offences. CHAPTER THE NINETEENTH. OF FORESTALLING, REGRATING, AND INGROSSING, AND OF MONOPOLIES. Nature of these EVERY practice or device by act, conspiracy, words, or news, to enhance the price of victuals or other merchandize, has been held 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. (6) 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 in 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. (ƒ) The statutes on this subject now repealed. The offences are still pu The offences of forestalling, regrating, and ingrossing were for a considerable period prohibited by statutes; and chiefly by the 3 & 4 Edw. 6, c. 21, and 5 & 6 Edw. 6, c. 14: (g) but the beneficial tendency of such statutes was doubted; and at length by the 12 Geo. 3, c. 71, they were repealed, (h) as being detrimental to the supply of the labouring and manufacturing poor of the kingdom. It has been sometimes contended that forestalling, regrating, and ingrossing, were punishable only by the provisions of these sta (a)3 Inst. 196. Bac. Abr. tit. Forestalling (A). (b) 3 Inst. 195. Bac. Abr. tit. Forestalling (A). (c) 1 Hawk. P. C c. 80, s. 1. (d) 3 Inst. 196. Bac. Abr. tit. Forestalling (A.) 1 Hawk. P. C. c. 80, s. 3. But it was held that any merchant, whether subject or foreigner, bringing victuals or any other merchandize into the realm, may sell it in gross. 3 Inst. 196. (e) 1 Hawk. P. C. c. 80, s. 3. 3 Inst. 196. (ƒ) 3 Inst. 197. Bac. Abr. tit. Forestalling (A). (9) Altered by 5 Eliz. c. 5, s. 13. 5 Eliz. c. 12, and 13 Eliz. c. 25, S. 13. (h) The acts repealed are 3 & 4 Edw. 6, c. 21. 5 & 6 Edw. 6, c. 14. 3 Phil. & Mar. c. 3. 5 Eliz. c. 5. 15 Car. 2. c. 8, and so much of 5 Ann. c. 34, as relates to butchers selling cattle alive or dead in London or Westminster, or within ten miles thereof; and all the acts made for the better enforcement of the same. tutes: (i) but that doctrine has not been admitted, and they still nishable at continue offences at common law; (k) though their precise extent common law. 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. () forestaller. The first section enacted, that whosoever should buy or cause to Parliamentary be bought any merchandize, victual, or any other thing whatsoever, exposition of a 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 anything 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 aforesaid should be taken to be a forestaller. (m) The second section enacted, that whosoever should by any means of a regrator. 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. (n) The third section enacted, that whosoever should ingross or get of an ingrosser. 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. (o) It has been suggested, that at the present day it would probably Common law be holden that no offence is committed, unless the conduct of the (i) Rex v. Maynard, Cro. Car. 231. Rex v. Waddington, I East, R. 153. (k) 1 Hawk. P. C. c. 80, s. 15. (1) 1 Hawk. c. 80, s. 15. Burn's Just. tit. Forestalling, &c. 4 Blac. Com. 158. (m) Forestalling (forestallan, or forestallan) in the English Saxon signifieth properly to market before the public, or to prevent the public market; and metaphorically, to intercept in general; and seemeth derived from fore, which is the same as before, and stalle, a standing place or de partment, from whence sprang the ancient (n) Regrator is said to be derived from (o) The vendee cannot sell again in gross, for then he is an ingrosser, according to the nature of the word, for that he buys in gross and sells in gross. 3 Inst. 195. offence. Waddington's case.-Enhancing 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, in the year 1800, in which the defendant was charged by an information, with divers acts committed with the intent of price of hops. enhancing the price of hops, the law relating to forestalling, regrating, and ingrossing, was much considered. The defendant, a merchant of credit and affluence in Kent, having a stock of hops in hand, went to 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 convicted generally; and upon his being brought up to receive judgment 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 Arguments urged for the defendant. (p) 2 Chit. Crim. Law, 528, in the notes; referring to Smith's Wealth of Nations, 2 Vol. 309, and the Index, tit. Labour. (q) 2 Chit. Crim. Law, ibid, referring to the arguments, &c., in 14 East, 406. 15 East, 511. (r) Rex v. Rushby, Hil. T. 40 Geo. 3, 2 Chit. Crim. Law, 536, note (r), and 528 in the notes. (s) 2 Chit. Crim. Law, 528, in the notes. (t) There were nine counts; the 1st charging the defendant with spreading rumours, with intent to enhance the price of hops, in the hearing of hop-planters, dealers, and others, that the stock of hops was nearly exhaused, and that there would be a scarcity of hops, &c., with intent to induce them not to bring their hops to market for sale for a long time, and thereby greatly to enhance the price; 2d, with spreading such rumours generally, with intent to enhance the price of hops; 3d, with endeavouring to enhance the price, by persuading divers dealers, &c., not to take their hops to market, and to abstain from selling for a long time; 4th, with ingrossing large quantities of hops, by buying from many particular persons, by name, certain quantities, with intent to resell the same for an unreasonable profit, and thereby to enhance the price; 5th, Ad idem, stating the particular contracts; 6th, with getting into his hands large quantities, by contracting with various persons for the purchase, with intent to prevent the same being brought to market, and to resell at an unreasonable profit, and thereby greatly to enhance the price; 7th, with buying like quantities with like intent; 8th, with buying like quantities with intent to resell at an 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. upon these laws, were relied upon, as shewing that it was the intention of the Legislature to do them away altogether. That an ingrossing must be of some commodity which constitutes victuals, and that hops were no victuals: and objections were taken 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, in delivering his opinion, said, that it could not be Lord Kenyon's denied, but that our law books declare practices of the sort with opinion. 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) 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 (u) It appears that hops and malt were held not to be within the meaning of the statute 5 & 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 Second case against Wad. dington. In grossing hops. 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 magnitude." (w) The same defendant had been also tried upon an indictment which, in substance, charged him chiefly with ingrossing a large quantity of hops in Kent, by buying them from various persons by forehand bargains and otherwise, at a certain price, with intent to resell them at an unreasonable profit, or an exorbitant price. (x) 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 parti (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 buying all the growth of hops on certain lands in certain parishes, by forehand bargains, with intent to resell at an unreasonable price, and thereby to enhance the price; 7th, for endeavouring to enhance the price of hops by persuading hop-owners not to sell, &c.; 8th, for ingrossing, by buying large quantities of persons unknown, with intent to resell at an exorbitant profit; 9th, buying large quantities with the like intent; 10th, for buying hops then growing, with intent to resell at an exorbitant price and lucre. The defendant was tried before Lord Kenyon, who thought the evidence suffi. cient 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. |