Page images
PDF
EPUB

within two

any owner,

ter's mate, surgeon, or supercargo, not to be liable

of the act.

[ocr errors]

S. 48. Trial of offences

[ocr errors]

act.

fended, and

trate, against any owner or part-owner, or any captain, master, years inform- mate, surgeon, or supercargo, of any ship or vessel, who shalí ing against have committed any offence against this act, and shall give evi

dence on oath against such owner, &c. before any magistrate or captain, mas

court before whom such offender may be tried; or if such person
so offending shall give information to any of his Majesty's ambas-

sadors, ministers, &c. or other agents, so that any person owning to the pains

such ship or vessel, or navigating or taking charge of the same, and penalties as captain, master, mate, surgeon, or supercargo, may be appre

hended, such person so giving information and evidence, shall
not be liable to any of the pains or penalties under the act, in-
curred in respect of his offence; and his Majesty's ambassadors,
ministers, &c. are required to receive any such information, and to
transmit the particulars thereof without delay, to one of his Ma-
jesty's principal secretaries of state, and to transmit copies of the
same to the commanders of his Majesty's ships or vessels, then
being in such port or place.

The 48th section enacts, that all offences against this act which against this

shall be committed in any country, territory, or place, other than
the united kingdom, or on the high seas, or in any port, sea,
creek, or place, where the admiral has jurisdiction, and which shall
be prosecuted as piracies, felonies, robberies, or misdemeanors, shall
and may be enquired of, either according to the ordinary course of
law, and the provisions of the 28 H. 8. c. 15. or according to the
provisions of the 33 H.8. c. 23. or according to the provisions of
the 11 and 12 W.3. c.7. or according to the provisions of the 46
Geo. 3. c. 54.; (e) and that all persons convicted of any of the
said offences, to be enquired of, tried, and determined, under and
by virtue of any commission to be made or issued, according to
the directions of the said act of the 46 Geo. 3. shall be subject
and Liable to, and shall suffer all such and the same pains, penal-
ties, and forfeitures, as by this act, or any law or laws now in
force, persons convicted of the same respectively would be subject
and liable to, in case the same were respectively enquired of,
tried, and determined, and adjudged, within this realm, by virtue
of any commission made according to the directions of the statute
28 H. 8. c. 15.

A subsequent section enacts, that all offences against this act, offences com- which shall be committed in any place where the admiralty has

not jurisdiction, and not being within the local jurisdiction of any jurisdiction. ordinary court of a British colony, &c. competent to try such of

fence, may be enquired of, tried, &c. under and by virtue of any
commission to be issued, according to the directions of the 46 G.
3. c. 54.

It is then further enacted, that all offences committed against may be tried,

this act may be enquired of, tried, determined, and dealt with, as mitted in Mid- if the same had been respectively committed within the body of the county of Middlesex.

(e) Ante, 110.

S. 49. Trial of

mitted out of the admiral's

S. 50. Offences

as if com

dlesex.

CHAPTER THE NINETEENTH.

OF FORESTALLING, REGRATING, AND INGROSSING, AND OF

MONOPOLIES.

Every practice or device by act, conspiracy, words, or news, to Nature of enhance the price of victuals or other merchandize, has been held these offences. to be unlawful; as being prejudicial to trade and commerce, and injurious to the public in general. (a) Practices of this kind come under the notion of forestalling; which anciently comprehended, in its signification, regrating and ingrossing, and all other offences of the like nature. (b) Spreading false rumours, buying things in the market before the accustomed hour, or buying and selling again the same thing in the same market, are offences of this kind. (c) Also if a person within the realm buy any merchandize

gross, and sell the same again in gross, it has been considered to be an offence of this nature, on the ground that the price must be thereby enhanced, as each person through whose hands it passed would endeavour to make his profit of it. (d) So the bare ingrossing of a whole commodity, with an intent to sell it at an unreasonable price, is an offence indictable at the common law; for if such practices were allowed, a rich man might ingross into his hands a whole commodity, and then sell it at what price he should think fit. (e) And so jealous is the common law of all practices of this kind that it has been held contrary to law to sell corn in the sheaf; upon the supposition that by such means the market might be in effect forestalled. (f)

The offences of forestalling, regrating, and ingrossing were for the statutes a considerable period prohibited

by statutes; and chiefly by the on this sub3 & 4 Edw. 6. c. 21. and 5 & 6 Edw. 6. c. 14.:(8) but the bene- ject now re

pealed. ficial tendency of such statutes was doubted; and at length by the 12 Geo. 3. c. 71, they were repealed, (h) as being detrimental

(a) 3 Inst. 196. 3 Bac. Abr. 261. in gross. 3 Inst. 196. Forestalling (A).

(e) i Hawk. P. C. c. 80. s. 3. 3 Inst. (b) 3 lnst. 195. 8 Bac. Abr. 261. 196. Forestalling (A).

(f) 8 Inst. 197. 3 Bac. Abr. 261. (c) 1 Hawk. P. C. c. 80. s. 1.

Forestalling (A). (d) 3 Inst. 196. 3 Bac. Abr. 261. (g) Altered by 5 Eliz. c. 5. s. 13. Forestalling (A). I Hawk. P.C. c. 80.5 Eliz. c. 12. and 13 Eliz. c. 25. s. 13. s. 3. But it was held that any mer. (h) The acts repealed are 3 & 4 chant, whether subject or foreigner, Edw. 6. c. 21. 5 & 6 Edw. 6. c. 14. bringing victuals or any other mer- 3. Phil. & Mar. c. 3. 5 Eliz. c. 5. 15 chandize into the realm, may sell it Car. 2. c. 8. and so much of 5 Ann.

2

to the supply of the labouring and manufacturing poor of the

kingdom. The offences It has been sometimes contended that forestalling, regrating, are still punishable at

and ingrossing, were punishable only by the provisions of these common law. statutes: (i) but that doctrine has not been admitted, and they

still continue offences at common law; (k) though their precise extent and definition at the present day may perhaps admit of some doubt. There is not much to be found in the books concerning the common law upon this subject; and from the time of the 5 & 6 Edw. 6. c. 14. prosecutions for offences of this nature were probably found to be framed with more facility and certainty upon the statute than upon the common law. That statute, it has been observed, is now repealed: but as it particularly describes the offences of forestalling, regrating, and ingrossing, it may be of use to refer to it as containing a parliamentary exposition of the

respective terms denoting the several particular offences. (1) Parliamentary I'he first section enacted that whosoever should buy or cause exposition of a forestaller.

to be bought any merchandize, victual, or any other thing whatsoever, coming by land or by water toward any market or fair, to be sold in the same, or coming toward any city, port, haven, creek, or road, from any parts beyond the sea, to be sold; or make any bargain, contract, or promise, for the having or buying the same or any part thereof, so coming as aforesaid, before the said merchandize, victuals, or other things, should be in the market, fair, city, port, haven, creek, or road, ready to be sold; or should make any motion by word, letter, message, or otherwise, to any person, for the enhancing of the price, or dearer selling of any thing above mentioned; or else dissuade, move, or stir, any person coming to the market or fair, to abstain or forbear to bring or convey any of the things above rehearsed to any market, fair, city, port, haven, creek, or road, to be sold as afore

said should be taken to be a forestaller. (m) Of a regrator.

The second section enacted that whosoever should by any means regrate, obtain, or get into his hands or possession, in a fair or market, any corn, wine, fish, butter, cheese, candles, tallow, sheep, lambs, calves, swine, pigs, geese, capons, hens, chickens, pigeons, conies, or other dead “victual whatsoever, that should be brought to any fair or market to be sold, and should sell the same again in any fair or market holden or kept in the same place, or in any other fair or market within four miles thereof-should be taken to be a regrator. (9) c. 34. as relates to butchers selling or to prevent the public market; and cattle alive or dead, in London or, metaphorically, to intercept in geneWestminster, or within ten miles ral; and seemeth derived from fore, thereof; and all the acts made for which is the same as before, and stalle, tbe better enforcement of the same. a standing place or departwent, from

(i) Rex v. Maynard, Cro. L'ar. 231. whence sprang the aocient word stalRex v. Waddington, 1 East. R. 153. lage, wbich signifieth money paid for (k) i Hawk. P. C. c. 80. s. 15. erecting a stall or stand for the sell

Hawk. c. 80. s. 15. 2 Burn's ing of goods in a fair or market. Just. Forestalling, &c. p. 482, 483. 2 Burn's Just. 481. Foreslalling, &c. 4 Blac. Com. 158.

(n) Regrator is said to be derived (m) Forestalling (forestællan or fore- from the French word regratement, stallan) in the English Saxon signifieth for huckstery. 3 last. 195. properly to market before the public,

The third section enacted, that whosoever should ingross or Ofan ingrasser. get into his hands by buying, contracting, or promise taking, other than by demise, grant, or lease of land or tithe, any corn growing in the fields, or any other corn or grain, butter, cheese, fish, or other dead victuals whatsoever, to the intent to sell the same again, should be taken to be an ingrosser. (0)

It has been suggested, that at the present day it would pro- Common law bably be holden that no offence is committed, unless the conduct offence. of the party manifests an intent to raise the price of provisions ; as the mere transfer of a purchase in the market where it is made, the buying articles before they arrive at a public market, or the purchasing of a large quantity of a particular article, can scarcely be regarded as in themselves necessarily injurious to the community. (P) And that many cases may occur in which a most laudable motive may exist for buying up large quantities of the same commodity. (9) It is stated also, that in one case the court were equally divided on the question, whether regrating is an indictable offence at common law : (r) and that it seems therefore, at all times, to be safer to charge in the indictment, that the acts complained of were done with an evil design to raise the price of the article in question. (s)

In a case which occurred in the year 1800, and in which the Waddington's defendant was charged by an information, filed against him by case. --Enleave of the court, with divers acts committed with the intent of hancing the

price of hops. enhancing the price of hops, the law relating to forestalling, regrating, and ingrossing, was much considered. The defendant being a merchant of credit and affluence in Kent, and having a stock of hops in hand, went to the city of Worcester for the purpose of speculating how he could enhance the price of that commodity. And for that purpose he declared to the sellers, that hops were too cheap, and to the hop planters, that they had not a fair price for their hops: and in order that his speculation of raising the price of a falling market might not be defeated, he contracted for one-fifth of the produce of Worcestershire and Herefordshire when he had a stock in hand, and admitted that he did not want to purchase. For this conduct the information was filed against him, containing many counts, (t) upon which he was

(o) The vendee cannot sell again in rumours, with intent to enhance the gross, for then he is an ingrosser, ac- price of hops, in the hearing of hopcording to the nature of the word, planters, dealers, and others, that the for that he buy in gross and sell in stock of hops was nearly exhausted, gross. 3 Inst. 195.

and that there would be a scarcity of (p) 2 Chit. Crim. Law, 528, in the hops, &c., with intent to induce them notes ; referring to Smith's Wealth of not to bring their hops to market for Nations, 2 Vol. 309. and the lodex, sale for a long time, and thereby tit. “ Labour."

greatly to enhance the price; 2d, With (9) 2 Chit. Crim. Law, ibid. referring spreading such rumours generally, to the arguinents, &c. in 14 East. 406. with intent to enhance the price of 15 East. 511.

hops; 3d, With endeavouring to en(T) Rex v. Rushby, Hil. T. 40 Geo. hance the price, by persuading divers 3. 2 Chit. Crim. Law, 536, note (r) and dealers, &c. not to take their hops to 528, in the notes.

market, and to abstain from selling (8) 2 Chit. Crim. Law, 528, in the for a long time; 4th, With ingrossing potes.

large quantities of hops, by buying (1) There were nine counts; the 1st, from many particular persons, by charging the defendant with spreading name, certain quantities, with intent

convicted generally; and upon his being brought up to receive judgment, the questions as to his having committed any offence at all, and as to the nature of that offence, if any had been committed, were discussed by permission of the court, though not urged re

gularly in the form of a motion in arrest of judgment. rguments On behalf of the defendant it was contended, that the facts urged for the charged against him never constituted any offence, even previous

to the statute 12 Geo. 3. c. 71.; but that if they did, the offences stated in each count, and all others ejusdem generis, were done away by that statute, which went to repeal, not merely the particular acts of parliament therein enumerated, but the whole system of laws respecting forestalling, regrating, and ingrossing. And the resolutions of the committee of the House of Commons, to whom it was referred to make a report upon these laws, were relied upon, as shewing that it was the intention of the Legislature to do them away altogether. The defendant's counsel also urged, that an ingrossing must be of some commodity which constitutes victuals, and that hops were no victuals: and they also took objections to the particular form of the counts of the information; and amongst others, that there was no quantity specified on the face of the information out of which the defendant purchased the hops, whereas this should have appeared ; ingrossing being a relative term, and meaning the getting either the whole of any commodity, or at least so much of it as to prevent others from supplying their wants in the common course of trade; and that the quantity ingrossed ought to have been so much as

would have affected the consumption of the whole kingdom. Lord Kenyon's Lord Kenyon, in delivering his opinion, said, that it could not opinion.

be denied, but that our law books declare practices of the sort
with which the defendant was charged to be offences at common
law; that he was perfectly satisfied that the common law re-
mained in force with respect to offences of this nature; and that
in considering whether that was intended to be done away by the
act of the 12 Geo. 3. he could not regard the resolutions entered
on the journals of the Commons house of Parliament, but must
look to the statute-book; and that there he found nothing which
trenched upon what he had said, but only a repeal of certain
statutes, upon none of which that prosecution was founded, but
upon the common law. With respect to the objection that hops
were no victuals, he observed, that if they were become a neces-
sary ingredient, though only for preserving the common drink of
the people, they must be deemed a necessary of life and a victual,
the ingrossing of which, or committing any undue practices to
enhance the price to the public, is an offence at common law. (u)
to resell the same for an unreasonable 7th, With buying like quantities with
profit, and thereby to enhance the like intent; 8th, With buying like
price; 5th, Ad idem, stating the par- quantities with intent to resell at exor-
ticular contracts; 6th, With getting bitant profit, and thereby greatly to
into his hands large quantities, by con- enhance the price; 91h, With unlaw-
tracting with various persons for the fully ingrossing, by buying large quan-
purchase, with intent to prevent the tities with like intent. The defendant
same being brought to market, and to was convicted generally upon this in-
resell at an unreasonable profit, and formation.
thereby greatly to enhance the price; (u) It appears that hops and malt

« EelmineJätka »