hibited 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. (0) 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 West. 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. (4) 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 VI, c. 12, which was repealed in the reign of Queen Mary.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, 15 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. *12. Challenge to fight.- Besides actual breaches of the [*150] 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 a challenge, are punishable by fine and imprisonment, according to the circumstance of the offence. (r) 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 (0) Pott. Antiq. b. I. c. 26. (p) 2 Inst 226. 8 Inst. 198. (q)" Habent legibus sanctum, si quis quid de republica a finitimis rumore aut fama acceperit, uti ad magistratum deferat, neve cum alio communicet: quod sæpe homines temerarios atque imperitos falsis rumoribus terreri, et ad facinus impelli, et de summis rebus consilium capere cognitum est." (They make it an inviolable rule, that if any one shall have received any intelligence in the neighbourhood concerning the republic by rumour or report, he shall make it known to a magistrate, and not communicate it to any one else: for rash and ignorant men, it is well known, alarmed by false reports, are often driven to violent measures, and interfere in affairs of the highest consequence.) Cæs. de bell. Gall. lib. 6, cap. 19. (r) 1 Hawk. P. C. 135, 138. 1 Challenging to a duel, or trying to provoke a challenge, is an indictable misdemeanor at common law. Rex v. Phillips, 6 East, 464; Reg. v. Langley, 2 Ld. Raym. 1024; State v. Perkins, 6 Blackf. 20; State v. Farrier, 1 Hawks, 487. The mere sending a letter tending to provoke a challenge, though it do not reach its destination, is a misdemeanor. Rex v. Williams, 2 Camp. 506. If the meaning is plain, the words of a challenge are unimportant. Ivey v. State, 12 Ala. 276; Com. v. Pope, 3 Dana, 418; and see Aulger v. People, 34 Ill. 486. A challenge to fight outside the state is indictable. State v. Farrier, 1 Hawks, 487. Wherever two persons, in cold blood, meet and fight on a precedent quarrel, and one of them is killed, the other is guilty of murder. 1 Hawk. P. C., ch. 31, 21; and see 1 Bish. Cr. L., 5th ed., $311; 2 How. St. Tr. 1033. All persons present, countenancing a duel, if death ensue, are guilty of murder as principals in the second degree. 1 Hawk. P. C., ch. 31, § 31; Reg. v. Young, 8 C. & P. 644; Reg. v. Cuddy, 1 C. & K. 210; and see Reg. v. Barronet, Dears. Cr. C. 51. In many of the United States duelling and challenging to fight are the subject of statutory enactments. As throwing light on some such statutes, see Harris v. State, 58 Ga. 332; Royall v. Thomas, 28 Gratt. 130; State v. Dupont, 2 McCord, 334; Moody v. Com., 4 Met. (Ky.) 1. forfeit all his goods to the crown, and suffer two years' imprison ment. 13. Libel.- 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) The direct tendency of 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: (t) and therefore the sending an abusive private 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 (t) Moor, 813. (8) 1 Hawk P. C. 193. 1 Up to 1792 it had been held that, in a criminal prosecution for libel, the court was to decide whether any given fact was an excuse for libel. The jury could simply find whether any fact al leged as an excuse was true; it could not decide whether a writing was criminal. "If satisfied with the evidence of publication and the meaning and innuendoes were as stated, they (the jury) ought to find the defendant guilty; the question of law was upon the record for the judgment of the court." Rex v. Withers, 3 T. R. 428; Rex v. Dean of St. Asaph, 3 T. R. 428n. To obviate the results of this doctrine, a statute 32 Geo. III, c. 60, provided that the jury might give a “general verdict of guilty or not guilty upon the whole matter put in issue, and should not be required or directed by the court or judge to find the defendant guilty merely on the proof of the publication by the defendant of the paper charged to be a libel, and of the sense ascribed in the indictment or information." The act above mentioned in this note is what is known as Mr. Fox's Libel Act, and was passed to put an end to a violent controversy in which the judges were charged with perverting the common law. A still more recent statute (6 and 7 Vic., c. 96, s. 6), provides that on the trial of any indictinent or infor mation for libel, the defendant having properly pleaded, the truth of the matter charged may be inquired into, but shall not amount to a defense unless it was for the public benefit that the matter charged should be published; and to enable the defendant to give the truth in evidence as a defense, he must in pleading allege the truth of such matters, and that it was for the public benefit that the matters charged should be published; and if, after such plea, the defendant is convicted, the court may, in pronouncing sentence, consider whether the guilt of the defendant is aggravated or mitigated by the plea. The defendant, in addition, may plead not guilty. In the United States generally, the truth of the alleged libellous matter is made a defense where the publication is made with good motives and for justifiable ends. See Townshend on Slander and Libel; 2 Bish. Cr. L., 7th ed., § 920; Whart. Cr. L., § 2525, et seq.; Cooley, Const. Lim. 424, 438, 464. And, as to what shall establish good motives and justifiable ends, see King v. Root, 4 Wend. 113; Commonwealth v. Bonner, 9 Met. 410; Regina v. Newman, 1 El. & Bl. 268 and 558; Barthelemy v. People, 2 Hill, 248; State v. White, 7 Ired. 180; Commonwealth v. Snelling, 15 Pick. 337. private injury, and has no ground to demand a compensation for himself, whatever *offence it may be against the public peace; [*151] 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 laws 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. Liberty of the press. 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 restraint upon publications, and *not in freedom from censure [*152] 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 (x) 1 Hawk. P. C. 196. (y) Quinetiam lex (Moreover the law and punishment are decreed, which forbids any one to write scurrilous verses: -- (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 privilege and of license, and, finally, by the decrees of the court of star-chamber; 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 ruptures 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 and 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. and M., c. 24; but though frequent attempts were made by the government to re 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 subject) may be [*153] 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 shown (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.1 *CHAPTER XII. OF OFFENCES AGAINST PUBLIC TRADE. [*154] 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 woolen 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 vive it, in the subsequent part of that 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. (a) Mir. C. 1, § 3. 1 It may well be doubted, however, if attempts to restrain the licentiousness of the press through criminal prosecutions usually serve a beneficial purpose. The attempt by the government of the United States, by means of the "Sedition Act," during the administration of the first Adams, was so conspicuous and mortifying a failure, that it is not likely to be soon repeated. The excesses of the press seem to be restrained by public sentiment, and by the inflic tion of damages at the hands of a jury where private character is unjustly assailed. [See on contempt proceeding against publications, Respublica v. Oswald, 1 Ďall. 319 (1788).] 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 and 8 Wm. 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 [*155] (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. Smuggling, or the offence of importing goods without paying the duties imposed thereon by the laws of the custom 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 this purpose instar omnium (equal to them all); 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 said act as relates to the punishment of 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 *3. Fraudulent bankruptcy.- Another offence against [*156] public trade is fraudulent bankruptcy, 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 (b) Stat. 26 Geo. I, c. 82. 32 Geo. II, c. 18. 4 Geo. III, c. 12. (c) See book I, p. 317. Beccar. c. 33. (d) See book II, page 481, 482. 1 These statutes are since repealed. 2 [Smuggling is an offense against the national government. McClain, Cr. L., 1351; Dunbar v. United States, 156 U. S. 185.] 3 The present law on this subject is in 16 and 17 Vic., c. 107. The punishments are greatly mitigated. |