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 enjoyment 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 Northampton, 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. 11. 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 terrify 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 (9). 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 which was repealed in the reign of queen Mary.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). (n) Holding over by force, where the tenant's title was under a lease, now expired, is said to be a forcible detainer. (Cro. Jac. 199.) (0) Pott. Antiq. b. 1, c. 26. (p) 2 Inst. 226. 3 Inst. 198. (q) "Habent legibus sanctum, si quis quid de republica a finitimis rumore aut fama acceperit, uti (15) See 2 R. S. 338, § 4 and 507, &c. (16) In New-York this offence is punishable with imprisonment not exceeding seven years, (2 R. S. 686, ◊ 2.) and to fight a duel with a deadly weapon, though death do not ensue, is punishable with imprisonment for 10 years. (Id. ◊ 1.) Posting, or writing, or printing any reproachful or contemptuous language for not fighting a duel, is a misdemeanor. (2 R. S. 674, 20.) (17) The offences of fighting duels, and sending or provoking challenges, are fully considered by Mr. J. Grose, in passing sentence on Rice, convicted on a criminal information for a misdemeanor of the latter kind, 3 East, 581, where the opinions of the earlier writers are collected. It is an offence, though ad magistratum deferat, neve cum alio communice! : quod saepe homines temerarios atque imperitos falsis rumoribus terreri, et ad facinus impelli, et de summis rebus consilium capere cognitum est." Cæs. de bell. Gall. lib. 6, cap. 19. (r) 1 Hawk. P. C. 135. 138. the provocation to fight do not succeed, 6 East, 464. 2 Smith, 550; and it is a misdemeanor merely to endeavour to provoke another to send a challenge. 6 East, 464. But mere words which, though they may produce a challenge, do not directly tend to that issue, as calling a man a liar, or knave, are not necessarily criminal, 2 Lord Raym. 1031. 6 East, 471, though it is probable they would be so if it could be shewn that they were meant to provoke a challenge. A challenge is one of those offences for which a criminal informa tion will be granted by the court of K. B., though this will not be done where the party applying has himself first incited the proposal. 1 Burr. 316. (18) The words of Lord Mansfield, “the 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 ány 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 (s) 1 Hawk. P. C. 193. greater truth, the greater libel;" which his enemies wished with much eagerness to convert to the prejudice of that noble peer's repu tation as a judge, were founded in principle and supported by very ancient authority. Lord Coke has said, "that the greater appearance there is of truth in any malicious invective, so much the more provoking it is." 5 Co. 125. Where truth is a greater provocation than falsehood, and therefore has a greater tendency to produce a breach of the public peace, then it is certainly true that the greater truth, the greater libel. Asperis facetiis inlusus, que ubi multum ex vero traxere, acrem sui memoriam relinquunt. TAC. Ann. 15, c. 68. (19) See in general, 3 Chit. Crim. Law, 865. et seq.t Though it has been held, at least for these two centuries, that the truth of a libel is no justification in a criminal prosecution, yet in inany instances it is considered an extenuation of the offence; and the court of King's Bench has laid down this general rule, viz. that it will not grant an information for a libel, unless the prosecutor, who applies for it, makes an affidavit, asserting directly and pointedly, that he is innocent of the charge imputed to him. But this rule may be dispensed with, if the person libelled resides abroad, or if the imputations of the libel are general and indefinite, or if it is a charge against the prosecutor for language which he has held in parliament. Doug. 271, 372. It had frequently been determined by the court of King's Bench, that the only questions for the consideration of the jury, in criminal prosecutions for libels, were the fact of publication, and the truth of the innuendos, that is, the truth of the meaning and sense of the passages of the libel, as stated and averred in the record, and that the judge or court alone were competent to determine whether the subject of the publication was or was not a libel. See the case of the Dean of St. Asaph, 3. T. R. 428. But the legality of this doctrine having been much controverted, the 32 Geo. III. c. 60, was passed, intitled, An Act to remove doubts respecting the functions of juries in cases of libels. And it declares and enacts, that on The constitution of New-York provides, Art. 7, sect. 8. that every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right and that no law shall be passed to restrain or abridge the liberty of speech or of the press. That in all prosecutions or indictments for libel, the truth may be given in evidence to the jury, who shall be judges of law every trial of an indictment or information for a libel, the jury may give a general verdict of guilty, or not guilty, upon the whole matter in issue, and shall not be required or directed by the judge to find the defendant guilty, merely on the proof of the publication of the paper charged to be a libel, and of the sense ascribed to it in the record. But the statute provides, that the judge may give his opinion to the jury respecting the matter in issue, and the jury may at their discretion, as in other cases, find a special verdict, and the defendant, if convicted, may move the court, as before the statute, in arrest of judgment. A person may be punished for a libel reflecting on the memory and character of the dead, but it must be alleged, and proved to the satisfaction of the jury, that the author intended by the publication to bring dishonour and con. tempt on the relations and descendants of the deceased. 4 T. R. 126. It is not a libel to publish a correct copy of the reports or resolutions of the two houses of parliament, or a true account of the proceedings of a court of justice. "For though," as Mr. Justice Lawrence has well observed, "the publication of such proceedings may be to the advantage to the particular individual concerned, yet it is of vast importance to the public that the proceedings of courts of justice should be universally known. The general advantage to the country in having these proceedings made public, more than counterbalances the inconveniences to the private persons, whose conduct may be the subject of such proceedings." Rex v. Wright, 8 T. R. 293. But this will not apply to the publication of part of a trial, before it is finally concluded; for that might enable the friends of the parties to pervert the justice of the court by the fabrication of evidence, and other impure practi ces. Nor ought it to extend to the publication of trials, where indecent evidence must from necessity be introduced; for it would be in vain to turn women and children out of court, if they are afterwards permitted to read what has passed in their absence. Lord Hardwicke has declared that any publication, which shall prejudice the world with and fact, and acquit, if the publication were true and published with good motives, and for justifiable ends. The first Amendment to the Constitution of the U. S. prevents Congress from passing any law abridging the freedom of speech or of the press. This rule has been held not to extend to the queen consort. these libels is the breach of the public peace, by stirring up the objects of 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 (): 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 (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 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. (u) 2 Brown, 115. 12 Rep, 35. Hob. 215. Poph. 139. 1 Hawk. P. C. 195. (v) Moor, 627. 5 Rep. 125. 11 Mod. 99. 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 guilty 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 aggravation or mitigation of he punishment. 3 T. R. 432. And when Johnson the bookseller was brought up for judgment for having published 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 T. R. 4. Hanging up, or burning, an effigy with intent to expose some particular person to ridicule and contempt, is an offence of the same nature as a libel, and has frequently been pu nished with great but proper severity. 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 undoubt ed 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 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. (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 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, 1619, 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. 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. 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. 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 [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 57 Geo. III. c. 88, fuller's earth, fulling 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 clay are removed, and the same is thereby declared free. |