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 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, mischievous, or illegal, he must take the consequences 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 (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.

Chapter XII.

OF OFFENCES AGAINST PUBLIC TRADE.

154-161.

Offences against public trade, like those of the preceding classes, are either felonious or not felonious. Of the first sort are,

Owling and Smuggling.

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.

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 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.

Bankruptcy and Usury.

3. Another offence against public trade is fraudulent bankruptcy, which was sufficiently spoken of in a former volume.

4. Usury; which is an unlawful contract, upon the loan of money, to receive the same again with exorbitant increase. Cheating.

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 the law, and particularly by the statutes 31 Geo. II. c. 29, 3 Geo. III. c. II, 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 measures; the standard of which fell under our consideration in a former volume. 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. 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 pretense, 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.

Forestalling the Market.

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 Edward VI. c. 14 to be the buying or contracting for any merchandise 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.

Regrating and Engrossing.

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 victuals, 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 an intent to sell it at an unreasonable price, is an offence indictable and finable at the common law.

Monopolies.

9. Monopolies are much the same offence in other branches of trade that engrossing is in provisions: being a license or privilege allowed by the king for the sole buying and selling, making, working, or using of anything whatsoever; whereby the subject in general is restrained from that liberty of manufacturing or trading which he had before. These had been carried to an enormous height during the reign of Queen Elizabeth, and were heavily complained of by Sir Edward Coke, in the beginning of the reign of King James the First; but were in great measure remedied by statute 21 Jac. I. c. 3, which declares such monopolies to be contrary to law and void (except as to patents, not exceeding the grant of fourteen years, to the authors of new inventions; and except also patents concerning printing, saltpetre, gunpowder, great ordnance, and shot); and monopolists are punished with the forfeiture of treble damages and double costs to those whom they attempt to disturb; and, if they procure any action, brought against them for these damages, to be stayed by any extrajudicial order other than that of the court wherein it is brought, they incur the penalties of praemunire. Combinations also among victuallers or artificers to raise the price of provisions or any commodities, or the rate of labor, are in many cases severely punished by particular statutes.

Chapter XIII.

QF OFFENCES AGAINST THE PUBLIC HEALTH, AND THE PUBLIC POLICE OR ECONOMY.

161-176.

Quarantine. Selling Unwholesome Provisions.

The fourth species of offence 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 special magistrates or curators appointed.

The first offence mentioned relates to the location of persons infected with a plague, etc. The matter of quarantine and the laws with reference thereto are cited.

Offences Against Public Economy.

V. The last species of offences which especially affect the

commonwealth are those against the public police and economy. By the public police and economy I mean the due regulation and domestic order of the kingdom, whereby the individuals of the state, like members of a well-governed family, are bound to conform their general behaviour to the rules of propriety, good neighborhood, and good manners; and to be decent, industrious, and inoffensive in their respective stations. This head of offences must therefore be very miscellaneous, as it comprises all such crimes as especially affect public society, and are not comprehended under any of the four preceding species. These amount some of them to felony, and others to misdemeanours only. Among the former

are,

Clandestine Marriages.

1. The offence of clandestine marriages: 1. To solemnize marriage in any other place besides a church or public chapel wherein banns have been usually published, except by license from the archbishop of Canterbury; and 2. To solemnize marriage in such church or chapel without due proclamation of banns, or license obtained from a proper authority, do both of them not only render the marriage void, but subject the person solemnizing it to felony, punished by transportation for fourteen years; as, by three former statutes, he and his assistants were subject to a pecuniary forfeiture of 100l. 3. To make a false entry in a marriage-register; to alter it when made; to forge or counterfeit such entry, or a marriage license; to cause or procure, or act or assist in such forgery; to utter the same as true, knowing it to be counterfeit; or to destroy or procure the destruction of any register, in order to vacate any marriage or subject any person to the penalties of this act; all these offences knowingly and wilfully committed, subject the party to the guilt of felony without benefit of clergy.

Bigamy.

2.

Another felonious offence with regard to this holy estate of matrimony is what some have corruptly called bigamy, which properly signifies being twice married, but is more justly denominated polygamy, or having a plurality of wives at once. Such second marriage, living the former husband or wife, is simply void, and a mere nullity, by the ecclesiastical law of England; and yet the legislature has thought it just to make it felony, by reason of its being so great a violation of the public economy and decency of a well ordered state. For polygamy can never be endured under any rational civil establishment, whatever specious reasons may be urged for it by the eastern nations, the fallaciousness of which has been fully proved by many sensible writers: but in northern countries the very nature of the climate seems to reclaim

against it. And with us in England it is enacted, by statute 1 Jac. I. c. II, that if any person, being married, do afterwards marry again, the former husband or wife being alive, it is felony, but within the benefit of clergy. The first wife in this case shall not be admitted as a witness against her husband, because she is the true wife; but the second may, for she is indeed no wife at all; and so vice versa of a second husband. This act makes an exception to five cases in which such second marriage, though in the three first it is void, is yet no felony. 1. Where either party has been continually abroad for seven years, whether the party in England hath notice of the other's being living or no. 2. Where either of the parties hath been absent from the other seven years within this kingdom, and the remaining party hath no knowledge of the other's being alive within that time. 3. Where there is a divorce (or separation a mensa et thoro) by sentence in the ecclesiastical court. 4. Where the first marriage is declared absolutely void by any such sentence, and the parties loosed a vinculo. Or, 5. Where either of the parties was under the age of consent at the time of the first marriage; for in such case the first marriage was voidable by the disagreement of either party, which the second marriage very clearly amounts to. But if at the age of consent the parties had agreed to the marriage, which completes the contract, and is, indeed, the real marriage, and afterwards one of them should marry again, I should apprehend that such second marriage would be within the reason and penalties of the act.

The third and fourth offences mentioned are such as the wandering about the realm of idle soldiers and mariners, and as to Egyptians or gypsies.

Common Nuisances.

5. To descend next to offences whose punishment is short of death. Common nuisances are a species of offence against the public order and economical regimen of the state, being either the doing of a thing to the annoyance of all the king's subjects or the neglecting to do a thing which the common good requires. The nature of common nuisances and their distinction from private nuisances were explained in the preceding volume, when we considered more particularly the nature of the private sort, as a civil injury to individuals. I shall here only remind the student that common nuisances are such inconvenient or troublesome offences as annoy the whole community in general, and not merely some particular person, and therefore are indictable only, and not actionable, as it would be unreasonable to multiply suits by giving every man a separate right of action for what damnifies him in common only with the rest of his fellow subjects. Of this nature are, 1. Annoyances in highways, bridges, and public rivers, by rendering