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PART II.

CONTROLLING THE MARKET.

CH. 2. REGRATING, FORESTALLING AND ENGROSSING.

3. "CORNERS."

4. GAMBLING CONTRACTS, "OPTIONS" AND "FUTURES.

CHAPTER 2.

REGRATING, FORESTALLING AND ENGROSSING.

36-38. Regrating, forestalling and engrossing historically considered. 39. The practical application of the ancient law.

40. The offenses at common law.

41. Statute of Edward VI.

42. Regrating under the statute.

43. Elements of the offense of regrating.

44. Forestalling under the statute.

45. Elements of the offense of forestalling.

46. Engrossing under the statute.

47. Elements of the offense of engrossing.

48. The three offenses summarized.

49. Additional attempts to restrict trade under the statute.

50. Regrating and engrossing of tanned leather.

51. Offenses confined to necessaries of life.

52. The policy of the act.

53. Repealing act of 12 George III.

54. Courts continue to enforce common law.

55, 56. Lord Kenyon in Rex v. Busby.

57. King v. Wadington.

58. Repealing act of 1844.

59. A sweeping reform.

60. Summary of the law.

61. The offenses of regrating, forestalling and engrossing have no con

nection with monopolies.

62. Freedom to contract an essential element of liberty.

63. Fraud.

64, 65. Public policy.

66-68. Statutes.

69. Ancient statutes and decisions and public policy.

70. The final test of validity of both statutes and public policy.

§ 36. Historically considered. There are few chapters of English law more interesting than those covering the offenses of regrating, forestalling and engrossing. The very terms are so little used nowadays as to be practically obsolete and require definition for most lawyers, to say nothing of laymen, and yet time was when these offenses commanded the attention of parliament and the time of the courts. They were treated as offenses of the most serious character, offenses against the welfare of society, and judges famous for their learning inveighed against them in language the severity of which would be considered harsh if applied to treason; in fact, treason and murder never did arouse the spleen excited by a case of regrating, forestalling or engrossing. We shall have occasion shortly to refer to some of these eloquent philippics; not because they are of any force or authority now, but to show how the world has progressed within practically the last century, and how very absurd and ridiculous were some of the most serious convictions of our forefathers.1

1 Chapter 89 of Part III of Coke's Institutes treated as follows of engrossing and forestalling:

“Ingrossator, or engrossator, of the English and French word, grosse, that is, great or whole, unde merchantgrossier, a merchant that selleth by great or whole-sale. We remember not that we have read of this word (ingrosse) in any act of parliament, book-case, or record, but rarely, before the said act of 5 Edw. 6. And there is an ingrosser by the common lawes, who is hereafter described. And there is an ingrosser by act of parliament, and he is described by the statute of 5 Edw. 6. And by that act a regrator is also described, who is a kind of ingrosser. Regrator is derived of the French word regratement, for huckstery. But in ancient time both the ingrossor and regrator were comprehended under forestaller.

"It was resolved by the justices and barons of the exchequer upon conference betwixt them, that salt is a victuall, and the buying and sell

ing thereof was within the statute of 5 Edw. 6, for it was not only of necessity of itselfe for the food and health of man, but it seasoneth and maketh wholesome beef, pork, &c. butter, cheese, &c. and other viands. And Peryam, justice, said (Hil. 26 Eliz. in communi banco), that so it had been lately adjudged.

"Mich. 6 Jac. in scaccario, in an information by Baron against Boy, upon the statute of 5 Edw. 6, cap. 14, of ingrossers for buying and selling of apples; the defendant pleaded not guilty, and was found guilty. But the barons gave judgment against the informer, and caused an entry to be made in the margent of the record, that the judgment was given upon matter apparent to them, that apples were not within the said act, for that the act is to be intended of victuall necessary for the food of man, the words of the act being (corne, graine, butter, cheese, fish, or other dead victuall) which is as much as to say (of other dead victuall of like quality: id est, of like necessary

§ 37. The investigation of the law concerning regrating, forestalling and engrossing will serve to illustrate another truth, amply demonstrated in the history of legislation aud jurispru dence, namely, that both legislatures and courts are most apt

and common use). And therefore apples being rather of pleasure than necessity, are not within the said statute no more than plumbs, cherries, or other fruit; and no information hath ever been exhibited for ingrossing of apples, plumbs, cherries, or other fruit; but the statute of 2 Edw. 6, cap. 15, doth forbid conspiracy of costermongers and fruterers, and maketh such conspiracie unlawful. And the said judgment of the barons was affirmed in a writ of errour in the exchequer chamber. "Venditio brasei non est venditio victualium, nec debet puniri sicut venditio panis, vini, et cervisiae, et hujusmodi, contra formam statuti. But the act of 5 Edw. 6, hath made corne, graine, &c. to be victuall within that act. Vide Vet. N. B. 2, part 23, b. stat. de pistor., braceator., et aliis victelariis, 34 Edw. 1.

"It was upon conference and mature deliberation resolved by all the justices, that any merchant, subject or stranger, bringing victuals or merchandize into this realme, may sell them in grosse; but that vendee cannot sell them again in grosse, for then he is an ingrosser according to the nature of the word, for that he buy ingrosse, and sell ingrosse, and may be indicted thereof at the common law, as for an offense that is malum in se. 2. That no merchant or any other may buy within the realme any victual or other merchandize in gross, and sell the same in gross again, for then he is an ingrosser, and punishable, ut supra; for by this means the prices of victuals and other merchandize shall be inhanced, to the grievance of the subject; for the more hands they passe through, the dearer

they grow, for every one thirsteth after gaine, vitiosum sitiunt lucrum. And if these things were lawful, a rich man might ingross into his hands all a commodity, and sell the same at what price he will. And every practice or device by act, conspiracy, words or newes, to inhance the price of victuals or other merchandize, was punishable by law; and they relied upon the statute aforesaid, nullus forstallarius, &c., which see before in this chapter; and that the name of an ingrosser in the reigne of H. 3 and E. 1 was not known, but comprehended within this word (forstallarius) lucrum sitiens vitiosum; and ingrossing is a branch of forestalling. And for that forstallarius was pauperum depressor, et totius communitatis et patriæ publicus inimicus, he was punishable by the common law. They had also in consideration the book in 43 Aff., where it was presented, that a Lombard did procure to promote and inhance the price of merchandize, and shewed how; the Lombard demanded judgment of the presentment for two causes. 1. That it did not sound in forestalling. 2. That of his endeavour or attempt by words, no evil was put in use, (that is) no price was enhanced, et non allocatur, and thereupon he pleaded not guilty: whereby it appeareth, that the attempt by words to inhance the price of merchandize was punishable by law, and did sound in forestalment; and it appeareth by the book that the punishment was by fine and ransome. And in that case Knivet reported, that certaine people (and named their names) came to Coteswold in Here

to go hopelessly wrong and contrary to the true interests of mankind in all matters pertaining to commercial and industrial intercourse. It may even be said that in all interferences with the freedom of commercial and industrial intercourse the error of the legislature or the court may be measured by the strenu ousness of the language employed - the more sweeping, the more dogmatic, the decrees, assertions and assumptions concerning offenses such as regrating, forestalling and engrossing, the more certain they are to prove wrong and to soon give way to more enlightened policies. It is ever darkest just before the dawn of reason, and men are never so sure they are right as when on the eve of discovering their error. The atmosphere of unrest and doubt arouses the spirit of dogmatic affirmation.

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§ 38. There has never been a moment in the world's history when men have not been wrong on matters and measures relating to trade and commerce to trade and commerce especially, for trade and commerce vitally affect the pocket, and the pocket ever interferes with right reasoning and just conclusions.

There has never been a moment in the world's history when men have been wholly and finally right regarding any matter relating to trade or commerce, otherwise evolution is not a force and progress a myth.

The errors of distant generations are so clear to us they seem positively ludicrous; the errors of nearer generations are not so clear; our own errors are seldom perceived at all; and yet nothing is more certain than that the twenty-first century will look upon most of our pet theories, measures and customs with the same surprise and amused indulgence that we entertain for the theories, measures and customs of the seventeenth century. Laws restricting freedom of trade and contract framed to-day with all the sobriety of earnest conviction are as certain to be repealed and looked back to with amazement and wonder as was the solemn law of Edward VI. against regrating, forestalling and engrossing, and many other similar statutes. Decisions

fordshire, and said in deceipt of the people, that there were such wars beyond the seas, as no wooll could passe or be carried beyond sea, whereby the price of wools was abated; and upon presentment hereof made, they appeared; and upon their

confession they were put to fine and ransome. See the statute of 25 H. 8, cap. 2, whereby the lords of the councell, justices, &c. or any seven of them, &c. have power to set prices on victuals, and the same to be proclaimed under the great seale."

rendered to-day with all the assurance of infinite certainty will soon be referred to as among the curiosities of jurisprudence. All this is not necessarily to the discredit of either legislatures or courts, for they are but human and can only move with the currents of progress. Along the same lines, though of course not under the same conditions, the present generation must make as many mistakes and do things just as absurd as any preceding generation. History shows that every generation has its follies—ours can be no exception; but history shows more, it discloses the tendencies of things, the lines of progress; so plain are these lines, so constant are these tendencies, that once discovered they are recognized as forces.

In trade and commerce the tendency disclosed by even the most casual reference to the history of legislation and jurisprudence is toward greater and greater freedom for the individual and less and less interference on the part of the state.

§ 39. The practical application.-The history of the law concerning the ancient offenses of regrating, forestalling and engrossing the rise and fall of that law-is of immediate interest in connection with the law governing "corners," so called, and "option contracts;" and is also of interest as being inextricably interwoven in the law of combinations by a long line of decisions. Not that regrating, forestalling or engrossing has any necessary connection with combinations, but the ancient decisions against those offenses are pressed into service against modern combinations. How far, if at all, these early decisions are applicable can be ascertained only by investigat ing the development of the law.

40. The offenses at common law.-It has been a matter of doubt to what extent regrating, forestalling and engrossing were offenses at the common law prior to the act of Edward VI.1 The preamble of the act referred to begins as follows:

"Albeit divers good statutes heretofore have been made against forestallers of merchandises and victuals, yet for that good laws and statutes against regrators and ingrossers of the same things have not been heretofore sufficiently made and provided, and also for that it hath not been perfectly known what person should be taken for a forestaller, regrator or in

1 Stats. at Large, 7 Edw. VI., vol. 5, ch. 14.

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