(U) Prohibitions to the Spiritual Court.

A servant to the abbot of St. Albans had, by the direction of his master, prevailed upon a married woman to come to his master's chamber. As soon as the abbot was alone with her, he began to find fault with the meanness of her dress. The woman answered, that her dress was as good as her husband could afford to buy for her. Upon this he told her, well knowing what women set their hearts upon, that if she would submit to his will, she should go as well dressed as any woman in the parish. As she would not comply with the proposal, he, after assaulting her and making an attempt to lie with her by force, which did not succeed, locked her up in his chamber, hoping at another time to accomplish his design. The husband being informed of all which had passed, spoke publicly of the abbot's behaviour to his wife, and threatened to bring an action for the false imprisonment. Hereupon the abbot, intending to add oppression to injury, instituted a suit against the husband, in a spiritual court, for saying he had solicited his wife's chastity. The whole matter being disclosed to a temporal court, having power to award a prohibition, a prohibition was awarded; the court being of opinion, that as the spiritual defamation was coupled with the assault upon and imprisonment of the wife, for which an action would lie, it was not proper that the suit in the spiritual court should proceed.

4 Rep. 20, Palmer v. Thorpe.

A prohibition lies to a suit in a spiritual court, for publishing these words of a woman, who has a right to enjoy an estate she is in the possession of so long as she lives chaste, She is a whore; for, as she may, by reason thereof, be brought into danger of losing the estate, an action would lie. Sid. 214, Boys v. Boys; 4 Rep. 17; 1 Lev. 134.

If a suit be instituted in a spiritual court for publishing these words of a woman, who lives in London, She is a whore, à prohibition lies; because, as, by a custom of that city, a whore is liable to be carted, an action would lie.

1 Roll. Abr. 36, Hassell v. Cooper; Comb. 138.

It was formerly holden that a prohibition did not lie to a suit in a spiritual court for publishing words of a woman who lives in London, which import a charge of incontinence; for that only the word whore is within the custom.

Lutw. 1039, Houblon v. Miller; Cro. Car. 339; Sid. 248.

But it has been since holden, that the word strumpet is within the custom, and consequently that a prohibition lies to a suit in a spiritual court, for publishing these words of a woman, who lives in London, She is a strumpet.

Stra. 555, Cooke v. Wingfield; 8 Mod. 115.

A prohibition lies to a suit in a spiritual court for calling the husband of a woman, who lives in London, cuckold; for, as calling him cuckold is tantamount to calling her whore, the word is within the custom.

Stra. 471, Vicars v. Worth; Ibid. 545. A mother cannot maintain an action of slander for calling her daughter a bastard, there being no colloquium of the mother. Maxwell v. Allison, 11 Serg. & R. 343.g

If a suit be instituted in a spiritual court for publishing these words of a clergyman, He is an heretic, if by reason thereof he lost a benefice, to which he was about to be presented, a prohibition lies, because an action would lie; the loss of the benefice being a temporal damage.

4 Rep. 17.

(U) Prohibitions to the Spiritual Court.

A prohibition lies to a suit in a spiritual court for publishing these words of a woman, She had a bastard by J S, if by reason thereof she lost a marriage with J N, because an action would lie for the loss of the marriage.

1 Roll. Abr. 34, Davis v. Gardiner; 4 Rep. 16; Cro. Ja. 162.

So, to a suit in a spiritual court, for publishing these words of J S, He is a whoremaster, if by reason thereof he lost a marriage with A D; for the loss of a marriage is as great a damage to a man as to a woman.

1 Roll. Abr. 35, Matthew v. Cross; Cro. Ja. 323, 422; Latch, 118; Cro. Car. 269. If a suit have been carried on in a spiritual court for a spiritual defamation, and the defendant, after agreeing to commute the penance to which he has been sentenced by paying a sum of money to the party defamed, refuse to pay the money, a prohibition does not lie to a suit in that court for compelling him to pay it.

4 Rep. 21.

3. Where the Words, which are a spiritual Defamation, import a Charge of an Offence not conusable in a Spiritual Court.

As only words, which import the charge of an offence which is conusable in a spiritual court, are a spiritual defamation, a prohibition lies to a suit in a spiritual court for words which do not import such charge. The prohibition is in this case founded upon that general power, which the king's superior temporal courts have, to prohibit all other courts, spiritual as well as temporal, from proceeding in a cause which is not within their jurisdic

tion.

If a suit be instituted in a spiritual court for publishing these words of a clergyman, He is a fool, an ass, or a goose, a prohibition lies; the words being words of heat.

2 Lev. 49, Newman v. Ringerby.

So, if a suit be instituted for publishing these words of a clergyman, He is a dunce and a blockhead; I wonder the bishop would ordain such a fellow; he deserves to have his gown pulled over his ears; a prohibition lies: for a clergyman is no more punishable in such court, because he is a dunce and a blockhead, than another man. It being said in this case that a clergyman. may be deprived of his benefice for want of learning, Rolle, C. J., answered, if that should be the case he must bring an action at law, deprivation of a benefice being a temporal damage.

Salk. 692, Coxiter v. Parsons; 11 Mod. 140, 208.

So, if a suit be instituted for speaking these words to a clergyman, You are an old rogue and a rascal, and a contemptible fellow, and hated and despised by everybody, a prohibition lies; the words not being a spiritual defamation.

Stra. 946, Musgrave v. Bovey.

A prohibition lies to a suit in a spiritual court for publishing these words of J S, He is a knave; because the being a knave does not make a person liable to any ecclesiastical censure.

Salk. 548, Hawkin's case; 2 Roll. Abr. 206; Sid. 293.

These words, He is as great a rogue as ever was hanged, and deserves hanging more than Doctor Pims, were holden to be no spiritual defamaVOL. IX.-14

Smuggling and Customs.

tion; and a prohibition was granted to a suit in a spiritual court for publishing them.

11 Mod. 112, Hoskins v. Lee.

A prohibition lies to a suit in a spiritual court for calling a man drunkard; drunkenness not being punishable in a spiritual court.

2 Roll. Abr. 296, Haynes v. Poynter.

If a suit be instituted in a spiritual court, for calling a woman quean, a prohibition lies; inasmuch as the meaning of the word quean is not well ascertained, and it is moreover a word of heat.

2 Roll. Abr. 296, Blackshaw v. Stevens.

SMUGGLING AND CUSTOMS.

SMUGGLING Consists in the bringing on shore, or in the carrying from the shore, of goods, wares, or merchandise, for which the duty has not been paid, or of goods of which the importation or exportation is prohibited.

This offence is productive of various mischiefs to society. The public revenue is thereby lessened; the fair trader is injured, and the nation impoverished: rival, and perhaps hostile states are thereby enriched; and the persons guilty thereof, being hardened by a course of disobedience to, and defiance of law, become at last so abandoned and daring as not to hesitate at being guilty of the greatest offences.

It must be the wish, and ought to be the endeavour of every lover of his country, that many of the present high duties should be lowered. This would be very advantageous to trade; and it would, by removing in part the temptation, put some stop to the pernicious practice of smuggling, which all the severe laws made against it have not been found to do. In the mean time, it is not only their duty, but it highly concerns all persons of property, and every friend to peace and order, to co-operate in discountenancing this offence, and in carrying the laws made against it into execution.

Under this title it will be proper to give some account,

(A) Of Customs in the general.

(B) Of the Origin of Customs.

(C) Of the ancient state of certain Customs.

1. Of the Duties upon Wool, Wool-fells, and Leather.

2. Of the Duty of Tonnage.

3. Of the Duty of Pounduge.

(D) of the present State of the Customs.

1. Of the Duty of Tonnage.

2. Of the Duty of Poundage.

3. Of the Duties to which Aliens are liable.

(E) Of Prohibited Goods.

(A) Of Customs in the general.

(F) Of the pecuniary Penalties and Forfeitures incurred by Persons guilty of Smuggling, or of such Practices as have a direct tendency thereto.

1. In Ships at Sea or hovering upon the Coast.

2. In the Shipping or Unshipping of Goods at any Port, Member, or Wharf, not lawfully appointed for such purposes.

3. In Ships in Port inward bound.

4. In Ships in Port outward bound.

5. In Coasting Vessels.

6. In the Case of Certificate and Prohibited Goods.

7. In divers other Cases.

(G) Of the corporal Punishments to which Persons who have been guilty of Smuggling, or of such Practices as have a direct tendency thereto, are liable.

1. Imprisonment.

2. Whipping.

3. Transportation.
4. Death.

(A) Of Customs in the general.

THE term customs is usually applied to those taxes which are payable upon goods and merchandise imported or exported.

Story, Const. § 949.

As a part, and the most considerable part of the offence of smuggling consists in the bringing on shore, or in the carrying from the shore, of goods, wares, or merchandise, without paying the customs or duties, which ought to be paid upon the importation or exportation of such goods, wares, or merchandise, it cannot be improper to give some account of the customs in general.

Under the word customs, is comprised every duty, which is to be paid upon the importation or exportation of goods, wares, or merchandise.

Duties upon the importation or exportation of goods, wares, or merchandise, were perhaps at first imposed, for enabling the crown to make and maintain commodious ports and harbours, and to keep up a fleet for the protection of the ships of merchants against enemies and pirates. As these services were of a permanent nature, it was reasonable that the duties appropriated for defraying the expense thereof should be so likewise; and it appears from the practice of early times, that this was the case.

The first (a) grant of a custom now extant was made to the king and his heirs; and in the (b) Great Charter, which was antecedent to this grant, mention is made of ancient customs as being due and having been constantly paid. It may likewise be fairly inferred from the fact of their having been paid for a number of years without any new demand of the crown or grant from the people, that the imposition of ancient duties was for a continuance. From the length of time some ancient duties had been paid, in which they differed from such aids as were only paid during the continuance of a particular emergency, they did perhaps obtain the name of customary payments, or customs: (c) by which name all duties afterwards imposed upon goods imported or exported have been called.

(a) Rot. Pat. m. 3 E. 1, m. 1, n. 1; Rot. Fin. 3 E. 1, m. 24; 2 Inst. 59. (b) Mag.

(B) Of the Origin of Customs.

Ch. c. 30; 51 H. 3, st. 5, § 6. [(c) The customs are denominated in the barbarous Latin of our ancient records, custuma; not consuetudines, which is the language of our law, whenever it means merely usages. This appellation seems to be derived from the French word coustume, or coûtume, which signifies toll or tribute, and owes its own etymology to the word coust, which signifies price, charge, or, as we have adopted it in English, cost. 1 Bl. Comm. 324.] But the customs were called custuma and consuetudines indiscriminately. Magna Charta provides that merchants shall have safe conduct per antiquas et rectas consuetudines; and Lord Coke expressly gives the word this meaning, 2 Inst. 58, which it bears in many old letters patent and records. Vide Madd. Exchequer, chap. 18.||

(B) Of the Origin of Customs.

THE power of congress to levy and collect taxes, duties, imposts, and excises, is co-extensive with the United States.

Loughborough v. Blake, 5 Wheat. 317.g

It has been a much altercated question, whether the right of imposing customs was heretofore in the crown alone, or whether it was always in parliament.

The maintainers of the former opinion distinguish between subsidies and customs. They admit, that the former were always assessed in parliament: but it is insisted that the king alone had heretofore a right to impose customs, in consideration of the license given by him, to export or import the commodities upon which they are imposed; of the interest he has in the sea, as being guardian thereof, and maintainer of its ports and harbours; and of the protection given by his ships to the ships of merchants against enemies and pirates.

Dyer 43 b, 165 b; Dav. 9 a, b; ||30 Hen. 8.||

The following authorities have been likewise relied upon, in support of this opinion.

A patent for life having been granted by Edw. VI. to a merchant alien, for the importing and exporting of goods to a certain value, paying to the king his heirs and successors so much as an English merchant ought to pay, it was the opinion of all the justices in the Exchequer Chamber, that the patent continued to be valid after the king's death for the old customs wherein he had an inheritance by his prerogative; and that it was only void as to the subsidy upon goods, which by a statute of tonnage and poundage had been granted to him for life only.

Dyer, 92 a, Mich. 1 Mar.

A judgment was given in the Court of Exchequer, in an information against German Ciol, for a duty of forty shillings per ton, imposed by Queen Mary upon all wines of the growth of France brought into this realm.

2 Inst. 62, Pasch. 1 Eliz.

Lord Coke observes on this case that a proclamation prohibiting importation of wines on pain of forfeiture was against law; for it appeared not that any war was between the realms, and that the proclamation was made on purpose to set an imposition, so that the proclamation was the ground of the information.

2 Inst. 63.

And in the next page but one preceding of the second Institute is stated a case of an information by the Attorney-general in the Exchequer, (which appears to have been decided in the term following the above decision,)