« EelmineJätka »
of trade or otherwise, as by playing with false dice, or the like, is punishable with fine, imprisonment, and pillory.(k)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 colour 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."
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,(1) 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.
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 (k) 1 Hawk. P. C. 188.
(1) Ibid. 234. 8 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. 1 Bla. Rep. 273, S. C.-Chitty.
• Pillory is now abolished, by the 56 Geo. III. c. 138. The general pawn-brokers' act (39 & 40 Geo. III. c. 99) virtually repeals the 30 Geo. II. c. 24, as to the pawning of another's goods without the consent of the owner, and the offence is thereby punishable by penalties.
The provisions of Hen. VIII. & Geo. II. are extended, by the 52 Geo. III. c. 64, to ob taining bonds, bills of exchange, bank-notes, securities, or orders for the payment of money, or the transfer of goods, or any valuable thing whatever. By the 3 Geo. IV. c. 14, the offender may be sentenced to hard labour. See, as to this offence, 3 Chit. Crim. Law, 996, &c.
These acts extend to every description of false pretences by which goods may be obtained with intent to defraud. 3 T. R. 103.
Now, by 7 & 8 Geo. IV. c. 29, & 53, reciting “that a failure of justice frequently arises from the subtle distinction between larceny. and fraud,” it is, "for remedy thereof," enacted “that if any person shall by any false pretence obtain from any other person any chattel, money, or other valuable security, with intent to cheat or defraud any person of the same, every such offender shall be guilty of a misdemeanour, and, bei convicted thereof, shall be liable, at the discretion of the court, to be transported for seven years, or to suffer fine or imprisonment, or both, as the court shall award : provided that if, upon the trial of any person indicted for such misdemeanour, it shall be proved that he obtained the property in question in any such manner as to amount in law to larceny, he shall not by reason thereof be entitled to be acquitted of such misdemeanour; and no such indictment shall be removable by certiorari; and no person tried for such misdemeanour shall be liable to be afterwards prosecuted for larceny upon the same facts.” In an indictment under this statute, according to the rules of construction applicable to former statutes on this subject which seem equally applicable to this, the pretences must be set forth and must be negatived by special averments. 2 T. R. 581.2 M. & S. 379. The whole of the pretence charged need not, however, be proved: proof of part of the pretence, and that the property was obtained thereby, is sufficient. Rex vs. Hill, R. & R. C. C. 190. Obtaining goods by fraudulently giving in payment a check upon a banker with whom the
party keeps no cash, and which he knows will not be paid, has been held an indictable offence, and would, it seems, be such within this statute. Rex vs. Jackson, 3 Camp. 370. The language of the 30 Geo. II. c. 24 made the offence of obtaining money upon false pretences consist in the actually obtaining the money, and not in using a false pretence for the purpose of obtaining the money: it has been held, therefore, that, in an indictment on that statute, the venue must be laid in the county where the false pretence is used. Rex vs. Buttery, cited in Pearson vs. M'Gowran, 5 D. & R. 616. 3 B. &C. 700, per Abbott, C. J. Where the fraud practised is properly the ground for a civil action, an indictment for obtaining money
by false pretences cannot be supported. Rex us.Co drington, 1 C. & P. 661. See further, upon this subject, 2 East, P. C. 673, 818, 819, 829, 30. 6 T. R, 565. R. & R. C. C. 81, 127, 317, 504.-CHITTY.
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 sel! 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... And so the total engrossing of any other commodity, 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 misdemeanours, discretionary fine and imprisonment.(n) Among the Romans, these offences and other mal-practices to raise the price of provisions were punished by a pecuniary mulct. “ Pæna viginti aureorum statuitur adversus eum, qui contra annonam fecerit, societatemve coieret quo annona carior fiat."(0)
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). These had been carried to an enormous height during the reign of queen Elizabeth, and were heavily complained of by Sir Edward Coke,g) in the beginning of 'the reign of king James the First; but were in great measure remedied by statute 21 Jac. I. c. 3,4 which declares
Cro. Car. 232.
1 Hawk. P. O. 235. (0) Ff. 48, 12, 2.
(P)1 Hawk. P. C. 231.
10 By the 31 Geo. III. c. 30, corn may be bought for the purpose of storing in granaries and reselling it.
The modern law on this subject is well discussed in 1 East, 143. And see 2 Chit. Crim. Law, 527, &c. In that case it was decided that spreading rumours with intent to raise the price of a particular species of aliment, endeavouring to enhance its price by persuading others to abstain from bringing it to market, and engrossing large quantities in order to resell them at the exorbitant prices occasioned by his own artifices, are offences indictable at common law, and subject the party so acting to fine and imprisonment at the discretion of the court in which he is convicted. It was also held that hops, though not used immediately for food, fall within this rule. But, at the present day, it would probably be holden that no offence is committed unless there is an intent to raise the price of provisions by the conduct of the party. For 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 a large quantity of a particular article, can scarcely be regarded as in themselves necessarily injurious to the community, and, as such, indictable offences. A party buying and selling again does not necessarily increase the price of the commodity to the consumer, for the division of labour or occupations will in general occasion the commodity to be sold cheaper to the consumer. See Smith's Wealth of Na. vol. č. 309, and index, title " Labour;" and many cases may occur in which a most laudable motivo may exist for buying up large quantities of the same commodity. See the arguments, &c. in 14 East, 406. 15 East, 511. Indeed, in the case of the King vs. Rusby, on the indictment being argued, the court were equally divided on the question whether regrating is an indictable offence at common law; and though the defendant was convicted, no judgment was ever passed upon him. MSS., “Raising and spreading a story that wool would not be suffered to be exported in such a year, probably by some stock-jobbers in those times, whereby the value of wool was beaten down, though it did not appear the defendants reaped any particular advantage by the deceit, was, on account of its being an injury to trade, punished by indictment; and a confederacy, without a further act done, to impoverish the farmers of excise and lessen the duty has been held an offence punishable by information.” Opinion of Mr. West, 2 Chalmers, 247, &c. It is an indictable offence to conspire on a particular day by false rumours to raise the price of public government funds, with intent to injure the subjects who should purchase on that day; and that the indictnient was well enough, without specifying the particular persons who purchased as the persons intended to be injured, and that the public government funds of this kingdom might mean either the British or Irish funds, which since the union were each a part of the funds of the United Kingdom. 3 M. & S. 67.-Chitty. 11 Amended by stat. 5 & 6 W. IV. c. 83.--STEWART.
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, salt petre, 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 procuro 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. Combinations also among victuallers or artificers to raise the price of provisions or any commodities, or the rate of labour,' are in many cases severely punished by particular statutes; and in general, by statuté 2 & 3 Edw. VI. c. 15, with the forfeiture of 101. or twenty days' imprisonment, with an allowance of only bread and water, for the first offence; 201. or *160]
the pillory for the second ; and *401. for the 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."
11. 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 1001. 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 5001. for each artiticer contracted with to be sent abroad, and imprisonment for twelve months; and for the second, 10001., 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 2001., and the captain of the ship (having knowledge thereof) 1001. ; and if any captain of a king's ship, or officer of the customs, knowingly suffers such exportation, he forfeits 10ði. and his employment, and is forever made incapable of bearing any (n) Cod. 4, 59, 1. () See book i.
(1) Stat. 15 Geo. III. c. 5. 12 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, &c. are repealed. By sect. 2, persons compelling journeymen to leave their employment, or to return work unfinished, preventing them from hiring themselves, compelling them to belong to clubs, &c. or to pay fines, or forcing manufacturers to alter their mode of carrying on their business, are punishable with imprisonment, with or without hard labour, 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 vs. Nield, 6 East, 417. Rex vs. Ridgway, 1 D. & R. 123, 5 B. & A. 527. Paley on Convictions, 2d ed. by Dowling, 99, et seq. 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 labour.-Cutty.
13 The 54 Geo. III. c. 96, s. 1 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 apprentice ship 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.
public office : and every person collecting such tools or utensils in order to export the same sball, on conviction at the assizes, forfeit such tools and also 2001.14
OF OFFENCES AGAINST THE PUBLIC HEALTH, AND THE PUBLIC POLICE
*The fourth species of offences more especially affecting the commonwealth are such as are against the public health of the nation; a concern
[*161 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 behaviour; 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 coming 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
[*162 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.'
2. A second, but much inferior, species of offence against public health is the selling of unwholesome provisions. To prevent which, the statute 51 Hen. III
" 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 l'y 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 misdemeanour at common law to expose a person labouring 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.—Cutty.
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 20s.STEWART.
2 It is a misdemeanour at common law to give any person injurious food to eat, whether the offender be excited by malice, or a desire of gain; nor is it necessary he should be a public contractor, or the injury done to the public service, to render him. criminally iiable. 2 East, P. C. 822. 6 East, 133 to 141. If a baker direct his servant to make bread containing a specific quantity of alum, which when mixed with the other ingredients is innoxious, but in the execution of these orders the agent mixes up the drug in so unskilful a way that the bread becomes unwholesome, the master will be liable to be indicted. 3 M. & 3. 10. 4 Camp. 10. But an indictment will not lie against
st. 6, and the ordinance for bakers, c. 7, prohibit the sale of corrupted wine, contagious or unwholesome flesh, or flesh that is bought of a Jew, under pain of amercement for the first offence, pillory for the second, fine and imprisonment for the third, and abjuration of the town for the fourth. And, by the statute 12 Car. II. c. 25, $* 11, any brewing or adulteration of wine is punished with the forfeiture of 1001. if done by the wholesale merchant, and 401. if done by the vintner or retail trader. These are all the offences which may properly be said to respect the public health.
V. The last species of offences which especially affect the commonwealth are those against the public police or economy. By the public police and economy I mean the due regulation and domestic order of the kingdom, whereby the indi. viduals of the state, like members of a well-governed family, are bound to con. form their general behaviour to the rules of propriety, good neighbourhood, and good manners, and to be decent, industrious, and inoffensive in their respective stations. This head of offences must therefore be very miscellaneous, as it comprises all such crimes as especially affect public society and are not comprehended under any of the four preceding species. These amount some of them to felony, and others to misdemeanours only. Among the former are,
1. The offence of clandestine marriages : for, by the statute 26 Geo. II. c. 33, 1. To solemnize marriage in any other place besides a church or public chapel wherein banns have been usually published, except by license from the arch. *163]
bishop of *Canterbury; and, 2. To solemnize marriage in such church
or chapel without due publication of banns, or license obtained from a proper authority, do both of them not only render the marriage void, but subject the person solemnizing it to felony, punished by transportation for fourteen years; as, by three former statutes, a) he and his assistants were subject to a pecuniary forfeiture of 1001. 3. To make a false entry in a marriage-register; to alter it when made; to forge or counterfeit such entry, or a marriage-license; to cause, or procure, or act or assist in such forgery; to utter the same as true, knowing it to be counterfeit; or to destroy or procure the destruction of any register, in order to vacate any marriage or subject any person to the penalties of this act; all these offences, knowingly and wilfully committed, subject the party to the guilt of felony without benefit of clergy.5
2. Another felonious offence with regard to this holy estate of matrimony is what some have corruptly called bigamy, which properly signifies being twice married, but is more justly denominated polygamy, or having a plurality of wives
(*) 6 & 7 W. III. c. 6. 7 & 8 W. III. c. 35. 10 Anne, c. 19, e. 176. a miller for receiving good barley to grind at his mill, and delivering a mixture of oats and barley which is musty and unwholesome. 4 M. & S. 214.—Chitty.
* This statute is now repealed. 7 & 8 Vict. c. 24.-STEWART.
* And, by the 1 W. and M. st. 1, c. 34, s. 20, any person selling wine corrupting or adulterating it, or selling it so adulterated, shall forfeit 3001., half to the king and half to the informer, and shall be imprisoned three months.-Chitty.
This act is now repealed, by the 4 Geo. IV. c. 76, and clergy is restored. By the 21st section of the 4 Geo. IV. c. 76, it is felony with transportation for life to solemnize matrimony in any other place than in a church or chapel wherein banns may be lawfully published, or at any other time than between eight and twelve in the morning, except special license from the archbishop of Canterbury, or to solemnize it without due publication of banns unless by license, or to solemnize it according to the rites of the Church of England, falsely pretending to be in holy orders: but the prosecution must take place in three months.
By the 28th section of the same act, it is felony, punishable with transportation for life, to insert in the registry-book any false entry of any thing relating to any marriage, or to make, alter, forge, or counterfeit any such entry, or to make, alter, forge, or countertent any license of marriage, or to utter or publish as true any such false, &c. register as aforesaid, or a copy thereof, or any such false, &c. license; or to destroy any such register-book of marriages, or any part thereof, with intent to avoid any marriage, or to subject any person to any of the penalties of that act. But this act does not extend to marriages of Quakers or Jews.
Independently of this statute, these offences were punishable at common law, and cubjected the offender to severe imprisonment and fine. 2 Sid. 71.-CHITTY.