Front Page Titles (by Subject) CHAPTER IV: adulteration - Law in a Free State
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CHAPTER IV: adulteration - Wordsworth Donisthorpe, Law in a Free State 
Law in a Free State (London: Macmillan and Co., 1895).
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It is a stock argument of State socialists that the Adulteration Acts are socialistic, and that no one would go so far as to contend for freedom to adulterate. Individualists admit that these Acts are socialistic, but they further contend that all such Acts have hitherto been dismal failures. Indeed all parties admit as much. But is it not possible to have good laws, the effect of which will be to discourage the practice of adulteration without interfering with the equal liberty of individuals? If socialistic laws have failed, let us try laws based on the alternative principle. Caveat emptor is the excellent maxim of law which applies in this country to buying and selling. In the absence of a special warranty, or the use of some such word as “genuine,” it is presumed that the vendor offered the thing for sale, and that the purchaser, after examining the thing for himself, bought it for what it might be worth. This is an excellent principle. But it must not be strained so far as to override the universally acknowledged meanings of words. And it is not so strained in certain classes of cases. For example, if the vendor describes a ring as a gold ring which turns out to be aluminium bronze, he cannot plead that by gold he simply meant yellow metal (which, by the way, was the original meaning of the word), or that aluminium bronze is known as Abyssinian gold in the market, or that the purchaser had an opportunity of examining the ring for himself. Nothing of the sort. He said gold; and the public knows what is meant by gold. Now if gold means something definite, to which the public attaches a definite meaning, why should not beer or cloth also be held to mean a definite substance? The only answer is that as a fact the public does attach a precise definition to some names of things, and that it does not to others.
But if this is so, it would seem just, where those precise definitions do exist in the public mind, that parties dealing should be presumed to have used the terms in the usually accepted sense; as in the case of gold, and certain raw materials such as oak and mahogany. If a vendor sells an oak chest as such, he cannot plead caveat ctnptor when the purchaser finds that it is stained deal. Now there are certain substances which may be said to be precisely defined in the public mind, and yet whose definitions are not recognised in law. This should be altered.
But how is the question to be settled whether there is a current recognised definition or not; and if so, what is it? In the one possible way, by reference to a jury. The State cannot or should not itself undertake to define milk, butter, beer, tobacco, coffee, calico, etc. etc. It is sure to blunder if it makes the attempt. The question whether tobacco means the leaf of the tobacco plant, or a mixture of such leaves with the leaves of other plants, or any leaves whatever treated in a certain way, is a question for a jury, assisted possibly by experts. It is not a question for the Legislature. This is the first principle to be acted upon by individualists in their efforts to put a stop to adulteration. Even when the general public is unable to say exactly what is the nature or composition of a substance named, it is often in a position to say positively what is not an ingredient in its composition. For example, the public cannot yet define calico. It is dimly understood that it is a kind of cotton fabric, but whether the admixture of flax or wool would be tantamount to adulteration is a question the public is not qualified to answer. When it is asked whether china clay is an ingredient in the composition of calico the public at once replies No. Hence we are ripe for the recognition of negative definitions, even where positive definitions are hardly formulated. It would be absurd to refuse to pay a tailor's bill on the ground that what was described as a cloth coat in reality contained an admixture of cotton; because cloth does not generally mean a pure woollen fabric. It would not be absurd to refuse payment on the ground that the fabric was felted instead of woven; for “woven” is a recognised attribute of cloth.
Having arrived at our proximate definitions, positive or negative, what is to be the next process? To begin with, away with public inspectors and analysers (only the State could invent such a word as analyst). It is the business of those who object to the adulterated article to set the law in motion. Let it be supposed that a barrel of beer has been bought and sold. The purchaser finds that the liquid contains a large quantity of foreign ingredients, other than hops and malt He sues the vendor for the money paid. Is the question to be settled in a court of civil or criminal jurisdiction? That is one of those questions which always crop up in this country. It seems to be overlooked that it is quite possible to injure the community and a particular individual by one and the same act, and that the public injury may not be sufficiently important to require punishment, unless the injured person takes the trouble to move in the matter. In Rome one could recover stolen goods, or damages for their loss, by what we should call a civil process, without in the least affecting the relation between the thief and the public by reason of the theft. Restitution first and punishment afterwards was the rule. Why should it not be so in this country? Why cannot we sue a libeller for damages, if any, and afterwards prosecute for criminal libel? In short, why cannot our civil courts treat adulteration cases otherwise than as breaches of contract? The proper course to adopt would be for the purchaser to bring an action against the vendor for the recovery of the money paid for the goods on the ground of their not being what they were represented to be. If the jury should find for the plaintiff, then the price should be returned, and the vendor should not recover back the goods complained of. The effects of this arrangement would be, firstly, to graduate the penalty for adulteration in accordance with the price of the goods sold; secondly, to put the vendor of adulterated goods completely at the mercy of his customers; thirdly, to do away with the necessity for rewarding informers; fourthly, to subject the wholesale dealer to far greater risk and danger than the retailer, as he would stand to lose very large sums; and lastly, to relieve the Court of the onus (where the sophisticated material was not positively injurious) of assessing damages. The purchaser would be recompensed for his risk and trouble and annoyance, and the vendor's goods would be forfeited, not to the State or to an informer, but to the injured party. That the penalty should be graduated in proportion to value is not a new principle. Smugglers understand it very well. This system, supported as it would be by voluntary anti-adulteration associations, which in the present state of the law are discouraged in every way, would speedily effect a marked change, and no one would suffer from the change except the fraudulent themselves. Such an association would be more than a match for the adulterating retailer. It would have its own office and analysers; the consumer would be spared all trouble in the matter; and the retailer would not be able, as he now usually is, to shift the blarne on the shoulders of the wholesale merchant. The latter would be the first to turn from the wickedness that he has committed, and to do that which is lawful and right.
The case of White v. Baywatcr, which came some time ago before the Lord Chief Justice, turned upon the meaning of the words “tincture of opium.” The defendant, a Sheffield chemist, had sold as such three ounces of a decoction which, on analysis, turned out to be only about 75 per cent of the strength described in the British Pharmacopœia. The local magistrate declined to convict, on the ground that the substance sold was undoubtedly tincture of opium, that the strength was not warranted, and that the rule caveat emptor applied; inasmuch as it was the business of the purchaser to specify the strength he required. The magistrate does not seem to have been represented on appeal, which is to be regretted. Counsel for the appellant contended that the tincture sold was “not of the nature or quality of the article demanded.” “Do you say that it was not the article known as tincture of opium?” “Just so; it is as though a customer asked for brandy and was given a mixture of one-third water; surely that would not be the article demanded.” If this suicidal analogy satisfied the Court, it is very surprising. Did counsel suppose that when he asks for spirits of any kind, he gets, or has a right to expect, pure alcohol, or proof spirit in the chemical sense of equal parts of alcohol and water, or even the proof spirit of pharmacy, which differs slightly from the former. Why, the brandy which he gets when he asks for brandy is a mixture containing a good deal more than one-third water. He was on firmer ground when he deserted the argument of common - sense and relied on the wording of section 15 of the Pharmacy Act, though here he seems to have felt a little shaky. “The strength and quality of drugs vary,” said Lord Coleridge; “need they be of the strength of the British Pharmacopœia?” The reply seems somewhat foggy, if not self-contradictory: “Not perhaps precisely, but the drugs must be of the same strength as the British Pharmacopœia.” Now the British Pharmacopœia is nothing less than a fasciculus of Government definitions of the most detailed character. It was sanctioned in 1863 by the Medical Council, and substituted for the then existing pharmacopœias, and adopted by the Pharmacy Act, 1868. Whether it ought to be a penal offence to sell drugs which are pure and free from deleterious ingredients, and which certainly are “of the nature” though not of the strength demanded, is a question of policy. The fact remains that such is a statutory offence in those cases where the State has enunciated a distinct definition. Counsel for the appellant only damaged his case by trying to bring it under a general principle of commercial law. Lord Coleridge made matters worse by the wording of his decision: “It appears from the case that ' tincture of opium' is a term well understood in the trade, and that the article sold by the defendant was not that article.” Mr. Justice Smith concurred, saying, “Tincture of opium means the article understood in the trade by that term.” These are not good grounds for the conviction. The grounds are that the State has defined the term “tincture of opium,” and the article sold was not as defined.
In the case of R. v. Bryan, D. & B. 265, where the defendant had described some spoons as of the best quality and equal to Elkington's A. (a description well known in the silver trade), and having as much silver in them as Elkington's A., it was held by ten judges that the language used was mere puffery. “This case is often,” says Sir James Stephen, “but, I think, wrongly supposed to decide that a misrepresentation as to quality cannot be a false pretence. This depends on the further question, whether the representation is made by means of alleging the existence of a fact which does not exist.” Clearly, therefore, if “Elkington's A.” had been defined by Act of Parliament, there would have been a specific false pretence as to an existing fact, but in the absence of such definition a mere customary trade description as to quality (including strength) is not enough to justify conviction.
The case shows how necessary it is to revise the whole system of law regarding adulterations. As it is, the statute book is being inundated with little separate definitions of milk, butter, beer, etc., without any attempt at consolidation or generalisation. And, together with this plethora of legislation, we have an utterly unworkable and ineffectual system of administration.
The lame and impotent efforts of the Legislature to put a stop to the increasing practice of adulteration have had the lamentable result of stimulating and protecting it. The Adulteration Acts (under various titles) have actually stood between the fraudulent trader and the arm of justice. The evils occasioned by this state of affairs is met, as usual, by a series of Bills aiming at the punishment of offenders of this class, first in one department of trade and then in another. Of late years Acts have been passed and Bills have been brought in dealing with fraudulent sales of butter, and providing for the purity of beer.
For several sessions Parliament has been much exercised about the purity and strength of drugs. Raids have been made upon the milkman with the unfortunate result of making the authorities a laugh-ing-stock. Heavy penalties have been attached to the admixture of foreign substances with tea and tobacco, more for the sake of the revenue than for the sake of the consumer. Coffee and cocoa have been separately protected by the State against the wiles of the dealer, with the sole result that it is long odds against any one of the first ten samples examined being really unadulterated. Bread and flour have also been the subject of the State's special solicitude; and heavy penalties have been imposed upon purveyors of bad meat; though this hardly comes under the head of adulteration. The main result of the paternal care of Government in the particular matter of pure wine seems to be that more sherry is drunk in London alone than is grown in Spain, and that the British gooseberry enters into the composition of sparkling wines far more largely than the grape of Champagne. In the good old days of the curfew bell, which Sir John Lubbock looks back upon with such yearning, wicked brewers who made bad beer were condemned to stand in the dung-cart, while bakers of bad bread went to the pillory. Nowadays our rulers are loath to be so rude to the manufacturer, who may be an important personage. By 23 & 24 Viet. c. 84, the small retailer is assailed or rather threatened. What the State is pleased to call public “analysts” are appointed, who are bound to analyse bread for a fee of from half-a-crown to half-a-guinea. If the baker is found out, he incurs a penalty; but, as a disappointed reformer observes, “the analyst is very rarely appealed to; firstly, on account of the uncertainty of the analytic result; secondly, on account of the fee; thirdly, because the victim who goes to all the trouble pro bono publico is a fool for his pains.” Anyhow, he is certainly a determined altruist. When the retailer is found out, which happens occasionally in very flagrant cases, he usually and very successfully lays the blame on the wholesale dealer. How was he to know of the existence in his tobacco of the forbidden “substance or material, syrup, liquid or preparation, matter or thing”? Somebody should attack the wholesale merchant; nobody takes the trouble; the matter drops, and the tobacconist's friends condole with him on having been made the scapegoat of some undiscovered rascal whose name never transpires. Note the marvellously searching and exhaustive enumeration of forbidden ingredients—not only substances, but also materials, to say nothing of matters and things. How can the wrong-doer expect to escape? For even if the adulterator avoided making use of substances or materials, matters or things, the chances are he would be caught with a “preparation.”
But we have not yet fathomed the depth of the State socialist's artfulness. In order to remove temptation from the path of the brewer and beer retailer, a list of ingredients is published by the all-wise State, which knows all the tricks of the trade, imposing a penalty of £200 on any person who shall be found out having any such substances or materials in his possession, whether in the beer or otherwise. Now, how foolish the brewer would be to keep these proscribed matters or things on his premises, and how much wiser would he be to order them as they are required from the chemist. Quite so, but the State saw through this. Therefore, with the unerring foresight of a thought-reader, it enacted (56 George III. c. 58, sec. 3), that any chemist, druggist, or other person who shall sell the articles mentioned in sec. 2 to any dealer in beer shall be fined £500. The reason why the chemist, druggist, or other person suffers two and a half times as much as the delinquent himself who intends to put them in the beer, is doubtless based on the fable of the trumpeter, who, too cowardly to fight himself, urged others on to the fray. Well, the effect of all these dreadful penalties is that legislators now propose to coerce the beer dealer himself to turn informer against his own wares. Some say he must be made to tell his customers “that other ingredients are contained in his beer”; while a more radical and thorough sect of reformers say he must be made to tell his customer “what other ingredients are contained in his beer.” Two separate Bills were not long since brought in embodying these two rival principles. While they are fighting it out, it is consoling for the British consumer to reflect that the substance said to be of all condiments the most adulterated is pepper. Strange to say, this spice is specially protected, under a penalty of £100, by 59 George III. c. 53, sec. 22.
In its natural state arsenic is white. It might be mistaken for sugar from appearance alone. Such things have happened, but very rarely. The State in its wisdom steps in and says, Why should arsenic be white? Let it be blue. The consequences are obvious. Purchasers are led to rely solely upon their sense of colour as a test of the article. Is it blue? No, then make wedding-cakes of it. It cannot be arsenic. But it is arsenic, and twenty persons are poisoned by it, and the “analyst” finds that the icing on one cake contains 22 per cent of arsenic,—white, not blue. Sugar of lead, which is almost as dangerous as arsenic, is still allowed to go about in its virgin white, looking just like sugar. When somebody has swallowed enough to kill him without tasting or testing it, the State will direct that in future it must be coloured pink. Of course there are a great many careless fools in the world, but whether their diminution by arsenic-swallowing would not result in the evolution of a more wideawake race, is a cold-blooded question which will elicit a good many hot-blooded answers. Still, it may be so for all that.
The Public Health Act, 1875, seems to be a useful kind of measure. One of the functions of the State, which even the extremest individualists admit, is that of protecting citizens against murderers, poisoners, incendiaries, burglars, and other aggressors. If there is one form of poison more disgusting, loathsome, and dangerous than another, it is putrid meat. Persons exposing for sale meat which is unfit for human food are public enemies, and it is the duty of the State to get rid of them somehow or anyhow. A short time ago, an under farm bailiff was convicted under the Public Health Act of this very offence, and punished to the extent of £100 all told. Not satisfied with that he appealed. The appellant proved that the meat did not belong to him, and that he acted under the direction of the head bailiff. The Solicitor-General said the effect of his learned friend's contention would be to get rid of the whole value and effect of the Act. In order to punish offences against the Act it was necessary that those who dealt with the meat as if it belonged to them, should be held to be the persons to whom it did belong, or in whose possession it was when exposed for sale. He maintained that the appellant had acted throughout as if he were dealing with the meat on his own account. However, the ownership of the meat got shuttle-cocked about in Court with the result that it belonged to nobody in particular, and least of all to the unfortunate under-bailiff who had been so cruelly victimised by the local magistrates, and who after all had only done as he was told, good soul. As for the meat, perhaps some of us have eaten it by this time; or it may have found its way, through a long chain of middlemen, ownerless to the last, to the omnivorous sausage-shop of East London. It is some consolation to know that although the Public Health Act is incapable of dealing with diseased meat, it is a veiy powerful obstacle to a rational system of drainage. It is very careful as to the number of cubic feet of air that a room should contain, but it breaks down helplessly in its efforts to keep the sewage-gas out of that air. Altogether the Act is interesting as a study in nineteenth-century legislation.
It is a significant fact, and well worth notice, that the imports of butterine for 1887, after the passing of the Margarine Act, were larger by over 300,000 hundredweight than they were in 1886, for the corresponding ten months. This is not guesswork or prophecy, it is fact and history. Oh! far-seeing Council of Legislators! It was an honest proceeding to change your name from Witenagemote, the assembly of the wise, to Parliament, the crowd of jabberers.
The Government “analyst” at Somerset House during the Margarine campaign pointed out that an experienced butter merchant has great difficulty in distinguishing between butter and butterine, and an ordinary Revenue officer would be quite incapable of detecting the difference. He added that butterine is a wholesome commodity. Others, who gave evidence before the Select Committee of the House of Commons on Oleomargarine, maintained that it is a good deal more wholesome than the inferior classes of butter. Now, if a Revenue officer is quite incapable and an experienced butter merchant has great difficulty in distinguishing between two equally wholesome and similar substances by the sense of taste or otherwise, what has the consumer to complain of, except that he pays something less for the stuff? One would think that it is an easy matter to distinguish between the two by the taste of one and the absence of taste in the other. Persons whose sensory organs are more sensitive than those of “ordinary Revenue officers,” Government “analysts,” and experienced butter merchants, will do well to taste their butter, and, if they like it, to buy some more at the same place. If they do not like it, let them try another butter-man. The “analyst's” advice was less simple in one sense. He said the shopkeeper should be “compelled to put a label on butterine”; but as he had just before said that the unfortunate man cannot tell butterine from butter, the only safe course would be to label all his butter “butterine,” and to tell his customers that much of it is pure butter, but that it is well to be on the safe side. By the way, if a butter-man sold a substance as butterine which on analysis turned out to be pure butter, could he be prosecuted?
Is it not singular that while the State is session by session frittering away the public time devising artful schemes for entrapping those who wish to manage their own affairs on their own responsibility, no rational attempt should be made to entrap those who wish to manage their affairs to the detriment of their neighbours? Thus, a few friends may not enjoy a late supper party at an hotel, but any one of the party is at liberty to put any amount of half poisonous and disgusting ingredients into beer and bread and wine and pickles, and sell them as pure with the most complete impunity. If the State would attend less to other people's business, there might be some hope of its minding its own. Is there not a single member of either House of Parliament capable of bringing in a Bill for putting a stop to this iniquitous practice of adulteration? All that is wanted is the removal of the Government shield which now protects the adulterator. That is all. We do not require State definitions of beer and butter and cloth and pickles. The public knows very well the meaning of those homely terms without an authorised Government dictionary. Butter means butter, that is a well-known dairy product of milk. It does not mean refined animal fat, or annatto, or mineral oil, or mallows. Animal fat and olive oil are very nutritious and wholesome substances, and if economy is a consideration, they make a good economical substitute for butter. But they are not butter; and if sold as such the responsibility should rest on the vendor. So with beer; quassia is an excellent bitter, and goes a great deal further than hops; and camomile is probably even more wholesome than hops, but they are not hops, and the public understands beer to be made from hops and malt without any schooling by the State. If the public does not understand that, then there is no harm in substituting the camomile. If the public is satisfied with malt liquor embittered anyhow, why interfere?
But how are we to know, asks the befogged despot from Little Peddlington, how are we to know what the public understands by the term “beer”? The answer is as simple as dipping in Jordan—ask them. Do not begin by telling them what they ought to mean, or what they would mean, if only they knew what they meant; begin by assuming that the people of the country are, for the most part, sane, and do not require State assistance in order to know that two and two make four, and that coffee berries do not grow among the roots of the potato plant, nor tea leaves on the willow.
Having premised these truisms, what is the shape an Adulteration Act should take? It should assume that the people know the meaning of the words they daily use; and that when they do not know the meaning of a word, they should, and do as a rule, take the precaution of asking.
Now let us suppose that a purchaser complains that the vendor has palmed off upon him something different from that which he bargained for. He agreed to pay four shillings for a dozen bottles of cider. He pays the money and receives a dozen bottles of some decoction of which less than 20 per cent is apple juice. Let him have an action to recover his four shillings. If the vendor replies “What is cider?” let the Court have carte blanche, unfettered by any arbitrary rules, to say whether cider means fermented apple juice or something else. If there is any doubt in the matter, let the question go to a jury. Whatever the result, the next man who buys or sells a beverage by the name of cider will know what is meant. In case the verdict is for the plaintiff he should recover back the price paid and costs. But the vendor should not recover the goods delivered. He voluntarily gave up possession, and he cannot show that they were obtained by false pretence of any kind. He has tried to steal an advantage, and having failed, must pay the penalty.
Thus the fraudulent dealer is punished in exact proportion to the extent to which he tried to cheat his neighbour. And the victim of the fraud gets back his money and is compensated for the risk he ran and for the trouble he has been put to. And there is no danger of his being regarded in the light of an informer. He is the injured party. Lastly, it is for the public benefit that a strong inducement should be held out to those buyers who deal in large quantities to come down heavily on wholesale dealers. There would always be the danger of this, and although in many cases an understanding might be come to between large merchants and distributers, the fear of an occasional “traitor” among the retailers would create a healthy sense of insecurity among adulterators on a large scale.
The difficulty of getting at those retailers who do the adulteration themselves and sell in small quantities is not so great as might be expected. Once the sinews of war are provided for the battle, there would be little time lost in preparing for the campaign. Local combinations of consumers would soon spring up (for it would be somebody's interest to start them), and the expenses of a large number of small exposures would be more than covered by the prizes which would occasionally be won. At present it is nobody's interest to expose the fraudulent trader. Nothing is to be gained by it except a sense of duty alone, and alas! this is but a weak motor nowadays. Make it worth the while of some local chemist or solicitor to take the matter up, and a clean sweep of all these abominable frauds would be made from one end of the country to the other with amazing rapidity.
What is adulteration? We hear a great deal about it, and most people imagine they attach a distinct meaning to the term. Yet one never meets with a good or even tolerable definition of it. The purchaser asks for sugar; he receives something containing 90 per cent of sand; is that adulteration? “Certainly it is,” replies the casual observer. But if it contains 95 per cent? “Then it is still more so.” 99 per cent? “More than ever, of course.” But if it contains 100 per cent of sand, what then? “Why, then it is not adulteration.” So that “Champagne” without a drop of the juice of the grape in it is not an adulterated wine, but if the merchant is fool enough to put a glass of the genuine article into his liquor, he becomes an adulterator. If the purchaser asks for Demerara sugar, and receives French beet - pure and simple - it is not a case of adulteration; but if there is an ounce of Demerara in it, the vendor can be prosecuted. Is that the state of affairs? And, if so, is it a desirable state of affairs?
Again, when does dilution constitute adulteration, if at all? Whisky, of which one half is water, is certainly not considered adulterated. When it contains three parts water, it is weak and ought not to be sold. At what point between these two does adulteration begin? But the greatest difficulty arises in the case of names of things which do not necessarily denote anything very definite or particular, e.g. cloth. It may be doubted whether cloth even excludes all but woven fabrics. Felts and shoddies sometimes pass as cloth, and it is doubtful whether most people would refuse to regard such things as species of cloth. In the narrowest sense, the term signifies a woollen fabric, in which sense, therefore, an admixture of cotton would constitute adulteration. On this interpretation, over 99 per cent of the clothes we wear are considerably adulterated.
At common law it is a crime in Scotland to pass off as genuine an article which is not so. And it is punishable as a fraud. But what is “genuine”? Clearly if the vendor undertakes to supply an article according to sample, and sends a different quality of article intentionally, such article is not genuine. But this covers so few cases of fraud that it has been found necessary to supplement the common law by statutes of various degrees of stringency, all of which are ridiculous and contemptibly ineffectual. These Acts descend to the most childish details, and are quite innocent of over-generalisation. For example, what can we think of the Food and Drugs Act, 1875, which prohibits the mixing, colouring, staining, or powdering any article of food so as to render it injurious to health? Surely, if a person knowingly sells a substance to another which injures his health, it does not matter whether the colouring, staining, or powdering has anything to do with it. “Powdering,” forsooth! Was ever such nonsense promulgated in the name of the Collective Wisdom? There was once a Liliputian War between the public “analysts” and the Revenue officers as to whether water is an adulterant in beer, and, if so, when? Somebody says it doesn't matter, and that is about the truth. If a man gets small beer when he expects strong, it will not happen twice if he also has a grain of sense. “What strength is the beer, please?” Or, if that is too much to expect of the British consumer who is born to be taken in, let him change his custom to a house where the specific gravity is marked in plain letters. If he will not make the slightest effort to protect himself, the probability is that he is the sort of man who is all the better for drinking small beer, and that the race will not suffer much if he loses his money, or even “dies in October.”
But whatever may be deemed necessary for putting a stop to practices against which the consumer has a poor chance of contending successfully, one thing is absolutely requisite. The purchaser must not be left single-handed to fight the unscrupulous trader. Efficient co-operation is not a thing that can be State-created. But it must be brought about somehow. How far the law relating to maintenance would impede the action of any combination of purchasers is a question for lawyers. The difficulty has been surmounted in the case of the Trade Protection Societies. But it is a question not for the lawyer, but for the legislator, how far this rule of law should be suspended or neutralised in this particular class of actions. There is no good reason whatever why a victim of adulteration should not place the matter in the hands of his society, which should take all the trouble and responsibility off his hands, recover the money paid, and expose the adulterator, without any further onus on the purchaser than the tendering of the necessary evidence. It is not likely that a purchaser would sue a vendor for the price of a pennyworth of sweets, but a society existing for the purpose would as readily sue for a penny as for a fortune.
In the light of the above considerations I some time ago drafted an Adulteration Bill which was read a first time in the House of Lords in 1886. Omitting the usual padding in Acts of Parliament, the Bill consists of three clauses. By clause 3 every vendor is in future to be taken to warrant the commodity sold, unless he distinctly informed the purchaser that it was adulterated. And it is not to be the duty of the purchaser, as heretofore, to prov the negative; the onus of proving that he did inform the purchaser rests on the vendor. The clause regards a commodity as unadulterated when it is exactly what it professes to be. Thus if a vendor sells a customer a pound of “Jones's mixture,” purporting to be a tobacco mixture, provided the mixture is just as it leaves the original manufacturer or mixer, it is not adulterated so far as the present vendor is concerned. The onus of proving that the mixture is all tobacco is thrown back on Jones as the original warranter. But even in such case it is necessary for the present vendor to show not only that he sold the stuff as “Jones's mixture,” but that it was “expressly purchased as such.” Probably the only satisfactory proof of this will be that the packet was so labelled at the time of sale and delivery. 15-carat gold must be described as 15-carat, or the vendor will take the risk; but if it is marked or sold as “Pryce's standard gold,” it will be the purchaser's look-out to ascertain what such standard may be.
Hitherto it has been necessary for the purchaser to prove not only that the commodity is adulterated, but that the vendor knew it to be adulteratedem—a most absurd requirement But, by clause 5 of the Bill, the fact of adulteration is to be prima facie evidence of the vendor's knowledge. The only way in which he can establish his innocence will be by showing that he bought the commodity from some one else in the belief that it was unadulterated. The responsibility will then very properly rest upon the original dealer, who in his turn will be called upon to prove that he informed the middleman of the true nature of the article.
Clause 4 of the Bill provides for the penalty or consequence of selling adulterated goods. At first sight it does not look very severe, but on careful examination it will be seen that it will have the effect of rendering the process an extremely dangerous one. The adulterated goods are entirely forfeited. Thus the law will weigh with greatest force on the manufacturer and wholesale merchant; and these are the chief delinquents. Small retail dealers will run a proportionate risk, which pecuniarily will be small; but they will also incur a risk of another kind. No longer being able to throw the blame back on the wholesale dealer, they will be branded as fraudulent. To-day it is hardly worth while to bring home to a retailer the charge of having sold sixpennyworth of adulterated sweets, or tobacco, or tea, because he has only to say that the goods are just as they were delivered to him, and there the matter ends. He does not stand branded as a cheat. In future he will be between two stools. Customers will find it worth their while to expose him; and wholesale dealers will co-operate with the public for the sake of their own reputations. For the merchant who dare not himself adulterate will take good care that his wares do not get a bad name for nothing; which they would do if goods supplied pure by him to the retailer, reached the customer in a deteriorated condition.
Another result of the proposed law, if it should pass, will be the encouragement afforded to customers to combine for the exposure of retail adulterators. At the present time there is no inducement to do this. The process of bringing the charge home is too difficult, too expensive, and in many cases too dangerous. To pillory a shopkeeper in the local newspapers, though in itself an excellent plan, is to court an action for libel,—which in the present state of the law it is no easy matter to defend. It would be otherwise if my Adulteration Bill became law.
This Bill is not State-socialistic. It is based on thorough-going individualistic principles. It contains no reference to inspectors, no arbitrary penalties, no common informers, no Government “analysts,” no Government standard of quality; in short, it leaves everything to the common law, and to the common-sense of the parties concerned. If a customer prefers cheap and wholesome butterine to dear and dirty butter, let him have it. But then he must be made to know that he is not buying butter but ox-fat. There was no need for the law to compel dealers in ox-fat to label their ware by a repulsive and mendacious name, such as “margarine,” which it is not, or “whale-blubber,” which it is not. Similarly, if a customer prefers plenty of a light beer at a low price, to less of a strong beer at a high price, why should the State stand in his way? He is not likely to pay a high price for a low quality, when he can get the better quality next door; unless he is an idiot or cannot tell the difference, in which case, he is probably all the better for drinking the lighter beer. Again, there is no particular virtue in hops beyond their power of imparting a pleasant bitter to the ale. If customers like ale embittered with camomile or any other “bitters,” what does it matter to the State?
It may be said that unwholesome ingredients are frequently used as cheap substitutes for those which are wholesome. Good; but this is quite a separate question. It is not a question of purchase and sale at all. What does it matter to one who has been half poisoned by arsenic, whether the green sweets containing the poison were sold to him, or given to him, or forced down his throat? He has been injured by another person, and he has a right to redress. It is no question of adulteration at all. Now the Adulteration Bill provides for this by keeping the two questions distinctly apart. According to clause 6, “Nothing in this Act shall be deemed to protect any person from being proceeded against by way of indictment in respect of the sale of any adulterated commodity ... or shall prevent the purchaser of any adulterated commodity, who by the use thereof sustains any injury to his health, whether temporary or permanent, from recovering from the vendor thereof damages for such injury, in addition to any moneys or commodity he may recover under this Act.” Of course not. The offences are distinct and separate, and should be so treated. It is not necessary to prove adulteration at all in such cases. The substance sold to a child may be pure unadulterated sugar of lead; the offence remains the same.
If the Government would but exert themselves to pass some such single modest measure, its effect on the public mind might serve as a barrier to much proposed legislation of a socialistic character. The public have had little or no experience of sound and healthy legislation, and they naturally look to the Legislature, not only to make laws, but to “keep them going.” Whereas one difference between good and bad laws is that the former, when once enacted, “keep going” of themselves without an army of officials and a State department. Here is the Bill:—
THE ADULTERATION BILL
Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—