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Subject Area: Law
Topic: The American Revolution and Constitution

§ 107.: Prevention of speculation.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 107.

Prevention of speculation.—

Free trade is an undoubted constitutional right. Every man has the constitutional right, not only to determine with whom he will have business dealings, and to whom he shall offer his goods or his services, but he also has the right, in most cases, whether he shall offer them to any one at all. He may refuse, without giving any reasons, to sell his goods or to tender his services. He cannot ordinarily be compelled to do either. The only exceptions that suggest themselves, are cases in which the right of eminent domain is exercised,3 and those in which the State in the emergency of war makes forced sales of the property of private individuals for war purposes,1 and all cases of compulsory performance of duties to the State. In all other cases a man cannot lawfully be compelled to part with his property, or to render services against his will. Circumstances may conduce to make a particular business a virtual monopoly in the hands of one man or one partnership. But I apprehend that he cannot for that reason be subjected to police regulation. Because one man has the capital wherewith to buy up all the corn or wheat in our great Western markets, and to cause in consequence a rise in the values of these commodities, does not justify State interference with his liberty of action, any more than would police regulation of the whole capitalist class be permissible. And yet this one man occupies an economical position, differing only in degree from the capitalists as a class. The same qualities and characteristics which enable him to become a capitalist, will urge him to make the most of the wealth he has accumulated or inherited, and he will so manipulate it as to increase its returns if possible. Each successful increase in the returns from capital, increase the price of the commodity, in the manufacturing or preparation or handling of which the capital has been invested. It is only in extraordinary abnormal cases that any one man can acquire this power over his fellow-men, unless he is the recipient of a privilege from the government, or is guilty of dishonest practices. The remedy for the first case, in a constitutional government, is to withhold dangerous privileges, or if the grant of them is conducive to the public welfare, to subject their enjoyment to police regulation, so that the public may derive the benefit expected and receive no injury. In the second class of cases, a rigid prosecution of dishonest practices will be an efficient remedy.

The common law did not recognize this view of a right to be free from police regulation, in the matter of trade. While the general right to buy and sell without let or hindrance was recognized, certain sales were held to be illegal, and punished as misdemeanors, which are exceedingly common at the present day, and, if not legal, are acknowledged by the commercial world as legitimate transactions. These were sales, known at common law by the names, forestalling, regrating, and engrossing. Says Blackstone: “The offense of forestalling the market is an offense against public trade. This, which (as well as the two following) is also an offense at common law, was described by statute 5 and 6 Edw. 6, ch. 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; any of which practices make the market dearer to the fair trade. 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 provisions, as every successive seller must have a successive profit. 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. And so the total engrossing of any other commodity with an intent to sell it at an unreasonable price is an offense indictable and finable at the common law.”1 In Russell on Crimes,2 these offenses are stated as follows: “Every practice or device by art, conspiracy, words, or news, to enhance the price of victuals or other merchandise, has been held to be unlawful; as being prejudicial to trade and commerce, and injurious to the public in general. Practices of this kind come under the notion of forestalling, which anciently comprehended, in its significance, regrating and engrossing and all other offenses of the like nature. Spreading false rumors, buying things in the market before the accustomed hour, or buying and selling again the same thing in the same market, are offenses of this kind. Also if a person within the realm buy merchandise in gross, and sell the same in gross, it has been considered to be an offense of this nature, on the ground that the price must be thereby enhanced, as each person through whose hands it passed would endeavor to make his profit of it.” As stated by Blackstone, these acts are no longer recognized by the American criminal law as offenses against the public, or as being in any way illegal. The purchase of merchandise, or any other commodity, that may be the subject of sale, expecting a rise in the price, in other words, speculation, is legal whether the buyer intends to sell again, in gross, or in retail. A man has a constitutional right to buy anything in any quantity, providing he use only fair means, and set his own price on it, or refuse to sell at all. Where one man, acting independently, does this, he can be only considered guilty of a wrong to the public, when he secures the possession of these things by the practice of fraud, or endeavors by false reports to enhance the price of a commodity which he offers for sale. These are distinct acts of fraud or deception, and it is proper for the law to declare them illegal. Further the law cannot go. Mr. Bishop, in discussing these common-law offenses, denies that regrating, as distinguishable from forestalling and engrossing, can be considered a criminal offense in this country,1 but he recognized the other two offenses, in a modified form. In respect to forestalling, he says: “In reason, the essence of the common law, on the subject of forestalling, considered distinct from engrossing and regrating, seems to be, that, whenever a man, by false news or by any kind of deception, gets into his hands a considerable amount of any one article of merchandise, and holds it for an undue profit, thereby creating a perturbation in what pertains to the public interests, he is guilty of the offense of forestalling.”1 As stated by Mr. Bishop, the common law in making a criminal offense of forestalling is no more open to constitutional objection than the punishment or prohibition of any other act of fraud or deception. But Mr. Bishop’s position, in regard to engrossing, is not as free from criticism. He says: “Whenever a man, for the purpose of putting things, as it were, out of joint, and obtaining an undue profit, purchases large quantities of an article of merchandise, to hold it, not for a fair rise, but to compel buyers to pay a price greatly above, as he knows, what can be regularly sustained in the market, he may, on principle, be deemed, with us, to be guilty of the common-law offense of engrossing.”2 It is, without doubt, an immoral act, to ask an unconscionably high price for a commodity, taking advantage of the pressing wants of the people; and it may, under a high code of morals, be held to be an extortion, for one to purchase and hold merchandise for the purpose of gaining from its sale more than a fair profit; but it cannot be claimed that there is a trespass upon the rights of others in doing so, or that the rights of others are thereby threatened with injury. One is simply exercising his ordinary rights in demanding whatever price he pleases for his property. But apart from this objection, the great difficulty, if not impossibility, in ascertaining what is an extortionate price, and the practical inability, to enforce it, would predetermine such a law to become a dead letter.

[3]See post, § 139.

[1]See post, § 166.

[1]4 Bl. Com. 154.

[2]1 Russ. Crimes (Grea. Ed.), 168.

[1]1 Bishop Crim. Law, § 970

[1]1 Bishop Crim. Law, § 968.

[2]Bishop Crim. Law, § 969.