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 (6), 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 frandulent 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 indiction 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 it

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 1001., neglects or refuses on demand to discover and deliver up his effects for the benefit of his creditors (7), (8). hind these are the only felonious offences against public trade ; the residue being mere misdemeanors : as,

(6) Stat. 26 Geo. I. c. 32. 32 Geo. II. c. 18. 4 (d) See book II. page 481, 482.
(c) See book I. page 317. Beccar, c. 33.

Geo. III. c. 12.

(c) Stat. 5 Geo. II. c. 30.
(5) Beccar. ch. 34.

(3) By the 6 Geo. IV. c. 108. after reciting effects; or declining to deliver up his goods, the customs repeal act, the 6 Geo. IV. c. 105, books, and writings; or concealing or embezall the laws relative to the prevention of smug. zling any part of his effects, to the value of 101., gling are consolidated; but the provisions of with intent to defraud his creditors, shall be the act are so numerous that they cannot be guilty of felony, and be liable to transportacomprised within the limit of a note.

tion for life, or not less than seven years, or (4) See Story's laws, 1926, and other acts to imprisonment for any term not exceeding there referred to as to the law of the U.S. seven years, as the court before whom he is

(5) By 6 Geo. IV.c. 16, all laws relating to convicted may adjudge. bankrupts are repealed, and all former provi. (6) The punishment of pillory is, by the sions are reduced into this one Act. The dif- 56 Geo. III. c. 138, now abolished, except in ferent frauds taken notice of do not materially perjury and subordination thereof. vary from those mentioned in the text. By s (7) By the 33 Geo. III. c. 5. the debt is en99 it is enacted, that the bankrupt or other per- larged to 3001. son swearing falsely before the commissioners (8) There is at present no general bankrupt shall be guilty of perjury, and suffer the pains law in the U. S., although Congress has power and penalties in force against that offence. to pass one. In New York, if an insolvent By $ 112, any bankrupt neglecting to surren. conceal his estate, books, &c. it is a misdeder and subrnit himself to be examined ; or meanor. (2 R. S. 691, $ 4: p. 23, Ø 35 : & p. refusing to make discovery of his estate and 35, 0 3.) Vol. II.

64

'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 101. 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 stainte 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 () (12). The punishment

h 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.

a

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 cathe-
dra ponebatur stercoris (,)." 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 punish-
able 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, pil-
lory, transportation, whipping, or other corporal pain, as the court shall
direct (14), (15), (16).
() 3 Inst. 219.

(k) 1 Hawk. P. C. 188.
(3) Seld. tit. of hon. b. 2, c. 5, 0 2.
(13) Pillory is now abolished by the 56 Geo. trial of any person indicted for such misde.
III. c. 138. See in general, 3 Chit. Crim. meanor, it shall be proved that he obtained
Law, 994, 995. The cases in which fraud is the property in question in any such manner
indictable at common law, seem confined to as to amount in law to larceny, he shall not,
the use of false weights and measures, the by reason thereof, be entitled to be acquitted
selling of goods with counterfeit marks, play. of such misdemeanor; and no such indiciment
ing with false dice, and frauds affecting the shall be removable by certiorari ; and no per.
course of justice, and immediately injuring son tried for such misdemeanor shall be liable
the interests of the public or crown: and it is to be afterwards prosecuted for larceny upon
settled that no mere fraud, not amounting to the same facts.” “In an indictment under this
felony, is an indictable offence at common law, statute, according to the rules of construction
unless it affects the public. 2 Burr. 1125. l applicable to former statutes on this subject,
Bla. Rep. 273. S. C.

which seem equally applicable to this, the pre(14) Pillory is now abolished by the 56 Geo. tences must be set forth, and must be negaIII. c. 138. The general pawn-brokers' act, tived by special averments. 2 T. R. 581, 2 39 & 40 Geo. III. C. 99. virtually repeals the M. and' s. 379. The whole of the pretence 30 Geo. II. c. 24. as to the pawning of an- charged, need not, however, be proved; proof other's goods without the consent of the own. of part of the pretence, and that the property er, and the offence is thereby punishable by was obtained thereby, is sufficient. Rex v. penalties.

Hill, R. and R. C. C. 190. Obtaining goods The provisions of Hen. VIII. & Geo. II. by fraudulently giving in payment a check are extended by the 52 Geo. III. c. 64. to ob- upon a banker with whom the party keeps no taining bonds, bills of exchange, bank notes, cash, and which he knows will not be paid, securities, or orders for the payment of money, has been held an indictable offence, and would, or the transfer of goods, or any valuable thing it seems, be such within this statute. Rex v. whatever. By the 3 Geo. IV. c. 14. the of. Jackson, 3 Camp. 370. The language of the fender may be sentenced to hard labour. See 30 Geo. II. c. 24, made the offence of obtain. as to this offence, 3 Chit. Crim. Law, 996, &c. ing money upon false pretences consist in

These acts extend to every description of the actually obtaining the money, and not in false pretences by which goods may be obtain- using a false pretence for the purpose of obed with intent to defraud, 3 T. R. 103. taining the money ; it has been held, there.

(15) Now, by 7 and 8 Geo. IV. c. 29, 0 53. fore, that, in an indictment on that statute, the reciting, “ that'a failure of justice frequently venue must be laid in the county where the arises from the subtle distinction between lar- false pretence is used. Rex v. Buttery, cited ceny and frand," it is, “ for remedy thereof," in Pearson v. M'Gowran, 5 D. and R. 616; 3 enacied, “ that if any person shall, by any B. and C. 700, per Abbott, C. J. Where the false pretence, obtain from any other person fraud practised is properly the ground for a any chattel, money, or other valuable security, civil action, an indictment for obtaining mo. with intent to cheat or defraud any person of ney by false pretences cannot bo supported. the same, every such offender shall be guilty Rex ý. Codrington, 1 C. and P. 661. See of a misdemeanor, and, being convicted there. further upon this subject, 2 East, P. C. 673, of, shall be liable, at the discretion of the 818, 819, 829, 830 ; 6 T. R. 565; R. and R. court, to be transported for seven years, or to C. C. 81, 127, 317, 504. suffer fine or imprisonment, or both, as the (16) In New-York, the 2 R. S. 677, $ 53, is court shall award; provided, that if upon the 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 (?), 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) I Hawk. P. C. 234.

in Mr. Ryland's note, and the punishment der to resell them at the exorbitant prices ocmay be three years' imprisonment and a fine casioned by his own artifices, are offences inof three times the value of the property taken: dictable at common law, and subject the party if the false token were a note of a pretended so acting to fine and imprisonment at the disbank, the punishment may be seven years' im- cretion of the court in which he is convicted. prisonment.

It was also held, that hops, though not used To personate another, and in that character immediately for food, fall within this rule. to marry another, or to become bail or confess But, at the present day, it would probably be a judgment, or to acknowledge an instrument holden that no offence is committed unless that may be recorded, or to do any act in a cause there is an intent to raise the price of proviwhereby the person personated may sustain sions by the conduct of the party. For the loss, may be punished by imprisonment for 10 mere transfer of a purchase in the market years. By personating another to receive where it is made, the buying articles before property intended for that other, is punishable they arrive at a public market, or the purchasin the same manner as stealing such property. ing a large quantity of a particulat article, can The producing of a pretended child of another, scarcely be regarded as in themselves neces. so as to deprive another of a distributive share sarily injurious to the community, and as such, of personal estate, or of an inheritance, is pu. indictable offences : a party buying and sell

. nishable with 10 years' imprisonment. Any ing again, does not necessarily increase the one receiving an infant under six years, and price of the commodity to the consumer, for substituting another to its parent or guardian, ihe division of labour or occupations will in may be imprisoned for seven years. (2 R. S. general occasion the commodity to be sold 676, 677.)

cheaper to the consumer, see Smith's Wealth (17) In New York there is no act of the of Na. vol. ii. 309, and index, title " Labour;" legislature against this or any of the other and many cases may occur in which a most offences afterwards mentioned in this chapter landable motive may exist for buying up large if done without any combination : perhaps a quantities of the same commodity. See the conspiracy to commit these acts might come arguments, &c. in 14 East, 406. 15 East, within the 6th class of conspiracies mentioned 511. Indeed, in the case of the King v. Rusin 2 R. S. 691 ; (see note 31. p. 137, ante,) as by, on the indictment being argued, the court they might be deemed injurious to trade and were equally divided on the question, whether commerce. The common law may still pre. regrating is an indictable offence at common vail ; and there are in some cities and villages law, and though the defendant was convicted, local prohibitions of such acts.

no judgment was ever passed upon him. MSS. (18) By the 31 Geo. III. c. 30, corn may be Raising and spreading a story that wool bought for the purpose of storing in granaries would not be suffered to be exported in such a and reselling it.

year, probably by some stock.jobbers in those The modern law on this subject is well dis. times, whereby ihe value of wool was beaten cussed in 1 East, 143; (and see 2 Chit. Crim. down though it did not appear the defendants Law, 527, &c.) In that case it was decided reaped any particular advantage by the deceit, that spreading rumours with intent to raise was, on account of its being an injury to trade, the price of a particular species of aliment, punished by indictment; and a confederacy endeavouring to enhance its price by persuad without a further act done to impoverish the ing others to abstain from bringing it to mar. farmers of excise, and lessen the duty, has ket, and engrossing large quantities in or. been held an offence punishable by informa

66

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 conce

ncerning 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 bad 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 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 *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