the only facts to be confidered 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 fuch libellers, for either making, repeating, printing, or publishing the libel, is fine, and such corporal punishment as the court in their difcretion shall inflict; regarding the quantity of the offence, and the quality of the offender*. 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. Under the emperor Valentinian 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 jurifprudence, 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 confidered, where blafphemous, immoral, treasonable, schifmatical, 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 prefs, 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. 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

Quinetiam lex
Poenaque lata, malo quae nollet carmine quenquam
Defcribi:

press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity. To fubject the press to the restrictive power of a licenfer, as was formerly done, both before and fince the revolution*, 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 offenfive 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 folid 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 fentiment is still left; the disseminating, or making public, of bad fentiments, 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 not publicly to vend them as cordials. And to this we may add, that the only plausible argument heretofore used for restraining the just freedom of the press, " that it was necessary " to prevent the daily abuse of it," will entirely lose it's 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 will it be found, that to censure the licentiousness, is to maintain the liberty, of the press.

CHAPTER THE TWELFTH.

OF OFFENCES AGAINST PUBLIC TRADE.

FFENCES against public trade, like those of the preceding classes, are either felonious, or not felonious. Of the first fort are,

1. OWLING, so called from it's being usually carried on in the night, which is the offence of transporting wool or sheep out of this kingdom, to the detriment of it's staple manufacture. This was forbidden at common law, 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. 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;

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and confiscation of goods, and three years imprisonment to the master and all the mariners. And the statute 4 Geo. I. c. II. (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.

2. SMUGGLING, or the offence of importing goods without paying the duties imposed thereon by the laws of the customs and excife, 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 seisure 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. 34is 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 fame after seisure, or in rescuing offenders in custody for fuch offences; or shall pass with fuch goods in disguise; or shall wound, shoot at, or affault 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 furrender 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 offences of this positive species, where punishment (though necessary) is rendered so by the laws themselves, which by impofing high duties on commodities increase the temptation

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