Sivut kuvina

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 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 [153] 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 shown (by a seasonable exertion of the laws) that the press can not 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 will it be found, that to censure the licentiousness is to maintain the liberty of the press.

stat. 3 Vict., c. 9, against any criminal As to seditious libels, see ante, p. 123; proceedings for alleged libelous matter as to blasphemous libels, ante, p. 59. contained therein.



Offenses against public trade.

1. Owling.



OFFENSES 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 offense 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 woolen manufacture was first attended to; and there are now many later statutes relating to this offense, 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 offense 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 offense is felony. The statutes 12 Car. ÌI., 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 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 (amended and further 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.'

2. Smug. 2. Smuggling, or the offense of importing goods without gling. paying the duties imposed thereon by the laws of the customs [155] and excise, is an offense 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; for it makes all forcible acts of smuggling, carried on in defiance of the laws,

a Mirr., c. 1, § 3.

(1) By the 5 Geo. IV., c. 47, all acts and parts of acts prohibiting the exportation of wool, or any manufacture there

of, or any live sheep or lamb, or hare or coney wool, or hare or coney skins, &c., are repealed.-[CHITTY.]

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 offenses; 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 offenses 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 can not surely be too cautious in inflicting the penalty of death.c

See vol. i., page 317; Beccar., ch.

b Stat. 26 Geo. I., c. 32; 32 Geo. II., c. 18; 4 Geo. III., c. 12.

(2) By the 3 & 4 Will. IV., c. 53, all the laws relative to the prevention of smuggling are consolidated. The provisions of the act are so numerous that they can not be comprised within the limits of a note; it may be well, however, to notice the following, which make certain offenses connected with smuggling punishable beyond a mere pecuniary penalty, viz.:

By the 53d section, persons who, after sunset, and before sunrise, between the 21st of September and 1st of April, or after eight in the evening and before six in the morning, at any other time in the year, shall make, or aid or assist in making, or be present for the purpose of so doing, any signal, on board any vessel, or on any part of the coast of the United Kingdom, or within six miles of the coast, for giving signals to smugglers, shall be guilty of a misdemeanor, and punishable with £100 penalty, or imprisonment, with hard labor, not exceeding one year.

By the 58th section, persons, to the number of three or more, armed with fire-arms, or other offensive weapons, assembled to be aiding and assisting in the smuggling, &c., or to rescue, &c., smuggled goods or smugglers, are declared felons, without benefit of clergy.

By the 59th section, persons who shall maliciously shoot at or upon any


of the king's or revenue vessels or boats, within 100 leagues of the coast, or maliciously shoot at, maim, or dangerously wound any revenue officer, or person in his aid, are declared felons without benefit of clergy.

But in both these cases the punishment is, by the 1 Vict., c. 91, s. 1, reduced to transportation for life, or not less than fifteen years, or imprisonment not exceeding three years.

By the 60th section, any person being in company with more than four others, with smuggled goods, or in company with one other person, within five miles of the sea-coast, or of any navigable river, carrying arms, or disguised, will be guilty of felony, and shall be transported for seven years.

By the 61st section, the assaulting, resisting, opposing, molesting, hindering, or obstructing any revenue officer in the due execution of his office, is a misdemeanor, subject to seven years' transportation, or imprisonment, with hard labor, for any term not exceeding three years.

The 77th section provides for the place of trial of offenses committed at sea; and the 122d section makes the indictment triable in any county.

By the 143 section of the stat. 6 Geo. IV., c. 80 (for regulating the duties on spirits distilled in England), the rescue

3. Another offense against public trade is fraudulent bankruptcy, which was sufficiently spoken of in a former volume;d I shall, therefore, here 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 £20; 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" And, indeed, it is allowed by [156] such as are the most averse to the infliction of capital punishment, that the offense of fraudulent bankruptcy, being an atrocious species of 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 can not 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,


f Beccar., ch. 34.

3. Fraudu lent bankruptcy.

d See vol. ii., page 481, 482.
e Stat. 5 Geo. II., c. 30.

of any offenders arrested under that act
is punishable with transportation for sev-
en years."


(3) [A similar provision is to be found
in the 32d section of the present general
bankrupt act, the 5 & 6 Vict., c. 122,
except that it is sufficient to constitute
the offense that the goods embezzled
are of the value of £10, and the punish-
ment is transportation for life, or for not
less than seven years, or imprisonment,
with or without hard labor, for any term
not exceeding seven years.]

This law has been considered so se-
vere, that in cases where it appeared
the absence of the defendant was occa-
sioned by ignorance or accident rather
than design, the lord chancellor has su-
perseded the commission, in order to
prevent the commencement of proceed-
ings under it.
1 Atk., 222; 18 Ves., 18;
3 Ves., 238. The bankrupt will not be
guilty of felony if he surrender before
the last moment of the time allowed
him, though it is both his interest and
his duty to do so as soon as possible. 2
Burr., 1124; Cowp., 156; 5 C. & P.,
138. Where, by an innocent default, he
has omitted to do so, as in case of sick-
ness, the chancellor will order the com-


missioners to appoint a meeting, at which he may surrender. 6 Ves., 445; Amb., But this will be no bar to a prosecution for felony. 6 Ves., 445. In a late case it was decided that if a bankrupt surrender to his commission, and at the time of such surrender refuse to answer particular questions concerning his property, but takes the oath, and assigns as his reason for not answering that he intends to dispute the commis sion, the refusal to answer such question would not be a capital offense within the 5 Geo. II., c. 30, s. 1; Russ. & R., C. C., 392; 3 Moore, 656; 1 B. & B., 308; 7 Price, 616, S. C.-[CHITTY.]

It must appear, in order to a conviction, not merely that the defendant was declared a bankrupt, but that he was a person liable to be so declared; the indictment, therefore, must state the trading, act of bankruptcy, and petitioning creditor's debt, and these must all be duly proved. 4 B. & Adol., 345.

(4) The punishment of pillory is now abolished. 56 Geo. III., c. 138; 1 Vict., c. 23. As to embezzlements, &c., by insolvent debtors, see the stat. 7 Geo. IV., c. 57, s. 70, and 1 & 2 Vict., c. 10, s. 98, 100; and 2 M. & Rob., 25.

From a cursory examination of the revenue laws of the United States, it would seem that, for a forcible resistance of the officers of the customs in the execution of their duties, the highest penalty to which a party exposes himself is a fine of $400.-(Laws U. S., act of 4th August, 1790, § 51.)

is felony, punishable by transportation for seven years, if a prisoner, charged in execution for any debt under £100, neglects or refuses, on demand, to discover and deliver up his effects for the benefit of his creditors." And these are the only felonious offenses against public trade, the residue being mere misdemeanors; as,

4. Usury, which is an unlawful contract upon the loan of 4. Usury. money, to receive the same 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 £10 per cent. per annum, which the statute 13 Eliz., c. 8, confirms; and ordains that all brokers shall be guilty of a pramunire that transact any contracts for more, and the securities themselves shall be void. The statute [157 | 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 money borrowed." Also, if any scrivener or broker takes more than five shillings per cent. procuration money, or more than twelve pence for making a bond, he shall forfeit £20 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 offense of procuring or soliciting any infant to grant any life-annuity; or to promise, or otherwise engage, to ratify it when he comes of age."

5. Cheating is another offense more immediately against 5. Cheating. public trade, as that can not 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

See vol. ii., page 455, &c.

(5) By the 33 Geo. III., c. 5, the debt statutes; which, with the decisions thereis enlarged to £300.-[CHRISTIAN.]* on, are stated ante, vol. ii., p. 455. That usury is an indictable offense, see 2 Burr., 799; 4 T. R., 205; 8 East, 41.†

(6) Great relaxations have been made by recent statutes in favor of trade, of the strict rules of law against usury. See (7) This act is repealed, as to annuithe stat. 3 & 4 Will. IV., c. 98; 5 & 6 ties granted since the 14th of July, 1813, Will. IV., c. 41; 1 Vict., c. 80; 2 & 3 by the 53 Geo. III., c. 141, but similar Vict., c. 37, continued by subsequent provisions are re-enacted.-[CHITTY.]

There is no bankrupt act in the United States at the present time. Twice has Congress passed a bankrupt act; the first expired by its own limitation, and the second was repealed.

Usury is prohibited by statute.-(1 R. S., 772, § 2.) Every violation of a statute is a misdemeanor (2 R. S., 696, § 39), and, of course, indictable.

« EdellinenJatka »