The third section enacted, that whosoever should ingross or Ofan ingrosser. 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. (q) 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 (0) The vendee cannot sell again in gross, for then he is an ingrosser, according to the nature of the word, for that he buy in gross and sell in gross. 3 Inst. 195. (p) 2 Chit. Crim. Law, 528, in the notes; referring to Smith's Wealth of Nations, 2 Vol. 309. and the Index, tit. " Labour." (9) 2 Chit. Crim. Law, ibid. referring to the arguments, &c. in 14 East. 406. rumours, with intent to enhance the Arguments urged for the defendant. Lord Kenyon's opinion. 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 regularly in the form of a motion in arrest of judgment. On behalf of the defendant it was contended, that the facts 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 e; and that the quantity ingrossed ought to have been so much as would have affected the consumption of the whole kingdom. Lord Kenyon, in delivering his opinion, said, that it could not 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 remained 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 necessary 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 like intent; 8th, With buying like quantities with intent to resell at exorbitant profit, and thereby greatly to enhance the price; 9th, With unlawfully ingrossing, by buying large quantities with like intent. The defendant was convicted generally upon this information. (u) It appears that hops and malt And as to the objection that the quantity purchased could not constitute the offence of ingrossing unless it bore such a proportion to the consumption of the whole kingdom as would affect the general price, his Lordship said, that the objection was new to him: but that if the opinions of Lord Mansfield, Mr. Justice Dennison, and Mr. Justice Foster, were deserving of attention, there was as little in that objection as in the rest. That he well remembered an information moved for before them against certain persons, for conspiring to monopolize or raise the price of all the salt at Droitwich: and that they had no doubt of its constituting an offence, although it was not pretended that these persons had endeavoured to ingross all or any considerable part of the salt in the kingdom. After referring to the conflict of political opinion upon the subject of these laws, Lord Kenyon proceeded thus :-"But without "attending to disputed points, let us state fairly what this case "really is, and then see if it be possible to doubt whether the "defendant has been guilty of any offence. Here is a person going into the market, who deals in a certain commodity. If " he went there for the purpose of making his purchases in the "fair course of dealing, with a view of afterwards dispersing the "commodity which he collected, in proportion to the wants and "convenience of the public, whatever profit accrues to him from "the transaction, no blame is imputable to him. On the contrary, "if the whole of his conduct shews plainly that he did not make "his purchases in the market with this view, but that his traffic "there was carried on with a view to enhance the price of the "commodity, to deprive the people of their ordinary subsistence, " or else to compel them to purchase it at an exorbitant price, "who can deny that this is an offence of the greatest magni"tude." (w) The same defendant had been also tried upon an indictment Second case which, in substance, charged him chiefly with ingrossing a large against Waddington.-Inquantity of hops in Kent, by buying them from various persons grossing hops. by forehand bargains and otherwise, at a certain price, with intent to resell them at an unreasonable profit, or an exorbitant price.(x) C. were held not to be within the meaning of the statute 5 and 6 Edw. 6. c. 14. any more than apples, cherries, &c. (1 Hawk. P. C. c. 80. s. 20.) but the statute 9 Ann. c. 12. s. 24. must have altered the law with respect to hops, as it prohibited common brewers, under a penalty, from using any other bitter than hops in brewing beer: and the ground on which salt was held to be a victual within the meaning of that statute was not only because it is necessary of itself for the food and health of man, but also because it seasons and makes wholesome beef, pork, &c. 3 Inst. 195. The monopolizing of salt is clearly an offence at common law. Vide Lord Kenyon's judgment in Rex v. Waddington, 1 East. R. 157. (w) Rex v. Waddington, Hil. T. 41 Geo. 3. 1 East. R. 143. (x) The indictment consisted of ten counts: 1st. For ingrossing hops of divers persons by name, with intent to resell at an unreasonable profit, and thereby enhance the price; 2d, For ingrossing hops then growing, by forehand bargains, with like intent; 3d, For buying large quantities of hops of divers persons mentioned, with intent to prevent their being brought to market, and to resell them at an unreasonable profit, and thereby enhance the price; 4th, For buying all the growth of hops in several parishes by forehand bargains, with the like intent; 5th, For buying hops of divers persons named, with the same intent as in the first count; 6th, For Indictment. Punishment. Of Monopolies. It appeared from the report, that the principal part of the evidence related to the forehand bargains made by the defendant with different planters for their growing crop of hops; a practice, however, which appeared to have prevailed for a considerable period of time in Kent, and without which some of the witnesses stated, that, in their judgment, the cultivation of this plant, the expense of which was exceedingly heavy, could not be generally carried on. There was also evidence of the defendant's having bought up very large quantities of the commodity to an unusual amount, and by making unusual advances of money; and that he had held out language of inducement to other persons dealing in the same article, to withhold their stock from the market, with a view to a rise in the price. (y) On the part of the defendant, the long existence of the practice of making forehand bargains for hops was insisted upon as affording some argument for their legality; and that at any rate it could not be considered as ingrossing to have made forehand bargains for 258 acres out of 30,000 acres in cultivation of the same article in the county of Kent alone. But Grose, J., in passing sentence upon the defendant, adverted to what had been said in the former prosecution, and stated that the particular offence of ingrossing still remained an offence at common law, and was calculated to create an artificial scarcity where none existed in reality, and to aggravate that calamity where it did exist. (z) An indictment for ingrossing a great quantity of fish, geese, and ducks, without specifying the quantity of each, has been held to be bad. (a) And an indictment for ingrossing magnam quantitatem straminis et fani was quashed for not mentioning how many loads of each. (b) It is said, that by an ancient statute the offender was to be grievously amerced for the first offence; for the second to be condemned to the pillory; for the third to be imprisoned; and, for the fourth, to be compelled to abjure the vill. And there seems to be no doubt but that, at this day, all offenders of this kind are liable to a fine and imprisonment, answerable to the heinousness of their offence, upon an indictment at common law. (c) Monopolies are much the same offence in other branches of trade that ingrossing is in provisions: being a licence or privilege allowed by the king for the sole buying and selling, making, work buying all the growth of hops on cer- sufficient to go to the jury upon all the counts; and the jury found a general verdict against the defendant. (y) This last-mentioned evidence applied to the 7th count; the only one the proof of which was afterwards contested, but without effect, at the bar. (2) Rex v. Waddington, Hil. T. 41 Geo. 3. 1 East. Rep. 167. (a) Rex v. Gilbert, 1 East. Rep. 583. (b) Anon. Cro. Car. 381. And see 2 Hawk. P. C. c. 25. s. 74. Rex v. Gibbs, 1 Str. 497. Rex v. Foster, 1 Lord Raym. 475. (c) 1 Hawk. P. C. c. 83. s. 5. ing, or using of any thing whatsoever; whereby the subject in general is restrained from that liberty of manufacturing or trading which he had before. (d) They are said to differ only in this,that monopoly is by patent from the king, ingrossing by the act of the subject, between party and party; and have been considered as both equally injurious to trades and the freedom of the subject, and therefore equally restrained by the common law. (e) By the common law, therefore, those who are guilty of this offence are subject to fine and imprisonment, the offence being malum in se, and contrary to the ancient and fundamental laws of the kingdom; and it is said that there are precedents of prosecutions of this kind in former days. (f) And all grants of this kind, relating to any known trade, are void by the common law. (g) But, notwithstanding their illegality, monopolies had been carried to an enormous height during the reign of Queen Elizabeth; the evil was, however, in a great measure remedied by the statute 21 Jac. 1. c. 3., which declares them 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. (h) It is worthy of observation, that, as our laws on the one hand carefully protect the people from the arts of those who would unduly raise the price of the comforts and necessaries of life; so, on the other, they protect the fair trader from impositions which may have the effect of unduly lowering the price of the article in which he deals. Thus, the abatement by undue means of the price of our native commodities is punishable by fine and ransom: (i) and a case is mentioned where certain persons came to Coteswold, and said, in deceit of the people, that there were such wars beyond the seas that wool could not pass or be carried beyond sea, whereby the price of wools was abated; and presentment thereof being made, the defendants, having appeared, were, upon their confession, put to fine and ransom. (k) (d) 4 Bla. Com. 158. 3 Inst. 181. (e) Skin. 169. (f) 3 Inst. 181. 2 Inst. 47, 61. 4 Bac. Ab. 764. Monopoly (A) note (b). (g) 1 Hawk. P. C. c. 79. s. 1. (h) Sect. 4. And see further upon the subject of monopolies, 1 Hawk. (i) 3 Inst. 196., referring to 23 Ed. 3. The undue athe price of our native commodities is pu batement of nishable. |