes that the alteration was to be traced, and not to the effects of a system which was only preg-ject, and knowing from the most respectnant with public immorality, misfortune, and discontent.

Mr. Wellesley Pole said, that in 1810, when he held the office of Irish secretary, he found the fine system in full operation. On a representation of the horrors and crimes committed under this system, and of its inutility to prevent illicit distillation, the then chancellor of the exchequer and himself investigated the subject, and they agreed to remit some of the fines, and to suspend the operation of the act. His hon. friend had said, that the small still system had been in full operation in Ireland in 1810, 1811 and 1812. The fact was, that the fine system was only suspended in 1810. His friend, the chancellor of the exchequer, who remained in office after he himself had gone out, did not encourage small stills-and in the session of 1812, he had brought in a bill, framed with the greatest care, the effect of which he hoped would be to prevent the necessity of recurring to the horrid system of fines. But at the time this bill was brought in, a circumstance took place which changed the whole question; the distillation from grain was then suspended. The fine of the town lands system was only suspended, and not repealed, and the dis

able sources the effects of the fine system in Ireland, no human power should induce him to give it his support. In October 1816, when Mr. Terry, deputy chairman of the commissioners of excise visited Innishowan, he found that the places where illicit distillation flourished most, were those very places which had already been fined; for the illicit distillers resorted to places which had nothing on. them, every thing having been carried off. The same gentlemen who were almost unanimous in wishing the fine system in 1812, were now unanimous against it. If it was a grievance, it was a grievance of their own seeking.

Lord Mount-Charles said, that at the recent assizes in Donnegal, there were no less than 300 town-lands fines trials. In the late presentments of the grand jury, application was made for a certain sum of money, for the enlargement of the county gaols, which had become necessary, in consequence of the numbers confined from inability to pay the fines.

Mr. V. Fitzgerald said, that though he had been the person whose duty it was to propose the re-enactment of the law which had been held up to censure, he hoped the House would do him the justice