the only facts to be confidered are, first, the making or publishing of the book or writing; and fecondly, 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 fuch corporal punishment as the court in their discretion 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 Auguftus, 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 Our law, in this and many other refpects, correfponds 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, feditious, or scandalous libels are punished by the English law, fome with a greater, others with a lefs degree of feverity; 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 confists in laying no previous restraints upon publications, and not in freedom from cenfure for criminal matter when published. Every freeman has an undoubted right to lay what fentiments he pleases before the public to forbid this, is to deftroy the freedom of the

press but if he publishes what is improper, mischievous, or illegal, he must take the confequence of his own temerity. To fubject the prefs to the restrictive power of a licenfer, as was formerly done, both before and fince the revolution, is to subject all freedom of fentiment 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 punih (as the law does at prefent) any dangerous or offenfive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is neceffary for the prefervation of peace and good order, of government and religion, the only folid foundations of civil liberty. Thus the will of individuals is ftill 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 ftill left; the diffeminating, or making public, of bad fentiments, deftructive of the ends of fociety, is the crime which fociety corrects. A man (fays a fine writer on this fubject) may be allowed to keep poifons in his clofet, but not publicly to vend them as cordials. And to this we may

The art of printing, foon after it's introduction, was looked upon (as well in England as in other countries) as merely a matter of ftate, and fubject to the coercion. of the crown. It was therefore regulated with us by the king's proclamations, prohibitions, charters of privilege and of licence, and finally by the decrees of the court of ftarchamber; which limited the number of printers, and of preffes which each fhould employ, and prohibited new publications unless previously approved by proper licenfers. On the demolition of this odious jurifdiction in 1641, the long parliament of Charles I, after their rupture with that prince, affumed the fame powers as the ftarchamber exercised with respect to the licenfing of books; and in 1643, 1647, 1649, and 1652, (Scobell. i. 44, 134. ii. 88,

230.) iffued their ordinances for that purpofe, founded principally on the ftarchamber decree of 1637. In 1662 was paffed the ftatute 13 & 14.Car. II. c. 33. which (with fome few alterations) was copied from the parliamentary ordinances. This act expired in 1679, but was revived by ftatute Jac. II. c.17. and continued till 1692. It was thèn continued for two years longer by ftatute 4 W. & M. c. 24. but, though frequent attempts were made by the government to revive it, in the fubfequent part of that reign, (Com. Journ. r1 Feb. 1694. 26 Nov. 1695. 22 Oct. 1696. 9 Feb. 1697. 31 Jan. 1698.) yet the parliament refifted it fo ftrongly, that it finally expired, and the prefs became properly free, in 1694; and has ever fince fo continued,

add,

add, that the only plaufible 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 fhewn (by a seasonable exertion of the laws) that the press cannot be abused to any bad purpose, without incurring a fuitable punishment: whereas it never can be used to any good one, when under the control of an infpector. So true will it be found, that to cenfure the licentiousness, is to maintain the liberty, of the press.

O

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

1. OWLING, fo called from it's being usually carried on in the night, which is the offence of tranfporting 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 fince. The ftatute 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 fome public market, and shall be there nailed up in the openest place; and the second offence is felony. The ftatutes 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 intereft of the fhip and cargo by the owners, if privy; a Mirr. c. 1. §. 3.

and

and confifcation of goods, and three years imprisonment to the mafter and all the mariners. And the ftatute 4 Geo. I. c. II. (amended and farther enforced by 12 Geo. II. c. 21. and Geo. II. c. 34.) makes it transportation for seven years, if the penalties be not paid..

19

2. SMUGGLING, or the offence of importing goods without paying the duties impofed thereon by the laws of the customs 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 seisure of the goods for clandeftine fmuggling; 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 inftar omnium; for it makes all forcible acts of fmuggling, 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 perfons fhall affemble, with fire arms or other offenfive weapons, to affift in the illegal exportation or importation of goods, or in refcuing the fame after seisure, or in rescuing offenders in custody for such offences; or shall pafs with fuch 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 ftatute, which required any perfon, charged upon oath as a smuggler, under pain of death, to furrender himself upon proclamation, it seems to be expired; as the subsequent ftatutes, which continue the original act to the present time, do in terms continue only fo 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 pofitive fpecies, where punishment (though neceffary) is rendered fo by the laws themselves, which by impofing high duties on commodities increase the temptation

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