dictment at the general sessions. But this provision does not extend to

such as endeavour to maintain possession by force, where they [*149] *themselves, or their ancestors, have been in the peaceable enjoy

ment of the lands and tenements, for three years immediately preceding (n) (15).

9. The offence of riding or going armed, with dangerous or unusual weapons, is a crime against the public peace, by terrifying the good people of the land ; and is particularly prohibited by the statute of Norihampton, 2 Edw. III. c. 3. upon pain of forfeiture of the arms, and imprisonment during the king's pleasure : in like manner, as by the laws of Solon, every Athenian was finable who walked about the city in armour (o).

10. Spreading false news, to make discord between the king and nobility, or concerning any great man of the realm, is punishable by common law (p) with fine and imprisonment; which is confirmed by statutes Westm. 1. 3 Edw. I. c. 34, 2 Ric. II. st. 1. c. 5, and 12 Ric. II. c. ll.

11. False and pretended prophecies, with intent to disturb the peace, are equally unlawful, and more penal; as they raise enthusiastic jealousies in the people, and terrisy them with imaginary fears. They are therefore punished by our law, upon the same principle that spreading of public news of any kind, without communicating it first to the magistrate, was prohibited by the ancient Gauls (?). Such false and pretended prophecies were punished capitally by statute 1 Edw. VI. c. 12. which was repealed in the reign of queen Mary. And now by the statute 5 Eliz. c. 15. the penalty for the first offence is a fine of ten pounds and one year's imprisonment; for the second, forfeiture of all goods and chattels, and imprisonment

during life. [*150] *12. Besides actual breaches of the peace, any thing that tends

to provoke or excite others to break it, is an offence of the same denomination. Therefore challenges to fight, either by word or letter, or to be the bearer of such challenge, are punishable by fine and imprisonment, according to the circumstances of the offence (r) (16), (17). if this challenge arises on account of any money won at gaming, or if any assault or affray happen upon such account, the offender by statute 9 Ann. c. 14. shall forfeit all his goods to the crown, and suffer two years' imprisonment (18). 13. Of a nature very similar to challenges are libels, libelli famosi, which taken in their largest and most extensive sense, signify any writings, pictures, or the like, of an immoral or illegal tendency; but, in the sense under which we are now to consider them, are malicious defamations of any person, and especially a magistrate, made public by either printing, writing, signs, or pictures, in order to provoke him to wrath, or expose him to public hatred, contempt, and ridicule (s) (19). The direct tendency of

(3) I Hawk. P. C. 193.

a

greater truth, the greater libel ;" which his every trial of an indictment or information for enemies wished with much eagerness to con- a libel, the jury may give a general verdict of vert to the prejudice of that noble peer's repu. guilty, or not guilty, upon the whole matter in tation as a judge, were founded in principle issue, and shall not be required or directed by and supported by very ancient authority. the judge to find the defendant guilty, merely

Lord Coke has said, “ that the greater ap. on the proof of the publication of the paper pearance there is of truth in any malicious in charged to be a libel,

and of the sense ascribed vective, so much the more provoking it is.” to it in the record. But the statute provides, 5 Co. 125.

that the judge may give his opinion to the jury Where truth is a greater provocation than respecting the matter in issue, and the jury falsehood, and therefore has a greater tenden. may at their discretion, as in other cases, find cy to produce a breach of the public peace, a special verdict, and the defendant, if conthen it is certainly true that the greater truth, vicied, may move the court, as before the stathe greater libel. Asperis facetiis inlusus, quae tute, in arrest of judgment. ubi multum ex vero trasere, acrem sui memoriam A person may be punished for a libel reflect. relinquunt. Tac. Ann. 15, c. 68.

ing on the memory and character of the dead, (19) See in general, 3 Chit. Crim. Law, but it must be alleged, and proved to the satis865. et seq.t

faction of the jury, that the author intended Though it has been held, at least for these by the publication to bring dishonour and con. two centuries, that the truth of a libel is no tempt on the relations and descendants of the justification in a criminal prosecution, yet in deceased. 4 T. R. 126. inany instances it is considered an extenua- It is not a libel to publish a correct copy of tion of the offence; and the court of King's the reports or resolutions of the two houses of Bench has laid down this general rule, viz. parliament, or a true account of the proceedthat it will not grant an information for a libel, ings of a court of justice. “For though,” as unless the prosecutor, who applies for it, makes Mr. Justice Lawrence has well observed, an affidavit, asserting directly and pointedly, “the publication of such proceedings may be that he is innocent of the charge imputed to to the advantage to the particular individual him. But this rule may be dispensed with, if concerned, yet it is of vast importance to the the person libelled resides abroad, or if the public that the proceedings of courts of justice imputations of the libel are general and inde. should be universally known. The general finite, or if it is a charge against the prosecu. advantage to the country in having these

protor for language which he has held in parlia. ceedings made public, more thankcounterbalanment. Doug. 271, 372.0

ces the inconveniences to the private persons, It had frequently been determined by the whose conduct may be the subject of such procourt of King's Bench, that the only ques. ceedings." Rex v. Wright, 8 'T. R. 293. tions for the consideration of the jury, in cri. But this will not apply to the publication of minal prosecutions for libels, were the fact of part of a trial, before it is finally concluded; publication, and the truth of the innvendos, that for that might enable the friends of the parties is, the truth of the meaning and sense of the pas. to pervert the justice of the court by the fabrisages of the libel, as stated and averred in the cation of evidence, and other impure practi. record, and that the judge or court alone were competent to determine whether the subject of Nor ought it to extend to the publicaiion of the publication was or was not a libel. See trials, where indecent evidence must from nethe case of the Dean of St. Asaph, 3. T. R. cessity be introduced ; for it would be in vain 428. But the legality of this doctrine having to turn women and children out of court, if been much controverted, the 32 Geo. III. c. they are afterwards permitted to read what has 60, was passed, intitled, An Act to remove passed in their absence. doubts respecling the functions of juries in cases

Lord Hardwicke has declared that any pub. of libels. And it declares and enacts, that on lication, which shall prejudice the world with

+ The constitution of New York provides, and fact, and acquit, is the publication were Art. 7, sect. 8. that every citizen may freely true and published with good motives, and for speak, write, and publish his sentiments on all justifiable ends. The first Amendment to the subjects, being responsible for the abuse of that Constitution of the U. S. prevents Congress right; and that no law shall be passed to re. from passing any law abridging the freedom of strain or abridge the liberty of speech or of speech or of the press. the press. That in all prosecutions or indict. I This rule has been held not to extend to ments for libel, the truth may be given in evi. the queen consort. dence to the jury, who shall be judges of law

ces.

these libels is the breach of the public peace, by stirring up the objects of them to revenge, and perbaps to bloodshed. The communication of a libel to any one person is a publication in the eye of the law (*): 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 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 [*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 (r). 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 (3) 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

(t) Moor, 813.

(v) Moor, 627. 5 Rep. 125. 11 Mod. 99. (u) 2 own, 115. 12 Rep, 35. Hob. 215. Poph. (w) See book UI. page 125. 139. 1 Hawk. P. C. 195.

(2) I Hawk. P. C. 196.
(y)

Quinctiam les
Poenaque lata, malo quae nollet carmine quenquam
Describi:

-vertere modum formidine lustis.-Hor, ad Aug. 152.
(z) Cod. 9. 36.

regard to the merits of a cause before it is into consideration either by way of aggrava. heard, is a contempt of the court, in which the tion or mitigation of 'he punishment. 3 T. cause is pending; and he committed upon a R. 432. And when Johnson the bookseller summary motion only the parties who had been was brought up for judgment for having pubguilty of such a publication. 2 Atk. 472. lished a seditions libel, the attomey-general

The reason must be much stronger for sup- produced an affidavit that the defendant after pressing partial and premature publications his conviction had published the same libel in upon subjects, which may be tried by a jury. the Analytical Review. M. T. 1798.

The sale of the libel by a servant in a shop, An information or an indictment need not is prima facie evidence of publication in a state that the libel is false, or that the offence prosecution against the master, and is suffi. was committed by force and arms. 7 T. R. 4. cient for conviction, unless contradicted by Hanging up, or burning, an effigy with incontrary evidence, shewing that he was not tent to expose some particular person to ridiprivy, nor in any degree assenting to it. Ibid. cule and conteinpt, is an offence of the same and 5 Burr. 2686. When a person is brought nature as a libel, and has frequently been pu. to receive judgment for a libel, his conduct, nished with great but proper severity. subsequent to his conviction, may be taken

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 [*152] 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 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 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 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 entireİy 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.

66

(a) The art of printing, soon after its introduc. ordinances for that purpose, founded principally on tion, was looked upon (as well in England as in other the starchamber decree of 1637. In 1662 was pass. countries) as merely a matter of state, and subjected the statute 13 & 14 Car. II. c. 33, which (with to the coercion of the crown. It was therefore re- some few alterations) was copied from the parliagulated with us by the king's proclamations, prohi. mentary ordinances. This aci expired in 1679, but bitions, charters of privileges and of licence, and was revived by statute 1 Jac. II. c. 17, and conti. finally by the decrees of the court of starchamber ; nued till 1692. It was then continued for two years which limited the number of printers, and of presso longer by statute 4 W. & M. c. 24, but thoughi frees which each should employ, and prohibited new quent attempts were made by the government to publications, unless previously approved by proper revive it, in the subsequent part of the reign (Com. licensers. On the dernolition of this odious jurisdic- Journ. 11 Feb. 1691.26 Nov. 1695. 22 Oct. 1696. tion in 1041, the long parliament of Charles I. after 9 Feb. 1694. 31 Jan. 1698.) yet the parliament re. their rupture with that prince, assumed the same sisted it so strongly that it finally expired, and the powers as the starchamber exercised with respect press became properly free, in 1694 ; and has ever to the licensing of books, and in 1613, 1647, 1619, since so continued. and 1652, (Scobell, i. 44. 134. ii. 88. 230.) issued their

CHAPTER XII.

OF OFFENCES AGAINST PUBLIC TRADE.

OFFENCEs against public trade, like those of the preceding, classes, are either 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 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. 7 & 8 W.JII. 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 [*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