20/. with costs, and shall suffer imprisonment for half a year. And, by statute 17 Geo. III. c. 26, to take more than ten shillings per cent. for procuring any money to be advanced on any life-annuity, is made an indictable misdemeanor, and punishable with fine and imprisonment: as is also the offence of procuring or soliciting any infant to grant any life-annuity, or to promise, or otherwise engage, to ratify it when he comes of age. (11)

5. Cheating is another offence more immediately against public trade; (12) as that cannot be carried on without a punctilious regard to common honesty and faith between man and man. Hither therefore may be referred that prodigious multitude of statutes which are made to restrain and punish deceits in particular trades, and which are enumerated by Hawkins and Burn, but are chiefly of use among the traders themselves. The offence also of breaking the assize of bread, or the rules laid down by the law, and particularly by the statutes 31 Geo. II. c. 29, 3 Geo. III. c. 11, and 13 Geo. III. c. 62, for ascertaining its price in every given quantity, is reducible to this head of cheating: as is likewise, in a peculiar manner, the offence of selling by false weights and measures; the standard of which fell under our consideration in a former volume. (h)(13) The punishment of bakers breaking the assize was, anciently, to stand in the pillory, by statute 51 Hen. III. st. 6, and for brewers (by the same act) to stand in the tumbrel or dung-cart:(i) which, as we learn from domesday-book, was the punishment for knavish brewers in the city of Chester so early as the reign of Edward the Confessor.

"Malam cervisiam faciens, in cathedra ponebatur stercoris."(j)(14) *158] But now the general punishment for all frauds *of this kind, if in

dicted (as they may be) at common law, is by fine and imprisonment: though the easier and more usual way is by levying on a summary conviction, by distress and sale, the forfeitures imposed by the several acts of parliament. Lastly, any deceitful practice, in cozening another by artful means, whether in matters of trade or otherwise, as by playing with false dice, or the like, is punishable with fine, imprisonment, and pillory.(k)(15) And, by the statutes 33 Hen. VIII. c. 1, and 30 Geo. II. c. 24, if any man defrauds another of any valuable chattels by color of any false token, counterfeit letter, or false pretence, or pawns or disposes of another's goods without the consent of the owner, he shall suffer such punishment, by imprisonment, fine, pillory, transportation, whipping, or other corporal pain, as the court shall direct. (16)

(11) This act is repealed, as to annuities granted since the 14th July, 1813, by the 53 Geo. III. c. 141; but similar provisions are re-enacted.-CHITTY.

(12) "A cheat at the common-law is a fraud wrought by some false symbol or token, of a nature against which common prudence cannot guard, to the injury of one in any pecuniary interest." Bishop, Cr. L. 2, ¿ 143, p. 84.

(13) See statutes 41 & 42 Vict. c. 49 and 52, and 53 Vict. c. 21, for the present law concerning weights and measures.

(14) ["He who made bad beer was placed in a dung-cart."]

(15) Pillory is now abolished, by the 56 Geo. III. c. 138. See, in general, 3 Chit. Crim. Law, 994, 995. The cases in which fraud is indictable at common law seem confined to the use of false weights and measures, the selling of goods with counterfeit marks, playing with false dice, and frauds affecting the course of justice and immediately injuring the interests of the public or crown; and it is settled that no mere fraud, not amounting to felony, is an indictable offence at common law unless it affects the public. 2 Burr. 1125. I Bla. Rep. 273, S. C.-CHITTY.

(16) The statute 24 and 25 Vict. c. 96, s. 88, concerning false pretences provides as follows: "Whosoever shall by any false pretence obtain from any other person, any chattel, money, or valuable security, with intent to defraud shall be guilty of a misdemeanor,

6. The offence of forestalling the market is also an offence against public trade. This, which (as well as the two following) is also an offence at common law, (7) was described by statute 5 & 6 Edward VI. c. 14 to be the buying or contracting for any merchandise or victual coming in the way to market; or dissuading persons from bringing their goods or provisions there; or persuading them to enhance the price when there: any of which practices make the market dearer to the fair trader. (17)

7. Regrating was described by the same statute to be the buying of corn or other dead victual, in any market, and selling it again in the same market, or within four miles of the place. For this also enhances the price of the provisions, as every successive seller must have a successive profit.

8. Engrossing was also described to be the getting into one's possession, or buying up, large quantities of corn or other dead victuals, with intent to sell them again. This must of course be injurious to the public, by putting it in the power of one or two rich men to raise the price of provisions at their own discretion. (18) And so the total engrossing of any other commodity,

() 1 Hawk. P. C. 234.

and being convicted thereof shall be liable at the discretion of the court to be kept in penal servitude for the term of three years, or to be imprisoned for any term not exceeding two years, with or without hard labor and with or without solitary confinement."

(17) Forestalling, regrating and engrossing are not now offences against the law of England." The effect, which the expansion of commerce and the growth of large cities have had upon the rules of public policy, is nowhere better illustrated than the change of opinion as to the effect of forestalling, regrating, and engrossing, which were formerly held to be void as against public policy, but which now constitute the basis of profits, and one great means of trade." Story on Sales, 4th ed. (Bennett) 595. Bishop, Cr. L. 2, 22 526-528, pp. 321, 322. "There is now a strong tendency towards controlling the exercise of judicial discretion in laying down fresh principles of public policy, and towards limiting the application to certain well-known classes of contracts, and to such contracts as may from time to time be held by analogy to fall within those classes. In a recent case Jessel, M. R. said: 'It must not be forgotten that you are not to extend arbitrarily those rules which say that a given contract is void as being against public policy, because if there is one thing which more than another public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts, when entered into freely and voluntarily, shall be held sacred and shall be enforced by courts of justice. Therefore you have this paramount public policy to consider that you are not lightly to interfere with the freedom of contract.'" Lord Kenyon, in King v. Waddington, I East. 143, said that " no defence could be made for such conduct," i. e. trying to raise the price of hops by telling sellers that hops were too cheap, etc. Grose, J. who delivered the opinion of the court in the above case said: "It would be a precedent of most awful moment for this court to declare that hops which are an article of merchandise, and which we are compelled to use for the preservation of the common beverage of the people of this country, are not an article the price of which it is a crime, by undue means, to enhance." "The common law rules on the subject of these offences were abolished by the statute 7 and 8 Vict. c. 24, and although no legislation on the subject has taken place in America, Mr. Story says: These three prohibited acts are not only practiced every day, but they are the very life of trade, and without them all wholesale trade and jobbing would be at an end. It is quite safe, therefore, to consider that they would not now be held to be against public policy," Benjamin on Sales, 3 ed. (Kerr) ?? 670-672, pp. 785-7. "It must be proved that the provisions were purchased on their way to market and bought by defendant, or that he dissuaded persons from bringing their goods to market." "Bailey's Onus Probandi, pp. 459, 460.

(18) "When narrow views of trade were entertained, the common law pronounced 'forestalling, regratting and engrossing' contrary to public policy, and illegal, abhorring all attempts on the part of speculators to control the market; but such is the rule no longer." Schouler on Personal Property, 2 ed. vol. 2, 621, p. 635. "In a late English case (Pettamberdass v. Thackoorseydass, 7 Moore P. C. 239, 262) it is said that the common law offences of engrossing and regrating extend only to the necessaries of life," etc. Bishop, Cr. L. 1, 2 519, p. 317. We must hold it to be indictable, on general principles of common law, to engross and absorb any particularly necessary staple or constituent of life so as to impoverish and distress the mass of the community for the purpose

*159] with an intent to sell it at an unreasonable *price, is an offence indictable and finable at the common law. (m) And the general penalty for these three offences by the common law (for all the statutes concerning them were repealed by 12 Geo. III. c. 71) is, as in other minute misdemeanors, discretionary fine and imprisonment.(n) Among the Romans, these offences and other malpractices to raise the price of provisions were punished by a pecuniary mulct. "Pana viginti aureorum statuitur adversus eum, qui contra annonam fecerit, societatemve coieret quo annona carior fiat."(0)(19)

9. Monopolies are much the same offence in other branches of trade that engrossing is in provisions: being a license or privilege allowed by the king for the sole buying and selling, making, working, or using of any thing whatsoever; whereby the subject in general is restrained from that liberty of manufacturing or trading which he had before. (p) (20) These had been carried to an enormous height during the reign of queen Elizabeth, and were heavily complained of by Sir Edward Coke, (q) in the beginning of the reign of king James the First; but were in great measure remedied by statute 21 Jac. I. c. 3,(21) which declares such monopolies to be contrary to law and void (except as to patents, not exceeding the grant of fourteen years, to the authors of new inventions; and except also patents concerning printing, saltpetre, gunpowder, great ordnance, and shot;) and monopolists are punished with the forfeiture of treble damages and double costs to those whom they attempt to disturb; and, if they procure any action, brought against them for these damages, to be stayed by any extrajudicial order other than that of the court wherein it is brought, they incur the penalties of præmunire. (22) Combinations also among victuallers or artificers to raise the price of provisions or any commodities, or the rate of labor, (23) are

(m) Cro. Car. 232.

(n) 1 Hawk. P. C. 235.

(0) FJ. 48, 12, 2.

(p) 1 Hawk. P. C. 231.
(9) 3 Inst. 81.

of extorting, by terror or other coercive means, prices greatly above the real value. Questions of this kind have usually come before the courts on indictments for conspiracy; for it is by conspiracies that extortions of this kind are generally wrought. But on an indictment against an individual for buying up all the grain or other necessary staple so as to produce a famine in the market, and thus to obtain grossly extortionate prices, wrung through a sense of misery from the community, the offence may be held indictable at common law. For not merely is the extortion to be taken into account, but the terror as to the future, and the misery at the present which are thus inflicted on the community at large. But to sustain such a prosecution, the commodity must be a necessity, it must be absorbed by the monopolizer, and the prices must be unjustifiably extortionate." Wharton, Cr. L. 2, ?? 1850, 1851, pp. 666, 667.

(19) ["Those who entered into any association, or employed any other means by which the price of provisions was enhanced, were amerced in a fine of twenty guineas."]

(20) "Prior to 1824, English industrial legislation leaned decidedly in favor of the master. Trade monopolies, of which Sir Edward Coke complained so justly, were indeed greatly restricted in the time of James I.; yet their influence was felt down to a much later period; and certain corporations and guilds enjoyed exclusive privileges, which obstructed almost entirely the enterprise of individuals." Schouler Dom. Rel. 4 ed. § 456, p. 692. The grant to a corporation of exclusive right to lay gas pipes, etc. in the streets of a city is a monopoly and invalid. Norwich Gas Light Co. v. Norwich City Gas Co., 25 Conn. 18, 38 (1856). See Russell on Crimes, 1, *252.` See State ex rel. Clark v. Haworth, 122 Ind. 462, 498 (1889). It is not a monopoly for the Distilling and Cattle Feeding Co. to own seventy distilleries and the product thereof whether such products amounted to the whole or a large part of what was produced in the country. Nor is it a monopoly to make a rebate to purchasers, on the condition that they would purchase their distillery supplies exclusively from the company, and not undersell the company's distributing agents. In re Greene, 52 Fed. Rep. 104, 116 (1892).

(21) Amended by stat. 5 & 6 W. IV. c. 83.-STEWART.

(22) [To forewarn-the name of a writ.]

(23) By the 6 Geo. IV. c. 129, s. 1, all acts relative to combinations of workmen or masters as to wages, time of working, quantity of work, etc. are repealed. By sect. 2, persons compelling journeymen to leave their employment, or to return work unfinished, pre

in many cases severely punished by particular statutes; and in general, by statute 2 & 3 Edw. VI. c. 15, with the forfeiture of 10l. or twenty days' imprisonment, with an allowance of only bread and water, for the

first offence; 20l. or the pillory for the second; and *40/. for the [*160 third, or else the pillory, loss of one ear, and perpetual infamy. In

the same manner, by a constitution of the emperor Zeno, (r) all monopolies and combinations to keep up the price of merchandise, provisions, or workmanship were prohibited, upon pain of forfeiture of goods and perpetual banishment.

10. To exercise a trade in any town without having previously served as an apprentice for seven years, (s) is looked upon to be detrimental to public trade, upon the supposed want of sufficient skill in the trader; and therefore is punished, by statute 5 Eliz. c. 4, with the forfeiture of forty shillings by the month. (24)

II. Lastly, to prevent the destruction of our home manufactures by transporting and seducing our artists to settle abroad, it is provided, by statute 5 Geo. I. c. 27, that such as so entice or seduce them shall be fined 100l. and be imprisoned three months; and for the second offence shall be fined at discretion, and be imprisoned a year; and the artificers so going into foreign countries, and not returning within six months after warning given them by the British ambassador where they reside, shall be deemed aliens, and forfeit all their land and goods, and shall be incapable of any legacy or gift. By statute 23 Geo. II. c. 13, the seducers incur, for the first offence, a forfeiture of 500l. for each artificer contracted with to be sent abroad, and imprisonment for twelve months; and for the second, 1000l., and are liable to two years' imprisonment: and by the same statute, connected with 14 Geo. III. c. 71, if any person exports any tools or utensils used in the silk, linen, cotton, or woollen manufactures, (excepting woolcards to North America,)(t) he forfeits the same and 200/., and the captain of the ship (having knowledge thereof) 100/.; and if any captain of a king's ship, or officer of the customs, knowingly suffers such exportation, he forfeits 100l. and his employment, and is forever made incapable of bearing any public office: and every person collecting such tools or utensils in order to export

(r) Cod. 4, 59, 1.

(8) See book i. page 427.

(1) Stat. 15 Geo. III. c. 5.

venting them from hiring themselves, compelling them to belong to clubs, etc. or to pay fines, or forcing manufacturers to alter their mode of carrying on their business, are punishable with imprisonment, with or without hard labor, for three months. The remaining clauses provide for the mode of conviction of offenders before justices of the peace. For the form and requisites of convictions for these offences under former acts of parliament, see Rex v. Nield, 6 East, 417. Rex v. Ridgway, I D. & R. 123, 5 B. & A. 527. Paley on Convictions, 2 ed. by Dowling, 99, et seq. [And the following]. By 9 Geo. IV. c. 31, s. 25, assaults in pursuance of any conspiracy to raise the rate of wages, and (s. 26) assaults upon certain workmen to prevent them from working at their trades, are punishable with imprisonment and hard labor.-CHITTY. See 24 & 25 Vict. c. 100, and 34 & 35 Vict. c. 32.

(24) The 54 Geo. III. c. 96, s. I repeals so much of the 5 Eliz. c. 4 as provides that persons shall not exercise any art or manual occupation except they had served an apprenticeship of seven years. Sect. 2 renders valid certain indentures of apprenticeship which would have been void by certain provisions in the old act, and repeals the part of the act containing such provisions. Sect. 3 provides that justices may determine complaints respecting apprenticeships as heretofore. And sect. 4 provides that the customs of London concerning apprentices are not to be affected. For the decisions upon the 5 Eliz. c. 4, respecting the exercising of trades by unqualified persons, see 2 Harrison's Digest, 518, title Trade.-CHITTY.

"To exercise a trade in any town without having previously served an apprenticeship of seven years was a penal offence." Schouler Dom. Rel. 4 eď. ? 456, p. 692.

the same shall, on conviction at the assizes, forfeit such tools and also 2001. (25)

CHAPTER XIII.

OF OFFENCES AGAINST THE PUBLIC HEALTH, AND THE PUBLIC POLICE OR ECONOMY.

*161] *THE fourth species of offences more especially affecting the commonwealth are such as are against the public health of the nation; a concern of the highest importance, and for the preservation of which there are in many countries special magistrates or curators appointed.

1. The first of these offences is a felony, but, by the blessing of Providence, for more than a century past incapable of being committed in this nation: for, by statute 1 Jac. I. c. 31, it is enacted that, if any person infected with the plague, or dwelling in any infected house, be commanded by the mayor or constable, or other head officer, of his town or vill, to keep his house, and shall venture to disobey it, he may be enforced, by the watchmen appointed on such melancholy occasions, to obey such necessary command; and, if any hurt ensue by such enforcement, the watchmen are thereby indemnified. And further, if such person so commanded to confine himself goes abroad and converses in company, if he has no plague-sore upon him, he shall be punished as a vagabond by whipping, and be bound to his good behavior; but, if he has any infectious sore upon him, uncured, he then shall be guilty of felony. By the statute 26 Geo. II. c. 26, (explained and amended by 29 Geo. II. c. 8,) the method of performing quarantine, or forty days' probation, by ships coming from infected countries, is put in a much more

regular and effectual order than formerly, and masters of ships com*162] ing from infected places and disobeying the directions there given, *or having the plague on board and concealing it, are guilty of felony without benefit of clergy. The same penalty also attends persons escaping from the lazarets, or places wherein quarantine is to be performed; and officers and watchmen neglecting their duty; and persons conveying goods or letters from ships performing quarantine.(1)

2. A second, but much inferior, species of offence against public health is the selling of unwholesome provisions. (2) To prevent which, the statute 51

(25) All the statutes prohibiting artificers from going abroad are repealed, by 5 Geo. IV. c. 97, so that artists may now settle in foreign parts without any restrictions or liabilities. -CHITTY.

(1) By the 6 Geo. IV. c. 78, all the prior statutes relative to the quarantine-laws are repealed, and other provisions are made, similar in their nature to the former. See the prior statutes and decisions thereon, Burn, J. 24th ed. tit. Plague. 2 Chitt. Crim. Law, 551, and 2 Chitt. Commercial Law, 62 to 87.

It is a misdemeanor at common law to expose a person laboring under an infectious disorder, as the smallpox, in the streets or other public places. 4 M. & S. 73, 272. An indictment lies for lodging poor persons in an unhealthy place. Cald. 432-CHITTY. Now, by the 16 & 17 Vict. c. 100, s. 9, if the parent or person having care of a child shall not, after notice from the registrar of births, attend to have vaccination performed, such father, mother, or person shall forfeit a sum not exceeding 205.-STEWART.

(2) "Amongst offences of this description is the selling of unwholesome provisions. And it is said, more largely, that the giving of any person unwholesome victuals, not fit for man to eat, lucri causa [For the sake of gain], or from malice and deceit, is undoubtedly, in itself, an indictable offence." Russell on Crimes, 2, *605.