dently of such sufficiency. By statute 29 Geo. II. c. 36, amended by statute 31 Geo. II. c. 41, further provisions are made for the inclosure of parts of commons for the purpose of planting and preserving trees fit for timber or underwood. And by the statute 13 Geo. III. c. 81, such a majority as therein described may make temporary regulations as to the times of turning on and removing their cattle. But the most important acts upon this subject are those of a local nature, which in many instances have abolished the right of common altogether; and the General Inclosure Act of 41 Geo. III. c. 109, which forms the groundwork of all the particular acts subsequently passed for this purpose.

This statute begins by prescribing an oath to be taken by all commissioners under future inclosure acts, and disables them for five years from purchasing lands within the parish where they are to act. By section 6 all claimants of common or other right in any of the lands to be inclosed are directed, on pain of forfeiture, to present their claims in writing, with distinct specifications of their interests; but by section 7 the commissioners are to assign the several allotments to the persons in actual possession of the tenements in lieu or in right of which such allotments are to be made, without pretending to determine any question of title to those tenements. By section 14 the several shares when allotted, it is declared,

66 shall be in full satisfaction of all previous rights; and immediately after the making of the allotments, and the execution of the award, or from some other time to be ascertained by a notice fixed on the church door, all rights of common, &c. shall be extinguished. The award here mentioned is directed by s. 35 to be drawn up by the commissioners, as soon as conveniently may be after the allotment shall be finished; it is to express the quantities, situations, and descriptions of the parcels allotted, with the roads, fences, and other circumstances prescribed, and the orders and regulations made by the commissioners; it is to be written on parchment, and read and executed by the commissioners at a meeting of the proprietors called for that purpose; and the execution of it is to be proclaimed on the next Sunday in the parish church; from the time of which proclamation only, and not before, such award shall be considered as complete; and it is to be enrolled in one of the courts of record at Westminster, or with the clerk of the peace for the county, that recourse may be had to it for inspection; and a copy of this award, or of any part of it, signed by the proper officer, shall be admitted as legal evidence; and the award itself shall be binding and conclusive, unless where it is otherwise enacted; and, if the commissioners think fit to annex any maps or plans to the award, they are to be enrolled with and considered as part of it." By section 17 it is enacted that persons neglecting or refusing to accept their allotments within two calendar months from the execution of Burton's Law of Real Property, pp. 380-382.

the award, shall be totally excluded from all interest in the lands. By section 44 it is provided that the statute shall take effect only where the .local acts are silent.

By the statute 43 Geo. III., c. 75, the committees of lunatics (that is, the persons to whose care they and their estates may have been committed by the lord chancellor) are empowered to grant leases on behalf of the lunatic, and to raise money for the payment of his debts or performance of his engagements, by sale or mortgage, as the chancellor may direct and by statute 59 Geo. III., c. 80, s. 2, the same power is extended to customary estates, that is, those to which the title is altogether constituted by custom.

During this period some acts relating to the subject of charities were passed, which it will be sufficient merely to enumerate, viz. :-52 Geo. III., c. 101, to provide a summary remedy in cases of abuses of trusts created for charitable purposes; 52 Geo. III., c. 102, for the registering and securing charitable donations; 58 Geo. III, c. 91 (amended by 59 Geo. III., c. 81), for appointing commissioners to inquire concerning charities in England for the education of the poor; and 59 Geo. III., c. 91, for giving additional facilities in applications to courts of equity regarding the management of estates or funds belonging to charities.

The number of statutes passed during this period relating to the subjects of trade, navigation, ship-owners, mariners, and fisheries, was very great, implying a very great amount of legislative activity in that direction. The whole number of statutes on the above specified subjects, from the reign of Edward III. (the commencement of them) to the end of the reign of George III., as given in Sir William Evans's Collection of the Statutes,' is 79. Of these there were but 13 in existence at the commencement of George III.'s reign, and only 22 at the beginning of the present century, indeed before 1803; so that during the present period, i. e. from 1802 to 1820, there were passed about three times as many statutes on these subjects as during the whole preceding history of our legislature or existence of our monarchy. To attempt to give anything of an account or analysis of these statutes, or even to transcribe the titles of them, would evidently, in a work of this nature, be futile, and would serve no other purpose than to take up room which could be much better occupied.

By the statute 52 Geo. III., c. 32, intituled "An Act for the relief of infant suitors in courts of equity, entitled to stock or annuities in any of the public or other funds, transferable at the Bank of England," the courts of chancery and exchequer are empowered to order the dividends on any stocks, funds, or annuities, belonging to any infant suitors in such courts, transferable at the Bank of England, standing in the names of such infants, to be paid to the guardians of such infants for the maintenance and education, or otherwise for the use and

the law of Copyright and of Libel to the date at
which our work terminates;* but there is a ques-
tion, of considerable importance in the present
day, having a certain affinity to the subject of
literary property, of which we have not yet treated.
The question is, in what cases actions for libel may
be maintained against reviewers, &c. for criticisms
of works. It was laid down by Lord Wynford
(Best, C. J.) in Levi v. Milne,† that the decla-
ratory statute 32 Geo. III. c. 60 does not apply to
civil actions; that it only applies to criminal
cases, and that there is nothing in it which in any
way touches civil actions; and that the jury, with
respect to them, stand in the same situation as
they have always done. However, in that branch
of civil actions for libel which arises out of criti-
cisms of books, the decisions of the judges have
given to the jury the same power in substance
which the statute has given to them expressly in
cases of indictment or criminal information, the
power, namely, of judging both of the law and the
fact. In the case of Carr v. Hood,‡ where an
action of libel was brought against the defendant,
who had criticised a certain work of the plaintiff's,
the declaration, after setting forth that the plaintiff
had acquired great gains by the sale of the copy-
right of divers books of his, stated that the de-
fendant, intending to expose him to and to bring
upon him great contempt, laughter, and ridicule,
falsely and maliciously published a certain false,
scandalous, malicious, and defamatory libel in the
form of a book, of and concerning, &c., which
same libel was entitled "My Pocket Book, or
Hints for a Ryghte Merrie and Conceited Tour, in
quarto, to be called The Stranger in Ireland in
1805, by a Knight Errant;" and which same
libel contained a certain false, &c. print of the
said Sir John, in the form of a man of ludicrous
and ridiculous appearance, &c. Plea, Not Guilty.
Lord Ellenborough, C. J., said,
"Here the sup-
posed libel has only attacked those works of which
Sir John Carr is the avowed author; and one
writer, in exposing the follies and errors of another,
may make use of ridicule, however poignant.
Ridicule is often the fittest weapon which can be
employed for such a purpose. If the reputation
or pecuniary interest of such a person suffer, it is
damnum absque injurid. Where is the liberty of
the press if an action can be maintained on such
principles? Perhaps the plaintiff's Tour is now
unsaleable; but is he to be indemnified by receiv-
ing a compensation in damages from the person
who may have opened the eyes of the public to
the bad taste and inanity of his compositions?
Who would have bought the works of Sir Robert
Filmer after he had been refuted by Mr. Locke?
But shall it be said that he might have maintained
an action for defamation against that great philo-
sopher, who was labouring to enlighten and
ameliorate mankind? We really must not cramp

*See ante, vol. i., pp. 530-539; and vol. iii., pp. 613-621.
+4 Bingham's Rep. 195.

1 Camp. 355, note.

observations upon authors and their works. They should be liable to criticism, to exposure, and even to ridicule, if their compositions be ridiculous; otherwise the first who writes a book on any subject will maintain a monopoly of sentiment and opinion respecting it. This would tend to the perpetuity of error. Reflection on personal character is another thing. Show me an attack on the moral character of this plaintiff, or any attack on his character unconnected with his authorship, and I shall be as ready as any judge who ever sat here to protect him; but I cannot hear of malice on account of turning his works into ridicule. Every man who publishes a book commits himself to the judgment of the public, and any one may comment on his performance. If the commentator does not step aside from the work, or introduce fiction for the purpose of condemnation, he exercises a fair and legitimate right. The critic does a great service to the public who writes down any vapid or useless publication, such as ought never to have appeared. He checks the dissemination of bad taste, and prevents people from wasting both their time and money upon trash. I speak of fair and candid criticism, and this every one has a right to publish, although the author may suffer a loss from it. Such a loss the law does not consider as an injury, because it is a loss which the party ought to sustain. It is, in short, the loss of fame and profits to which he was never entitled. Nothing can be conceived more threatening to the liberty of the press than the species of action before the court. We ought to resist an attempt against fair and liberal criticism at the threshold." The chief justice concluded by directing the jury, that, if the writer of the publication complained of had not travelled out of the work he criticised, for the purpose of slander, the action would not lie; but, if they could discern in it anything personally slanderous against the plaintiff, unconnected with the works he had given to the public, in that case he had a good cause of action. Thus the jury were here left to determine not only the fact of publishing, but also whether the matter published was libellous or not, for by the direction of the court they were to determine whether or not the writer had travelled out of the work he criticised for the purpose of slander. Doctrine similar to the above has been held in later cases. In a case* where the plaintiff was a bookseller, and the declaration stated that the defendant intending, &c. to cause it to be believed that he (the plaintiff) published and vended books of an absurd, immoral, and improper tendency, composed and printed the libel in question, Lord Ellenborough held that evidence was receivable to show the general nature of the plaintiff's publications to which the libel alluded, though it was certainly actionable gravely to impute to a bookseller having published a poem which he had not published. But, if a writer, he added, under the pretence of criticising a literary work, introduce facts not Tabbart v. Tipper, 1 Camp. 350.

stated in the work, accompanied with injurious comments upon them, such writer is liable to an action for libel.*

As regards that class of cases where the book criticised is of such a character that the publication of it is contrary to law, it is almost unnecessary to say that the author of such a book can maintain no action at law: and, in the case of Walcot v. Walker,† Lord Eldon said: "It is not the business of this court to decree either an injunction or an account of the profits of works of such a nature that the author can maintain no action at law for the invasion of that which he calls his property, but which the policy of the law will not permit him to consider his property. It is no answer that the defendants are as criminal. It is the duty of the court to know whether an action at law would lie; for, if not, the court ought not to give an account of the unhallowed profits of libellous publications."

In consequence of the proceedings arising out of the late case of Stockdale v. Hansard; the statute 3 Vict. c. 9 was passed, which enacts that all proceedings, criminal or civil, against persons for publication of papers printed by order of parliament, shall be stayed upon the defendant bringing before the court (after twenty-four hours' notice to the prosecutor or plaintiff of his intention so to do) a certificate under the hand of the lord high chancellor, or speaker of the House of Commons, to the effect that such publication is by order of either House of Parliament. The second section enacts that proceedings shall be stayed when commenced in respect of the publication of a copy of such a report, &c., on production and verification of the original. By the third section, in proceedings for printing any extract or abstract of a paper, it may be shown that such extract or abstract was published bond fide and without malice; and, if such shall be the opinion of the jury, verdict of Not Guilty shall be entered for the defendant or defendants.

III. CRIMINAL LEGISLATION.-In the preceding Book we entered so fully into the examination of the statutes relating to riots, unlawful assemblies, and combinations, and other similar offences against the state,§ that it will not be necessary to return particularly to that subject here. We shall, however, notice one or two statutes connected with the subject of treason, which were passed during the present period, and are characteristic of it.

We mentioned in the last book that the statute 30 Geo. III. c. 48 had abolished the punishment of burning women for high or petit treason, and substituted hanging in its stead; and now in the present period a further amelioration was made in the criminal code relating to the punishment for Nightingale v. Stockdale, London sittings after H. T. 49 Geo. III. Ellenborough, C. J.,

*Selw. N. P. 1049.

7 Vesey Jun. 1.

19 Adol. and El. 1.

§ See ante, Vol. iii. pp. 609, 610.

high treason: for by the statute 54 Geo. III. e 146, after a recital that in certain cases of high treason, as the law then stood, the sentence required by law to be pronounced against persons convicted of the said crime was that they should be drawn on a hurdle to the place of execution, and there be hanged by the neck, but not until they were dead; that they should be taken down again, and that when they were yet alive their bowels should be taken out and burnt before their faces, and that afterwards their heads should be severed from their bodies, and their bodies be divided into four quarters, and their heads and quarters be at the king's disposal;-it is enacted that in all cases of high treason in which, as the law then stood, the sentence was as aforesaid, the sentence to be pronounced, from the passing of the act, against any person convicted shall be, that such person shall be drawn on a hurdle to the place of execution, and be there hanged by the neck until he or she be dead, and that afterwards the head shall be severed from the body of such person, and the body, divided into four quarters, shall be disposed of as his majesty and his successors shall think fit. And by section 2nd it is further declared, that after sentence his majesty may, by warrant under the sign manual, countersigned by a principal secretary of state, direct that such person as aforesaid shall not be drawn, but shall be taken in such manner as in the said warrant is expressed, to the place of execution, and not there hanged, but beheaded alive; and in such warrant may direct in what manner the body, head, and quarters of such person shall be disposed of.

The statute 52 Geo. III. c. 156, after reciting that many prisoners of war confined and on parole in different parts of his majesty's dominions have of late escaped by the aid of many of his majesty's subjects and others, enacts that every person who shall, from and after the passing of this act, knowingly and wilfully aid or assist any alien enemy of his majesty, being a prisoner of war in his majesty's dominions, whether such prisoner shall be confined as a prisoner of war in any prison or other place of confinement, or shall be suffered to be at large in his majesty's dominions or any part thereof on his parole, to escape from such prison or other place of confinement, or from his majesty's dominions, if at large upon parole, shall upon being convicted thereof be adjudged guilty of felony, and be liable to be transported as a felon for life, or for such term of fourteen or seven years, as the court before whom such person shall be convicted shall adjudge. By the 3rd section it is enacted, that, if any person or persons owing allegiance to his majesty, after any such prisoner as aforesaid hath quitted the coast of any part of his majesty's dominions in such his escape as aforesaid, shall knowingly and wilfully, upon the high seas, aid or assist such prisoner in his escape to or towards any other dominions or place, such person shall also be adjudged guilty of felony,

and be liable to be transported as aforesaid; and such offences committed upon the high seas, and not within the body of any county, shall and may be inquired of, tried, heard, determined, and adjudged in any county within the realm, in like manner as if such offences had been committed within such county.

By the statute 59 Geo. III. c. 69, it is made a misdemeanour, punishable by fine or imprisonment, or both, for any natural-born subject of his majesty, without licence under the sign manual or signified by order in council, or by proclamation, to enter or agree to enter into the service or under or in aid of any foreign prince or people, or person exercising or assuming to exercise the powers of government in any foreign state, province, or part thereof, as an officer, soldier, sailor, or in any warlike capacity whatsoever, or even to go abroad with that intent; or for any person whatever, in any part of his majesty's dominions, even to attempt to enlist any person for any of these purposes. The 6th section imposes a forfeit of 507. on the master of any ship for every such person whom he shall knowingly take on board, and on the owner for every such person whom he shall knowingly even agree to take on board; the ship to be detained till the penalty be paid, or bail found for the payment. The 7th and 8th sections provide against the equipment or arming, wholly or partially, of any ship, with intent to employ her as a ship of war, transport, or store-ship, in the service of any foreign state or persons exercising any powers of government.

By the statute 52 Geo. III. c. 143, the important statute now in force on the subject of violations of the revenue laws, all the offences against the revenue laws, which by the laws then in force were felony without benefit of clergy, are made felony with benefit of clergy, except certain offences, which the act enumerates. These consist of certain offences against the post-office; of forging certain government certificates and stamps; of assisting with arms in illegal exportation, running, relanding, rescuing, &c., when committed by three or more persons armed with fire-arms or other offensive weapons; of 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.

By the statute 56 Geo. III. c. 138, intituled "An Act to abolish the punishment of the pillory, except in certain cases," it is enacted, that " from and after the passing of this act judgment shall not be given and awarded against any person or persons convicted of any offence, that such person or persons do stand in or upon the pillory, except for the offences hereinafter mentioned, any law,

statute, or usage to the contrary notwithstanding: provided that all laws now in force whereby any person is subject to punishment for the taking any false oath, or for committing any manner of wilful and corrupt perjury, or for the procuring or suborning any other person so to do, or for wilfully, falsely, and corruptly affirming or declaring, or procuring or suborning any other person so to affirm and declare, in any matter or thing, which if the same had been deposed in the usual form would have amounted to wilful and corrupt perjury, shall continue and be in full force and effect; and that all persons guilty of any of the said several offences shall incur and suffer the same punishment, penalties, and forfeitures as such persons were subject to by the laws and statutes of this realm, or any of them, before the passing of this act, and as if this act had not been made." section 2 substitutes fine or imprisonment, or both, in lieu of the sentence of pillory. This punishment has since, however ("perhaps," observes Mr. Justice Coleridge,* "through inadvertency"), been inflicted by the 57 Geo. III. c. 12.

And

There is a subject which, though in one point of view it belongs to the head of Real Property, yet, as the statutes relating to it which were passed during this period view it rather under the head of Criminal Legislation, may be now noticed under that head. Formerly, by the English law, both villeins regardant and villeins in gross were considered as real property. Consequently all the incidents of real property attached to them; so that some passages of the old books seem to our modern ideas not a little strange. Take, for instance, this passage from Perkins :-"If a man be seized of a villein in gross in fee, and the lord of the villein hath issue a son, which son marrieth a wife, and the father dieth, and the son dieth before any seizure of the villein, yet his wife shall be endowed of the villein."+ Thus, also, as there may be waste in houses, gardens, parks, fish-ponds,

2 Coleridge's Blackstone's Com. 123, note (6).

Sect. 372. The title of Perkins's work (which is one of great authority in old law) is A profitable booke of Master John Perkins, fellow of the Inner Temple, treating of the laws of England. London, 1593.' It may perhaps be necessary here to remind the reader that dower in English law is an estate for life, which the law gives to the wife, after the decease of her husband, in the third part of the lands and tenements of which the husband was seized, in deed or in law, at any time during the marriage, for a legal estate of inheritance in possession. The following observations in a note to 2 Bl. Comm. 134 will be found not uninteresting, if for no other reason than that they explain the meaning of an expression seldom understood by those who use it. "When special endowments were made ad ostium ecclesia, the husband, after affiance made and troth plighted, used to declare with what specific lands he meant to endow his wife (quod dotam eam de tali manerio cum pertinentiis, &c, Bract. 1. ii. c. 39, s. 6.), and therefore in the old York ritual (Seld. Ux. Hebr., 1. ii. c. 27) there is at this part of the matrimonial service, the following rubric: "Sacerdos interroget dotem mulieris: et, si terra ei in dotem detur, tunc dicatur psalmus iste," &c. When the wife was endowed generally (ubi quis urorem suum dotaverit in generali, de omnibus terris et tenementis; Bract. ib.), the husband seems to have said, "With all my lands and tenements I thee endow;" and then they all became liable to her dower. When he endowed her with personalty only, he used to say, "With all my worldly goods (or, as the Salisbury ritual has it, with all my worldly chattel) I thee endow;" which entitled the wife to her thirds, or purs rationabilis, of his personal estate, which is provided for by Magna Charta, cap. 18, though the retaining this last expression in our modern liturgy, if of any meaning at all, can now refer only to the right of maintenance, which she acquires during coverture, out of her husband's personalty."-See also the argument of Sir Joseph Jekyll, Master of the Rolls, in Banks v. Sutton (2 Eq. Ab. 382, note; 2 P. W. 634, and the observations thereon in Park on the law of dower, 131, et seq.