Page images
PDF
EPUB

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.

press not in

law of libel;

In this, and the other instances which we have lately con- the liberty of the sidered, where blasphemous, immoral, treasonable, schisma- fringed by the tical, 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 pub- [*152] lished. 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 consequence 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 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,

It was

(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. therefore regulated with us by the king's proclamations, prohibitions, charters of privilege and of licence, and finally by the decrees of the court of Starchamber; which limited the number of printers, and of 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 Starchamber exercised with respect to the licensing of books; and in 1643, 1647, 1649, and 1652, (Scobell, i. 44, 134, ii. 88, 230,)

issued their ordinances for that purpose,
founded principally on the Starchamber
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 ordi-
nances. This Act expired in 1679,
but was revived by statute 1. Jac. II.
It was
c. 17, and continued till 1692.
then continued for two years longer by
statute 4 W. and M. c. 24; but though
frequent attempts were made by the go-
vernment to revive it, in the subsequent
part of that reign (Com. Journ. 11 Feb.
1694, 26 Nov. 1695, 22 Oct. 1696,
9 Feb. 1697, 31 Jan. 1698,) yet the par-
liament resisted it so strongly that it
finally expired, and the press became
properly free, in 1694; and has ever
since so continued,

[*153]

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 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 them as cordials. And to this we may add, that the only plausible argument heretofore used for 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 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 control of an inspector. So true will it be found, that to censure the licentiousness, is to maintain the liberty, of the press (20).

(20) To this chapter it will be proper to annex the substance of an important act of parliament passed to secure the public peace, viz. the 39th Geo. III. c. 79, the preamble of which states: "Whereas a traitorous conspiracy has long been carried on, in conjunction with the persons from time to time exercising the powers of government in France, to overturn the laws, constitution, and government, and every existing establishment, civil and ecclesiastical, both in Great Britain and Ireland, and to dissolve the connexion between the two kingdoms, so necessary to the security and prosperity of both: And whereas, in pursuance of such design, and in order to carry the same into effect, divers societies have been of late years instituted in this kingdom, and in the kingdom of Ireland, of a new and dangerous nature, inconsistent with public tranquillity and with the existence of regular government, particu

larly certain societies calling themselves Societies of United Englishmen, United Scotchmen, United Britons, United Irishmen, and the London Corresponding Society: And whereas the members of many of such societies have taken unlawful oaths and engagements of fidelity and secrecy, and used secret signs, and appointed committees, secretaries, and other officers, in a secret manner; and many of such societies are composed of different divisions, branches, or parts, which communicate with each other by secretaries, delegates, or otherwise; and by means thereof maintain an influence over large bodies of men, and delude many ignorant and unwary persons into the commission of acts highly criminal;" it therefore enacts, that all these and other corresponding societies should be utterly suppressed and prohibited, as being unlawful combinations and confederacies.

And also every society of which the members shall, according to the rules of the society, be required to take an illegal oath, or an oath not authorized by law, or shall subscribe or assent to any test or declaration not required by law, or where the names of the members, or where the committees or presidents chosen, are not known to the society at large; and all societies which shall consist of different parts, either acting separately or having separate presidents or other officers, shall be deemed unlawful combinations and confederacies; and every person who shall become a member of such a society, or who shall correspond with them, or shall aid or support them with money or otherwise, shall be guilty of an unlawful combination and confederacy.

This does not extend to a declaration subscribed to by a society, which declaration shall be approved by two justices and afterwards confirmed at the quarter sessions, nor to persons who shall cease to act as members of such societies after the passing of the Act, nor to established lodges of freemasons. But two members shall certify, and upon oath, that their society has been usually held as a lodge of freemasons, in conformity to the rules of freemasons in this kingdom; which certificate, and also an account of its place and times of meeting, and the names of all its members, shall be registered with the clerk of the peace; and the justices at the sessions, upon complaint made to them upon oath by any credible person that such society is likely to be injurious to the public peace and good order, may direct that the meetings of such lodge be discontinued.

Persons offending against this statute may be proceeded against either in a summary way before one justice, or more, who may either fine the offender 201. or imprison him three calendar months, or they may be prosecuted by indictment, and upon conviction the court may transport for seven years, or

imprison for any time, not exceeding two years.

The justices in a summary conviction may mitigate the punishment to one-third. If any person shall permit the meeting of any illegal society in his house, he shall forfeit 5. for the first offence, and for the second he shall be punishable as a member. And two justices, upon evidence on oath that any meeting has been held for a seditious purpose in a public-house, may declare the licence forfeited, and from the day of such declaration the licence is void and determined, and the owner of the house will be afterwards subject to penalties accordingly.

And because many places were open for lectures and debates of a seditious and immoral nature, and other places used for seditious and immoral purposes under pretence of reading books, pamphlets, newspapers, or other publications, it is enacted, that all such places where, under any pretence, money shall be received for admission, shall be considered as disorderly houses, under the 36 Geo. III. c. 8, (see ante, p. 88, n. 15,) unless they are licensed for any time not more than one year by two justices; which licence may be revoked by the justices at the quarter sessions. Every ale

house shall be deemed licensed for reading publications; but upon evidence that publications of a seditious or immoral nature are usually distributed in order to be read there, two justices may declare the licence void.

The Act then states that these societies had published in great quantities, papers of an irreligious, treasonable, and seditious nature, and had dispersed them among the lower classes of the community, either gratis or at very low prices, and with an activity and profusion beyond all former example, and that it was highly important to the public peace that it should in future be known by whom any such papers shall be printed; it therefore enacts, that every person having any printing-press, or types for printing,

and every person carrying on the business of a letter-founder, or maker or seller of types for printing, or of printing-presses, shall give notice thereof to the clerk of the peace, who shall transmit a copy to one of his Majesty's principal secretaries of state: persons omitting to give the notice required shall forfeit 201.

And every person who shall sell types or printing-presses shall keep an account of all persons to whom they shall be sold, and shall produce such an account at any time to any justice of the peace requiring the same, on a penalty of 201

The printer shall print upon the front of every paper, which is printed on one side only, and upon the first and last leaves of every publication which contains more than one leaf, his name and place of abode; and in case of omission shall forfeit for every copy published 201.; and every person who prints for profit shall keep one copy of every paper so printed, on which shall be written or printed the name and

• This has been altered by 51 Geo. III. c. 65, § 1, which enacts, that nothing in the 27th section of the 39 Geo. III. c. 79, shall extend to make any person or persons offending against the same, liable to more than twentyfive forfeitures or penalties for printing, or publishing, or dispersing, or assisting in publishing or dispersing, any number of copies of one and the same paper, or book, contrary to the said section of the said act.

The stat. 51 Geo. III. c. 65, § 2, also enacts, that if any justice or other magistrate before whom any person shall be convicted of any offences against the provisions of the 39th Geo. III. c. 79, shall see cause to mitigate such penalty or penalties, it shall be lawful for such justice or other

place of abode of the person by whom such printer shall be employed, and shall produce the same to any justice of the peace who within the space of six months shall require to see the same, and upon neglect or refusal, shall forfeit 201.

Any person may apprehend those who are publishing papers without the name and abode of the printer, and may convey them, or deliver them to a constable to convey, to a magistrate to be examined; and a peace officer, by a warrant from a justice of the peace, may enter any house or room to search for any printing-press or types suspected to be kept or used without the notice required by the Act, and to seize and carry them away, together with all printed papers found in such house or room.

By the 38 Geo. III. c. 78, the editors of newspapers are put under various regulations, by which they may be more easily brought to punishment for any seditious or mischievous publication.-CH +

magistrate to mitigate or lessen the same to any sum not less than five pounds over and above all reasonable costs and charges expended or incurred in the prosecution.

+ Vide ante 87, note (15), 148, note (9). An act of parliament for the suppression of a highly dangerous and unconstitutional society, which had for some time existed in Ireland, called the Catholic Association, received the royal assent early in the year 1829. That was the 10 Geo. IV. c. 1, intituled "An Act for the Suppression of Dangerous Associations or Assemblies in Ireland," which it was deemed advisable to pass as a preliminary to passing the Catholic Relief Bill, 10 Geo. IV. c. 7.

154

CHAPTER XII.

OF OFFENCES AGAINST PUBLIC TRADE.

OFFENCES against public trade, like those of the preceding offences against classes, are either felonious, or not felonious. Of the first felonious, and

sort are,

public trade, are

not felonious.

nious;

1. Owling, so called from its being usually carried on in 1: Owling, felothe 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 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 and 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 year's imprisonment to the master and all the mariners. And the statute 4 Geo. I. c. 11, amended and further enforced by 12 Geo. *II. c. 21, and 19 Geo. II. c. 34, makes it transportation for seven years, if the penalties be not paid (1).

(a) Mir. c. 1, § 3.

[*155]

(1) By 5 Geo. IV. c. 47, § 2, all acts and parts of acts prohibiting the exportation of wool are repealed, and persons are now at full liberty to export this commodity, upon paying a

certain duty.

By 57 Geo. III. c. 88, fuller's earth, fulling clay, and tobacco-pipe clay, may be carried coastwise, under certain restrictions contained in 32

« EelmineJätka »