Historical Document · 1862

A Practical Treatise on Malting and Brewing

Author: Ford
Year: 1862
Type: Historical Document

brewing

A PRACTICAL TREATISE ON MALTING AND BREWING, ’ WITH AN . HISTORICAL ACCOUNT OF THE . MALT TRADE AND LAWS, DEDUCED FROM FORTY YEARS EXPERIENCE. By WILLIAM FORD, SECRETARY TO THE MALTSTERS’ ASSOCIATION, Honvon: PUBLISHED BY THE AUTHOR, 10, WEST SQUARE, SOUTHWARK. 1862, SE J eo 1. . woes [HNTERED at STATIONERS HALL.] pA artes 12 im {22 PREFACE. Ir has been my aim to render the present Work as comprehensive as possible, including, for the first time, Plans and Proportions for the correct construction, and materials for building Maltings of any capacity. These Plans and Calculations are, in fact, an im- portant feature of the Work, inasmuch as neither Sur- veyor, Architect, Builder, or Maltster had hitherto any correct data to work upon. I have also brought down the Statutes and Decisions, as far as practicable, to the moment of publication, making the Work one of useful reference. WILLIAM FORD. Digitized by Google INTRODUCTION. THE encouragement experienced in the first edition, published 1849, together with the important alteration in the Laws and Regulations since that date ; and further, the author being solicited to prepare a second edition, he feels justified in so doing. The object of this work is to present a full explana- tion of the Malt Trade in all its connections, showing its national importance, decline, and the causes that have produced that decline demonstrated by a summary of facts, the whole supported by authentic statistics, arrang- ing alphabetically those clauses of the various Acts of Parliament remaining in force, that contain the regula- tions, restrictions, and penalties to which the Maltster is at present subject. This summary is the more needful, considering the fact that since the reign of Queen Anne there has not been passed one Consolidation Act, pro- perly so called. The leading duties of the officers of Excise are like- wise explained, as set forth by the Board. There is also given a practical treatise upon malting and brewing,—that upon malting being the main feature of the work, is given in the most explanatory form of B 2 INTRODUCTION. instruction, from the choice of barley suited for making malt for the various purposes for which malt is used ; the manufacture is most correctly treated of, from steep- ing to drying. The correct proportions for building a malt-house, and material best suited for the cisterns, floors, and kilns; illustrated with plans and sections for brown and pale malt-houses and kilns. A simple method of gauging the contents of cisterns and couch, by which the most inexperienced may at all times check the officer and ascertain the exact amount of duty charge- able upon each steeping. An historical account of the articles, malt, beer, and hops, with observations on the objectionable points in the present regulations of Excise, and the suggestion of a corresponding remedy, are sub- jects specially treated on in their proper place. The work comprehends a statistical account of the annual consumption of malt and beer, together with some explanations of the causes which have produced the gradual decline in the use of this invaluable national beverage, a result unfortunately hastened by the exces- sive and unequal taxation of beer as compared with that upon its foreign and other substitutes, such as tea, coffee, cocoa, chicory, spirits, wine, and cyder. The whole is concluded by correct tables and rates of duties, and a history of the consumption of those competing articles, the better to render such comparison obviously operating to the detriment of one of the most essential articles in our home manufacture. INTRODUCTION. 3 REMINISCENCES OF THE MALT TRADE. Before commencing my Practical Treatise on Malt- ing, I wish this opinion to be well established, in fact to become, if possible, a maxim in the trade: Every maltster ought to be a good brewer, and every brewer a good maltster. It is to be feared that the opinion is but too well founded, that more than two-thirds of the free victuallers and retail brewers of England are ignorant of the most essen- tial part of the business; they are not capable of ascer- taining the real quality of the malt they use. It is possible for an old woman to brew and make drink- able beer in a saucepan, but when a brewer desires to brew for sale, something more than this saucepan-kind of knowledge is requisite; there must of necessity be equality of strength, colour, and flavour, and at a given price; to do this it is absolutely necessary to know the real quality of the wort; after this, a regular and correct system of fermentation. The system of brewing which I here propose to recommend will go sufficiently near perfection to ensure not only a good saleable beer, but also will enable the brewer to know with certainty the value of his malt, and thereby to produce quantity ac- cording to the quality of the malt he may be using. I have also given the names and characters of the various qualities of beer and ale brewed both in Great Britain and Germany ; and the better to establish my own views upon important scientific points, I have advanced the opinion of the eminent authorities, Dr. Ure and Professor Liebig. B 2 4 INTRODUCTION. Since the reign of Queen Elizabeth—an era celebrated for monopolies, no trade or manufacture has laboured under so vast a complication of oppressions from fiscal regulations, and other disadvantageous circumstances, as the malt trade; nor does it appear that, even in this age of Free Trade, the malt trade would in any degree have liberated itself, excepting for the celebrated attempt of Government to impose such extravagant restrictions upon the manufacture, during the Session 1827 (7 &8 Geo. IV.), as to cause an almost total prostration of the malting trade! This Act not only imposed superabundant restrictions, regulations, and penalties, but fettered and tormented the trade with an additional mode of charge by means of a “certificate” system. This extravagant Act imposed two methods of charge: the first, by means of gauging whilst the malt is under vegetation ; and the second, upon dry malt sold and delivered, and added a further vexa- tion by varying the charge or allowance by gauge on the floors. The result was the formation of an Association of Maltsters in the United Kingdom, for the purpose of applying to the Legislature for the suspension of the most obnoxious of the clauses; and their ulterior view was to prepare @ respectful, energetic, and united appli- cation to Parliament, for a complete investigation of the whole code of the Malt Laws; and to ascertain, if pos- sible, how the various interests could be embodied in one general principle, keeping in view the means of a more effectual and more equal collection of the duty. To be satisfied that an united and general Association was the medium of action best adapted to this particular junc- ture, it seems only necessary for me to point out the INTRODUCTION. 5 mischief which local and partial application to the Legis- lature sometimes does. In 1806, when a Committee of the House of Commons sat upon the Malt Sprinkling question, that Committee strongly recommended to the House to grant the liberty to sprinkle at the eighth day; accordingly it was pro- mised that the Act should contain a clause to that effect. The country Maltsters accordingly left London with a strong faith in the Minister, and withal “mightily pleased.” Another deputation of Maltsters obtained interviews with the Minister, highly condemning the “sprinkling.” The result was, that the first deputation had scarcely reached their homes when the Bill reached them ; its prominent clause limited this indulgence of _ “sprinkling” to one year. Again, in June, 1827, when the before-mentioned Act, 7 & 8 Geo. IV., was being passed into a law, a few spirited men in the trade- came to town to watch over the Bill, and to obtain what alterations they possibly could. They offered not a few objections, and having succeeded as they imagined in making out a good case, some of these objectionable clauses they really believed and understood were to be erased forthwith, and upon this understanding these gentlemen left London quite contented. Their surprise when the Act came out I need not explain. In fact success rarely attends any class of trade when its cause is advocated by isolated bodies, whose local interests and petty prejudices too generally clash, and in none more so than that of the Maltster. It has a tendency also very much to confuse the judgment of those executive officers of the Crown who 6 INTRODUCTION. may happen to be appealed to; the whole body of the trade are liable to be treated with distrust. I think it will always be found that system, combined with union of effort, as an ordinary rule, alone gives power and commands respect. And I am satisfied that the interests of the public revenue, as well as of the entire trade, would be better promoted by a nomination of members of Committee, representing the several departments of the trade, who might be constituted as a kind of Consulting Board or Council; and who, upon occasions occurring of any need of conference with the Minister, would alone be delegated to represent the views and requirements of the aggregate body. The responsibility thus thrown into the hands of accredited and experienced delegates, would at all times be a security to the Government, that the alteration, amendment, or any other kind of recommendation would be as the unanimous voice of the whole trade. The consequent advantages might be reckoned to be invaluable. Had such been the case heretofore, the petty and annoy- ing restrictions with which the manufacturer has been fettered, would not have been in existence; the interest of Government and of the trade would have been more intimately united; and in the event of Government at any time wishing to obtain practical information, they would be able promptly, and with ease, to obtain it, without being burdened by partial, interested, or local communications; and thus escape the perplexity of suggesting exceptionable laws and taxation, founded on the basis of ex-parte information. The consistency of opposition to this celebrated Act, * INTRODUCTION. 7 7 & 8 Geo. IV., cannot be better proved than by stating the result of the Maltsters’ first. general meeting in London, held upon the subject. After one interview with the First Lord of the Treasury, Lord Goderich, for the purpose of explanation, their requests were granted, sanctioned by Treasury order, and after three years’ continued labour, the Association succeeded in obtaining the repeal of no less than two-thirds of the restrictions and penalties by which the trade had been fettered. The old host of a hundred-and-one restrictions are here introduced as a remembrance of the labours of the Association ; and at the same time, as a very neat sample of what is called the “ abundance of the law.” Maltsters were subject by the Acts of the 7th & 8th Geo. IV. to the following penalties :— Sec. & 1. Relative to Entries :—Every maltster to make a true and particular entry, in writing, of every building, place, cistern, couch frame, kiln, and other vessel or utensil, and particular purpose for which it is to be used; using without entry, or for any different purpose, £100 penalty on each, or 6 of £100. . . . 600 3 and 4. Relate to Certificates from Supervisor Steeping corn without certificate from supervisor that cistern is properly constructed . . . 100 Not keeping and maintaining requisite means for officers to gauge cisterns . . . - 100 Maltster or his servant not aiding and assisting officer . 100 5.* Using couch frames not constructed as specified . . 100 And forfeiture of all corn or grain therein. 8. Regarding Specimens :—If any maltster or other person, not being an officer of excise, shall remove or take away ‘anysuchspecimen . . . . . . . 200 8 INTRODUCTION. Bec. £ Or shall conceal or withhold it . . . . . . 200 Or shall damage or destroy the same. . . . . 200 Or alter, deface, or obliterate any entry therein . . . 200 Or shall make any entry therein. . . _« 200 9. For obstructing officers or persons acting i in their aid . 800 10. Relating to Barley Book :—Not ontoring bartey on the same day as received . . . . . . 100 And in the proper column . . . . . 100 A true and particular account of the number of bushels . - 100 With the christian and surname, and Pisce va abode o the person from whom received . . 100 And the day of its being so received . . . . . 100 Not entering within three hours after wetting . . . 100 And in the proper column . . . . . 100 A true and particular account of the quantity . . . 100 The day and particular hour of theday _.. . . . 100 Not entering barley sold or otherwise disposed of . . . 100 In the proper column prepared for such purpose . . . 100 A true and particular account of the quantity . . . 100 The name and residence of persons to whom sold . . . 100 If he neglects or refuses to make such entries . . . 100 Or shall not keep such book as aforesaid . . . . 100 Or shall convey away or conceal the same. . . . 100 Or shall destroy or tear out any leaf thereof . . . - 100 Or cancel, obliterate, destroy, or alter any ory therein . . 100 Or make any false entry therein . . . 100 Or refuse to permit any officer of excise to inet such book . . . . . . 100 Or for him to make any minutes therein . . . . 100 ” Or to refuse him taking away such book . . . - 100 12. Regarding stock of barley on 5th of July :—Not delivered within ten days after July 5th, of every year, a true and particular account in writing, of all barley in his posses- sion not in process of malting, and number of bushels in each place or building . . . - - 100 Or delivering a false or untrue account . . . . 100 . INTRODUCTION. 9 Sec. & Or neglecting to show the officer any building or place . . 100 Or any such barley as aforesaid . . . ~ . 100 13. Stock of barley before beginning to wet :—Not giving a true and particular account in writing of the quantity in his custody or possession, describing the buildings or places, and number of bushels in each, 24 hours at least, before begin- ning to wet . . . . . 50 _Or giving a false or untrue “account . . 60 Neglecting or refusing to show the officer any ing dc. . 50 Or any such barley as aforesaid . . . 50 14. . When required by any officer of excise, not placing barley not tn operation, in such form as it may be conveniently gauged 100 *20, 21, 22, 23, and 24. Notices to Wet :—A maltster must give 24 hours’ notice of wetting at a malt house in a city or market town, and: 48 hours elsewhere, of the day and quantity of corn or grain in bushels then to be wetted ; or steeped, under a penalty of . . - 100 *If he begins to wet or steep without such notice, or . shall steep & greater or less quantity (exceeding the propor- tion of one in twenty) . . - 100 If he begins to wet at any time between 8 0 ‘clock i in the morning and 2 in the afternoon... - 100 Tf notice ia given to steep for 65 hours, he must begin between 8 in the morning and 11 at night . . . . . 100 If corn or grain is continued in steep exceeding 55 hours . 100 If the water is drained off before 40 hours . . . 100 Having given notice to steep 65 hours, corn must be kept under water until the expiration . . . . . - 100 And if kept any longer than 65 hours . . . . . 100 26. Ifany corn is added to the steep after the officer has taken anaccount thereof . . . . . . . 200 27. Cistern to be emptied between 7 in the morning and 4 in the afternoon. . . . . . : - 100 28. When corn is steeped 65 hours, cistern to be emptied be- tween 1 in the forenoon and 4 in the afternoon . . 100 eo 10 Bec. 29. 80. 81. 82.* 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 47. INTRODUCTION. & All cisterns in the same house to be emptied at the same time . . . 200 No corn to be taken’ out of any cistern within 96 hours of the last emptying . . . . . . . 200 Conveying corn from cistern that it cannot be geuged in the couch frame . . . . 200 Corn to lay in the couch from the Let of March to the Ist of December, 26 hours . . . . . 100 *At any other time of the year 30 hours : . . . 100 If all corn is not emptied out of the cistern into the entered couch frame . . . . . . - 100 If it is not laid flat and level . . : . . . 100 Or if laid of a greater depth than 30 inches. - . 100 Treading or forcing together corn in the cistern or couch frame . . . . . - 100 Refusing to assist the officer if required . : - 100 Sprinkling or wetting corn or grain making into malt before it has been 12 days out of cistern . . . . 200 Having more than five floors, including couch frame and kiln, from one cistern . . . . . 200 Floor to be laid in regular forms and lovel in regular suc- cession of age, and if not so laid . . . . . 100 v on request of the officer, outward edges are not made straight 100 Or if not laid level . . . . . . - 100 Mixing corn of different steepings . . . : - 200 Wetting or damping corn after taken from kiln . - 100 Fraudulently concealing or conveying away malt from the aight of the officer . . 200 And forfeiting ‘such malt, Maltster removing malt and persons receiving the same before the duty has been charged . . . . 200 And forfeiture of malt. Entry to be made monthly of all malt, or . . . 100 If a false entry be made . . . . - 100 Relating to Certificates :—The crite to be cut progres- silly from the printed form. . 100 INTRODUCTION. ll Sec. & To be signed by the maltsters, or some persons on his behalf, certifying date. . ee - 200 Quantity and quality of malt . . . . . . 200 To whom sold or sent, of what place . . «. . . 200 That the duty has been charged thereon . ve ee 200 And at what place, and on what malteter such charge has been made. -. . . 200 If any malister shall send out any quantity of malt exceeding Sour bushels, without a certificate . . oe . 200 Or, if to a brewer for sale, in any quantity whatever . . 200 Or shall not leave the certificate. . . «. «© « 200 Or shall make use of the certificate a second time . . . 200 Or to accompany other malt than for which it was first cut from such book as aforesaid . . . 200 Or shall not at the same time make a | correspondent entry to certificate aforesaid . . - 6 ee 200 Or shall not keep such book as aforesaid . . . . 200 Or shall not deliver up such book to any ofieer demanding the same . . . . . . 200 Or permit him to make any minute therein . . . . 200 Or shall convey away or conceal any such book . ‘ . 200 Or shall destroy or tear out any leaf therefrom. . . 200 Or cancel, obliterate, or destroy, or alter any entry therein . 200 48. If a maltster refuses or neglects to make an entry of malt sent out in quantities less than four bushels . 50 Or shall not keep a book for such purpose . . 50 Or not deliver it to any officer demanding the same 50 Or permit him to make any minute therein 50 -Or shall convey away or conceal the same 50 Or shall destroy or teqr out any leaf . 50 Or cancel, obliterate, destroy, or alter any ory 50 Or make a false entry . 50 101 Penalties . . . . £13,500 Of which only 82 remain at this day wholly or partially in force. Nore.—Those in italics are repealed. Those marked * are altered. 12 INTRODUCTION. The Association proposed to Government the adoption of a somewhat novel, but effectual mode of settling the several points at issue; it was this:—That the trade should elect three of their body, for the purpose of meet- ing a corresponding number of Surveyors-General of Excise, to investigate matters, and to draw up a Report “for the sanction of Government. This was done; Sir F. Doyle attending as chairman, with three Sur- veyors-General of Excise ; and E. B. Portman, Esq., M.P., with the representatives of Maltsters—Messrs. Brown, Herepath, and Ford. There were only two points claimed by the Maltsters, which, either wholly or in part, were not conceded by the Government. Here again, the old trick was played in one very important concession, respecting the ‘Couch Clause.” It had been agreed at the Conference that the objectionable words, “conclusive evidence,” should be expunged ; thereby to invest the magistrate with a power to judge of the fraudulent intent: whereas the clause as it then stood, and still remains, leaves the magistrate no power at all; and if literally construed, makes the magistrate little more than an automaton. Upon this subject it is probably needful to go into further explanation, this being the most important point upon which the trade have reason of complaint; and which it is their duty strenuously to persist in getting altered, so that the spirit and practice of the law may accord more entirely with the contract formed between the trade and Excise in 1829. At the Conference already referred to, the three main points, in addition to those previously granted by Treasury Order, then sought by the trade to be conceded to them, were—firstly, the INTRODUCTION. . 13 Certificate System ; secondly, the leave to Sprinkle at an earlier date; and lastly, an alteration of the Couch Clause. . The principal difficulty to overcome, was in the “ Cer- tificate System ;” the Excise refusing to concede this point, unless a remedy were proposed by the objectors, and upon the following grounds, a memorandum of which is taken from minutes noted down by myself at the Conference. The Government object thus:—“ By the present Couch Gauge, we do not receive the amount we are entitled to, according to the letter and spirit of the law, upon the malt made; and this is admitted by the trade generally, and was further proved by the experiments tried by Government in 1806, in Scotland, which showed that in seventeen steeps without sprinkling, the average exceeded three-and-a-half per cent. above the quantity charged with duty. Besides, it is further proved by this new system of certificate, imperfect as we admit it to be, it has given an additional revenue,—the first year, of 48,000/. above the Couch Charge.” Upon these grounds the Government adopted, amd most pertinaciously ad- hered to the favourite “ Certificate System.” In the Committee of the Maltsters’ Association, repre- senting above 1800 Maltsters, the first question to be cleared was, “ Which shall we advocate, a charge upon the dry barley or the malt?’ It was agreed that the law, from first to last, had made and declared it a malt duty. Hence the Committee decided upon supporting the principle of a malt charge. The next question was, “ How to meet the subject of deficiency?” The Com- mittee unanimously agreed in condemnation of the 14 INTRODUCTION. Government plan of “Certificate,” but as in most cases of finding fault, which is at all times a very easy affair, whether it be of Governmental or other measures, the Committee rested content with their expression of con- demnation ; and fell short in the supplying a remedy. And at the Conference it was ably argued by Mr. Brown and Mr. Herepath, firstly, that any addition to the then Couch Charge, would have the effect of im- posing an additional tax both upon the labouring com- munity and upon land; secondly, that it was incon- sistent with the duty we owe to ourselves that any such proposition should emanate from any other source than the Government. It may be considered trite to remark, in this place, that as experience teaches the sad lesson, that many of the events of life consist in alternatives, and that stern necessity frequently compels us to choose one of two dis- agreeable courses, so were the Committee placed on this occasion; for finding the Government, through Sir F. Doyle, fixed and determined in their own views, I con- ceived it my duty to propose, upon the express agreement that all the other points were to be conceded, that the Committee ought to accommodate itself to the lesser evil; viz.:—the alteration of allowance in the Couch Gauge. Upon this question a difficulty presented itself to my mind, from the fact of Maltsters keeping their corn in steep for different periods, varying from 40 to 72 hours ; the difference of swell between these two periods being equal to 8 per cent.; the short steep paying 8 per cent. less duty than the long steep. I took the steeping medium at 55 hours. INTRODUCTION. 15 I have been more explicit on this point, owing to the fact that many Maltsters of the present date object to this alteration, as it gives 80,000/. additional annual revenue (through not knowing the primary cause of its adoption). The alterations having been acceded to, the next step was to see the contract carried fully into effect. As Secretary to the Association, I begged E. B. Portman, Esq., M.P., to forward to me a correct copy of the Report, previous to its being laid before Govern- ment. On the 29th July, I received the following note. : -(COPY.) P No. 4, New Burlington Street, 25th July, 1829. IR, I have great pleasure in sending to you Mr. Gou.surn’s decision on the Report which Sir F. Doyuz and myself made to him on the subject of the Malt Laws. You will perceive that he is disposed to accede to our wishes upon all the points to which we thought it necessary to advert therein, and although there are many minor details, which are not entered upon in our Report, I conceive that they follow for the most part, as of course from the concessions which are promised. Sir F. Doyix has noted them all, and as soon as the proposed new Bill is before Parliament, I will take care that any omissions shall be notified to you and to Sir F. D. with a view to their being supplied. I have no Copy of the Report that I can send you as verbatim, correct; but the abandonment of the Barley Book, of the Certificate System, and of the conclusiveness of Evidence before Magistrates, the alteration of the Couch Clause, with the concession of Sprinkling at 8 days, were the chief points. The new Regulations, which at our Meeting were discussed, of course were proposed as the concessions which the Maltsters ought to make in return for the boon required. Hoping that Mr. Gounpurn’s letter will be fully satisfactory. I remain, Your faithful and obedient, Mr. W. Forp. E. B. Portman. 16 INTRODUCTION. Downing Street, 28rd July, 1829. My praz Sr, I have received from Sir Franors DoyLz a Memorandum of what passed at the conference which you and certain gentlemen engaged in the Malt Trade had with him on the 7th inst., on the subject of the Regulations which apply to that Branch of Trade ; and I have fully considered the alterations in the Law which were then agreed upon, subject to my approval, as fit to be submitted to Parliament. T have since had an opportunity of learning the sentiments of other Gentlemen who carry on the Malt Trade in Essex and Hertfordshire ; - the result has been an approval on my part of the Propositions which have been so submitted to me, and a readiness to give effect to them by Legislative provision at the earliest moment after the Meeting of Parliament. * It must, however, be understood by the several persons interested that I reserve to myself a full power of reverting to the Law, both with respect to Sprinkling and to Certificates, or to originate other effec- tive Regulations, should my present acquiescence in the proposal sub- mitted to me, lead to any material increase of Fraud, or of evasion of Duty, or of any general deterioration of the quality of the article. With respect to the immediate suspension of the Certificate System, I cannot altogether acquiesce: I consider it necessary, and I do not see any inconvenience likely to flow from it, to take in October next the account of Stock, in the manner now pointed out by law, not indeed from any wish to charge the parties with the Duty on any excess to which they may then be found to be liable, but because, as there is now no sufficient authority for reducing the allowances in Cistern and Couch, I cannot now, nor until the alteration of the Law, procure for the Revenue that protection which has been agreed to be substituted for the Certificate System. I therefore think it indis- pensable to have the Stock taken ; but I shall have every disposition to forego the payment of the Duty on the excesses, so soon as the arrangements now submitted to me shall have been bond fide carried into effect by Parliament. I trust that this course will prove satisfactory to the several parties. T remain, my dear Sir, Yours, very truly, EB. B. Portman, Esq., M.P. Henry Gov.purn. INTRODUCTION. 17 The Committee had no alternative but to rely upon the vigilance of Mr. Portman. The Government con- | firmed the Report, and thereupon an Act was passed ; but the Committee immediately discovered to their mortification that the “Couch Clause,” with all its vex- ations, had been left unaltered, unabated, except in the allowance in gauging. Being morally convinced that the operation of this clause had occasioned, and would con- tinue to occasion, until legally altered, more vexatious proceedings against the body of Maltsters, than the whole bulk of fiscal regulations affecting the business. This may seem a strong assertion, yet such was the fact that, from 1830 to 1846, the relations between the trade and the Revenue officers were carried on with comparative ease. But after this date, the Excise, forgetting, whether wilfully or not is rather difficult to determine, at all events they chose to forget the contract of 1829, and thereupon issued printed instructions to their officers, at once novel, arbitrary, and unjust. These fanciful in- structions were to this effect :—That every Maltster, in emptying his corn from cistern to Couch, shall do so by placing, not throwing, the corn into two or more cones ; then shall level the same over the Couch, using either rake or levelling instrument. Now, let anyone examine this new Excise Office order. It will be seen that it is not only contrary fo the Laws of the Legislature, and contrary to all previous practice in the trade, but in many cases the injunction cannot possibly be carried into effect! Compare this Excise Office order with its own old version of the practical law, as contained in all previous general Excise instructions. After the grain is thrown out of the cistern, and before c 18 INTRODUCTION. the expiration of twenty-six hours, the officer takes one or more gauges thereof, entering in his book and speci- men the true average depth of it in each Couch frame. One of these gauges must be taken as soon after it is thrown out of the cistern as the nature of the officer’s other business will allow. But the Board of Excise are in the habit of issuing orders upon particular points, one of which is the one now complained of by the trade, and which, in common with many others, I myself felt justified in refusing to comply with: but the effect of this non-compliance speedily discovered itself in a crusade against the Maltsters! So active was the hostility that in 1846, in one solitary year, more informations were issued against Maltsters upon this Couch question alone, than during any five years put together during the whole of the sixteen years previously. This Couch question has formed a subject of conten- tion between the Excise authorities and the malting trade for the last forty years, namely, whether the Excise officials, when ordering Couches to be emptied and re-cast under the provisions of the Act of Parliament, when compression be suspected, are entitled to require that the Couch shall be re-filled by any mode peculiar to themselves, in place of the ordinary manner of filling as universally practised by the Maltster. The Excise, in endeavouring to enforce these orders (which orders have been various), have charged very many most respectable members of the malting and brewing trade, in all parts of the United Kingdom, with fraudulent compression of the grain in the Couch; most of the prosecutions of this obnoxious character have been INTRODUCTION. 19 instituted by them before the Justices, in many of which the Justices have dismissed the information with very decided expression of opinion upon the unfairness of the system which the Excise were endeavouring to enforce, but without producing any change in the proceedings of the Excise, and in most cases in which the Justices have dismissed the information, the Excise have appealed to higher Courts, putting the trader to vexatious and ruinous expenses. From 1829 to 1858 the Author has been upon many occasions consulted by the trade, and appeared as witness upon proceedings under this vexatious Couch clause, and in every case has succeeded in gaining a verdict. The most important have been those of Mr. Shaw, Croydon, Surrey, and Mr. England, of Dudley, Worcestershire, and Mr. Melvin, of Edinburgh, the last being the most important, tried before the Lord Ardmillan, Lord Ordi- nary in the Exchequer causes in the Court of Sessions in Edinburgh, 1858, the Court having there confirmed the principle advanced in Mr. Shaw’s case, viz. that the Cone system is not fair as between the trader and the Crown, and the Board having issued an order shortly after countermanding the Cone order of filling the Couch. This Couch clause, as I have elsewhere observed, is the only fiscal regulation the trade have to complain of; but it is of constant annoyance, and for the security of the trade it should be set at rest by legislative enact- ment, defining the mode of filling the Couch both by trader and officer, and not left to the caprice of an irre- sponsible Board, although the last order from the Board apparently sets the question of filling the Couch on the Cone system at rest ; but considering the order of 1849, c2 20 INTRODUCTION. which appeared equally conclusive, by that order the Board clearly recognized two main principles: first, that the grain should be thrown into the Couch, and, second, that it be done in the ordinary way of working ; but the officers still adhered to the Cone system until 1845. How long they will allow the order of 1858 to remain in force is doubtful. It must be remembered that the Board have no power to make regulations binding upon the trade, the Board has great administrative but no legislative power or functions whatever ; it is itself the creature of an Act of Parliament ; it cannot move except within the circle which the Act of Parliament prescribes for it; it is therefore evident the Act of Parliament does not define the mode of filling or refilling the Couch ; it is altogether beyond the power of the Board to say, that Maltsters must fill it any particular way. Lord Ardmillan, in his charge to the jury, says, “ The Act lays down a mode of ascertaining the amount of increase, which is to be held as conclusive evidence of compression; and at the date of that Act, 1827, this system of Cone casting is proved by the evidence to have been a thing unknown ; and it has since been discovered to be an ingenious device to increase the measurement on the re-casting, and by that device the traders are caught, and called upon to pay the penalty.” Since this Couch clause is the only objectionable point left, it is the more necessary I should go fully into the question ; with this view I have given the leading evi- dence and judgments of the two most important cases that have come under my personal observation, and in which I was a witness. The first, that of Mr. Shaw, of Croydon, INTRODUCTION. ya 1846. Upon the investigation of this case, it was evident to me a gross act of injustice had been done to the trader; _ but, as it is my practice in all similar Couch cases to treat the question as a decided matter of profit and loss, I recommended him to submit paying the mitigated fine of £20, rather than contest it in a court of law; for this reason that, even should he happen to be successful in defeating the Honourable Board of Excise, his law expenses in defending himself (such are the delightful harmonies of our boasted cheap justice) would be four times the amount of the penalty. But as he was one of those stern independent Englishmen who, knowing he had done nothing worthy of the censure of the law, would rather firmly resist, even to his last shilling, de- termined to defend the action, he solicited me to assist him in resisting the complaint. I consented to aid him with my best advice, and as the result is not uninteresting, but may be, as it has been, referred to in other cases, I have here in- serted an authentic report of the trial, both for the information of the trade, as well as with the view of exposing the arbitrary and unjust nature of the pro- ceedings of the Excise upon these questions. Couch Case at Croydon, Surrey, May 30th, 1856. Before the Magis- trates, Messes. Surnertanp, Lucas, Hxrrms, and Smion. Mr. F. Shaw attended to answer an information laid against him at the instance of the Board of Excise, charging him with having unlawfully packed and com- pressed the grain in his Couch, for which offence he had 22 INTRODUCTION. subjected himself to a penalty of £100, 7 & 8 Geo. IV., cap. 52, secs. 32, 34, Mr. R. Russel, Solicitor of Croydon, appeared for defendant. The evidence of the Excise officers went to prove, that on the 6th of April they attended the Malt-house of de- fendant, at Croydon, and gauged the contents of the Couch that had just been thrown from the cistern, and found to contain 129%, bushels; but as the grain appeared to be more closely packed than it ought to have been, they ordered it to be replaced in the cistern, and then again turned back into the Couch, and upon gauging it the second time, ascertained the quantity to be gross 139, bushels (subject to a reduction of five per cent.). Under these circumstances, the defendant was now charged with having unlawfully packed and compressed his Couch. In the cross-examination, the officer said he never had cause of complaint against the defendant ; had been present at previous emptying of cistern in de- fendant’s malt-house, and never objected to the manner of emptying, which was very different from the manner the Couch was filled by one of the Surveyors-General. Upon the examination of the superior officers, they said they did not allow the man to throw the grain a second time into the Couch in his own way, but compelled him to empty the corn from Cistern into Couch in two cones, just inside the Couch, and then they (the officers) levelled it by raking the corn lightly all over the Couch. They admitted that by this process a greater quantity of air was allowed to remain between the grain, and that there- fore, to some extent, they gauged air instead of corn. Thus they found the increase. They likewise admitted, that INTRODUCTION. 23 as the Maltster threw the corn with some force, levelling over the Couch, the air would be excluded, and the grain be much closer, and consequently not gauge so much in quantity. But they said, the Excise authorities con- sidered it illegal to throw the corn level from the cistern into the Couch; and produced a printed document to the magistrates, containing instructions to them (the officers) how to fill a Couch. But upon being asked whether that was put as evidence, and if those instructions were a legal document from the Act under which the Maltster carried on his business, the said document was withdrawn, admitting the law gave no such instructions. It was further admitted that no artificial means of pressure had been resorted to, and that the method adopted by them (the officers) was the most ingenious that had been de- vised of getting the greatest quantity of air amongst the grain, and thus increasing the apparent quantity in the Couch. It appeared likewise in evidence, the Couch was only 10%; inches deep; and the officers in levelling, made a variation of no less than 1,4, inch, the lowest being 9 inches, and the highest 1074 inches, that had the