as if it were openly printed, for it equally tends to a breach of the peace. (u)" For the same reason it is immaterial with respect to the es 19 u 2 Brown 151. 12 Rep 35. Hob. 215. Poph. 139. 1 Hawk. P. C. 195. 19) Supra, 150. note 18. tionably are in the earliest times in which the criminality of the defendant has been left entirely to the jury, with proper directions from the judge, as in the case of murder, where the nicest questions of law are often involved as to the degree of the prisoner's guilt, 3 Harg. St. Tr 35., and see 1 Erskine's Speeches. But it was repeatedly held by lords Raymond, Mansfield, and Kenyon, that the jury had no question submitted to them but the fact of writing, printing, or publishing, and the truth of the inuendos inserted in the proceedings: if they believed these, they were to find the defendant guilty; so that with the guilt or innocence of the party they bad no concern, 1 Barnard. 304, 5, 6. 9 Harg. St. Tr 255. S T. R. 428, and in notes. 5 Burr. 2661. 1 Erskine's speeches. This strange anomaly was so ably exposed by Mr. Erskine, in the case of the dean of St Asaph, that, in consequence of his exertions, the 32 Geo. III. c. 60. has entirely done it away. That statute is intitled, "An act to remove doubts respecting the functions of juries in case of libel :" and after reciting that "doubts have arisen, whether on the trial of an indictment, or information for making or publishing any libel where an issue or issues are joined between the king and the defendant or defendants, on the plea of not guilty pleaded, it be competent to the jury impanelled to try the same, to give their verdict on the whole matter in issue," proceeds to declare and enact, that on every such trial, the jury sworn may give a general verdict of guilty or not guilty, upon the whole matter put in issue upon such indictment ar information; and shall not be required or directed by the court or judge before whom such indictment or information shall be tried, to find the defendant or defendants guilty, merely on the proof of the publication by such defendant or defendants, of the paper charged to be a libel, and of the sense ascribed to the same in such indictment or information." But it is provided, that the court shall direct the jury according to their discretion, as in other criminal cases; that the jury shall have the same liberty as in other offences of finding a special verdict, and the defendant the same right of moving in arrest of judgment, which was allowed him before the passing of the statute. Whether a particular publication be so far noxious in its bearing and tendencies, as to amount in the abstract to a libel, is a pure question of law, just as much as it is a question of law, what will constitute an assault. If the publication, in consideration of law be libellous, then it is a question of fact for the jury, whether it was wilfully and maliciously published, subject, however, to the ordinary presumption of law, that in the absence of proof to the contrary, a man intends that which is the natural consequence of the means which he employs; it follows. that neither the jury nor the parties have a right to expect from the court any specific and direct opinion upon the whole of the case, or any other than that which is ordinarily given at the discretion of the court, to the jury in parallel cases, with respect to the verdict which they ought to find in point of law, as dependant and contingent upon their conclusions in point of fact, drawn from the alleged libel itself, and all the circumstances of the case, as to the meaning, motives, and intention of the defendant, see Mr. Starkie's Treatise on Evid. part iv. 882.; and see 5 T. R. 436. 4 B. & A. 95. 1 Saund. 132, b. note. (k). VI. THE JUDGMENT AND PUNISHMENT.-In addition to the punishment as stated in the text, it should be observed, that by the 60 Geo. III. and 1 Geo IV c. 8. intitled, An act for the more effectual prevention and punishment of blasphemous and seditious libels, it is enacted, that where the libel tends to bring into hatred and contempt the person of his majesty, his heirs, or successors, or the regent, or the government and constitution of the United Kingdom, or either house of parliament, or to excite his majesty's subjects to attempt the alteration of any matter in church or state, as by law established, otherwise than by lawful means, the judge or court, on conviction, shall order the seizure, &c. of all copies of the libel being in possession for the party's use in whose possession they are found; and the act empowers search to be made in houses, &c. By sec. 2. the copies so seized are to be returned free of expense, and without payment of fees; but where final judgment is entered on the verdict so found against the defendant, all copies SD seized are to be disposed of as the court directs. The 3d section relates to the power of the court of justiciary in Scotland, in seizing copies of seditious or blasphemous libels. By the 4th section, persons convicted of having composed, printed, or published, any blasphemous or seditious libel as aforesaid, who shall, after such conviction, again offend, such person may, on a second conviction, suffer such punishment as may by law be inflicted in cases of high misdemeanor, or be banished for a term of years as the court shall order. And by the 5th section, in case any person so ordered to be banished, shall not depart within thirty days after pronouncing such order, be may be conveyed to such parts, out of his majesty's dominions, as his majesty, by and with the advice of his privy council, shall direct. The 6th section relates to the punishment of convicts found at large before the expiration of the term of their transportation. By 7th section, the clerks of assize and of the peace, or other officer of the court, having custody of the records where any offenders have been convicted of having composed, printed, or published, any blasphemous or seditious libel, sball, on the request of the prosecutor, on his majesty's behalf, make out and give a certificate in writing signed by him, containing the substance only (omitting the formal 20 sence of a libel, whether the matter of it be true or false; (v) since the provocation, and not the falsity, is the thing to be punished criminally; though, doubtless, the falsehood of it may aggravate its guilt, and enhance its punishment. In a civil action, we may remember, a libel must appear to be false, as well as scandalous; (w) for, if the charge be true, the plaintiff has received no private injury, and has no ground to demand a compensation for himself, whatever offence it may be [151] against the public peace: and therefore, upon a civil action, the truth of the accusation may be pleaded in bar of the suit. But, in a criminal prosecution, the tendency which all libels have to create animosities, and to disturb the public peace, is the whole that the law considers. And therefore, in such prosecutions, the only points to be inquired into are, first, the making or publishing of the book or writing and, secondly, whether the matter be criminal: and, if both these points are against the defendant, the offence against the public is complete. The punishment of such libellers, for either making, repeating, printing, or publishing the libel, is fine, and such corporal punishment as the court in its discretion shall inflict; regarding the quantity of the offence, and the quality of the offender. (x) By the law of the twelve tables at Rome, libels, which affected the reputation of another, were made a capital offence: but, before the reign of Augustus, the punishment became corporal only. (y) Under the emperor Valentinian (2) it was again made capital, not only to write, but to publish, or even to omit destroying them. Our law, in this and many other respects, corresponds rather with the middle age of Roman jurisprudence, when liberty, learning, and humanity, were in their full vigour, than with the cruel edicts that were established in the dark and ty. rannical ages of the ancient decemviri, or the later emperors. 21 In this and the other instances which we have lately considered, where blasphemous, immoral, treasonable, schismatical, seditious, or scandalous libels are punished by the English law, some with a greater, others with a less degree of severity; the liberty of the press, properly understood, is by no means infringed or violated. The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiment he pleases before the public: to forbid this, is to [152] destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the Revolution, (a) is to subject all free▼ Moor. 627. 5 Rep. 125. 11 Mod. 99. w See Book III. pag. 125. x 1 Hawk. P. C. 196. Quinetiam lex Poenaque lata, malo quae nollet carmine quenquam Describi: vertere modum formidine fustis.—Hor. ad Aug. 152. a The art of printing, soon after its introduction, was looked upon (as well in England as in other countries) as merely a matter of state, and subject to the coercion of the crown. It was therefore regulated with us by the king's proclamations, prohibitions, charters of privileges and of licence, and finally by the decrees of the court of starchamber; which limited the number of printers, and of presses which part) of every indictment and conviction of such offender to the justices of assize, as in pl. 12. where such offender is indicted for any second offence, of composing, &c. any such libel, for which certificate 6s. 8d. and no more, shall be paid, and which shall be sufficient proof of the conviction of such offender. The 8th section relates to actions, &c. brought against persons for things done under the act. The 10th section relates to the punishment of offenders in Scotland. Chitty. dom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government. But to punish (as the law does at present) any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus the will of individuals is still left free; the abuse only of that free-will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or inquiry: liberty of private sentiment is still left; the disseminating, or making public, of bad sentiments, destructive of the ends of society, is the crime which [153] society corrects. And man (says a fine writer on this subject) may be allowed to keep poisons in his closet, but not publicly to vend them as cordials. And to this we may add, that the only plausible argument heretofore used for the restraining the just freedom of the press, "that it was necessary to prevent the daily abuse of it," will entirely lose its force, when it is shewn (by a seasonable exertion of the laws) that the press cannot be abused to any bad purpose, without incurring a suitable punishment whereas it never can be used to any good one, when under the control of an inspector. So true it will be found, that to censure the licentiousness, is to maintain the liberty of the press. CHAP. XII. OF OFFENCES AGAINST PUBLIC TRADE. OFFENCES against public trade, like those of the preceding classes, are either felonious, or not felonious. Of the first sort are, 1. Owling, so called from its being usually carried on in the night, which is the offence of transporting wool or sheep out of this kingdom, to the detriment of its staple manufacture. This was forbidden at common law, (a) and more particularly by statute 11 Edw. III. c. 1. when the importance of our woollen manufacture was first attended to; and there are now many later statutes relating to this offence, the most useful and principal of which are those enacted in the reign of queen Elizabeth, and since. The statute 8 Eliz. c. 3. makes the transportation of live sheep, or embarking them on board any ship, for the first offence forfeiture of goods and imprisonment for a year, and that at the end of the year the left hand shall be cut off in some public market, and shall be there nailed up in the each should employ, and prohibited new publications, unless previously approved by proper licensers. On the demolition of this odious jurisdiction in 1641, the long parliament of Charles I. after their rupture with that prince, assumed the same powers as the starchamber exercised with respect to the licensing of books; and in 1643, 1647, 1649, and 1652, (Scobell. i. 44. 134. ii. 88. 230.) issued their ordinances for that purpose, founded principally on the starchamber decree of 1637. In 1662 was passed the statute 13 & 14 Car. II. c. 33., which (with some few alterations) was copied from the parliamentary ordinances. This act expired in 1679, but was revived by statute 1 Jac. II. c. 17. and continued till 1692. It was then continued for two years longer by statute 4 W. & M. c. 24. but though frequent attempts were made by the government to revive it, in the subsequent part of the reign (Com. Journ, 11 Feb. 1694. 26 Nov. 1695. 22 Oct. 1696. Feb. 1697. 31 Jan. 1698.) yet the parliament resisted it so strongly that it finally expired, and the press became properly free, in 1694; and has ever since so continued. a Mir. c. 1. § 3. 9 The statutes 12 Car. openest place and the second offence is felony. II. c. 32. and 7 & 8 W. III. c. 28. make the exportation of wool, sheep, or fuller's earth, liable to pecuniary penalties, and the forfeiture of the interest of the ship and cargo by the owners, if privy, and confiscation of goods, and three years' imprisonment to the master and all the mariners. And the statute 4 Geo. I. c. 11. (amended and farther enforced by 12 Geo. II. c. 21. and 19 Geo. II. c. 34.) makes it transportation for seven years, if the penalties be not paid.' 2. Smuggling, or the offence of importing goods without paying the duties imposed thereon by the laws of the customs and excise, [155] is an offence generally connected and carried on hand in hand with the former. This is restrained by a great variety of statutes, which inflict pecuniary penalties and seizure of the goods for clandestine smuggling; and affix the guilt of felony, with transportation for seven years, upon more open, daring, and avowed practices: but the last of them, 19 Geo. II. c. 34. is for the purpose instar omnium; for it makes all forcible acts of smuggling, carried on in defiance of the laws, or even in disguise to evade them, felony without benefit of clergy: enacting, that if three or more persons shall assemble, with fire-arms or other offensive weapons, to assist in the illegal exportation or importation of goods, or in rescuing the same after seizure, or in rescuing offenders in custody for such offences; or shall pass with such goods in disguise; or shall wound, shoot at, or assault any officers of the revenue when in the execution of their duty; such persons shall be felons without the benefit of clergy. As to that branch of the statute, which required any person, charged upon oath as a smuggler, under pain of death, to surrender himself upon proclamation, it seems to be expired; as the subsequent statutes, (b) which continue the original act to the present time, do in terms continue only so much of the said act as relates to the punishment of the offenders, and not to the extraordinary method of apprehending or causing them to surrender and for offences of this positive species, where punishment (though necessary) is rendered so by the laws themselves, which by imposing high duties on commodities increase the temptation to evade them, we cannot surely be too cautious in inflicting the penalty of death. (c) 2 b Stat. 26 Geo. I. c. 32. 32 Geo. II. c. 18. 4 Geo. III. c. 12. (1) By the 5 Geo. IV. c. 47. all acts, and parts of acts, prohibiting the exportation of wool, or any manufacture thereof, or any live sheep or lamb, or hare or coney wool, or hare or coney skins, &c. are repealed. (2) By the 6 Geo. IV. c. 108. after reciting the customs repeal act, 6 Geo. IV. c. 105., all the laws relative to the prevention of smuggling are consolidated; but the provisions of the act are so numerous that they cannot be comprised within the limit of a note: it may be as well, however, to notice the following which render the offence of smuggling punishable beyond a mere pecuniary penalty, viz. By the 52d section, persons after sunset, and before sunrise, between 21st of September and 1st of April, or after eight in the evening and before six in the morning, at any other time in the year, making, aiding, or assisting in making, or be present for the purpose of so doing, of any light, &c. or any contrivance, at sea, or within six miles of the coast, for giving signals to smugglers, will be guilty of a misdemeanor, punishable with 100l. penalty, or imprisonment, with hard labour, not exceeding a year. By the 56th section, persons to the number of three or more, armed with weapons, assembled to be aiding and assisting in the smuggling, &c. or to rescue, &c. smuggled goods or smugglers, are felons, without benefit of clergy. By the 57th section, persons maliciously shooting at, or upon any of the king's or revenue vessels or boats, within 100 leagues of the coast, or maliciously shooting at, maiming, or dangerously wounding any officer, or person in his aid, are felons without benefit of clergy. By the 58th section, a person being in company with more than four others, with smuggled 3. Another offence against public trade, is fraudulent bankrupt[156] cy, which was sufficiently spoken of in a former book; (d) I shall therefore now barely mention the several species of fraud taken notice of by the statute law; viz. the bankrupt's neglect of surrendering himself to his creditors; his nonconformity to the directions of the se veral statutes; his concealing or embezzling his effects to the value of 201.; and his withholding any books or writings with intent to defraud his creditors; all which the policy of our commercial country has made felony without benefit of clergy. (e)3 And indeed it is allowed by such as are the most averse to the infliction of capital punishment, that the offence of fraudulent bankruptcy, being an atrocious species of the crimen falsi, ought to be put upon a level with those of forgery and falsifying the coin. (f) And, even without actual fraud, if the bankrupt cannot make it appear that he is disabled from paying his debts by some casual loss, he shall by the statute 21 Jac. I. c. 19. be set on the pillory for two hours, with one of his ears nailed to the same, and cut off. To this head we may also subjoin, that by statute 32 Geo. II. c. 28. it is felony, punishable by transportation for seven years, if a prisoner, charged in execution for any debt under 100%., neglects or refuses on demand to discover and deliver up his effects for the benefit of his creditors. And these are the only felonious offences against public trade; the residue being mere misdemesnors: as, 4. Usury, which is an unlawful contract upon the loan of money, to receive the same again with exorbitant increase. Of this also, we had occasion to discourse at large in a former book. (g) We there observ. ed that by statute 37 Hen. VIII. c. 9. the rate of interest was fixed at 101. per cent. per annum, which the statute 13 Eliz. c. 8. confirms : and ordains that all brokers shall be guilty of a praemunire that [157] transact any contracts for more, and the securities themselves shall be void. The statute 21 Jac. I. c. 17. reduced interest to eight per cent.; and it, having been lowered in 1650, during the usurpation, to six per cent., the same reduction was re-enacted after the Restoration by d See Book II. pag. 481, 482. f Beccar. ch. 34. e Stat, 5 Geo. II. c. 30. goods, or in company with one other person, within five miles of any navigable river, carrying arms, or disguised, will be guilty of felony, and shall be transported for seven years. By the 59th section, assaulting, resisting, opposing, molesting, hindering, or obstructing any officer in the due execution of his office, is felony, with seven years' transportation, or imprisonment with hard labour, for not exceeding three years. (3) A similar provision is to be found in the 112th section of the 6 Geo. IV. c. 16. except Chitty. that it is sufficient to constitute the offence that the goods embezzled are of the value of 10%. and clergy is restored, and the bankrupt may be transported for life, or for not less than seven years, or may be imprisoned, with or without hard labour, for not exceeding seven years. This law has been considered so severe, that in cases where it appeared the absence of the defendant was occasioned by ignorance or accident rather than design, the lord chancellor has superseded the commission, in order to prevent the commencement of proceedings under it. 1 Atk. 222. 18 Ves. 18. 3 Ves. 238. The bankrupt will not be guilty of felony if he surrender before the last moment of the time allowed him, though it is both his interest and his duty to do so as soon as possible. 2 Burr. 1124. Cowp. 156. Where, by an innocent default, he has omitted to do so, as in case of sickness, the chancellor will order the commissioners to appoint a meeting, at which he will surrender. 6 Ves. 445. Amb. 307. But this will be no bar to a prosecution for felony. 6 Ves. 445. However, in a late case it was decided, that if a bankrupt surrender to his commission, and at the time of such surrender refuse to answer particular questions concerning his property, but takes the oath, and assigns as his reason for not answering, that he intends to dispute the commission, the refusal to answer such question would not be a capital offence within the 5 Geo. II. c. 30. s. 1. Russ. & R. C. C. 392. 3 Moor, 656. 1 B. & B. 308. 7 Price, 616. S. C. See ante, 2 Book, 473. j. n.-"Eleventh." Chitty. (4) The punishment of pillory is, by the 56 Geo. III. c. 138. now abolished, except in perjury and subornation thereof. (5) By the 33 Geo. III. c. 5. the debt is enlarged to 3002. |