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

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 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 31. 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 51. 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 50%. 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 im prisonment for non-payment of the penalties, as before mentioned.

proclamation, it seems to be expired; as the subsequent statutes, 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 extraordinary 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. (2)

[156] 3. ANOTHER offence against public trade is fraudulent bankruptcy, which was sufficiently spoken of in a former

b Stat. 26 Geo. II. c. 32. 32 Geo. II. c.18. 4 Geo. III. c.12.

، See Vol. I. pag. 317. Beccar. c. 31.

(2) It is impossible within the limits of a note to give any thing approaching to an intelligible abstract of the various punishments which are awarded under various statutes to different offences against the laws of excise and customs. In a great number of instances, severe penalties follow upon summary conviction; of these it is proper to say, that their necessity can alone justify them, and that upon this principle these convictions are watched with much jealousy by the controuling power of the king's bench. With respect to the cases of capital punishments enumerated in the text, and the doubt therein expressed, the 19 G. 3. c. 69. expressly declared and enacted, that all the orders and directions relative to the surrender, proclaiming, &c. of offenders were continued, and re-enacted by the several acts of continuance, and might be lawfully exercised and used accordingly. However, the important statute now to be regarded on this subject is the 52 G. 3. c. 145., which brings within benefit of clergy all the capital offences against the revenue laws, except those which it afterwards enumerates. These may be divided into two classes; the first includes the minor offences of assisting in illegal exportation, running, relanding, rescuing, &c., but these, in order to be capitally punished, must have been committed by three or more persons armed with fire-arms, or other offensive weapons; the second includes the offence of any person maliciously shooting at or upon any vessel or boat of his majesty's navy, or in the service of the customs or excise within certain specified limits, or within the same limits maliciously shooting at, maiming, or dangerously wounding any officer of his majesty's military or naval forces, or of the customs or excise, or any person aiding him in the due execution of his duty under any revenue act, or act for the prevention of smuggling. This clause comprehends aiders and abettors. The provisions respecting the surrender upon proclamation of persons charged upon oath with any of these offences are similar to those mentioned in the text.

volume"; 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 201.; and his withholding any books or writings with intent to defraud his creditors: all which the policy of our commercial country has made felony without benefit of clergy. (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. And, even without actual fraud, if the bankrupt cannot make it appear that he is disabled from paying his debts by some casual loss, he 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,, neglects or refuses on demand to discover and deliver up his effects for the benefit of his creditors. (4) And these are the only felonious offences against public trade; the residue being mere misde

mesnors; as,

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

(3) The 5 G. 2. c.30., and all the other bankrupt laws, stand repealed from the 1st day of May, 1825, by the 5 G. 4. c. 98. (see Vol. II. c.31.) By the 108th section of this act, it is made a felony liable to the punishment of transportation for life, or any term of years not less than seven, or of imprisonment with or without hard labour for any term not exceeding seven years, for a bankrupt not to surrender in due time and after due notice, to refuse to be examined by the commissioners, not to discover or deliver up all his real and personal estate, the manner of disposal of it, or the books, &c. relating thereto; or to remove or embezzle any part thereof to the value of 10l., or any books, &c. relating thereto, with intent to defraud his creditors.

(4) See Vol. III. p. 416. n. 7. This sum of 1007. is, by 33 G. 3. c. 5. (made perpetual by 39 G. 3. c. 50.) extended to 300l.