Front Page Titles (by Subject) CHAPTER XII.: OF OFFENCES AGAINST PUBLIC TRADE. - Commentaries on the Laws of England in Four Books, vol. 2
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
Also in the Library:
CHAPTER XII.: OF OFFENCES AGAINST PUBLIC TRADE. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 2 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893).
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
OF OFFENCES AGAINST PUBLIC TRADE.
*[*154Offences against public trade, like those of the preceding classes, are either felonious or not felonious. Of the first sort are,—
1. Owling; so called from its being usually carried on in the night, which is the offence of transporting wool or sheep out of this kingdom, to the detriment of its staple manufacture. This was forbidden at common law,(a) and more particularly by statute 11 Edw. III. c. 1, when the importance of our woollen manufacture was first attended to; and there are now many later statutes relating to this offence, the most useful and principal of which are those enacted in the reign of queen Elizabeth and since. The statute 8 Eliz. c. 3 makes the transportation of live sheep, or embarking them on board any ship, for the first offence forfeiture of goods and imprisonment for a year, and that at the end of the year the left hand shall be cut off in some public market, and shall be there nailed up in the openest place; and the second offence is felony. The statutes 12 Car. II. c. 32, 7 & 8 W. III. c. 28, make the exportation of wool, sheep, or fullers’ earth liable to pecuniary penalties, and the forfeiture of the interest of the ship and cargo by the owners, if privy, and confiscation of goods, and three years’ imprisonment to the master and all the mariners. And the statute 4 Geo. I. c. 11 (emended and further enforced by 12 Geo. II. c. 21, and 19 Geo. II. c. 34) makes it transportation for seven years, if the penalties be not paid.1
2. Smuggling, or the offence of importing goods without paying the duties imposed thereon by the laws of the customs and *[*155excise, is an offence generally connected and carried on hand in hand with the former. This is restrained by a great variety of statutes, which inflict pecuniary penalties and seizure of the goods for clandestine smuggling, and affix the guilt of felony, with transportation for seven years, upon more open, daring, and avowed practices:2 but the last of them, 19 Geo. II. c. 34, is for the purpose instar omnium; for it makes all forcible acts of smuggling, carried on in defiance of the laws, or even in disguise to evade them, felony without benefit of clergy: enacting, that if three or more persons shall assemble, with fire-arms or other offensive weapons, to assist in the illegal exportation or importation of goods, or in rescuing the same after seizure, or in rescuing offenders in custody for such offences; or shall pass with such goods in disguise; or shall wound, shoot at, or assault any officers of the revenue when in the execution of their duty; such persons shall be felons without the benefit of clergy. As to that branch of the statute which required any person charged upon oath as a smuggler, under pain of death, to surrender himself upon proclamation, it seems to be expired; as the subsequent statutes,(b) which continue the original act to the present time, do in terms continue only so much of the said act as relates to the punishment of the offenders, and not to the extraordinary method of apprehending or causing them to surrender: and for offences of this positive species, where punishment (though necessary) is rendered so by the laws themselves, which by imposing high duties on commodities increase the temptation to evade them, we cannot surely be too cautious in inflicting the penalty of death.(c)3
**156]3. Another offence against public trade is fraudulent bankruptcy, which was sufficiently spoken of in a former volume:(d) I shall therefore now barely mention the several species of fraud taken notice of by the statute law, viz., the bankrupt’s neglect of surrendering himself to his creditors; his non conformity to the directions of the several statutes; his concealing or embezzling his effects to the value of 20l.; and his withholding any books or writings with intent to defraud his creditors: all which the policy of our commercial country has made felony without benefit of clergy.(e)4 And indeed it is allowed by such as are the most averse to the infliction of capital punishment, that the offence of fraudulent bankruptcy, being an atrocious species of the crimen falsi, ought to be put upon a level with those of forgery and falsifying the coin.(f) And, even without actual fraud, if the bankrupt cannot make it appear that he is disabled from paying his debts by some casual loss, he shall, by the statute 21 Jac. I. c. 19, be set on the pillory for two hours, with one of his ears nailed to the same and cut off. To this head we may also subjoin that, by statute 32 Geo. II. c. 28, it is felony, punishable by transportation for seven years, if a prisoner, charged in execution for any debt under 100l., neglects or refuses on demand to discover and deliver up his effects for the benefit of his creditors. And these are the only felonious offences against public trade, the residue being mere misdemeanours: as,—
4. Usury; which is an unlawful contract, upon the loan of money, to receive the same again with exorbitant increase. Of this also we had occasion to discourse at large in a former volume.(g) We there observed that, by statute 37 Hen. VIII. c. 9, the rate of interest was fixed at 10l. per cent. per annum, which the statute 13 Eliz. c. 8 confirms; and ordains that all brokers shall be guilty of a præmunire that transact any contracts for more, and the securities themselves shall be *[*157void. The statute 21 Jac. I. c. 17 reduced interest to eight per cent.; and, it having been lowered in 1650, during the usurpation, to six per cent., the same reduction was re-enacted after the restoration by statute 12 Car. II. c. 13; and, lastly, the statute 12 Anne, st. 2, c. 16 has reduced it to five per cent. Wherefore not only all contracts for taking more are in themselves totally void, but also the lender shall forfeit treble the money borrowed.5 Also, if any scrivener or broker takes more than five shillings per cent. procuration-money, or more than twelve pence for making a bond, he shall forfeit 20l. 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 misdemeanour, 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.6
5. Cheating is another offence more immediately against public trade; 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)7 The punishment of bakers breaking the assize was, antiently, 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) But now the general punishment for all frauds *[*158of this kind, if indicted (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)8 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.9
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,(l) 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 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.10 And so the total engrossing of any other commodity, with an intent to sell it at an unreasonable *[*159price, 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. “Pœna viginti aureorum statuitur adversus eum, qui contra annonam fecerit, societatemve coieret quo annona carior fiat.”(o)
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,(q) in the beginning of the reign of king James the First; but were in great measure remedied by statute 21 Jac. I. c. 3,11 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 extra-judicial 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,12 are 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 **160]40l. 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.13
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 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 200l., and the captain of the ship (having knowledge thereof) 100l.; 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 the same shall, on conviction at the assizes, forfeit such tools and also 200l.14
[(a) ] Mirr. c. 1, 3.
[1 ] By 5 Geo. IV. c. 47, 2, all acts and parts of acts prohibiting the exportation of wool are repealed; and persons are now at full liberty to export this commodity upon paying a certain duty.
By 57 Geo. III. c. 88, fullers’ earth, fulling-clay, and tobacco-pipe clay may be carried coastwise under certain restrictions, contained in 32 Geo. III. c. 50, upon goods prohibited to be exported.
By 4 Geo. IV. c. 69, 24, all prohibitions against the exportation of tobacco-pipe clay are removed, and the same is thereby declared free.—Chitty.
[2 ] By the stat. 8 & 9 Vict. c. 87, all former statutes on this subject are consolidated: it makes all forcible acts of smuggling, carried on in defiance of the laws or even in disguise to evade them, felony.—Stewart.
[(b) ] Stat. 26 Geo. I. c. 32. 32 Geo. II. c. 18. 4 Geo. III. c. 12.
[(c) ] See book i. page 317. Beccar. c. 33.
[3 ] By the 6 Geo. IV. c. 108, after reciting the customs-repeal act, the 6 Geo. IV. c. 105, all the laws relative to the prevention of smuggling are consolidated; but the provisions of the act are so numerous that they cannot be comprised within the limit of a note.—Chitty.
[(d) ] See book ii. pages 481, 482.
[(e) ] Stat. 5 Geo. II. c. 30.
[4 ] By 6 Geo. IV. c. 16, all laws relating to bankrupts are repealed, and all former provisions are reduced into this one act. The different frauds taken notice of do not materially vary from those mentioned in the text. By 99, it is enacted that the bankrupt or other person swearing falsely before the commissioners shall be guilty of perjury and suffer the pains and penalties in force against that offence. By 112, any bankrupt neglecting to surrender and submit himself to be examined, or refusing to make discovery of his estate and effects, or declining to deliver up his goods, books, and writings, or concealing or embezzling any part of his effects to the value of 10l. with intent to defraud his creditors, shall be guilty of felony, and be liable to transportation for life or not less than seven years, or to imprisonment for any term not exceeding seven years as the court before whom he is convicted may adjudge.—Chitty.
[(f) ] Beccar. ch. 34.
[(g) ] See book ii. p. 455, &c.
[5 ] One half of the penalty is given by the statute to the prosecutor, the other half to the king. It is remarkable that such was the prejudice in ancient times against lending money upon interest that the first statute—the 37 Hen. VIII. c. 9—by which it was legalized, was afterwards repealed by 5 & 6 Edw. VI. c. 20, by which all interest was prohibited, the money lent and the interest were forfeited, and the offender was subject to fine and imprisonment. We have before observed that the policy of limiting the rate of interest upon a contract for the loan of money is denied in modern times; but Cato was of a different opinion. Cum ille, qui quæsierat, dixisset, Quid fænerari? Tum Cato, Quid hominem, inquit, occidere? Cic. Off.—Christian.
We have already considered what will constitute usury, ante, 2 book, 403. That usury is an indictable offence, see 2 Burr. 799. 4 T. R. 205. 8 East, 41. 1 Chit. Crim. Law, 549.—Chitty.
[6 ] 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.
[(h) ] See book i. p. 274.
[7 ] The principal act now in force, relative to the different weights and measures, is the 5 Geo. IV. c. 76, (continued and amended by 6 Geo. IV. c. 12.) The 35 Geo. III. c. 102, 37 Geo. III. c. 143, and 55 Geo. III. c. 43, relate to the examination of weights and measures. See 5 Burn, 24th ed. tit. Weights and Measures.—Chitty.
[(i) ] 3 Inst. 219.
[(j) ] Seld. tit. of Hon. b. ii. c. 5, 2.
[(k) ] 1 Hawk. P. C. 188.
[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.
[9 ] 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 obtaining 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, being 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 vs. Codrington, 1 C. & P. 661. See further, upon this subject, 2 East, P. C. 673, 818, 819, 829, 830. 6 T. R. 565. R. & R. C. C. 81, 127, 317, 504.—Chitty.
[(l) ] Ibid. 234.
[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. ii. 309, and index, title “Labour;” and many cases may occur in which a most laudable motive 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 indictment 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.
[(m) ] Cro. Car. 232.
[(n) ] 1 Hawk. P. C. 235.
[(o) ]Ff. 48, 12, 2.
[(p) ] 1 Hawk. P. C. 231.
[(q) ] 3 Inst. 81.
[11 ] Amended by stat. 5 & 6 W. IV. c. 83.—Stewart.
[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.—Chitty.
[(r) ]Cod. 4, 59, 1.
[(s) ] See book i. page 427.
[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 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.
[(t) ] Stat. 15 Geo. III. c. 5.
[14 ] 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.