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ment inevitably follows; an imprisonment to which the Legislature has prescribed no limits, and which, therefore, may be for life: nor is this sufficient to satisfy the law; for after his body is surrendered to the Crown, the law still attaches on his fortune; his goods are still seized, and his wife and children dismissed to beggary and want. Such is the nature of the excise tribunal. His Majesty's highest officers of the law are near me. I appeal to them for the fidelity of the description. Will the Attorney General dispute the account I have given of the excise code? Will the Solicitor General controvert the recital I have made of the nature of the summons, of the constitution of the court, or of the frightful dispatch with which its proceed ings are conducted? I am sure they will not contradict me. On what principles, then, will they defend the extending the judicial powers of the excise to new descriptions of men? upon those of the constitution? upon those of the ancient law of the land? That, I am confident, they never will attempt; for it requires not their ability, or their professional knowledge to disce that this part of the Bill is abhorrent to every principle which the constitution knows or will they defend the despotism of the commissioners as necessary to enforce the collection of the duties? That most certainly they will not say; for every day's practice is a proof that the excise jurisdiction can never be supported on this plea, as many of the most important excise causes are, by the officers own choice, determined by a jury, for when the officer thinks himself in the right, he gives the preference to this mode of decision. As little will they contend that the summary proceedings of an Excisecourt are essential to the principle of the Bill, as it would be easy to prove that those proceedings militate directly against it; for what is the object of the Bill? Is it not the support of the public credit of the kingdom? Now, of that credit no measures can be so destructive as those which excite inquietude and alarm in the minds of the subject, and distrust of the law under which he lives. The constitution of England may possibly survive her public credit; but perfectly sure I am, that her public credit never can survive her constitution. On what ground, then, can the enlargement of the excise jurisdiction possibly be excused? One only argument remains, which is, that the rigour of the law is softened in practice by the compassion of
the court. But to this I answer, that the lenity of the court is the strongest possible proof of the injustice of the law; for it shews that the judicial system of the excise, as it exists in our statutes, is so very oppressive, and so utterly inconsistent with the general law of the land, that even the commissioners themselves are ashamed to enforce its execution. For these reasons, I submit to the consideration of the House, a clause "for giving to persons accused of certain offences against this Act, an option to have a trial by jury."
Mr. Pitt said, that for two reasons, it could not be without concern that he should meet the clause with a negative; first, because he would be always inclined to receive with the greatest partiality any proposition from his hon. friend, who never failed to display great ability and good sense, and whose motives were uniformly most pure and upright; and, secondly, from his desire, on all occasions, to promote an object so deservedly popular, as that of trial by jury, where it could be done consistently with the true interests of the public. He was sorry, however, that, in the present instance, he could not indulge this inclination; for, if the arguments of his hon. friend were to be admitted, it would then be necessary to extend the principle of the clause to every other branch of the excise, as well as to that upon wine; for to every other branch would those arguments equally apply. If it were a violation of the constitution in the one instance, it was so in all, and he could be as easily persuaded to give up the ordinary mode of proceeding in every other department as in this of wine! Nay, should he be brought to concur in opinion with his hon. friend, he should not remain at ease, until he had, even before the end of the session, endeavoured to effect a total alteration in the whole system of excise. The adoption of a summary judicature was, in many instances, necessary, and not only to the due collection of the revenue, but even to the convenience of the parties sued. Some gentlemen, from their gestures, seemed to think that this could be no argument against any optional right of trial by jury: but surely if a summary mode of proceeding was, in some instances, convenient to the parties, gentlemen would not wish to give them an option of departing from that mode, solely in cases where it was actually necessary to the revenue. If his hon. friend had manifested any such
distinction between the wine trade and others subject to the revenue laws, as would make out sufficient grounds for an exception, he should be extremely willing to comply with his motion: but no such distinction having been attempted to be shewn, he should conclude that there was none; and that therefore no innovation could be made in the wine excise, that it would not be palpable inconsistency not to extend to every other department of
felt himself most sincerely inclined to favour the proposed clause.
Sir Grey Cooper reprobated what he termed an innovation of the excise laws, and expressed his doubts whether those laws could be rendered applicable to the precise case of wine. He entered into a history of the excise laws, tracing them, from their origin, in the reign of Charles 2, down to the present period, and stating the various changes they had undergone, and the manner in which the revenue had been, from time to time, affected by those changes. He dwelt on the danger to which the revenue might be exposed, by changing the mode of its collection, and said, that the commutation tax was a bold measure, as it let so large a portion of the public income as 900,000l. loose from the management of excise. The commissioners of that board had exercised their powers with so much moderation, they had "borne their faculties so meekly," and, in short, had acted so unexceptionably for a number of years, that the public had heard of no complaints against them, nor had their administration of the excise laws been cried out against as a grievance. He saw no reason, therefore, to express any distrust of them in respect to the Bill then under consideration.
Mr. Fox condemned the mode of reasoning adopted by the right hon. gentleman. The summary proceedings adopted by the excise laws were exceptions to the constitution, warranted only by very extraordinary cases; and the catalogue of those exceptions ought not to be swelled without a very strong and sufficient reason. The general argument, therefore, was, in his mind, totally inapplicable: each particular case should be judged by its own merits, instead of arguing, that as the excise laws in general ordained a summary mode of proceeding, that therefore that summary mode must be applied to the particular case of wine. It by no means followed, that, if the clause were adopted, the summary mode of proceeding ought to be abolished in all other cases under the excise laws. That which might Mr. Dempster declared, that the more be highly proper in one instance, would the spirit of freedom was introduced into be very much the reverse in another. A the operation of excise laws, the better right to trial by jury was what the consti- they would be relished. He had opposed tution authorized; and wherever it could the Bill in every stage, because he thought be given with perfect safety to the re- it not only severely oppressive on the venue, there it ought always to be al- body of men to be affected by it, but belowed: but what was the nature of the cause he was persuaded it would not preoffences cognizable under the present vent smuggling. He advised Government Bill? offences which might be fraudulent to accede to the clause, as he was satisfied in their intention, or arise from inad- it would remove much of the disgust vertency. It became, therefore peculiarly which the Bill had occasioned. necessary, where the intention might be doubtful, that the case should go to a jury to inquire and to decide. Some crimes carried with them their obvious motive, the action itself speaking the intention of the party; but could that be said of the offences under this Bill? Undoubtedly it could not; and for that reason it was the more proper that a jury should inquire whether it was committed through the malus animus of the offender, or through inadvertency. Under these circumstances, impressed with the conviction that the Bill menaced the infliction of severe hardships upon his fellow subjects, and fearful lest it should give a sanction to a summary mode of proceeding, he
The House divided on the motion; Yeas, 30; Noes, 95.
June 9. The Bill was read a third time. On the motion that it do pass, Mr. Alderman Newnham expressed his sorrow at the supineness of the public with respect to a Bill which extended the excise laws in a manner so irksome to the subject, so oppressive to trade, and so little likely to prove advantageous to the revenue. Perhaps the public were ready for a general excise. He felt himself at a loss for argument to prove why the excise laws might not be applied to every other article of import and consumption as well as wines. In regard to spirits, he was well
assured, that the golden dreams of the minister had not been realized, since smuggling had not been prevented, neither had the large revenue been received from that article which had been expected. He was satisfied that the minister would find his hopes equally disappointed in respect to the excise on wines, and he wished he would pledge himself, should that prove to be the case, to trace his steps back again, and to put the collection of the revenue on wines into that train from whence he had removed it.
Mr. Drake declared, that he had so much confidence in the Chancellor of the Exchequer, that he did not think he had any object in proposing the Bill, but a laudable anxiety to secure the collection of the public revenue, to that extent in which it ought to be collected. As gentlemen on the side on which he stood, seemed desirous even of laying fresh burthens on the subject sooner than not obtain the surplus they all so properly longed to have secured, he thought it might operate as an argument with them to support a Bill, which had for its object to secure the revenue; an object in the attainment of which they ought all to join, and, to borrow the words of the Speaker in his late memorable address to the Crown, prove that they had "but one heart and one voice in the maintenance of the public credit and prosperity of the country."
Mr. Alderman Hammet said, that the excise laws and every extension of them were repugnant to the constitution, and to the freedom of the subject. He hoped if the present Bill should fail, that the right hon. gentlemen would come forward and propose its repeal, and not unnecessarily oppress the trade of the kingdom.
peal," he should only answer, that if the Bill were by experience to be found ineffectual, he should think it his duty to discover and apply such regulations, as might remedy as much as possible all its defects.
Mr. Alderman Sawbridge said, that the right hon. gentleman had afforded the House admirable consolation by having declared, that if the present Bill were not found sufficiently oppressive, he would propose such regulations as should oppress the dealers in wine still more. Excise laws were pernicious and oppressive. Frequent instances arose of their being extended; and if that House did not put a stop to their farther extension, a general excise would soon be the consequence.
Mr. Fox declared, that he would oppose the Bill, because he had heard nothing like an argument to prove, that wine was one of those articlés to which the excise laws ought to be extended. He disliked experiments on the liberty of the subject; and the present he considered as a rash experiment, it not having been made appear, that it was necessary in the first instance, or at all likely to answer in the second, viz. the rendering the revenue from wines so far more productive than it had been, as to sanctify the means resorted to for making it so. The duties on malt and beer had been found admirably adapted to collection under the excise, and a better mode of collecting those duties, he verily believed, could not easily be discovered; but did it therefore follow, that all duties would be best collected under the excise laws? Surely experience testified the reverse to be the fact. The duties on tea, formerly a great and essential article of revenue, had been under Mr. Pitt said, that he believed no per- the collection of the excise. How mison could seriously suppose him hostile serably that mode of collection had failed, to the commerce of the country. At they all knew; for they had been obliged least, his enmity had hitherto proved in to abandon it altogether, and to resort to effectual, for the trade of the country had another experiment, called the Commutabeen in a thriving state ever since he had tion tax; an experiment which, in all the honour of coming into his present situ- probability, those who proposed it would, ation, and he believed it was in a state of ere long, have cause to lament their having progressive improvement. As to the pledge ever hazarded. Spirits also had been put demanded of him, he would, in the terms under the excise; but spirits, he believed, proposed by the hon. gentleman, most would not be found to have afforded a heartily accede to it, "that he would not better revenue while under the Excise unnecessarily oppress the trade of the than under the Customs. With regard to kingdom;" and as to the other pledge the present, he thought it a rash experisuggested by the other worthy magistrate ment; and it behoved the House to be "that if the present Bill were found not particularly careful how they counteto attain the end for which it was in-nanced it, after having heard the minister tended, that he would consent to its re- avow, that if the Bill failed in effect, in
stead of acknowledging the fault to be in the Bill, and proceeding to an immediate repeal, the right hon. gentleman was determined obstinately to enforce it by every subsidiary regulation which could be found.
The House divided: Yeas, 71; Noes, 33.
Debate in the Lords on the Bill for e preventing Frivolous Suits in the Ecclesiastical Courts.] June 14. On the motion for the second reading of the Bill for preventing frivolous and vexatious suits in the Ecclesiastical Court, and for the more easy recovery of small tithes, The Bishop of Bangor observed, that the objects of this Bill were principally two: 1st, to correct the practice of the e ecclesiastical court in certain cases; and, 2ndly, to render the recovery of small tithes more easy: but both these points e were so managed in the Bill, that the I practice of the ecclessiastical court was altered where it wanted no amendment, and the mode prescribed for the recovery of small tithes was rendered more difficult - than it was before. His lordship then entered into the examination of the material clauses of the Bill, and shewed, that the limitation proposed by it for suits of defamation being only three months, would make it almost impossible for the injured person to have an opportunity of vindicating himself, and restoring his good name among his neighbours, as he is often the last person who comes to the knowledge of the aspersions thrown on his character. The old as well as the present practice of the ecclesiastical courts was, e never to receive suits for defamation, un-less they were commenced within a year after such defamation had been uttered. The courts in Westminster-hall were permitted by act of parliament to receive suits of this kind at any time within two years. It was absurd to suffer a court to exist with a jurisdiction in certain cases, and then to restrain and cramp it in such a manner, that it could not once in fifty times exercise its jurisdiction. As to that part of the Bill which limits suits to eight months for adultery, solicitation of chastity, and striking or brawling in a church, &c. e it was absurd to fix the same limitation to crimes so very different in their degree of guilt. This limitation was too short in suits for correction on account of adultery; for as adultery was committed in secret, it was the interest of the offending parties to keep it secret; by which means
it would often happen, that the person injured would not hear of it till it was too late to maintain a suit, if the limitation proposed by this act were to take place. There was no occasion to insert the words" solicitation of chastity," as there was no instance of a suit of that kind having been brought in modern times into the ecclesiastical court; and were a suit of that sort attempted to be instituted there, it would be rejected, as those matters are more properly left to the temporal courts, where they are tried under the description of actions for seduction. Notwithstanding that he would always oppose every wanton and improper attack on the ecclesiastical court, yet he did not desire to see an extension of its jurisdiction; and therefore were this Bill to come to a committee, he would move for leaving out the words "solicitation of chastity," as he did not apprehend that that court claimed any cognizance of that sort of crime. His lordship observed likewise, that there was no occasion to have said any thing in the Bill about anti-nuptial fornication, as no suits of that sort had been brought into the courts at Doctors Commons in the memory of the oldest practitioner; and that he had been instructed to say, upon good authority, that if the practice were otherwise in the country courts, the parties would be relieved on an application to the court of Arches. He expressed his surprise that a suit should ever have been allowed for anti-nuptial fornication, and acknowledged that he believed that some irregularities were committed in the inferior jurisdiction; but he did not believe that there were any grounds for the loud complaints which had been made; and as an appeal would lie in all cases to the court of Arches, or some other superior court, that appeared to him to be a good answer to every objection. The bishop then proceeded to examine the other part of the Bill respecting the more easy recovery of small tithes. And here he first observed, that the plaintiff's being obliged to give a month's notice to the defendant before the commencement of the suit, would be a constant ground for dispute and altercation, as the defendant would always contend, that the notice was not conformable to the law; and if it hap pened to deviate in the most minute circumstance, the plaintiff would be nonsuited, and would be obliged to go through the whole again at a great ex
pense. In a case of this sort notice was absolutely necessary, as every occupier of land knew, that he was obliged by law to set out the tithes, and to inform the titheowner of it; and if he did not do this, but subtracted the tithes, he knew that a demand would be made on him in some shape or other, and therefore a law-suit would never come unexpectedly on a man in this situation. He farther remarked, that the liberty which the defendant had of making a tender for the tithes by him subtracted, would place all other titheowners in a most disagreeable situation, as the consequence would be, that the tithe-owner must accept of the tender, whether it was equal or not to his demand; for, as the tithes had been subtracted, he could not tell whether the money offered was a compensation; and as it would al ways be in the power of the occupier to prove that the sum proposed was the full amount of the tithes of his crop, the titheowner would be afraid to commence a suit under this uncertainty, lest he should lose his cause, and be saddled with full costs, as the Act directed; and it would therefore frequently happen, that the titheowner would be obliged to take less than the real value of his tithes. He had considered this clause with the greatest attention, and, on a supposition of the tithes being subtracted, he could not devise any method by which the owner of the tithes would arrive at a certain knowledge of the value of them, and yet he was to accept of the tender, or commence a lawsuit under the greatest disadvantages; and he left it to the candour of their lordships to determine, whether it was reasonable that the property of any man should be put into such a situation. He then entered into an examination of the statutes for the payment of tithes, and observed that they were principally three, two of which passed in the reign of Henry 8, and the third in the reign of Edward 6. On this occasion, he must beg leave most earnestly to recommend it to the House to consider whether this Bill would not work some alteration in those statutes, which were the Magna Charta of titheowners. He added, that this was a subject in which the laity as well as the clergy were concerned, as he apprehended that the former had as great, perhaps a greater property in tithes than the clergy. With respect to the extension of the Act of king William for the recovery of small tithes from 40s. to 10., he remarked that
there was no occasion for this extension, as the Act, as it now stood, answered the as purposes for which it was made extremely well; and he did not understand that any persons, who were concerned in the receipt of tithes, desired to have any alter ation. Under all these circumstances he felt himself justified in moving for the rejection of the Bill.
The Archbishop of Canterbury contended, that most unreasonable advantages were given throughout this Bill to the defendant, by which means many crimes which deserved correction, would go unpunished; and as to the second part of the Bill, the poor vicar, who always found much difficulty in the recovery of his tithes, would become more embarrassed than he was before, if this Bill should pass into law. He had no doubt but that irregularities were committed in the ecclesiastical courts by needy proctors; and what court was free from such irregularities? But he did not think that a sufficient reason to pass such a law as this, which acknowledged the jurisdiction of the ecclesiastical court, and yet put it under such restraints, that it could scarcely exercise its jurisdiction for the correction even of such crimes as were allowed to belong to its cognizance. His Grace shewed this in several cases, and particularly in those of defamation and adultery; and here he made some observations on the dissoluteness of the manners of the age, and remarked, that, instead of making our laws more lax and loose, the vices of the times called for more restraints. His Grace concluded with seconding the motion.
On the question being put, the Bill was rejected.
Debate in the Lords on the East India Judicature Bill.] June 14. The House being in a Committee on the East India Judicature Bill,
The Earl of Carlisle remarked, that it was the sequel to one great measure which had already engaged their attention, but that it was the worst part of it, as it attacked the constitution and took away the trial by jury. Before the House consented to a bill of that nature, they ought to have a case of strong necessity satisfactorily made out, and not content themselves with a mere speculative expediency; and that, he contended, was all Administration had to plead in its behalf. Where were they to look for grounds of necessity to rest the measure upon? Whence were