these libels is the breach of the public peace, by stirring up the objects o them to revenge, and perhaps to bloodshed. The communication of a libel to any one person is a publication in the eye of the law (t): and therefore the sending an abusive letter to a man is as much a libel 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 essence of a libel whether the matter of it be true or false (v); since the provocation, and no 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 [151] for himself, whatever *offence it may be 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, corres ponds rather with the middle age of Roman jurisprudence, when liberty, learning, and humanity, were in their full vigour, than with the crue! 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 (t) Moor, 813. (v) Moor, 627. 5 Rep. 125. 11 Mod. 99 (u) 2 Brown, 115. 12 Rep, 35. Hob. 215. Poph. 139. 1 Hawk. P. C. 195. regard to the merits of a cause before it is heard, is a contempt of the court, in which the cause is pending; and he committed upon a summary motion only the parties who had been gulty of such a publication. 2 Atk. 472. The reason must be much stronger for suppressing partial and premature publications upon subjects, which may be tried by a jury. The sale of the libel by a servant in a shop, is prima facie evidence of publication in a prosecution against the master, and is sufficient for conviction, unless contradicted by contrary evidence, shewing that he was not privy, nor in any degree assenting to it. Ibid. and 5 Burr. 2686, When a person is brought to receive judgment for a libel, his conduct, subsequent to his conviction. may be taken into consideration either by way of grava tion or mitigation of the punishment. 3 T R. 432. And when Johnson the bookseller was brought up for judgment for having pub. lished a seditious libel, the attorney-general produced an affidavit that the defendant after his conviction had published the same libel in the Analytical Review. M. T. 1798. An information or an indictment need not state that the libel is false, or that the offence was committed by force and arms. 7 TR.4. Hanging up, or burning, an effigy with intent to expose some particular person to ridi cule and contempt, is an offence of the same nature as a libel, and has frequently be 'a pu nished with great bu proper severity D.asphemous, 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 [*:52] 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 im proper, 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 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 punishmen Neither is any restraint hereby laid upon freedom of thought or enquiry 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 sub- [*153] ject) may be allowed to keep poisons in his closet, but not publicly vend them as cordials. And to this we may add, that the only plau sible 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 cen sure the licentiousness, is to maintain the liberty of the press. (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 each should employ, and prohibited new publications, unless previously approved by proper icensers. On the demolition of this odious jurisdicon in 1641, the long parliament of Charles I. after their rupture with that prince, assumed the same powes as the starchamber exercised with respect to the licensing of books; and in 1643, 1647, 1649, and 1152. (Scoboll. 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 parlia mentary ordinances. This act expired in 1679, but was revived by statute 1 Jac. II. c. 17, and conti nued 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. 1698. 9 Feb. 1694. 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. CHAPTER XII. OF OFFENCES AGAINST PUBLIC TRADE. OENCES against public trade, like those of the preceding, classes, are ithe, felonions, 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 his offence, the most useful and principal of which are those enacted in the reign of queen Elizabeth, and since. The stature 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. 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 shir and cargo by the owners, if privy, and confiscation of goods, and thre years' imprisonment to the master and all the mariners. And the [*155] 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 (1), (2). 2. Smuggling, or the offence of importing goods without paying the duties imposed thereon by the laws of the customs 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 (a) Mir. c. 1, ◊ 3. (1) By the constitution of the U. S. no tax or duty can be laid by Congress on articles exported from any State. Art. 1. sect. 9. § 5, (2) By 5 Geo. IV. c. 47. § 2, all Acts and parts of Acts prohibiting the exportation of wool are repealed, and persons are now at full liberty to export this commodity, upon paying a certain duty. By 5" Geo. II. c. 88, fuller's earth fullin clay, and tobacco-pipe clay, may be carried coastwise, under certain restrictions contained in 32 Geo. III. c. 50, upon goods prohibited to be exported. By 4 Geo. IV. c. 69. § 24, all prohibitions against the exportation of tobacco-pipe cla are removed, and the same is thereby declare free. the revenue when in. the execution of their duty; such persons shall be felons without the b nefit of clergy. As to that branch of the statute which required any rson, 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 ap prehending 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), (4). *3. Another offence against public trade is fraudulent bank [*156] ruptcy, which was sufficiently spoken of in a former volume (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 several 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) (5). 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 (ƒ). 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 (6). 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., neglects or refuses on demand to discover and deliver up his effects for the benefit of his creditors (7), (8). And these are the only felonious offences against public trade; the residue being mere misdemeanors: as, (b) Stat. 26 Geo. I. c. 32. 32 Geo. II. c. 18. 4 Ceo. III. c. 12. (c) See book I. page 317. Beccar, c. 33. (3) By the 6 Geo. IV. c. 108. after reciting he customs repeal act, the 6 Geo. IV. c. 105, all the laws relative to the prevention of smug. gling are consolidated; but the provisions of the act are so numerous that they cannot be comprised within the limit of a note. (4) See Story's laws, 1926, and other acts there referred to, as to the law of the U. S. (d) See book II. page 481, 482. effects; or declining to deliver up his goods, books, and writings; or concealing or embez zling any part of his effects, to the value of 101., with intent to defraud his creditors, sha!! be guilty of felony, and be liable to transportation for life, or not less than seven years, of to imprisonment for any term not exceeding seven years, as the court before whom he is convicted may adjudge. (6) The punishment of pillory is, by the 56 Geo. III. c. 138, now abolished, except in perjury and subordination thereof. (7) By the 33 Geo. III. c. 5. the debt is en. larged to 3001. (5) By 6 Geo. IV. c. 16, all laws relating to Bankrupts are repealed, and all former provisions are reduced into this one Act. The different frauds taken notice of do not materially vary from those mentioned in the text. By S 99 it is enacted, that the bankrupt or other person swearing falsely before the commissioners sha.l oe guilty of perjury, and suffer the pains Ld penalties in force against that offence. By 112, any bankrupt neglecting to surrender and submit himself to be examined; or refusing to make discovery of his estate and 35 ◊ 3.) Vol. II. 64 (8) There is at present no general bankrup law in the U. S., although Congress has power to pass one. In New-York, if an insolven conceal his estate, books, &e it is a misde meanor. (2 R. S. 691 § 4: p. 23, § 35 : & m 4 Usury, which is an unlawful contract upon the loan o money, to receive the same again with exorbitant increase. Of this also we had occasion to discourse at large in a former volume (g). We there observed 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 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 statnte 12 Car. II. c. 13; and lastly, the statute 12 Ann. st. 2. c. 16. has reduced it to five Wherefore not per cent. only all contracts for taking more are in themselves totally void, [*157] but also the lender shall forfeit treble the *money borrowed (9) Also, if any scrivener or broker takes more than five shillings pe cent. procuration-money, or more than twelvepence for making a bond, he shall forfeit 201. with costs, and shall suffer imprisonment for half a year. And by statute 17 Geo. III. c. 26. to take more than ten shillings per cent. for procuring any money to be advanced on any life-annuity, is made an indictable misdemeanor, and punishable with fine and imprisonment: as is also the offence of procuring or soliciting any infant to grant any life-an nuity; or to promise, or otherwise engage, to ratify it when he comes o age (10), (11). 5. Cheating is another offence, more immediately against public trade; as that cannot be carried on without a punctilious regard to common honesty, and faith between man and man. Hither therefore may be referred that prodigious multitude of statutes, which are made to restrain and punish deceits in particular trades, and which are enumerated by Hawkins and Burn, but are chiefly of use among the traders themselves. The offence also of breaking the assise of bread, or the rules laid down by the law, and particularly by the statutes 31 Geo. II. c. 29, 3 Geo. III. c. 11, and 13 Geo. III. c. 62. for ascertaining its price in every given quantity, is reducible to this head of cheating; as is likewise in a peculiar manner the offence of selling by false weights and measures; the standard of which fell under our consideration in a former volume (h) (12). The punishment of bakers breaking the assise, was anciently to stand in the pillory, by statute 51 Hen. III. st. 6. and for brewers (by the same act) to stand in g) See book II. page 455, &c (9) One half of the penalty is given by the statute to the prosecutor, the other half to the king. It is remarkable that such was the prejudice in ancient times against lending money upon interest, that the first statute, the 37 Hen. VIII. c. 9. by which it was legalized, was afterwards repealed by 5 & 6 Edw. VI. c. 20. by which all interest was prohibited, the money lent and the interest were forfeited, and the offender was subject to fine and imprisonment. We have before observed, that the policy of limiting the rate of interest upon a contract for the loan of money is denied in modern times, but Cato was of a different opiCum ille, qui quæsierat, dixisset, Quid ænerari? Tum Cato, Quid hominem, inquit, occidere? Cic. Off. nion. We have already considered what will constitute usury, ante, 2 book 403. That usury is (h) See book I. page 274. an indictable offence, see 2 Burr. 799. 4 T. R 205. 8 East, 41. 1 Chit. Crim. Law, 549. (10) This act is repealed as to annuities granted since the 14 July, 1813, by the 53 Geo. III. c. 141, but similar provisions are reenacted. (11) Interest in New-York is 7 per cent, and the taking of more destroys the liability of the borrower for any part of the debt. (1 R. S. 772.) One half per cent. is allowed as a compensation to brokers. Id. 709. (12) The principal act now in force, relative to the different weights and measures, is the 5 Geo. IV. c. 76. (continued and amended by 6 Geo. IV. c. 12.) The 35 Geo. III. c. 102 37 Geo. III. c. 143. and 55 Geo. II. c. 43. re late to the examination of weights and mea sures. See 5 Burn. 24 ed. tit. Weights and Measures |