Blackstone’s Commentaries with Notes of Reference (1803)
St. George Tucker
Of Offenses Against Public Trade
Offenses 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 offense of transporting wool or sheep out of this kingdom, to the detriment of its staple manufacture. This was forbidden at common law,1 and more particularly by statute 11 Edw. III. c. 1. when the importance of our woolen manufacture was first attended to; and there are now many later statutes relating to this offense, 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 offense 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 offense is felony. The statutes 12 Car. II. c. 32. and 7 & 8 W. III. c. 28. make the exportation of wool, sheep, or fuller’s earth, liable to pecuniary penalties, and the forfeiture of the interest of the ship and cargo by one 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. (amended and farther 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.
2. SMUGGLING, or the offense if importing goods without paying the duties imposed thereon by the laws of the customs and excise, is an offense 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: but the last of them, 19 Geo. II. c. 34. is for this 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 offenses; or shall pass with such goods in disguise; or shall would, 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 himself upon proclamation, it seems to be expired; as the subsequent statutes,2 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 offenses 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.3
3. ANOTHER offense against public trade is fraudulent bankruptcy, which was sufficiently spoken of in a former volume;4 when we thoroughly examined the nature of these unfortunate traders. I shall therefore here barely mention over again some abuses incident to bankruptcy, 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 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 such as are the most averse to the infliction of capital punishment, that the offense 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.5 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 100£, neglects or refuses on demand to discover and deliver up his effects for the benefit of his creditors. And these are the only felonious offenses against public trade; the residue being mere misdemeanors: 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.6 We there observed that by statute 37 Hen. VIII. c. 9. the rate of interest was fixed at 10£ percent per annum: which the statute 13 Eliz. c. 8. confirms; and ordains, that all brokers shall be guilty of a praemunire that transact any contracts for more, and the securities themselves shall be void. The statute 21 Jac. I. c. 17. reduced interest to eight percent; and, it having been lowered in 1650, during the usurpation, to six percent, the same reduction was re-enacted after the restoration by statute 12 Car. II. c. 13. and, lastly, the statute 12 Ann. St. 2. c. 16. has reduced it to five percent. Wherefore not only all contracts for taking more are in themselves totally void, but also the lender shall forfeit treble the money borrowed. Also if any scrivener or broker takes more than five shillings percent procuration-money, or more than twelve-pence for making a bond, he shall forfeit 20£ with costs, and shall suffer imprisonment for half a year.
5. CHEATING is another offense, 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 prevent deceits in particular trades, and which are chiefly of use among the traders themselves. For so cautious has the legislature been, and so thoroughly abhors all indirect practices, that there is hardly a considerable fraud incident to any branch of trade, but what is restrained and punished by some particular statute. The offense also of breaking the assize of bread, or the rules laid down by law, and particularly by statute 31 Geo. II. c. 29. and 3 Geo. III. c. 11. for ascertaining its price in every given quantity, is reducible to this head of cheating: as is likewise in a peculiar manner the offense of selling by false weights and measures; the standard of which fell under our consideration in a former volume.7 The punishment of bakers breaking the assize, was anciently 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 dungcart:8 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.”9 But now the general punishment for all frauds of 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.10 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 color of any false token, counterfeit letter, or false
pretense, or pawns or disposes of another’s goods without the consent to the owner, he shall suffer such punishment by imprisonment, fine pillory, transportation, whipping, or other corporal pain, as the court shall direct.
6. THE offense of forestalling the market is also an offense against public trade. This, which (as well as the two following) is also an offense at common law,11 is described by statute 5 & 6 Edw. 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 is described by the same statute to be the buying of corn, or other dead victual, in any market, and selling them again in the same market, or within four miles of the place. For this also enhances the price of the provisions, as very successive seller must have a successive profit.
8. ENGROSSING, by the same statute, is the getting into one’s possession, or buying up, 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 the penalty for these three offenses by this statute (which is the last that has been made concerning them) is the forfeiture of the goods or their value, and two months imprisonment for the first offense; double value and six months imprisonment for the second; and, for the third, the offender shall forfeit all his goods, be set in the pillory, and imprisoned at the king’s pleasure. Among the Romans these offenses, and other male-practices to raise the price of provisions, were punished by a pecuniary mulct. “Poena viginti aureorum statuitur adversus eum, qui contra annonam fecerit, societatemve coierit, quo annona carior fiat.”12
9. MONOPOLIES are much the same offense 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 anything whatsoever; whereby the subject in general is restrained from that liberty of manufacturing or trading which he had before.13 These had been carried to an enormous height during the reign of queen Elizabeth; and were heavily complained of by Sir Edward Coke,14 in the beginning of the reign of king James the first: but were in great measure remedied by ft 21 Jac. I. c. 3. 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 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 extrajudicial order, other than of the court wherein it is brought, they incur the penalties of praemunire. Combinations also among victualers or artificers, to raise the price of provisions, or any commodities, or the rate of labor, are in many cases severely punished by particular statutes; and, in general, by statute 2 & 3 Edw. VI. c. 15. with the forfeiture of 10£, or twenty days imprisonment, with an allowance of only bread and water, for the first offense; 20£, or the pillory, for the second; and 40£, 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,15 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,16 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.
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 100£, and be imprisoned three months; and for the second offense 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 lands and goods, and shall be incapable of any legacy or gift. By statute 23 Geo. II. c. 13. the seducers incur, for the first offense, a forfeiture of 500£, for each artificer contracted with to be sent abroad, and imprisonment for twelve months; and for the second 1000£, and are liable to two years imprisonment: and if any person exports any tools or utensils used in the silk or woolen manufactures, he forfeits the same and 200£, and the captain of the ship (having knowledge thereof) 100£: and if any captain of a king’s ship, or officer of the customs, knowingly suffers such exportation, he forfeits 100£, and his employment; and is forever made incapable of bearing any public office.
1. Mirr. c. 1. § 3.
2. Stat. 26 Geo. II. c. 32. 32 Geo. II. c. 18. 4. Geo. III. c. 12.
3. See Vol. I. pag. 317. Beccar. ch. 33.
4. See Vol. II. pag. 481, 482.
5. Beccar. ch. 34.
6. See Vol. II. pag. 455, etc.
7. See Vol. I. pag. 274.
8. 3 Inst. 219.
9. Seld. tit. of hon. b. 2. c. 5. § 3.
10. 1 Hawk. P. C. 188.
11. 2 Hawk. P. C. 235.
12. Ff. 48. 12. 2.
13. 1 Hawk. P. C. 231.
14. 3 Inst. 181.
15. Cod. 4. 59. 1.
16. See Vol. I. pag. 427.