Blackstone's Commentaries on the Laws of England
Book the Fourth - Chapter the Twelfth : Of Offenses Against Public Trade
CHAPTER THE TWELFTH.
OF OFFENCES AGAINST PUBLIC TRADE.
OFFENCES againft public trade, like thofe of the preceding claffes, are either felonious, or not felonious. Of the firft fort are,
1. OWLING, fo called from it's being ufually carried on in the night, which is the offence of tranfporting wool or fheep out of this kingdom, to the detriment of it's ftaple manufacture. This was forbidden at common law a
, and more particularly by ftatute 11 Edw. III. c. 1. when the importance of our woollen manufacture was firft attended to; and there are now many later ftatutes relating to this offence, the moft ufeful and principal of which are thofe enacted in the reign of queen Elizabeth, and fince. The ftatute 8 Eliz. c. 3. makes the tranfportation of live fheep, or embarking them on board any fhip, for the firft offence forfeiture of goods, and imprifonment for a year, and that at the end of the year the left hand fhall be cut off in fome public market, and fhall be there nailed up in the openeft place; and the fecond offence is felony. The ftatutes 12 Car. II. c. 32. and 7 & 8 W. III. c. 28. make the exportation of wool, fheep, or fuller's earth, liable to pecuniary penalties, and the forfeiture of the intereft of the fhip and cargo by one owners, if privy;
Mirr. c. 1. §. 3.
- P 155
and confifcation of goods, and three years imprifonment to the mafter and all the mariners. And the ftatute 4 Geo. I. c. 11. (amended and farther enforced by 12 Geo. II. c. 21. and 19 Geo. II. c. 34.) makes it tranfportation for feven years, if the penalties be not paid.
2. SMUGGLING, or the offence if importing goods without paying the duties impofed thereon by the laws of the cuftoms and excife, is an offence generally connected and carried on hand in hand with the former. This is reftrained by a great variety of ftatutes, which inflict pecuniary penalties and feifure of the goods for clandeftine fmuggling; and affix the guilt of felony, with tranfportation for feven years, upon more open, daring, and avowed practices: but the laft of them, 19 Geo. II. c. 34. is for this purpofe inftar omnium; for it makes all forcible acts of fmuggling, carried on in defiance of the laws, or even in difguife to evade them, felony without benefit of clergy: enacting, that if three or more perfons fhall affemble, with fire arms or other offenfive weapons, to affift in the illegal exportation or importation of goods, or in refcuing the fame after feifure, or in refcuing offenders in cuftody for fuch offences; or fhall pafs with fuch goods in difguife; or fhall would, fhoot at, or affault any officers of the revenue when in the execution of their duty; fuch perfons fhall be felons, without the benefit of clergy. As to that branch of the ftatute, which required any perfon, charged upon oath as a fmuggler, under pain of death, to furrender himfelf upon himfelf upon proclamation, it feems to be expired; as the fubfequent ftatutes b
, which continue the original act to the prefent time, do in terms continue only fo much of the faid act, as relates to the punifhment of the offenders, and not to the extraordinary method of apprehending or caufing them to furrender: and for offences of this pofitive fpecies, where punifhment (though neceffary) is rendered fo by the laws themfelves, which by impofing high duties on commodities increafe the temptation
Stat. 26 Geo. II. c. 32. 32 Geo. II. c. 18. 4. Geo. III. c. 12.
to evade them, we cannot furely be too cautious in inflicting the penalty of death c
3. ANOTHER offence againft public trade is fraudulent bankruptcy, which was fufficiently fpoken of in a former volume d
; when we thoroughly examined the nature of thefe unfortunate traders. I fhall therefore here barely mention over again fome abufes incident to bankruptcy, viz. the bankrupt's neglect of furrendering himfelf to his creditors; his non-conformity to the directions of the feveral ftatutes; his concealing or imbezzling his effects to the value of 20 /.; and his withholding any books or writings with intent to defraud his creditors: all which the policy of our commercial country has made capital in the offender; or, felony without benefit of clergy. And indeed it is allowed in general, by fuch as are the moft averfe to the infliction of capital punifhment, that the offence of fraudulent bankruptcy, being an atrocious fpecies of the crimen falfi, ought to be put upon a level with thofe of forgery and falfifying the coin e
. To this head we may alfo fubjoin, that by ftatute 32 Geo. II. c. 28. it is felony punifhable by tranfportation for feven years, if a prifoner, charged in execution for any debt under 100 /., neglects or refufes on demand to difcover and deliver up his effects for the benefit of his creditors. And thefe are the only felonious offences againft public trade; the refidue being mere mifdemefnors: as,
4. USURY, which is an unlawful contract upon the loan of money, to receive the fame again with exorbitant increafe. Of this alfo we had occafion to difcourfe at large in a former volume f
. We there obferved that by ftatute 37 Hen. VIII. c. 9. the rate of intereft was fixed at 10 /. per cent. per annum: which the ftatute 13 Eliz. c. 8. confirms; and ordains, that all brokers fhall be guilty of a praemunire that tranfact any contracts for more, and the fecurities themfelves fhall be void. The ftatute
See Vol. I. pag. 317. Beccar. ch. 33.
See Vol. II. pag. 481, 482.
Beccar. ch. 34.
See Vol. II. pag. 455, &c.
21 Jac. I.
21 Jac. I. c. 17. reduced intereft to eight per cent; and, it having been lowered in 1650, during the ufurpation, to fix per cent, the fame reduction was re-enacted after the reftoration by ftatute 12 Car. II. c. 13. and, laftly, the ftatute 12 Ann. ft. 2. c. 16. has reduced it to five per cent. Wherefore not only all contracts for taking more are in themfelves totally void, but alfo the lender fhall forfeit treble the money borrowed. Alfo if any fcrivener or broker takes more than five fhillings per cent. procuration-money, or more than twelve-pence for making a bond, he fhall forfeit 20 /. with cofts, and fhall fuffer imprifonment for half a year.
5. CHEATING is another offence, more immediately againft public trade; as that cannot be carried on without a punctilious regard to common honefty, and faith between man and man. Hither therefore may be referred that prodigious multitude of ftatutes, which are made to prevent deceits in particular trades, and which are chiefly of ufe among the traders themfelves. For fo cautious has the legiflature been, and fo thoroughly abhors all indirect practices, that there is hardly a confiderable fraud incident to any branch of trade, but what is reftrained and punifhed by fome particular ftatute. The offence alfo of breaking the affife of bread, or the rules laid down by law, and particularly by ftatute 31 Geo. II. c. 29. and 3 Geo. III. c. 11. for afcertaining it's price in every given quantity, is reducible to this head of cheating: as is likewife in a peculiar manner the offence of felling by falfe weights and meafures; the ftandard of which fell under our confideration in a former volume g
. The punifhment of bakers breaking the affife, was antiently to ftand in the pillory, by ftatute 51 Hen. III. ft. 6. and for brewers (by the fame act) to ftand in the tumbrel or dungcart h
: which, as we learn from domefday book, was the punifhment for knavifh brewers in the city of Chefter fo early as the reign of Edward the confeffor. Malam cervifiam faciens, in cathedra ponebatur ftercoris i
See Vol. I. pag. 274.
3 Inft. 219.
Seld. tit. of hon. b. 2. c. 5. §. 3.
now the general punifhment for all frauds of this kind, if indicted (as they may be) at common law, is by fine and imprifonment: though the eafier and more ufual way is by levying on a fummary conviction, by diftrefs and fale, the forfeitures impofed by the feveral acts of parliament. Laftly, any deceitful practice, in cozening another by artful means, whether in matters of trade or otherwife, as by playing with falfe dice, or the like, is punifhable with fine, imprifonment, and pillory k
. And by the ftatutes 33 Hen. VIII. c. 1. and 30 Geo. II. c. 24. if any man defrauds another of any valuable chattels by colour of any falfe token, counterfeit letter, or falfe pretence, or pawns or difpofes of another's goods without the confent to the owner, he fhall fuffer fuch punifhment by imprifonment, fine pillory, tranfportation, whipping, or other corporal pain, as the court fhall direct.
6. THE offence of foreftalling the market is alfo an offence againft public trade. This, which (as well as the two following) is alfo an offence at common law l
, is defcribed by ftatute 5 & 6 Edw. VI. c. 14. to be the buying or contracting for any merchandize or victual coming in the way to market; or diffuading perfons from bringing their goods or provifions there; or perfuading them to enhance the price, when there: any of which practices make the market dearer to the fair trader.
7. REGRATING is defcribed by the fame ftatute to be the buying of corn, or other dead victual, in any market, and felling them again in the fame market, or within four miles of the place. For this alfo enhances the price of the provifions, as very fucceffive feller muft have a fucceffive profit.
8. ENGROSSING, by the fame ftatute, is the getting into one's poffeffion, or buying up, of corn or other dead victuals, with intent to fell them again. This muft of courfe be injurious to the public, by putting it in the power of one or two rich men to raife the price of provifions at their own difcretion.
1 Hawk. P. C. 188.
2 Hawk. P. C. 235.
And the penalty for thefe three offences by this ftatute (which is the laft that hath been made concerning them) is the forfeiture of the goods or their value, and two months imprifonment for the firft offence; double value and fix months imprifonment for the fecond; and, for the third, the offender fhall forfeit all his goods, be fet in the pillory, and imprifoned at the king's pleafure. Among the Romans thefe offences, and other male-practices to raife the price of provifions, were punifhed by a pecuniary mulct. Pocna viginti aureorum ftatuitur adverfus eum, qui contra annonam fecerit, focietatemve coierit quo annona carior fiat m
9. MONOPOLIES are much the fame offence in other branches of trade, that engroffing is in provifions: being a licence or privilege allowed by the king for the fole buying and felling, making, working, or ufing, of any thing whatfoever; whereby the fubject in general is reftrained from that liberty of manufacturing or trading which he had before n
. Thefe had been carried to an enormous height during the reign of queen Elizabeth; and were heavily complained of by fir Edward Coke o
, in the beginning of the reign of king James the firft: but were in great meafure remedied by ft 21 Jac. I. c. 3. which declares fuch 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 monopolifts are punifhed with the forfeiture of treble damages and double cofts, to thofe whom they attempt to difturb; and if they procure any action, brought againft them for thefe damages, to be ftayed by any extrajudicial order, other than of the court wherein it is brought, they incur the penalties of praemunire. Combinations alfo among victuallers or artificers, to raife the price of provifions, or any commodities, or the rate of labour, are in many cafes feverely punifhed by particular ftatutes; and, in general, by ftatute 2 & 3 Edw. VI. c. 15. with the forfeiture of 10 /., or twenty days imprifonment,
Ff. 48. 12. 2.
1 Hawk. P. C. 231.
3 Inft. 181.
with an allowance of only bread and water, for the firft offence; 20 /., or the pillory, for the fecond; and 40 /., for the third, or elfe the pillory, lofs of one ear, and perpetual infamy. In the fame manner, by a conftitution of the emperor Zeno p
, all monopolies and combinations to keep up the price of merchandize, provifions, or workmanfhip, were prohibited upon pain of forfeiture of goods and perpetual banifhment.
10. To exercife a trade in any town, without having previoufly fervid as an apprentice for feven years q
, is looked upon to be detrimental to public trade, upon the fuppofed want of fufficient fkill in the trader; and therefore is punifhed by ftatute 5 Eliz. c. 4. with the forfeiture of forty fhillings by the month.
11. LASTLY, to prevent the deftruction of our home manufactures, by tranfporting and feducing our artifts to fettle abroad, it is provided by ftatute 5 Geo. I. c. 27 that fuch as fo entice or feduce them fhall be fined 100 /., and be imprifoned three months; and for the fecond offence fhall be fined at difcretion, and be imprifoned a year: and the artificers, fo going into foreign countries, and not returning within fix months after warning given them by the Britifh embaffador where they refide, fhall be deemed aliens, and forfeit all their lands and goods, and fhall be incapable of any legacy or gift. By ftatute 23 Geo. II. c. 13. the feducers incur, for the firft offence, a forfeiture of 500 /., for each artificer contracted with to be fent abroad, and imprifonment for twelve months; and for the fecond 1000 /., and are liable to two years imprifonment: and if any perfon exports any tools or utenfils ufed in the filk or woollen manufactures, he forfeits the fame and 200 /., and the captain of the fhip (having knowlege thereof) 100 /.: and if any captain of a king's fhip, or officer of the cuftoms, knowingly fuffers fuch exportation, he forfeits 100 /., and his employment; and is for ever made incapable of bearing any public office.
Cod. 4. 59. 1.
See Vol. I. pag. 427.