fes done to fuch officer, or officers, and inflict on him fuch penalty, as the merit of the cafe shall deserve, not exceeding tep pounds. VI. Escape of a perfon legally arrested, upon a criminal procefs, by eluding the vigilance of the keepers, before he is put in prifon, is an offence at common law, punishable by fine, and imprifonment. Officers having arrested a criminal, and negligently permitting him to escape, are punishable by fine. y If the officer retake the prifoner on fresh purfait, before he gets out of his fight, it will excufe him; but if he gets out of fight, tho the officer retake him, or kill him in the purfuit, it will not excufe him. z If the efcape be voluntary, by the confent, and connivance of the officer, he is punishable in the fame degree, as the offence of which the prifoner efcaping was guilty; but cannot be punifhed till the original criminal be convicted of the crime for which he was arrelted otherwife the officer might be punifhed for a crime, of which the pefon escaping was innocent; but before conviction the officer may be fined, and imprifoned for a misdemeanor. VII. a Refcue is the forcibly, and knowingly, freeing another from an arreft, or imprifonment; and the refcuer becomes thereby guilty of the fame offence as the perfon refcued; and punishable in the fame manner, whether the crime be treafon, murder, or a nifdemeanor: but the principal mult first be convicted, before the refcuer can be tried, for it may turn out that no offence was committed. Of courfe if he entirely efcapes, the rescuer cannot be punished. Some further provifion on this head is neceflary. VIII. Breach of prifon by the offender hinfelf, when com-' mitted for any caufe, was felony at the common law, or even confpiring to break it. This doctrine has never been recognized by our courts, nor do I know that any profecution has ever been had for this offence. It might with propriety be deemed a mifdemeanor at common law, and punishable by fine and imprisonment, but the legislature ought to take up this fubject, and inflict a proper punishment on fuch an offence. IX. Libels are malicious defamations of any perfon, and ef * 4 Black. Com. 129. P. C. 590. a laid. 607. 607. 2 Hawk. P. C. 123. Y y pecially Hal. y Hal. 583. pecially a magiftrate, made public either by printing, writing, figns or pictures, in order to provoke him to wrath, or expode him to public hatred, contempt and ridicule. The communication of a libel to any one perfon in legal confideration, is publishing it. The fending an abufive letter to a perfon, is as much a libel, as if it were printed; because it has an equal tendency to break the peace. The nature of libels was fully inveftigated in confidering them as private injuries, in a former part of our enquiries. It is fufficient now to remark, that there is a material diftinction between the private action, and the public profecution, in this refpect; that in a private action, the defendant may juftify by proving the truth of the libel, but in a criminal profecution, no proof will be admitted to prove the truth of the facts ftated in the libel ; because the tendency to provoke and ditturb the public peace, and not the falfity, is confidered, to conftitute the effence of the crime. There has never been a profecution for this offence before our courts, and of courfe there never has been an express recognition of this doctrine of the common law. I do not fee any juft ground for the diftinction, as to proof between a civil action and criminal profecation. If the truth of the libel ought to excufe a perfon from paying damages to the party in a private action, it ought to excufe him from being punifhed on a public profecution. There has been a great difpute in England with refpect to the power of juries in profecutions for libels. It has been decided by Lord Mansfield, and findry of the molt eminent judges, that the jury are only to judge of the fact of publifhing, and leave it to the court to decide on the face of the record, whether the writing be a libel. But a late act of parliament, has given the jury power to judge of the fact of publishing, and whether the writing is a libel. By the power which we confider juries to poffefs in this ftate, they would moft unquestionably have a right to decide as to the fact of publishing, and alfo whether the writing be libellous. Such is the law refpecting libels that defame public officers, and private perfons: but by the common law of England, all writings which are calculated to fubvert the conflitution or civil government, religion and morality, are deemed libels. d 2 Strang 789. All All feditious writings refpecting the government have been adjudged libellous: inftances of which are very numerous in the British reports. All writings which reflect upon the chriflian religion, are deemed libels in England and authors have been punished for blafphemous writings refpecting the miracles of our Saviour, and the doctrine of the Trinity: but the court declared, that they did not intend to include difputes between learned men, upon particular controverted points, but they would not fuffer it to be debated, whether to write against chriftianity in general was not an offence punifiable by the temporal courts of common law. The ftatute law of this ftate, will comprehend every offence of this defcription. All writings which are calculated to deftroy the principles of morality, are libels. This rule is not confidered as extending to every immoral writing, but to thofe which are destructive of morality in general. Thus, the publication of obfcene books, fach as Rochefter's poems, the fifteen Plagues of a Maidenhead, and Venus in the cloifter, or the Nun in her finock, have been confidered as libels, and punished by courts. The punishment is fine, imprisonment, and pillory at the dif cretion of the court. X. Defamation of authority is punishable by ftature, which enacts, that whoever fhall defame any court of justice, or the fentence and proceedings of the fame, or any of the magiftrates, judges, or juftices of any court, in refpect of any act or fentence, palled therein, and be thereof lawfully convicted, before any of the general or fuperior courts, fhall be ponifhed by fine, imprifonment, disfranchisement, or banishment, according to the nature of the offence, and the difcretion of the court. This ftatute is very ancient, and needs correction. The defamation of a court feems a very odd expreffion. A ftatute' might defiue a reviling or vilifying of a court, which would deferve punishment. 2 Roll. Abr. 78. f 2 Strang. 834. Ibid. 789. The Statutes, 38. The fame ftatute punishes as a public offence, private defama tion but this is obfolete. I. CHAPTER ELEVENTH, OF CRIMES AGAINST PUBLIC POLICY. THE importation of convicts is prohibited by ftatute.— No perfon convicted of any crime in a foreign country, and fentenced to be transported abroad fhall be imported into this ftate, and any person who shall import or bring into this ftate knowingly any fuch convict, or fhall be aiding or affifting therein, shall forfeit and pay to the treasurer of the flate, one hundred pounds for every such convict. On a profecution for a breach of this act, the perfon profecuted, is bound to prove that he had lawful right to import the perfons, on whofe account he is profecuted, and that the fame was not against the meaning of the ftatute. This act was paffed in confequence of the importation of a cargo of convicts from Ireland. II. The importation of flaves into this State, has been prohibited by ftatute. There have been a variety of regulations on this fubject. Slavery has never been exprefly and directly authorifed by ftatute, tho it was permitted previously to the revolution, and many laws were pafled for the regulation of flaves, which indirectly established the right of holding them. In the year 1784' an act was paffed prohibiting the importation of any negro, indian, or mulatto flave, by fea or land, from any place, to be disposed of, left or fold in this state, on penalty of forfeiture to the state, one hundred pounds for every flave fo imported and alfo an act that all children born of flaves after the first day of March 1784, shall be free on their arrival to the age of twenty-five years. In the year 1788, an act was paffed, prohibiting all the citizens of this ftate, from being directly or indirectly concerned in importing or tranfporting, or buying or felling, or receiving on board his vefiel, with intent to import or tranfport any of the inhabitants of Africa, as flaves or fervants for term of years, on penalty of fifty pounds for every perfon fo received on board, and five hundred pounds b Statutes, 367. pounds for every vefiel fo employed, one half to the profecutor, and the other half to the state. It was aifo provided that if any perfon fhould kidnap, decoy, or forcibly carry out of the ftate, any free negro, indian or mulatto, or any perfon entitled to freedom, at the age of twenty-five years, inhabitants or residents in this state, or who fhall be aiding or af fifling therein, fhall forfeit one hundred pounds to the use of the flate, to be recovered on an information, prefented by any friend of fuch perfon, with fuch fun in damages as the court should judge reafonable, to be given to fuch profecutor for the ufe of fuch injured perfon or family, to be applied under the direction of the court, and the profecutor to become bound with furety for the application of fuch money, before execution thould be granted. And that every perfon poflefled of a child, entitled to be free at the age of twenty-five years, fiould deliver to the town clerk, his name, and the age, name, and fex of fuch child, on oath, within fix months from that time and ever after within fix months from the birth of the child, on penalty of forty fhillings for every neglect, half to the informer and half to the poor of the town, where fuch child should live. Afterwards half of the penalty of one hundred pounds was given to the complainant. In 1792, an act was paffed, that no citizen of this state, fhould tranfport from it, into any state, country or kingdom, or buy or fell with intent to transport, or fell if tranfported, or aid and affift in the tranfportation of any negro, mulatto flave or fervant for years, on the penalty of one hundred pounds, one half to the informer, and the other half to the state. The owners of flaves, may emancipate them, but must fapport them if they come to want, unless they are emancipated by the confent of the felectmen of the town, evidenced by their certificate; but if the flave is not lefs than twenty-five years of age, nor more than forty-five, in good health, and defirous to be free, the owner may apply to the civil authoriy and felectmen of the town, and on proof of fuch fact it is their duty to give their certificate, and if he then emancipates fuch flave, he will never be chargeable with his fupport. Such is the fituation of the Africans in this ftate, None can be imported or exported. All born fince the first of March Statutes, 369. / Ibid. 388. m Ilid. 421. |