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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.
(*) 1 Hawk. P. C. 196.
has been enacted, by stat. 6 & 7 Vict. c. 96, s. 6, that on the trial of any indictment or information for a libel, the defendant having pleaded such plea as hereinafter is mentioned, 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 entitle the defendant to give evidence of the truth of the matters charged, as a defence to such indictment or information, it shall be necessary for the defendant in pleading to the indictment or information to allege the truth of the said matters; and also that it was for the public benefit that the matters charged should be published; to which plea the prosecutor may reply generally; and if after such plea the defendant shall be convicted, the court may, in pronouncing sentence, consider whether the guilt of the defendant is aggravated or mitigated by the plea. But it is provided that in addition to such plea the defendant may plead a plea of not guilty. And, by sect. 7, whenever upon the trial of any such indictment or information, under the plea of not guilty, evidence shall have been given which shall establish a presumptive case of publication by the act of any other person by his authority, the defendant may prove that such publication was made without his authority or consent.-Stewart.
In most of the United States provision is made either in their constitutions or statutes on this subject similar to the provisions of 6 & 7 Vict. In those States where there is no statutory or constitutional limitation the common-law doctrine remains in force. Com. vs. Clapp, 4 Mass. 163. Com. vs. Snelling, 15 Pick. 337. State vs. Allen, 1 McCord, 525. State vs. Burnham, 9 N. Hamp. 34. In one celebrated case the Supreme Court of New York were equally divided. People vs. Croswell, 3 Johns. Cases, 337. But as it may be shown that the publication was for a justifiable purpose, and not malicious nor with the intent to defame, so there may be cases where the defendant, having proved the purpose justifiable, may give in evidence the truth of the words, where such evidence will tend to negative the malice and intent to defame. Wharton's Amer. Crim. Law, 850. Com. vs. Buckingham, 2 Wheeler's С. C. 438.-SHARSWOOD.
16 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 many 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 libel were the fact of publication and the truth of the innuendoes,—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 dishonour 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 disadvantage 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
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 antient decemviri or the later emperors.
In this and the other instances which we have lately considered, where blasphemous, immoral, treasonable, schismatical, seditious, or scandalous litels 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 publica*152] tions, and *not in freedom from censure 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 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
(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 license, 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, 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 & 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 revive it, in the subsequent part of the reign, (Com. Jour. 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.
counterbalances the inconveniences to the private persons whose conduct may be the subject of such proceedings." Rex vs. 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.
Lord Hardwicke has declared that any publication which shall prejudice the world with 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 showing 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 aggra vation or mitigation of the 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 Îibel 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 punished with great but proper severity.-CHRISTIAN.
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 which society corrects. A man (says a *fine [*153 writer on this subject) 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 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.
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 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 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 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 fullers' 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 (emended 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.1
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 [*155 generally connected and carried on hand in hand with the former. This is restrained by a great variety of statutes, which inflict pecuniary penal
(a) Mirr. c. 1, 23.
1 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, fullers' 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.-CHITTY.
ties 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 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 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
*156] *3. Another offence against 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 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 201.; 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 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, 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, it is felony, punishable by transportation for seven years, if a prisoner, charged in execution for any debt under 1001., neglects 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 misdemeanours: as,
(*) Stat. 26 Geo. I. c. 32. 32 Geo. II. c. 18. 4 Geo. III. c
(c) See book i. page 317. Beccar. c. 33.
(d) See book ii. pages 481, 482.
"By the stat. 8 & 9 Vict. c. 87, all former statutes on this subject are consolidated: it makes all forcible acts of smuggling, carried on in defiance of the laws or even in disguise to evade them, felony.-STEWART.
By the 6 Geo. IV. c. 108, after reciting the customs-repeal act, the 6 Geo. IV. c. 105, all the laws relative to the prevention of smuggling are consolidated; but the provisions of the act are so numerous that they cannot be comprised within the limit of a note.— CHITTY.
4 By 6 Geo. IV. c. 16, all laws relating to bankrupts are repealed, and all former provisions are reduced into this one act. The different frauds taken notice of do not materially vary from those mentioned in the text. By 99, it is enacted that the bankrupt or other person swearing falsely before the commissioners shall be guilty of perjury and suffer the pains and penalties in force against that offence. By 112, any bankrupt neglecting to surrender and submit himself to be examined, or refusing to make discovery of his estate and effects, or declining to deliver up his goods, books, and writings, or concealing or embezzling any part of his effects to the value of 10l. with intent to defraud his creditors, shall be guilty of felony, and be liable to transportation for life or not less than seven years, or to imprisonment for any term not exceeding seven years, as the court before whom he is convicted may adjudge.-CHITTY.
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 dis course 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 101. 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 themselves 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 usurpa- [*157 tion, 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 Anne, 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 201. 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 misdemeanour, 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 this 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, antiently, 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 dung-cart:(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 cervisiam faciens, in cathedra ponebatur stercoris."(j) But now the general punishment for all frauds *of this kind, if indicted [*158 (as they may be) at common law, is by fine and imprisonment: 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 cozeníng another by artful means, whether in matters
See book ii. p. 455, &c.
(4) See book i. p. 274.
3 Inst. 219.
(5) Seld. tit. of Hon. b. ii. c. 5, 2.
One half of the penalty is given by the statute to the prosecutor, the other half to the king. It is remarkable that such was the prejudice in ancient times against lending money upon interest that the first statute the 37 Hen. VIII. c. 9-by which it was legalized, was afterwards repealed by 5 & 6 Edw. VI. c. 20, by which all interest was prohibited, the money lent and the interest were forfeited, and the offender was subject to fine and imprisonment. We have before observed that the policy of limiting the rate of interest upon a contract for the loan of money is denied in modern times; but Cato was of a different opinion. Cum ille, qui quæsierat, dixisset, Quid fœnerari? Tum Cato, Quid hominem, inquit, occidere? Cic. Off.-CHRISTIAN.
We have already considered what will constitute usury, ante, 2 book, 403. That usury is an indictable offence, see 2 Burr. 799. 4 T. R. 205. 8 East, 41. 1 Chit. Crim. Law, 549.-CHITTY.
This act is repealed, as to annuities granted since the 14th July, 1813, by the 53 Geo. III. c. 141; but similar provisions are re-enacted.—CHITTY.
The principal act now in force, relative to the different weights and measures, is the 5 Geo. IV. c. 76, (continued and amended by 6 Geo. IV. c. 12.) The 35 Geo. III. c. 102, 37 Geo. III. c. 143, and 55 Geo. III. c. 43, relate to the examination of weights and mea See 5 Burn, 24th ed. tit. Weights and Measures.-CHITTY.