by encouraging the smaller capitalists, partly by enabling them to distil at greater advantage, and partly by establishing a warehousing system, which admitted of the spirits being stored, and the duty remaining unpaid, till they were thrown into the market for consumption, he would not only have been met in the general market, by a spirit of the same quality with his own, and adapted to the taste, natural or acquired, of the country; but he would have been opposed by a powerful and active enemy, in the very district of his manufacture, which easily allowed the establishment of smaller stills. The legal manufacturers having the strongest interest to put down illicit distillation, would have afforded the most strenuous assistance to the revenue officers ;-while, on the other hand, by purchasing the barley from the poorer tenants, they would have destroyed that natural alliance which the mutual wants of each tended to establish between the latter and the illegal distillers. It is quite true, that in spite of all these precautions, smuggling would have prevailed to some, perhaps even a considerable, extent. But, in the mountains and bogs of Ireland, it is an evil indigenous, the growth of which may be checked, but which never can be eradicated. Though legal whisky too would have become more abundant; still the price of spirits, generally, would not have been lower; for what was gained in the one way, would have been removed in the other; so that there could have been no undue encouragement for consumption. No doubt, too, the increase of small stills, and a diffusion, as it were, of the manufacture over a larger space, might have increased the expense of collection, and multiplied the opportunities of fraud. `But, if the system had been digested with tolerable skill, the revenue would have been a gainer on the whole; and, in a question of this sort, it is not the actual, but the relative loss that is of importance. Some revenue is better than none at all.

Instead, however, of attempting to alter the system of distillery laws, as borrowed from England, and adopting a new one better fitted to the circumstances of the country;-instead of the preventive remedy which is always the most advisable when it can be used,-the Government of Ireland resolved to suppress illicit distillation by violent means, and to counteract, by the vengeance of the law, a crime, the temptations to which were left unimpaired. Besides the penalties inflicted on delinquents, including transportation for seven years, and all the extraordinary powers vested in the officers of Excise, the expedient was resorted to, of imposing a heavy fine upon every parish in which an unlicensed still should be found. This was the plan of the earlier acts; but afterwards, by the 45th and

46th of the King, the town lands, as well as the parishes, were made liable in a penalty of 50%., which, in the subsequent year, was made exigible for every unlicensed still, or part of, or appendage to a still, or worm or utensil for distilling, or for wash or pot ale, or low wine or singlings, find within the town-land or parish. This fine, in 1809, was raised to 100%. Sterling. It was, in 1810, declared that no fines should be inflicted till the assizes 1812; and levy of the arrears was suspended. In 1812 the system was abrogated entirely. But, in 1813, it was revived; and, by a statute passed in that and the subsequent year, the penalties were imposed on town-lands, quarter-lands, manors, and lordships, &c.; for the first offence, as it was called, 251.; for the second 407.; and for the third 60%. The law, in this respect, appears to have remained the same. One half of those fines are given by statute to the excise officer informing, who is declared to be a sufficient witness. There is no defence against the fine, unless the defendant can traverse the fact of the articles being found, or establish, what is evidently hopeless, that they were left for the collusive purpose of subjecting him to the statute. The most perfect good faith is of no avail in his defence. He is liable to the penalties, though he devoted his whole time, night and day, to the detection of illicit distillers, and the destruction of their trade. As to the mode of levying the fine, Mr Chichester observes,

After a fine has been imposed, the inhabitants are required to applot upon themselves their respective proportions of it; and, in case of omission, the exciseman is authorized to obtain the amount, by taking it from any person residing within the district. The time granted for assessing it is thirty days from the date of the imposition of the fine; but, in the mean time, the inhabitants are kept in profound ignorance of the want of the information against them. The applotment, therefore, does not take place; and the exciseman generally levies the fine with a degree of oppression and violence, punishable with death, were it not legalized by this extraordinary statute. In most cases, it is usual to notify the decisions of Courts of Justice to those persons against whom judgment has been given; but, in cases of fines for illicit distillation, such a proceeding would deform the symmetry of the law, by giving it a solitary point of resemblance to the British Constitution.

Another anomaly in this law is, the extreme difficulty in taking defence against information for a still fine. The purse of the nation pays the expenses of the informants; + but the poor peasants have no public treasury on which they can draw. When they succeed in defeating the information, they are not enabled to recover their costs

* 54 Geo. III. cap. 50.

+ Ibid.

off the opposite party. The various expenses which they incur by defending themselves, amount at least to seven pounds, which constitute in themselves a heavy fine; and thus the wretched people (a great proportion of whom are ignorant) are compelled to let judgement go against them by default, and are inevitably destroyed by the double-edged sword of the law.' 1st Letter, p. 11.

Under these statutes, during the course of seven years, fines have been imposed to the amount of 356,9251.;-or 50,9897. a year. Upon the county of Tyrone, the fines amounted to 26,8251., which Sir John Stewart Bart. M. P., in his evidence before the Committee of the House of Commons in 1816 (p. 37.), proves to have been levied. In the county of Donegall, the fines from summer 1809 to summer 1815, amounted to 72,540l. does not appear that the levy in that county was as complete as in Tyrone; but, when it is considered that half the fines were given by the statute to the Revenue officers, we may believe, and we shall immediately see, that they did not neglect their

exaction,

It

Having given this glimpse of the extent to which these statutes have been enforced, it is worth while to inquire for a moment, upon what principle a parish or town-land is liable to be amerced, and the goods of all or any of the inhabitants carried off by distress, because a still, or part of a still, has been found in it. If the law rest on a presumption that the inhabitants of the town-land or parish are accessary to the crime of illicit distillation, nothing can be more unreasonable or absurd. Even in that case, the fact of accession should be proved. But in truth, there is not the slightest pretence for supposing such a general accession as can warrant the sweeping and indiscriminate application of a penal statute. With respect to the gentlemen of the country, suspicion is altogether out of question, independently of the resolution of the Committee in 1816, that illicit distillation was injurious to agriculture. It seems to be hinted by those who support the measures of Excise, that the smaller farmers, who find a profitable market for their barley, give all encouragement to the illicit distillers, and, through the price which they obtain, participate in the crime and its profits. It is obvious, however, that the farmers would be much better pleased to sell their corn to the licensed manufacturer, who must always afford a steadier and a securer market; so that the establishment of small stills, or, in other words, the transference of the trade into the hands of small capitalists, would do away this imputation. But, whatever truth there may be in it, and probably the small farmers do not scruple to sell

VOL. XXXI. No. 62.

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to distillers for a higher ready-money price than they can elsewhere obtain, it is quite evident that this never can amount, in the view of common sense or of law, to any thing like accession to the criminal practices which these penalties are intended to put down. Far from any community of guilt, there is, in many instances, not the slightest connivance; and people suffer under these statutes, who are not only innocent of the offence for which the penalty is imposed, but who, till their goods are distrained, were totally ignorant of it. Parishes in Ireland, we are informed, are generally four or five times larger than those, in England; and, in the mountainous parts of the country, still more extensive (First Letter, p. 8.) Town-lands, in the mountainous districts, sometimes extend to a thousand, or fifteen hundred, or two thousand acres; and are occasionally three miles long.* Over this space the inhabitants do not live scattered, so as to have many points of observation, but generally in villages, and small clusters of houses. All the respectable evidence before the Committee coincides in. stating, what indeed is obviously true, that it is impossible the inhabitants in general, if attending their usual occupations, can have any knowledge of what is going forward in an opposite quarter of the parish or town-land. This would be true, though distillation were openly carried on. But the work is usually conducted at night, and with so much art, that detection is a matter of great difficulty. Thus, Arthur Chichester Esq. M. P. states in his evidence, That he has been within twenty yards of a still, without discovering it, and probably would not have discovered it, if it had not been pointed out as he came upon it accidentally. In those trackless mountains, on the bank of a deep river, they are frequently constructed with green sod.' He adds, that in the town-land of his own residence, an illegal still might be erected without discovery. It were needless to give much more evidence to the same effect; and we shall only refer to that of James Daly Esq. M. P. who declares his opinion, that stills may be worked, and be scarcely perceiveable. He adds, I myself, when shooting, have trod upon the top of a still before I knew there was one there at all.-It being then at work? It being then at work. Three or four I have known the same way. I don't mean to say that there is no sort of smoke; but you would hardly perceive it, as the people use small little pots. Minutes of Evidence, p. 27.

With these facts before us, there is plainly no ground for the supposition that the whole inhabitants of the country are engag

*Minutes of Evidence before the Committee of 1816, pp. 10, 35, and 60.

ed in one system of criminal connivance, and justly obnoxious to severe inflictions, without any difference of individuals, or any investigation of particular guilt.

But to show at once the absolute disregard of justice which pervades every part of these enactments, it is enough to mention, that no provision is made for the case of absentees. The estate of a proprietor not resident is equally subject to the penalties. Fines were imposed upon Colonel Barry, and upon Mr Stewart, when both these gentlemen were attending their duty in Parliament. * There is no provision made for the case of sickness. § Sir John Stewart's estate was fined for a still set up while he laboured under fever. There is no provision for minority. There is no protection afforded for the widow or the orphan. All classes are equally included. The penalty falls just as chance directs it; for the framers of these laws bind the eyes of justice, and forget that she bears the balance as well as the sword,-to weigh

before she strikes.

It is vain, indeed, to look for any principle upon which such enactments can be vindicated. The fact is, when fairly avowed, that their object is to force the people, by the most violent compulsion, into a general combination against illicit distillation; -to oblige every man to become an informer against his neighbour, and to devote himself to the extirpation of that offence against the revenue. Such a system falls with peculiar hardship upon the landed proprietors, who, from their situation, can know little about the proceedings of the actual delinquents, and who really have it not in their power to repress the evil by any exertions of their own, or any influence they can use over their tenantry. A tenant does not forfeit his lease, because he has distilled without license; and, even where he has no lease, the process of ejectment is not only difficult, but the tenant, in many instances, can defy his landlord; as, from a well known league among the lower classes of Ireland, no man will dare to occupy the room of a tenant who has been turned out for what, in their opinion, was an inadequate cause. What the landed gentlemen could do, they appear to have done,-by the publication of resolutions,-by giving active assistance to the revenue officers,-by prohibiting the use of illegal spirits,→ and refusing to renew leases to those of their tenants who have been concerned in distillation. Yet, notwithstanding all these exertions, enormous fines are imposed upon their estates, and they are deprived, in many instances, of their rents, by the seizure of the only funds out of which they can be paid."

Evidence, pp. 30. 58.

§ Ibid. p. $6.