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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 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 [ 153 ] 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 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 controul of an inspector. So true it will be found, that to censure the licentiousness, is to maintain the liberty of the press. (16)
(16) The offence of libel often involves such important considerations, that the public attention is very naturally drawn to the proceedings of courts of justice in the trial of it; at the same time it has something so peculiar in its nature, that it is equally natural to find difficulties in making them satisfactory or intelligible in all respects to ordinary minds. One of the most disputed points on the subject, early in the last reign, was the extent of the province of the jury. The general practice had been for a long series of years, to consider the criminality of a paper charged to be a libel, as a question of pure law, which the judge was to lay down to the jury; and it was contended that this was the most favourable course for the defendant, because the question of criminality must then be either on the record, or in the direction of the judge, and of course always subject to reconsideration for the defendant by writ of error, or on motion for a new trial. In fact, however, it was attended with this heavy disadvantage to him, that wherever the publication and the meaning of the paper as charged, were found against him, he was almost uniformly convicted in the first instance, for the very reason that such conviction was so reviewable. I think this fact, and the reason for it, may both be inferred from the answer of the judges to the third question put by the lords in 1792, in the course of the debates on Mr. Fox's Libel Bill. The question is, "Supposing the publication clearly proved, and the innocence of the paper as clearly manifest, is it competent for the judge to recommend a
verdict of Not guilty?” The answer is in the affirmative; “but (they add) no case has occurred in which it would have been in sound discretion fit for a judge, sitting at nisi prius, to have given such direction or recommendation to a jury.” And the course of argument, which follows, is, that even in apparently the clearest cases the judge may be wrong, and therefore the safe course for him is that which leaves his direction open to review. It is obvious that this was full of practical hardship to the defendant, and that it was a declining from that proper responsibility in the judge, which the public has a right to expect, and without which trials at nisi prius in general would lose half their value.
In 1771, after the trial of Mr. Almon, for the republication of Junius, a bill drawn by Mr. Burke, was brought into parliament to settle this inportant point. It was, however, thrown out; and it is singular enough that Mr. Fox was in the majority; because in 1791, he himself brought in a bill almost in terms the same, which was finally passed in 1792, and is commonly known by his name. It is both declaratory and enacting; by sect. 1. the jury in all cases of information or indictment for libel may find a general verdict of guilty or not guilty, upon the whole matter in issue, and are not to be required by the court or judge to find a verdict of guilty merely on proof of the publication, and the sense ascribed to the paper in the information or indictment. The second and third sections, provide that the court or judge, according to their or his discretion, shall give their or his opinion and directions to the jury on the matter in issue; and that the jury may, if they please, still find a special verdict, as in other criminal cases. The fourth section provides that the defendant may still move in arrest of judgment, if convicted, as before the passing of the act 32 G. 3. c. 60.
The bill passed without much difference of opinion in the commons; in the lords there was more opposition; and Lords Thurlow and Kenyon among others, signed a protest against it, as “subverting a fundamental and important principle of English jurisprudence.” But in the arguments on both sides there was no dispute as to the constitutional province of the jury, as to fact distinct from law: the opponents asserted that the criminality of a paper was matter of law, and, that granted, their conclusion followed of course. The advocates of the bill denied the second proposition, and said that the criminality was a question of fact and law inseparably united, and then contended that the first proposition did not apply to any case in which the fact and the law could not be separated; and that in all such cases the jury, though they might receive advice from the court, were by the constitution the sole judges.
One remark more seems proper to be made: the advocates of the bill both in and out of parliament (and no one more powerfully than its real author, the late lord Erskine), uniformly contended that it was to prevent and not to produce an anomaly in the criminal law, and that their sole object was to give the jury the same power, and no other, in a trial for libel, as in a trial for murder. This should be always borne in mind, and so long as it is, the bill will be productive of great benefit; but the object of the bill is very easily misrepresented, for the bill itself rests upon a somewhat subtle proposition; and it is not to be wondered at, if
juries juries have been sometimes persuaded that in cases of libel they were invested with new and extraordinary powers, while, in the words of John Lilburn, the judge was reduced to a mere cypher. Wherever this happens, the bill is indirectly the source of much mischief.
See the Ann. Reg. v. 33. c.vii. v.34. pt. 2. p.* 69. Parliamentary History, v. 29. pp.551.591.726.741. But the question cannot be fully understood without reference to all the proceedings in the trial of the dean of St. Asaph.
CHAPTER THE TWELFTH.
OF OFFENCES AGAINST PUBLIC
OFFENCES against public trade, like those of the pre
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. 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; 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
· Mir. c. 1. & 3.
19 Geo. II. c. 34.) makes it transportation for seven years, if the penalties be not paid. (1)
. 2. SMUGGLING, or the offence of importing goods without paying the duties imposed thereon by the laws of the customs and excise, is an offence generally connected and carried on [ 155 ] 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. 34., is for this pupose 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 seisure, 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
(1) These and several other statutes on the same subject were repealed by the 28 G.3. c.38., which has itself in several points been altered and partly repealed by subsequent statutes. By it the exportation of live sheep, the breed of Great Britain or the adjacent islands, other than wethers shipped for food, is punishable by forfeiture of the animals and the vessel carrying them, for the benefit of the seizer ; besides which, the exporter, his aiders, abettors, procurers, and comforters shall forfeit zl. for every sheep, &c., and suffer solitary imprisonment for three months, and further until the fine be paid, so as the whole imprisonment does not exceed twelve calendar months. For every subsequent offence, the forfeiture is 5l. for each sheep, and a like imprisonment for six calendar months, and until such forfeiture be paid ; but the imprisonment for non-payment of the penalty must not exceed two years; the penalty to go to him who shall sue for it. The exportation of wool by the same statute is, for the first time, punished by a forfeiture of 3s. for every pound of wool, or 50l. in the whole, at the election of him who sues, with solitary imprisonment for three calendar months; for the second time, by the same pecuniary penalties, and a six months' imprisonment, with similar restrictions as to the length of the imprisonment for non-payment of the penalties, as before mentioned.