8. An eighth offence against the public peace is that of a forcible entry or detainer; which is committed by violently taking or keeping possession of lands and tenements, with menaces, force and arms, and without the authority of law. This was formerly allowable to every person disseised, or turned out of possession, unless his entry was taken away or barred by his own neglect, or other circumstances; which were explained more at large in a former book. (1) But this being found very prejudicial to the public peace, it was thought necessary by several statutes to restrain all persons from the use of such violent methods, even of doing themselves justice; and much more if they have no justice in their claim. (m) So that the entry now allowed by law is a peaceable one; that forbidden is such as is carried on and maintained with force, with violence, and unusual weapons. By the statute 5 Ric. II, st. 1, c. 8, all forcible entries are punished with imprisonment and ransom at the king's will. And by the several statutes of 15 Ric. II, c. 2, 8 Hen. VI, c. 9, 31 Eliz. c. 11, and 21 Jac. I, c. 15, upon any forcible entry, or forcible detainer after peaceable entry, into any lands, or benefices of the church, one or more justices of the peace, taking sufficient power of the county, may go to the place, and there record the force upon his own view, as in case of riots; and upon such conviction may commit the offender to gaol, till he makes fine and ransom to the king. And moreover the justice or justices have power to summon a jury to try the forcible entry or detainer complained of: and if the same be found by that jury, then, besides the fine on the offender, the justices shall make restitution by the sheriff of the possession, without inquiring into the merits of the title for the force is the only thing to be tried, punished, and remedied by them: and the same may be done by indictment at the general sessions. But this provision does not extend to such as endeavour to maintain possession by force, where they *themselves, or [*149] their ancestors, have been in the peaceable enjoyment of the lands and tenements for three years immediately preceding. (n) (12)

9. The offence of riding or going armed, with dangerous or unusual weapons, is a crime against the public peace, by terrifying the good people of the land; and is particularly prohibited by the statute of Northampton, 2 Edw. III, c. 3, upon pain of forfeiture of the arms, and imprisonment during the king's pleasure in like manner, as by the laws of Solon, every Athenian was finable who walked about the city in armour. (0)

10. Spreading false news, to make discord between the king and nobility, or concerning any great man of the realm, is punishable by common law (p) with fine and imprisonment; which is confirmed by statutes Westm. 1, 3 Edw. I, c. 34, 2 Ric. II, st. 1, c. 5, and 12 Ric. II, c. 11.

11. False and pretended prophecies, with intent to disturb the peace, are equally unlawful, and more penal; as they raise enthusiastic jealousies in the people, and terrify them with imaginary fears. They are therefore punished by our law, upon the same principle that spreading of public news of any kind, without communicating it first to the magistrate, was prohibited by the ancient Gauls. (7) Such false and pretended prophecies were punished capitally by statute 1 Edw. IV, c. 12, which was repealed in the reign of Queen Mary. And now by the statute 5 Eliz. c. 15, the penalty for the first offence is a fine of ten pounds and one year's imprisonment; for the second, forfeiture of all goods and chattels, and imprisonment during life. *12. Besides actual breaches of the peace, any thing that tends to provoke or excite others to break it, is an offence of the same denomina(1) See book III, page 174, &c.

[*150]

(m) 1 Hawk. P. C. 141.

(n) Holding over by force, where the tenant's title was under a lease, now expired, is said to be a forci. ble detainer. (Cro. Jac. 199.)

(0) Pott. Antiq. b. 1. c. 26.

(p) 2 Inst. 226. 3 Inst. 198.

(a) Habent legibus sanctum, si quis quid de republica a finitimis rumore aut fama acceperit, uti ad magistratum deferat, neve cum alio communicet: quod sæpe homines temerarios atque imperitos falsis rumoribus terreri, et ad facinus impelli, et de summis rebus consilium capere cognitum est." Cæs. de bell. Gall. lib. 6, cap. 19.

(12) [A forcible entry and detainer is indictable at common law. R. v. Wilson, 8 T. R. 357. per Parke, B.; Harvey v. Brydges, 14 M. and W. 442; R. v. Smyth, 5 C, and P. 201.] See, also, State v. Wilson, 3 Mo. 125; Com. v. Shattuck, 4 Cush. 141; Henderson's Case, 8 Grat. 789

tion. Therefore, challenges to fight, either by word or letter, or to be the bearer of such a challenge, are punishable by fine and imprisonment, according to the circumstances of the offence. (r) (13) If this challenge arises on account of any money won at gaming, or if any assault or affray happens upon such account, the offender, by statute 9 Ann. c. 14, shall forfeit all his goods to the crown, and suffer two years' imprisonment.

13. Of a nature very similar to challenges are libels, libelli famosi, which, taken in their largest and most extensive sense, signify any writings, pictures, 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; (w) 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 [*151] the public peace; 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 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.

Quinetiam lex

(v) Moor, 627. 5 Rep. 125.

Poenaque lata, malo quæ nollet carmine quenquam
Describi: -vertere modum formidine fustis.-Hor. ad Aug. 152.
(z) Cod. 9 36.

(13) [The offences of fighting duels, and sending or provoking challenges, were fully considered by Mr. J. Grose, in passing sentence on Rice, convicted on a criminal information for a misdemeanor of the latter kind (3 East, 581), where the opinions of the earlier writers are collected. It is an offence, though the provocation to fight do not succeed. 6 East, 464; 2 Smith, 550; and it is a misdemeanor merely to endeavor to provoke another to send a challenge. 6 East, 464. But mere words which, though they may produce a challenge, do not directly tend to that issue, as calling a man a liar, or knave, are not necessarily criminal: 2 Lord Raym. 1031; 6 East, 471; though it is probable they would be so if it could be shown that they were meant to provoke a challenge.1

(14) [Though it has been held, at least for these two centuries, that the truth of a libel is no justification in a criminal prosecution, yet in many instances it is considered an extenuation of

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 publications, and *not in freedom from censure for criminal matter when published. Ev[*152 ] ery 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 consc

the offence; and the court of king's bench has laid down this general rule, viz. that it will not grant an information for a libel, unless the prosecutor, who applies for it, makes an affidavit, asserting directly and pointedly that he is innocent of the charge imputed to him. But this rule may be dispensed with, if the person libelled resides abroad, or if the imputations of the libel are general and indefinite, or if it is a charge against the prosecutor for language which he has held in parliament. Doug. 271, 372.

It had frequently been determined by the court of king's bench, that the only questions for the consideration of the jury, in criminal prosecutions for libels, were the fact of publication and the truth of the innuendos, that is, the truth of the meaning and sense of the passages of the libel, as stated and averred in the record, and that the judge or court alone were competent to determine whether the subject of the publication was or was not a libel. See the case of the dean of St. Asaph, 3 T. R. 428. But the legality of this doctrine having been much controverted, the 32 Geo. III, c. 60, was passed, entitled, "An act to remove doubts respecting the functions of juries in cases of libels." And it declares and enacts that, on every trial of an indictment or information for a libel, the jury may give a general verdict of guilty, or not guilty, upon the whole matter in issue, and shall not be required or directed by the judge to find the defendant guilty, merely on the proof of the publication of the paper charged to be a libel, and of the sense ascribed to it in the record. But the statute provides, that the judge may give his opinion to the jury respecting the matter in issue, and the jury may at their discretion, as in other cases, find a special verdict, and the defendant, if convicted, may move the court, as before the statute, in arrest of judgment.

A person may be punished for a libel reflecting on the memory and character of the dead, but it must be alleged, and proved to the satisfaction of the jury, that the author intended by the publication to bring dishonor and contempt on the relations and descendants of the deceased. 4 T. R. 126.

It is not a libel to publish a correct copy of the reports or resolutions of the two houses of parliament, or a true account of the proceedings of a court of justice. For though," as Mr. Justice Lawrence has well observed, the publication of such proceedings may be to the disadvantage of the particular individual concerned, yet it is of vast importance to the public that the proceedings of courts of justice should be universally known. The general advantage to the country in having these proceedings made public more than counterbalances the inconvenience to the private persons whose conduct may be the subject of such proceedings." Rex v. Wright, 8 T. R. 293.

But this will not apply to the publication of part of a trial, before it is finally concluded; for that might enable the friends of the parties to pervert the justice of the court by the fabrication of evidence, and other impure practices.

Nor ought it to extend to the publication of trials, where indecent evidence must from necessity be introduced; for it would be in vain to turn women and children out of court, if they are afterwards permitted to read what has passed in their absence.]

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 defence 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 defence, 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 may, 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 defence where the publication is made with good motives and for justifiable ends. See Townsend on Slander and Libel; 2 Bish. Cr. L. §§ 783, 815; Whart. Cr. L. § 2525, et. seq.; Cooley Const. Lim. 424, 438, 464. And as to what shall establish good motives and justifiable ends, see King v. Root, 4 Wend. 121; Commonwealth v. Bonner, 9 Met. 410; Regina v. Newman, 1 El. and Bl. 268 and 558; Barthelemy v. People, 2 Hill, 248; State v. White, 7 Ired. 180; Commonwealth v. Snelling, 15 Pick. 337.

quence 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 infalliable 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 keep poisons in his closet, but [*153] 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)

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 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

(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 regulated with us by the king's proclamations, prohibitions, charters of privileges and of licence. and, finally, by the decrees of the court of star-chamber; which limited the number of printers, and 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; 11, 88, 230), issued their ordinances for that purpose, founded princi pally 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. aud M. c. 24 ; but though frequent attempts were made by the government to revive it, in the subsequent part of the reign: Com. Journ. ¡1 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.

(a) Mir. c. 1. § 3.

(15) It may well be doubted, however, if attempts to restrain the licentiousness of the press through criminal prosecutions ever served a beneficial purpose. The attempt by the government of the United States, by means of the "Sedition Act," during the administration 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.

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 year's 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. III, c. 34), makes [*155] 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 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 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 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 the offenders, and not to the extraordinay 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)

*3. Another offence against public trade is fraudulent_bankruptcy, [*156] which was sufficiently spoken of in a former volume; (d) I shall therefore 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 207.; and his withholding any books or writings with intent to defraud his creditors: all of 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. (ƒ) And, even without actual fraud, if the bankrupt cannot make it appear that he is disabled from paying his debts by some casual loss, be 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, neg

(b) Stat. 26 Geo. I. c. 32. 32 Geo. II, c. 18. 4 Geo. III, c. 12.
(d) see book II, page 481, 482.
(e) Stat. 5 Geo. II. c. 30.

(c) See book I, p. 317. Beccar. c. 33. (f) Beccar. c. 34.

(1) These statutes are since repealed. (2) The present law on this subject is in 16 and 17 Vic. c. 107. The punishments are greatly mitigated.

(3) The previous statutes on the subject of bankruptcy were superseded by the new bankrupt law which took effect Jan. 1, 1870. The penalties are now much less severe than those specified in the text.