or the like, of an immoral or illegal tendency; but, in the sense under which we are now to consider them, are malicious defamations of any person, and especially a magistrate, made public by either printing, writing, signs, or pictures, in order to provoke him to wrath, or expose him to public hatred, contempt, and ridicule. (s) (14) The direct tendency of these libels is the breach of the public peace, by stirring up the objects of them to revenge, and perhaps to bloodshed. The communication of a libel to any one person is a publication in the eye of the law: (t) and therefore the sending an abusive private letter to a man is as much a libel as if it were openly printed, for it equally tends to a breach of the peace. (u) For the same reason it is immaterial with respect to the essence of a libel, whether the matter of it be true or false; (v) since the provocation, and not the falsity, is the thing to be punished criminally: though doubtless, the falsehood of it may aggravate its guilt and enhance its punishment. In a civil action, we may remember, a libel must appear to be false, as well as scandalous; (2) for, if the charge be true, the plaintiff has received no private injury, and has no ground to demand a compensation for himself, whatever *offence it may be against the public peace; [*151] and therefore, upon a civil action, the truth of the accusation may be pleaded in bar of the suit. But, in a criminal prosecution, the tendency which all libels have to create animosities, and to disturb the public peace, is the whole that the law considers. And, therefore, in such prosecutions, the only points to be inquired into 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 such libellers, for either making, repeating, 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, 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 (u) 2 Brownl. 151. 12 Rep. 35. Hob. 215. Poph. 139. 11 Mod. 99. (w) See book III, page 125. (z) Cod. 9, 36. (y) 1 Hawk. P. C. 195. (v) Moor, 627. 5 Rep. 125. Poenaque lata, malo quæ nollet carmine quenquam (14) Up to 1792 it had been held that, in a criminal prosecution for libel, the court was to decide whether any given fact was an excuse for a libel. The jury could simply find whether any fact alleged as an excuse was true; it could not decide whether a writing was criminal. 'If satisfied with the evidence of publication and the meaning and innuendoes were as stated, they (the jury) ought to find the defendant guilty; the question of law was upon the record for the judgment of the court." Rex v. Withers, 3 T. R., 428; Rex v. Dean of St. Asaph, 3 T. R., 428 n. To obviate the results of this doctrine, a statute 32 Geo. III, c. 60, provided that the jury might give a "general verdict of guilty or not guilty upon the whole matter put in issue, and should not be required or directed by the court or judge to find the defendant guilty merely on the proof of the publication by the defendant of the paper charged to be a libel, and of the sense ascribed in the indictment or information." 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 defense 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 defense, 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 ay, 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 defense where the publication is made with good motives and for justifiable ends. See Townsend on Slander and Libel; 2 Bish. Cr. L., 7th ed., § 920; Whart. Cr. L., § 2525, et seq.; Cooley 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 ancient decemviri, or the later emperors. 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 publica [*152] tions, and *not in freedom from censure for criminal matter when pub lished. 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 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 [*153] 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 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) (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 regu. lated with us by the king's proclamations, prohibitions, charters of privilege and of licence, and, finally, by the decrees of the court of star-chamber; 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 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 principally 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, 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 that reign: Com. Journ, 11 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. Const. Lim., 424, 438, 464. And, as to what shall establish good motives and justifiable ends, see King v. Root, 4 Wend., 113; Commonwealth v. Bonner, 9 Met., 410; Regina v. Newman, 1 El. & Bl., 268 and 558: Barthelemy v. People, 2 Hill, 248; State v. White, 7 Ired., 180; Commonwealth v. Snelling, 15 Pick., 337. (15) It may well be doubted, however, if attempts to restrain the licentiousness of the press through criminal prosecutions usually serve a beneficial purpose. The attempt by the government of the United States, by means of the Sedition Act," during the administra tion 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. 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 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 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 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 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 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. (1) [*155] 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 transpor tation 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 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) (2) (1) These statutes are since repealed. (e) See book L, p. 817. Beccar, a. (2) The present law on this subject is in 16 and 17 Vic., c. 107. The punishments are greatly mitigated. *3. Another offence against public trade is frauduient bankruptcy, [*156] which was sufficiently spoken off in a former volume; (d) I shall there fore 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) (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, 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 100/., 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 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 37 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 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 bor[*157] rowed. (4) 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 20l. 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 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 (d) See book II, page 481, 482. (e) Stat. 5 Geo. II, c. 80. (f) Beccar. c. 34. (3) The previous statutes on the subject of bankruptcy were superseded by the bankrupt law which took effect Jan. 1, 1870. The penalties are now much less severe than those specified in the text. (4) Securities are no longer void for usury. Stat. 17 and 18 Vic., c. 90. As to usury in general, see Book II, 455, et seq. 366 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 Henry 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." (j) But now the general punishment for all frauds *of this kind, if indicted (as they may be) at common law, is by fine and imprisonment: though the easier and more usual [*158] 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 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) 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, () was described by statute 5 and 6 Edw. VI, c. 14, to be the buying or contracting for any merchandize 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 at the common law. (m) And the general penalty for these three of[*159] fences 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 malpractices to raise the price of provisions, were punished by a pecuniary mulct. viginti aureorum statuitur adversus eum, qui contra annonam fecerit, societatemve coierit quo annona carior fiat.” (o) (h) See book I, page 274. "Poena (i) 8 Inst. 219. (n) 1 Hawk. P. C. 235. (Seld. tit. of Hon. b. 2, c. 5, § 2 (5) Frauds upon public justice and such as affect the crown and public, though arising from some particular transaction with an individual, are indictable as cheats at common 1 Russell on Crimes, 285. Under this head come such cheats as are effected by means of false tokens, measures or weights, and false dice. Russell, 289. law. (6) By statute 24 and 25 Vic., c. 96, s, 88, Whosoever shall, by any false pretense, 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 offense, 1 Bish. Cr. L. §518; 2 Russ. on Crimes, 286, et seq. (7) This and the two following offenses are now done away with by statute 7 and 8 Vic., f. 24. |