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 misde- See (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 persuading 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 laudable 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 commor 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 (q), 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 101. or twenty days' imprisonment, with an allowance of only bread and water for the first offence; 201. or the pillory, for the second; and *407. 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. (q) 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. dise, 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 (s), 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 (20). 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 1001. and be imprisoned three months: and for the second offence 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 land and goods, and shall be incapable of any legacy or gift. By statute 23 Geo. II. c. 13. the seducers incur, for the first offence, a forfeiture of 500l. for each artificer contracted with to be sent abroad, and imprisonment for twelve months; and for the second, 1000l. and are liable to two years' imprisonment and by the same statute, connected with 14 Geo. III. c. 71. if any person exports any tools or utensils used in the silk, linen, cotton, or woollen manufactures (excepting woolcards to North America) (t), he forfeits the same and 2001., and the captain of the ship (having knowledge thereof) 100l.; 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 for ever made incapable of bearing any public of fice and every person collecting such tools or utensils, in order to export the same, shall, on conviction at the assises, forfeit such tools and also 2001. (21). CHAPTER XIII. OF OFFENCES AGAINST THE PUBLIC HEALTH, AND THE PUBLIC POLICE OR OECONOMY. THE fourth species of offences, more especially affecting the commonwealth, are such as are against the public health of the nation; a concern of the highest importance, and for the preservation of which there are in many countries special magistrates or curators appointed. 1. The first of these offences is a felony; but, by the blessing of Provi(s) See book I. page 427. (20) The 54 Geo. III. c. 96, § 1, repeals so much of the 5 Eliz. c. 4, as provides that persons shall not exercise any art or manual occupation, except they had served an apprenticeship of seven years. 2 renders valid certain indentures of apprenticeship which would have been void by certain provisions in the old Act, and repeals the part of the Act containing such provisions. 3 provides that justices may determine complaints respecting apprenticeships as heretofore. And 4 pro (t) Stat. 15 Geo. III. c. 5. vides, that the customs of London concerning apprentices are not to be affected. For the decisions upon the 5 Eliz. c. 4, respecting the exercising of trades by unqualified persons, see 2 Harrison's Digest, 518, title Trade. (21) All the statutes prohibiting artificers from going abroad are repealed by 5 Geo. IV. c. 97; so that artists may now settle in fo reign parts without any restrictions or liabilities. |