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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 restraints upon publications, and *not in freedom from censure for criminal matter when published. Ev[*152] ery 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 consc

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, entitled, "An act to remove doubts respecting the functions of juries in cases of libels." And it declares and enacts that, on 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 dishonor and contempt 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 disad vantage of 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 inconvenience 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 practices.

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.]

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 indictment or information for libel, the defendant having properly pleaded, the truth of the matter charged may be inquired into, but shall not amount to a defence 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 defence, 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 defence where the publication is made with good motives and for justifiable ends. See Townsend on Slander and Libel; 2 Bish. Cr. L. §§ 783, 815; 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. 121; Commonwealth v. Bonner, 9 Met. 410; Regina v. Newman, 1 El. and Bl 268 and 558; Barthelemy v. People, 2 Hill, 248; State v. White, 7 Ired. 180; Commonwealth v. Snelling, 15 Pick. 337.

quence 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 infalliable 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 allowed to keep poisons in his closet, but [*153] 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. (15)

CHAPTER XII.

OF OFFENCES AGAINST PUBLIC TRADE.

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 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 any ship, for the first offence forfeiture of (a) The art of printing, soon after its introduction, was looked upon (as well in England as in other coun tries) 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 star-chamber; which limited the number of printers, and 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 star-chamber 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 princi pally on the star-chamber 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. 11, 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 revive it, in the subsequent part of the reign: Com. Journ. ¡1 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.

(15) It may well be doubted, however, if attempts to restrain the licentiousness of the press through criminal prosecutions ever served 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 best restrained by public sentiment, and by the infliction of damages at the hands of a jury where private character is unjustly assailed.

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 openesi 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 year's imprisonment, to the master and all the mariners. And the statute 4 Geo. I, c. 11 (amended and farther enforced by 12 Geo. *II, c. 21, and 19 Geo. III, c. 34), makes

[*155] 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; 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 the said act as relates to the punishment of the offenders, and not to the extraordinay 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) (2)

*3. Another offence against public trade is fraudulent bankruptcy, [*156] 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 non-conformity to the directions of the several statutes; his concealing or embezzling his effects to the value of 207.; and his withholding any books or writings with intent to defraud his creditors: all of which the policy of our commercial country has made felony without benefit of clergy. (e) (3) 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. (f) And, even without actual fraud, if the bankrupt cannot make it appear that he is disabled from paying his debts by some casual loss, be 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, it is felony, punishable by transportation for seven years, if a prisoner, charged in execution for any debt under 1007., neg

(b) Stat. 26 Geo. I. c. 32. 32 Geo. II, c. 18. 4 Geo. III, c. 12.
(d) See book II, page 481, 482.
(e) Stat. 5 Geo. II. c. 30.

(1) These statutes are since repealed.

(c) See book I, p. 317. Beccar. c. 33. (f) Beccar. c. 34.

(2) The present law on this subject is in 16 and 17 Vic. c. 107. The punishments are greatly mitigated.

(3) The previous statutes on the subject of bankruptcy were superseded by the new bank"upt law which took effect Jan. 1, 1870. The penalties are now much less severe than those specified in the text.

lects or refuses on demand to discover and deliver up his effects for the benefit of his creditors. And these are the only felonious offences against public trade; the residue being mere misdemeanors: as,

4. Usury, which is an unlawful contract upon the loan of 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 3" Hen. VIII, c. 9, the rate of interest was fixed at 10l. per cent. per annum, which the statute 13 Eliz. c. 8, confirms: and ordains that all brokers shall be guilty of a præmunire that transact any contracts for more, and the securities them selves 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 statute 12 Ĉar. 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. (4) Also, [*157] if any scrivener or broker takes more than five shillings per cent. procuration money, or more than twelyepence for making a bond, he shall forfeit 207., 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-annuity; or to promise, or otherwise engage, to ratify it when he comes of age.

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 assize 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 the 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) The punishment of bakers breaking the assize was anciently to stand in the pillory, by statute 51 Hen. III, st. 6, and for brewers (by the same act) to stand in the tumbrel or dungcart: (i) which, as we learn from domesday book, was the punishment for knavish brewers in the city of Chester, so early as the reign of Edward the Confessor. "Malam cerevisiam faciens, in cathedra ponebatur stercoris." (1) But now the general punishment for all frauds *of this kind, if indicted (as they may be) at common law, is by fine and im- [*158] prisonment: though the easier and more usual way is by levying on a summary conviction, by distress and sale, the forfeitures imposed by the several acts of parliament. Lastly, any deceitful practice, in cozening another by artful means, whether in matters of trade or otherwise, as by playing with false dice, or the like, is punishable with fine, imprisonment, and pillory.(k) (5) And by the statutes 33 Hen. VIII, c. 1, and 30 Geo. II, c. 24, if any man defrauds

(g) See book II, page 455, &c.
(j) Seld. tit. of Hon. b. 2, c. 5, è 2.

(h) See book I. page 274.
k) 1 Hawk. P. C. 188.

(i) 3 Inst. 219.

(4) Securities are no longer void for usury Stat. 17&18 Vic. c. 90.
As to usury in general, see book 2, 455, et seq.

(5) [Pillory is now abolished by the 56 Geo. III, c. 138. See in general, 3 Chit. Crim. Law, 994, 995. The cases in which fraud is indictable at common law seem confined to the use of false weights and measures, the selling of goods with counterfeit marks, playing with falso dice, and frauds affecting the course of justice, and immediately injuring the interests of the public or crown: and it is settled that no mere fraud, not amounting to felony, is an indictale offence at common law, unless it affects the public. 2 Burn. 1125; 1 Bla. Rep. 273, S. C. J

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another of any valuable chattels by colour of any false token, counterfeit letter. or false pretence, or pawns or disposes of another's goods without the consent of the owner, he shall suffer such punishment by imprisonment, fine, pillory. transportation, whipping, or other corporal pain, as the court shall direct. (6)

6. The offence of forestalling the market is also an offence against public trade. This, which (as well as the two following) is also an offence at common law, (1) was described by statute 5 and 6 Edw. VI, c. 14, to be the buying or contract. ing for any merchandise or victual coming in the way to market; or dissuading persons from bringing their goods or provisions there; or persuading them to enhance the price, when there: any of which practices make the market dearer to the fair trader. (7)

7. Regrating was described by the same statute to be the buying of corn, or other dead victual, in any market, and selling it again in the same market, or within four miles of the place. For this also enhances the price of the provisions, as every successive seller must have a successive profit.

8. Engrossing was also described to be the getting into one's possession, or buying up, large quantities of corn, or other dead victual, with intent to sell them again. This must of course be injurious to the public, by putting it in the power of one or two rich men to raise the price of provisions at their own discretion. And so the total engrossing of any other commodity, with intent to sell it at an unreasonable *price, is an offence indictable and finable [*159] at the common law. (m) And the general penalty for these three offences by the common law (for all the statutes concerning them were repealed by 12 Geo. III, c. 71, is, as in other minute misdemeanors, discretionary fine and imprisonment. (n) Among the Romans these offences, and other mal-practices to raise the price of provisions, were punished by a pecuniary mulct." Pana viginti aureorum statuitur adversus eum, qui contra annonam facerit, societatemve coierit quo annona carior fiai.” (0)

9. Monopolies are much the same offence in other branches of trade, that engrossing is in provisions: being a license or privilege allowed by the king for the sole buying and selling, making, working or using any thing whatsoever; whereby the subject in general is restrained from that liberty of manufacturing or trading which he had before. (p) These had been carried to an enormous height during the reign of Queen Elizabeth; and were heavily complained of by Sir Edward Coke, (q) in the beginning of the reign of King James the First: but were in great measure remedied by statute 21 Jac. I, c. 3, (8) which declares such monopolies to be contrary to law and void (except as to patents, not exceeding the grant of fourteen years, to the authors of new inventions; and except also patents concerning printing, saltpetre, gunpowder, great ordnance and shot); and monopolists are punished with the forfeiture of treble damages and double costs, to those whom they attempt to disturb; and if they procure any action, brought against them for these damages, to be stayed by any extrajudicial order, other than of the court wherein it is brought, they incur the penalties of præmunire. Combinations, also, among victuallers or artificers, to raise the price of provisions, or any commodities, or the rate of labour, (9) are

(7) 1 Hawk. P. C. 234. (p) 1 Hawk. P. C. 321.

(m) Cro. Car. 232.
(g) 3 Inst. 181.

(n) 1 Hawk P. C. 235.

(0) Ff. 48, 12, 2.

(6) By statute 24 and 25 Vic. c. 96, s. 88, "Whosoever shall, by any false pretence, obtain from any other person any chattel, money or valuable security with intent to defraud, shall be guilty of a misdemeanor, and, being convicted thereof, shall be liable, at the discretion of the court, to be kept in penal servitude for the term of three years, or be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement."

See, as to this offence, 2 Bish. Cr. L. ch. 32; 2 Russ. on Crimes, 286, et seq.

(7) This and the two following offences are now done away with by statute 7 and 8 Vic. c. 24. (8) Amended by statute 5 and 6 Wm. IV, c. 83. See also statute 7 and 8 Vic. c. 24.

(9) [By the 6 Geo. IV, c. 129, § 1, all acts relative to combinations of workmen, or masters, as to wages, time of work, quantity of work, &c., are repealed. By section 2 persons com

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