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 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 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 controul of an inspector. So true will it be found, that to censure the licentiousness, is to maintain the liberty, of the press. [ 153 ] CHAPTER THE TWELFTH. OF OFFENCES AGAINST PUBLIC TRADE. 99 Offences against PUBLIC TRADE, are 100 Owling, punished by forfeiture and penalties; and if the penalties be not paid, transportation. Ο pre FFENCES against public trade, like those of the ceding 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, 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. S. 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 (a) Mir. c. 1. § 3. ler'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 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 (65). feiture and penal ties; [155] 'tis felony, death. 2. SMUGGLING, or the offence of importing goods with- Smuggling, by for- 101 out paying the duties imposed 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 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 but if with force, 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, which continue the original act to the present (b) Stat. 26 Geo. I. c. 32. 32 Geo. II. c. 18. 4 Geo. III. c. 12. (65) These acts are repealed by 28 Geo. III. c. 38. which inflicts penalties, generally fine and forfeiture, for this offence; and makes it felony, and trans portation for seven years, to 135 [150] 102 Fraudulent bankruptcy is felony, death. [157] [158] 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 (66): 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. 3. ANOTHER offence against public trade is fraudulent bankruptcy, which was sufficiently spoken of in a former volume; 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. 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. 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. (c) See vol. I. page 317. Beccar, ch. 33. (d) See vol. II: (f) Beccar, (66) The 19 Geo. III. c. 69. § 23. declares, that the method of apprehending, and of causing to surrender, the offenders, stated in the 19 Geo. II. c. 34. is continued in all those statutes which have continued the 19 Geo. II. And the 24th Geo. III. sess. 2. c. 47, which makes it a capital felony to shoot into any ship or boat, or at any custom-house officer, or his assistant, in the execution of his duty, either on shore, or within four leagues of it, contains the same clauses relative to the surrender, apprehending, harbouring, and punishing, the offenders against that act. 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 £100, (67) 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 misdemes nors: as, 4. USURY, which is an unlawful contract upon the loan of inoney, to receive the same again with exorbitant increase. Of this also we had occasion to discourse at large in a former volume. 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 praemunire 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 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 (68). Also if any scrivener or broker takes more than (g) See vol. II. page 455, &c. (67) Under £300 by 33 Geo. III. c. 5. (68) There are two material and distinct clauses in the statute of Ann. the one declaring all usurious contracts (such as bills, bonds, &c. framed for the purpose of the usury) void ab initio; the other enacting a penalty of treble the value of the money, &c. so lent, to be recovered in a qui tam action, one half to the king, the other to the informer. This penalty, however, cannot be sued for until the usurious interest or consideration have been actually received by the person having lent the money, or by his assignee, &c. and the action must be commenced for the recovery of it within twelve months; except where the king sues for it, in which case the time is limited to two years. See more upon this subject, 2d vol. p. 455, &c. |