The Sun.
London, England, 1845-05-02 00:00:00

Mr. Bow corroborated the evidence of the previous witnesses.

Sir T. PHILLIPS then proceeded to examine witnesses on behalf
of the Edinburgh, Glasgow (Branch to Ailoa) Railway.
Mr. Paton, a merchant, gave evidc..ce generally as to the in-
creasing trade in woollen manufactures and coals in the district of
Alloa.

At the close of the examination of this witness, the Committee
adjourned till twelve to.morrow.

LAW INTELLIGENCE.
COURT OF EXCHEQUER, May 1.
TRIAL AT BAR.—THE GREAT DISTILLERY CASE.

THE ATTORNEY-GENERAL V. SMITH,

(Continued from our Afternoon Edition of yesterday.)

The SOLICITOR-GENERAL proceeded to reply. He said that in
addressing the observations which he should have to make on the
whole of the case, lie trusted it would not be necessary for him to
make any very great demand upon the time of the jury. But the
length to which the inquiry had been protracted—the very im.
portant interests involved in the issue—the complicated and various
facts produced—and Use many topics scattered throughout his
Learned Friend's (Mr. Kelly's) elaborate and able address—would,
he feared, render it almost impracticable for him to bring what he
had to say into a very narrow space. Still he felt his labour
lightened and his task encouraged by the assurance that the jury
had paid the most unremitting attention to the case from beginning
to end, and that they were familiar with all its details. He was
confident that they would administer the law, as it was laid down to
them, fairly and impartially, and that, in so important a case, to
which public attention had been so much directed, they would not
be in the smallest degree swayed by any prejudices introduced by
one side or the other—that they would look steadily to their duty
without regard to the result. Before he proceeded to remark upon the
evidence in the case, he must say a few words as to some parts of
his Learned Friend's speech. His Learned Friend had complained
of the proceedings adopted against Messrs. Smith, attributed them
to the jealousy of rival traders and the anxiety of hungry and in-
terested officers. He (the Solicitor-General) denied that the
jealousy of rival traders could influence the authorities at the
head of the Excise department in the discharge of their duties, or
that they would be too ready to listen to any groundless or interested
charges brought by interested subordinates. What animosity could
the Commissioners have against the Messrs Smith? What in-
terest could they have in putting a stop to a trade such as that of
those gentlemen, yielding to the revenue a vast return ? It was
evident that they would not proceed to the measures which had at
length been forced upon them, if they were not compelled to do
so by an imperative sense of duty. For himself, he (the Solicitor-
General) had already declared his willingness to take upon
himself his share of the responsibility of these proceedings ;
and he trusted that having only done his duty he would be able
to survive the loss of his Learned Friend's favour and good-will.
His Learned Friend had accused him of the revival of an obsolete
penal Act, wherein bis conduct was as oppressive as if he revived
the penal laws against witches, and some obsolete penal laws of
Scotland. He was surprised at such an observation from
so learned and acute a lawyer as his Learned Friend.
They were dealing with a statute passed only twenty years ago,
which governed at this day the process in every distillery through-
out the kingdom, and with every part'cular provision of which
every distiller in the kingdom was required to be familiar—so
much so, that one of the witnesses for the defence (Mr. Goldie)
said that he had every word of the Act by heart. Was that rightly
described as an obsolete Act, to proceed upon which was a hard.
ship and oppression. His Lcarned Friend had also complained

hat matters not relevant to the issue bad been introduced,

to prejudice the case. He (the Solicitor. General) answered that
all those matters were introduced advisedly, to show what had been
the conduct both of the defendant and of the officer, and he was
sure that the jury were satisfied that the justice of the case was
promoted by that course. The Learned Solicitor then proceeded
to defend the officers of Excise from the charge of ill.will to the
defendant, or of being actuated by the desire of spoil. They had
not, as Mr. Kelly had stated, such a vested interest in the penalty
as rendered them unworthy of credit, for it was entirety at the dis-
cretion of the Commissioners whether the officers should participate

in the amount of the penalty, and in what propor.ion. Another
czmplaint was, that no discarded servant of the defendant had
been brought forward to confirm the statements of the officers.
Now, he would put it to the jury to consider what would be said of
the Crown if that had been done? For his part, he would never
stoop to such a coarse. Looking back to Cie whole length of
the proceedings, he felt no difficulty to grapple with but

hie—that the breaker of the law, guilty of frauds

to a very great extent, was liable to penalties of a large and even
startling amount, and that, although the jury were of opinion
that the fact had been satisfactorily proved, they might shrink from
the performance of their duty by not giving the verdict which the
law demanded at their hands. That was the only momentary appre-
hension been, ertained. But it was only momentary ; because he
did not believe that twelve gentlemen, of the station, character,
and intelligence of those in the jury box, would shrink
from the performance of their duty, thrcugh any such, or

•
any other considerations. He then called their attention to the
state of the law under which this issue was tried. Previous to
1817 there was nothing in the law to prevent the two processes
being carried on upon this same premises, or even within the same
wa!ls. In that year an Act was passed requiring that the two

processes sLould be carried on in separate buildings, and that these
should have no direct communication with each other, the sp!rit to
be carried from the one to the other by no othcr way than a public

street or road. That law was not found to be sufficient to preren'

fraud, and in 1 S'2s, only eight years atter, a new Act was passed—that
WI was now in force, and under which they were now proceeding
—which required that no distillery should be nearer than a quarter

of a mile to any rectifying house, exempting from that provision a]

distilleries that had been erected previously to 1:417, but requirinl
that there shouldbe between the two (the distilling and rectifying,

premises, no commuLlcation by which spirits could be transmitted,
Under the plain construction of this last Act, it was impossible that
the Excise authorities could have knowingly permitted Messrs.

Smith to maintain such a communication as had been proved. In
fact it was proved that they knew nothing about it, for it was not
mentioned in the description of the premises upon which the
licences of Messrs- Smith were granted under the law of 1825. If
it had been described, it would have been the duty of the Corn
missioners to refuse the licence until this communication was re-
moved. The officers who were examined in the case had sworn
positively that, in the many years during which they had been
employed upon the premises, they never dreamed of its existence;
and the only evidence to show that it had ever been known to the
Excise was that of alleged conyersation with Mr. Carr, and others,
who were all dead. Finally, he thought there was proof that the
pipe could be uscd for spirits, and there was every presumption that
it was so. He then went minutely over the technical and
chemical evidence relating to the discrepancies in the
charges at different times, the disputes between Mr. George
Smith and the surveyors, and all the perplexed particularities of the
watched and unwatched periods. He next proceeded to the charge
respecting the hole in the top of the receiver, and examining the
evidence on that point minutely, he contended that the proof was
clear that the plug could not have been in the hole for the length
of time that had been pretended. Mr. G. Smith said, when it was
first pointed out to him by the officer, that the hole explained

an anagram's letter he had received respecting the pil-
fering of spirits by his men. Was nct that an admission
that spirits could be extracted by the hole, and did it

not imply that Mr. Smith was before ignorant that the hole existed?
Was that ignorance consistent with the defence set up ? It was
sworn that the plug had remained in the hole since the receiver
was made. But Mr. Young, their own witness, in his cross-exa-

urination, admitted that he was mistaken in his first op nion, and
that, upon again examining the plug, he was convinced that it could
not have had its under surface so long exposed to the action of the

spirit and retain so smooth and fresh an appearance. That was
conclusive. But why had not Mr. George Smith's familiar, Gill,
who managed all his business, been p,,t into the box ? As he
was the person who could upon his oath inform the Court and the
jury what really did go on in the distillery, both in respect to the
pipe and to the holes. He left it to the jury to infer why Gill
had been kept back. On the subject of the dipping, it was to be
remembered that the difference of four-tenths in the drip would
make a difference of fire hundred pounds of duty in a week.
But up to November, 1843, the defendant had had the advantage
of that difference. What had become of the excess of spirits in
the meantime ? There was never found any excess of spirits in the

stock. But at length the means were discovered by which the

spirits could be carried away without the observation of the Excise.
'the language of Mr. James Smith to Cameron and Drinkwater,

when they discovered the transmission of water from the distil-
lery to the rectifying-house, clearly showed that they were conscious
that the communication was illegal, and that it was improperly
used. He commented to the same effect upon the language of
Mr. George Smith, contending that it showed the con.

sciousness of not having a fair case. If, after
the evidence the jury had heard, they were of opinion
that this pipe was only used innocently, and for the purpose of the
transmission of water, they would give the defendant the benefit of
that opinion. But he u Guld call their attention to the Act of
Parliament, which required every distiller to enter a description at
the Excise of every pipe, and every utensil used in connexion with
such pipe, and of every place to or from which such pipe should
lead..—(He then read the description entered by Mr. G. Smith in
1840, which mentioned such branches of this pipe as supplied
the stables, granaries, and dwelling house, but omitted all mention
of the branch leading to the rectifying-house.) With respect to
the supply of water from cne house to the other by means of the
trough at the top of the roof, he felt bound to say that
he considered it a very great irregularity, and much to be
regretted that the Excise had allowed it to be continued after the
passing of the last Act, of which it was a palpable infraction,
although it had existed for many years lawfully be-
fore that Act of Parliament was passed. It was a great
oversight to allow the trough to remain without being de-
scribed in any of the entries. There was direct evidence that
wash, which was as valuable to the rectifier as spirits, could be
conveyed at once by those pipes without any preparation. With
all the facts of the case before them, they need attend
little to the philosophical speculations of Dr. Ure.
It was also immaterial what Mr. James Smith, who was so deeply
involved in the case, might say as to spirits never having been
transmitted. He (the Solicitor-General) did not know what re-
servation Mr. J. Smith might have. It might be that wash only,
which was equally fraudulent, had been transmitted. But it had
been completely proved that a communication between the
two premises was maintained, exactly such as the law
had forbidden. The jury would recollect that the suspi.
cions of the officers were first roused by ascertaining that a
greater quantity of spirits were produced than were accounted for,
and that there must be some secret means of getting rid of
the excess, which led them to the examination that
ended in the discovery of the pipe. They would also
recollect that in this case, on which so much depended, not one of the
persons in the employment of Mr. Smith, who could tell anything
about the proceedings in the distillery, had been called—not
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at twenty minutes bait five, to •en o ,elock to-morrow morning.

Dispatches for the Governor of the West India Colo-
nies were sent off yesterday front the Colonial-ofhee.