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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. 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. Under the emperor Valentinian' 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 tyrannical ages of the ancient decemviri, or the later emperors.
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 sentiments he pleases before the public: to forbid this is to 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 freedom of sentiment to the
* 1 Hawk. P. C. 196. У — Quinetiam lex Pocnaque lata, malo quæ nollet
carmine quenquam Deseribi: vertere modum formidine fustis.
Hor. ad Aug. 152.
z Cod. 9. 36.
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 privi lege and of licence, and finally by the decrees of the court of starchamber; which limited the number of printers, and of presses which each should employ, and prohibited new pubfications, unless previously ap
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 society corrects. A 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 controul of an inspector. So true it will be found, that to censure the licentiousness, is to maintain the liberty of the press.
proved by proper licensers. On the demolition of this odious jurisdiction in 1641, the long parliament of Charles 1. 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. 34. 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., whieh (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. 9 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.
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, 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 openest place; and the second offence is felony. The statutes 12 Car. 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 eargo 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 (16) 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 cus
a Mir. c. 1. § 3.
(16) By stat. 28 G. III. c. 38. all former acts relating to the exportation of live sheep and wool are repealed, and numerous other provisions made in lieu thereof. See this subject fully treated upon in 5 Burn's Jus. title Woollen Manufacture, § 2.
toms and excise, 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, 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
3. Another offence against public trade is fraudulent bankruptcy, which was sufficiently spoken of in a former volume; 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 non-conformity to the directions of the several statutes; his concealing or embezzling his effects to the value of 207.; 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. 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. 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 100l. (17) 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 volume. We there observed that by statute 37 Hen. VIII. c. 9. the rate of interest was fixed at 10l. per cent. per annum, which the statute 13 Eliz. c. 8. confirms; and ordains that all brokers shall be guilty of a præmunire that 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 statute 12 Car. II. c. 13.; and lastly, the statute 12 Ann. st. 2. c. 16. has reduced it to five per cent. Wherefore not only all contracts for taking more are in themselves totally void, but also the lender shall forfeit treble the mouey borrowed. Also, if any scrivener or broker takes more than five shillings per cent. procuration-money, or
e Stat. 5 Geo. II. c. 30.
f Beccar. ch. 34.
g See Vol. II. pag. 424, &c.
(17) The stat. 33 Geo. III. c. 5. § 3. extends this sum to 300%.