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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), (4).

*3. Another offence against public trade is fraudulent bank- [*156] ruptcy, 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 nonconformity to the directions of the several statutes; his concealing or embezzling his effects to the value of 201. 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) (5). 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 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 (6). 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 1007., neglects or refuses on demand to discover and deliver up his effects for the benefit of his creditors (7), (8). And these are the only felonious offences against public trade; the residue being mere misdemeanors: as,


(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.

(4) See Story's laws, 1926, and other acts there referred to, as to the law of the U. S.

(5) 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 VOL. II.


(d) See book II. page 481, 482.
(e) Stat. 5 Geo. II. c. 30.
(f) Beccar. ch. 34.

effects; or declining to deliver up his goods, books, and writings; or concealing or embezzling any part of his effects, to the value of 101., 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.

(6) The punishment of pillory is, by the 56 Geo. III. c. 138, now abolished, except in perjury and subordination thereof.

(7) By the 33 Geo. III. c. 5. the debt is enlarged to 300Z.

(8) There is at present no general bankrupt law in the U. S., although Congress has power to pass one. In New-York, if an insolvent conceal his estate, books, &c. it is a misdemeanor. (2 R. S. 691, § 4: p. 23, § 35: & p. 35, § 3.)

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 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 per cent.; and, it having been lowered in 1650, during the usurpation, to six per cent., the same reduction was reenacted after the restoration by statnte 12 Car. II. c. 13; and lastly, the statute 12 Ann. st. 2. c. 16. has reduced it to five per cent. Wherefore not

only all contracts for taking more are in themselves totally void, [*157] but also the lender shall forfeit treble the *money borrowed (9).

Also, if any scrivener or broker takes more than five shillings per cent. procuration-money, or more than twelvepence for making a bond, he shall forfeit 201. 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 misdemeanor, 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 (10), (11).

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 assise 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) (12). The punishment of bakers breaking the assise, was anciently to stand in the pillory, by statute 51 Hen. III. st. 6. and for brewers (by the same act) to stand in (g) See book II. page 455, &c.

(9) 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 im. prisonment. 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 fœnerari? Tum Cato, Quid hominem, inquit, occidere? Cic. Off.

We have already considered what will constitute usury, ante, 2 book 403. That usury is

(h) See book I. page 274.

an indictable offence, see 2 Burr. 799. 4 T. R 205. 8 East, 41. 1 Chit. Crim. Law, 549.

(10) This act is repealed as to annuities granted since the 14 July, 1813, by the 53 Geo. III. c. 141, but similar provisions are reenacted.

(11) Interest in New-York is 7 per cent., and the taking of more destroys the liability of the borrower for any part of the debt. (1 R. S. 772.) One half per cent. is allowed as a compensation to brokers. Id. 709.

(12) 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. 24 ed. tit. Weights and Measures.

the tumbrel or dungcart (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 cerevisiam faciens, in cathedra ponebatur stercoris (j)." But now the general punishment for all frauds of this kind, if indicted (as they may be) at common [*158] 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) (13). 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 (14), (15), (16).

(i) 3 Inst. 219.

(j) Seld. tit. of hon. b. 2, c. 5, ◊ 2.

(13) 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.

(14) 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 of fender 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.

(15) Now, by 7 and 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 misdemeanor, 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

(k) 1 Hawk. P. C. 188.

trial of any person indicted for such misdemeanor, 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 misdemeanor; and no such indictment shall be removable by certiorari; and no person tried for such misdemeanor 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. and 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 v. Hill, R. and 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 v. 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 v. Buttery, cited in Pearson v. M'Gowran, 5 D. and R. 616; 3 B. and 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 v. Codrington, 1 C. and P. 661. further upon this subject, 2 East, P. C. 673, 818, 819, 829, 830; 6 T. R. 565; R. and R. C. C. 81, 127, 317, 504.


(16) In New-York, the 2 R. S. 677, § 53, is as full as the 7 & 8 Geo. IV. c. 29, § 53, quoted

6. The offence of forestalling (17) the market is also an offence against public trade. This, which (as well as the two following) is also an offence at common law (1), was 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 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 (18). And so the total engrossing of any

(1) 1 Hawk. P. C. 234.

in Mr. Ryland's note, and the punishment may be three years' imprisonment and a fine of three times the value of the property taken: if the false token were a note of a pretended bank, the punishment may be seven years' imprisonment.

To personate another, and in that character to marry another, or to become bail or confess a judgment, or to acknowledge an instrument that may be recorded, or to do any act in a cause whereby the person personated may sustain loss, may be punished by imprisonment for 10 years. By personating another to receive property intended for that other, is punishable in the same manner as stealing such property. The producing of a pretended child of another, so as to deprive another of a distributive share of personal estate, or of an inheritance, is punishable with 10 years' imprisonment. Any one receiving an infant under six years, and substituting another to its parent or guardian, may be imprisoned for seven years. (2 R. S. 676, 677.)

(17) In New-York there is no act of the legislature against this or any of the other offences afterwards mentioned in this chapter if done without any combination: perhaps a conspiracy to commit these acts might come within the 6th class of conspiracies mentioned in 2 R. S. 691; (see note 31. p. 137, ante,) as they might be deemed injurious to trade and commerce. The common law may still prevail; and there are in some cities and villages local prohibitions of such acts.

(18) 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 persuad ing others to abstain from bringing it to market, and engrossing large quantities in or

der 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 landable 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 v. 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 informa

other commodity, with an intent to sell it at an unreasonable price, [159] is an offence indictable and fineable 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 misdemeanors, 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. "Poena viginti aureorum statuitur adversus eum, qui contra annonam fecerit, societatemve coierit quo annona carior fiat (o).

9. Monopolies are much the same offence in other branches of trade, that engrossing is in provisions: being a licence 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 tracing 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 (9), in the beginning of the reign of king James the First: but were in great measure remedied by statute 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 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 extrajudicial order, other than of the court wherein it is brought, they incur the penalties of praemunire. Combinations also among victuallers or artificers, to raise the price of provisions, or any commodities, or the rate of labour (19), are in many cases severely punished by particular statutes; and in general by statute 2 & 3 Edw. VI. c. 15. with the forfeiture of 107. or twenty days' imprisonment, with an allowance of only bread and water for the first offence; 201. or the pillory, for the second; and *401. for the third, or else the pillory, loss of one ear, and perpetual [*160] infamy. In the same manner, by a constitution of the emperor Zeno (r), all monopolies and combinations to keep up the price of merchan

(m) Cro. Car. 232.

(n) 1 Hawk. P. C. 235. (0) Ff. 48. 12, 2.

tion." Opinion of Mr. West, 2 Chaliners 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 particluar 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.

(19) By the 6 Geo. IV. c. 129, § 1, all acts relative to combinations of workmen, or massters, as to wages, time of working, quantity of work, &c. are repealed. By § 2, persons compelling journeymen to leave their employ ment, or to return work unfinished, preventing

(p) 1 Hawk. P. C. 231.

(g) 3 Inst. 81.

(r) Cod. 4. 59. 1.

them from hiring themselves, compelling them to belong to clubs, &c. or to pay fines, or forcing manufactures 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 requisities of convictions for these offences under former Acts of Parliament, see Rex v. Nield, 6 East, 417; Rex v. Ridgway, 1 D. and R. 123, 5 B. and A. 527; Paley on Convictions, 2d Ed. by Dowling, 99 et seq. By 9 Geo. IV. c. 31, 25, assaults in pursuance of any conspiracy to raise the rate of wages, and

26, assaults upon certain workmen to prevent them from working at their trades, are punishable with imprisonment and hard labour.

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