cation, 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. But upon both points the jury must exercise their judgment and pronounce their opinion, as a question of fact, as required by the statute 32 Geo. III. c. 60, which was passed expressly to remove doubts respecting the functions of juries in cases of libel. This celebrated measure, which, from its still more celebrated author, is usually called Fox's Act, was, it will be remembered, the result of a lengthened and acrimonious discussion between Government, backed by the courts of law on the one hand, and the advocates of popular rights, with whom the juries generally sympathised, on the other: the courts holding that the jury had no question to determine but the mere fact of writing, printing or publishing, the latter contending that the guilt or innocence of the defendant was thus taken away entirely from that tribunal, whose proper constitutional function it was to determine that very question.

If

The punishment on conviction for maliciously publishing any defamatory libel is fine or imprisonment, or both, as the court may award, such imprisonment not to exceed the term of one year. however the defendant publish the libel knowing it to be false, the imprisonment may be for two years. And it is to be observed, that the defendant is entitled, on judgment given for him, to recover costs from the prosecutor: who on the other hand, if the issue upon a plea of justification is found for him, is entitled to recover his costs from the defendant.

In this 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 publication, 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, mischevious 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, 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 dangerous or offensive writings 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 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 shown 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 XII.

OF OFFENCES AGAINST PUBLIC TRADE.

Smuggling-Fraudulent bankruptcy-Destruction of machinery or goods in process of manufacture-Unlawful combinations-Cheating-Obtaining money by false pretences-Giving a false character.

The third class of offences against the commonwealth are those relating to public trade, which, like those of the preceding classes, are either felonious or not felonious. Of the first sort are,

1. Smuggling, or the importing of goods without paying the duties imposed thereon, an offence which is restrained by several statutes inflicting pecuniary penalties and seizure of the goods for clandestine smuggling; and affixing the guilt of felony, with penal servitude for life, upon more open, daring, and avowed practices. Thus, three persons assembling with fire-arms 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, are guilty of felony, and liable to penal servitude for life. Shooting at, maiming, or dangerously wounding any officer employed in the prevention of smuggling, is equally penal.

Assaulting or obstructing an officer of the revenue in the execution of his duty, is only a misdemeanor; but it is, nevertheless, an offence for which a very severe punishment may be imposed.

2. Fraudulent bankruptcy, such as a bankrupt's neglect to surrender, or to discover, all his estate, or concealing his effects to the value of 107., are, with others which might be mentioned, misdemeanors. Till recently, indeed, they were felonious, all offences

against the policy of the Bankrupt laws being long and justly considered as atrocious species of the crimen fulsi, which might properly be put upon a level with those of forgery and falsifying the

coin.

3. The malicious destruction of machinery, or of goods in the process of manufacture, is an offence against public trade as well as against the property of the individual sufferer; the immediate object of the offender being often the destruction of property generally, irrespective altogether of its ownership. This crime, and all those of a like nature are now prosecuted under the statute 24 & 25 Vict. c. 97, consolidating and amending the laws on this subject, and to which it is therefore sufficient to refer.

4. Unlawful combinations among workmen have formed the subject of several enactments, all of which were consolidated by the statute 6 Geo. IV. c. 129. The result is, that workmen as well as masters may meet together, for the purpose of determining the wages they will accept, or the hours they will work, and may make any arrangements among themselves for giving effect to their resolutions, which they think fit. But they must carry out their object by lawful means, and not attempt to intimidate or prevent masters from employing, or workmen from taking employment at any wages they may agree for. And especially must they avoid committing any assault in pursuance of any combination to raise the rate of wages; for this is a very serious misdemeanor and highly penal.

5. The last species of offence more immediately against public trade is cheating; for trade 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 were made to restrain and punish deceits in particular trades, but are now either repealed or in desuetude. obsolete offence also of breaking the assize of bread, or the rules laid down by law for ascertaining its price in every given quantity, was reducible to this head of cheating: as is likewise in a peculiar manner the offence of selling by false scales or false weights and

measures.

The

The punishment of bakers breaking the assize, was anciently to stand in the pillory, and for brewers to stand in the tumbrel or dungcart; 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. 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 way is by levying on a summary conviction, by distress and sale, the for

feitures imposed by the several acts of Parliament. Under this head, however, is generally ranked the much more serious offence of obtaining money or goods by false pretences, which is a misdemeanor punishable, if necessary, by penal servitude for five years One kind of cheating, and one of frequent occurrence, is the offence of personating a master, and giving a false character to a servant, which is punishable by a fine of 207., and in default imprisonment.

CHAPTER XIII.

OF OFFENCES AGAINST THE PUBLIC HEALTH, AND AGAINST THE PUBLIC POLICE OR ECONOMY,

1.Plague-Small-pox-Quarantine-Selling unwholesome provisions-Nuisances -Noxious trades-Overcrowding common lodging-houses-Employment of children in mines and factories-2. Clandestine marriages-Bigamy Common nuisances-Disorderly houses-Gaming houses-Lotteries-Fireworks-Idle and disorderly persons-Rogues and vagabonds-Incorrigible Rogues-Vagrant Act-Gaming-Private lotteries-Little-goes-Horseraces Betting-offices-Refusing to serve an office-Furious drivingCruelty to animals-Taking up dead bodies-Killing Game-Nightpoaching.

THE fourth species of offences, more especially affecting the commonwealth, are such as are against the public health of the nation; a concern of the highest importance, and for the preservation of which there are in many countries as with us special magistrates or curators appointed.

1. The first statute on this subject deserving of notice, is the 1 Jac. I. c. 31, by which any person infected with the plague, who was commanded by the mayor or constable to keep his house, and ventured to disobey it, might be forced, by the watchman appointed on such melancholy occasions, to obey such necessary command. And if such person went abroad, he was, if he had no plague sore upon him, punishable as a vagabond by whipping; but if he had any infectious sore upon him, uncured, he was then guilty of felony. This statute, happily long obsolete, has, with all the acts continuing it, been repealed. But it is nevertheless a misdemeanor at common law to expose a person labouring under an infectious disorder, such as the small-pox, in the streets or other public places; and it is an offence punishable by imprisonment to produce by inoculation or otherwise, the disease of small-pox; the statute 3 & 4 Vict. c. 29,

having conferred powers on the guardians and overseers to contract with the medical officers of parishes for the vaccination of the children of all persons there resident; this vaccination being now made compulsory, under penalties summarily recoverable before two justices of the peace.

By the statute 6 Geo. IV., repealing several statutes on the same subject, elaborate provisions have been made for securing the proper performance of quarantine, and obedience to regulations issued by the privy council with respect to vessels suspected of having the plague or other infectious disease on board. Offences against this statute, or disregard of the orders in council, are in ordinary cases punishable by a heavy fine; but the forgery of any of the certificates required by the act, constitutes and is punishable as felony.

2. A second offence coming under this head is the selling of unwholesome provisions. To prevent which the statute 51 Hen. III. st. 6, and the ordinance for bakers, c. 7, prohibit the sale of corrupted wine, contagious or unwholesome flesh, or flesh that is bought of a Jew. But an indictment under either statute is quite unknown, the usual mode of proceeding being a prosecution before magistrates under some one of the various statutes, passed to prevent the adulteration of bread, meal, and other articles of consumption. The sending of diseased meat to market for sale is a serious misdemeanor; the exposure of meat that is unfit for food, for sale, is also highly penal. The sale of adulterated wine in a licensed house, is much less penal, a small fine being imposed for the first offence-a larger penalty and a disqualification from selling any wine by retail for five years being attached to its repetition.

3. The third species of offences, I shall mention, are the result of negligence, rather than of any evil design. They comprise those acts of omission which consist in allowing any premises to remain uncleansed, or permitting any gutter, privy, drain, ashpit, to be so foul, or any animal to be so kept, as to be injurious to health. For summarily abating these nuisances, full powers are conferred on the local authorities of towns and populous districts, to whose neglect of duty alone can the repetition of such offences now be attributed.

4. A fourth offence against the public health is the carrying on within the limits of any city, town, or populous district, any noxious trade or manufacture, a kind of nuisance which may also be summarily suppressed on complaint by the local authority to the justices. The only other offences against the public health are,

5. Those connected with the over-crowding of common lodginghouses; or the employment, beyond the times allowed by law, of children under certain ages in mines and factories.