5. Averment of Defendant's Appointment. § 2797. It is sufficient, as has been seen, to aver that the de- 6. Scienter. § 2798. When guilty knowledge is necessary to constitute the IV. EVIDENCE. § 2799. The evidence is the same generally as in other cases of 1. Proof of Officer's Appointment. § 2800. The principle is well established, as has been frequently u See ante, § 2515, 2523, 2533; v Ante, § 297, 1900; State v. Dan- 898 w Ante, § 2513 et seq. y Com. v. Shaw, 7 Metc. 52. CHAPTER V. FORESTALLING, REGRATING, AND ENGROSSING. I. BY THE ROMAN STATUTES. § 2801. THESE offences are taken from the Roman law. The Roman title is Dardanariatus, and consists in the artificial production of dearness and scarcity in any market staple (ne dardanarii ullius mercis sint), a but especially of grain. Popular feeling was then, as it has been often since, aroused against the monopolizers or hoarders of food. The Ediles were vested with jurisdiction to repress such offences; and Plautus b illustrates the process of prosecution before them in a passage where the Parasite calls for proceedings against those, qui consilium iniere (something like our own conspiracies to raise prices) quo nos victu et vita prohibeant. So Livy e tells us of a fine imposed upon frumentarii ob annonam compressum. The proceedings allowed in such cases took definite shape in the famous Lex Julia de annona, which declared the usurious hoarding of grain to be a public crime. In the exposition of the law d we are told that lege Jul. de ann. poena statuitur adversus eum qui contra annonam fecerit societatemve coierit, quo annona carior fiat; and by the first section a penalty is imposed on interference with transportation, or in any way preventing the free carriage of grain, eadem lege continetur, ne quis navem nautamve retineat aut dolo m.faciat, quo magis detineatur. Still sharper edicts followed, of which Ulpian e mentions one: ne aut ab his; qui coëmtas merces supprimunt (purchasers) aut a locupletioribus (hoarders of their own produce) annona oneretur. Zeno issued a special statute against monopolizers, who, to create an artificial scarcity, buy up all a necessary staple, in order subsequently to sell at their own price. Such offenders, on conviction, were to be sentenced to confiscation of goods, and to banishment.ƒ a I. 6. pr. D. extr. crim. 47, 11. b Chap. iii. 1. 32. sqq. c XXXVIII. 35. d IV. 18, 11; D. h. t. 48, 12. e I. 6. pr. D. extraord. crim. f I. un. C. de monop. (4. 59). For II. BY STAT. 5 & 6 ED. 6. § 2802. The Lex Julia de annona was reproduced by the statute 5 & 6 Ed. 6, c. 14. By this statute forestalling is defined to be the buying or contracting for merchandise or victual coming to market, or dissuading persons from bringing their goods or provisions there; or inducing them to raise their prices. "Regrating," by the same statute, "is 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. . . . . 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 statute was brought with them by the English colonists who settled in North America, and though in its details, e. g. in prohibiting purchase by middle-men in the same market, it is now obsolete, and although so far as it interferes with the right of the merchant to buy in the cheapest market and sell in the dearest, it is in conflict with a sound and healthy system of political economy, h it is in one point a recognition of ̧ common law principle which it is important here specifically to enunciate. III. BY PRESENT COMMON LAW. § 2803. For, while we must regard the provisions of the Roman and English statutes against middle-men and commission merchants as obsolete; and while in England the statute of 5 & 6 Edward 6th has been repealed by 12 Geo. 3, c. 71, yet, entirely apart from these statutes, we must hold it to be indictable, on general principles at common law, to engross and absorb any particular necessary staple or constituent of life so as to impoverish and distress the mass of the community for the purpose of extorting enormous personal wealth. Questions of this kind have usually come before the courts on indictments for conspiracy; for it is by conspiracies that extortions of this kind are generally wrought. a fuller history of the law on this point see Rein's Criminalrecht der Römer, p. 829; a work to which I am much indebted for aid in this and other departments. g 4 Black. Com. (Wend. ed.) 155. h Mr. Story (Sales, p. 647) says: "These three prohibited acts are not only practised every day, but they are the very life of trade, and without them all wholesale trade and jobbing would be at an end." This remark is sustained by Mr. Benjamin, in the second edition of his Law of Personal Property, p. 414 (1873). But on an indictment against an individual for buying up all the grain or coal or other necessary staple so as to produce a famine in the market, and thus to obtain extortionate prices, wrung, through a sense of misery, from the community, no doubt the offence would be held indictable at common law. For not merely is the extortion to be taken into account, but the terror as to the future, and the actual deprivation for the present, which are thus inflicted on the community at large.j But to sustain such a prosecution, the commodity must be a necessity, and it must be totally absorbed by the monopolizer. k i See, fully, ante, § 2322; and see to same effect, R. v. Waddington, 1 East, 143, 167; and R. v. Rushby, 2 Ch. C. L. 536; and see Wh. Prec. 1007, and note thereto. j See 1 Russ. on Cr. 168, 169. k R. v. Webb, 14 East, 406; Pratt v. Hutchinson, 15 East, 511. 901 CHAPTER VI. CHAMPERTY AND MAINTENANCE. § 2804. CHAMPERTY, as the name (Campi partitio) indicates, is a relic of the old Roman law, and exhibits the distaste of that law to all combinations of individuals which might be regarded as in any way unduly promoting litigation, or, by the numbers and influence of those engaged, intimidating those concerned in the administration of public justice. That a combination of individuals, not themselves interested in the result, to carry on for gain a litigation, is indictable at common law, has been more than once intimated in American courts. No doubt if the object, as the idea of champerty necessarily involves, is a division of profits accruing from the raking up of old claims for purposes purely speculative, the peace of the community and the security of titles require that enterprises of this kind should be the subject of penal adjudication. No man has a right for profit to speculate in law process; and the law itself naturally steps in to punish, as if for contempt, those who would abuse it by turning it into an instrument, not of benignity but of extortion. But it is otherwise with maintenance. In maintenance no personal profit is expected or stipulated. The object is simply, from motives, on their face, of kindness to a suitor, or of personal enthusiasm for the vindication of a particular principle, to aid a party in pressing his suit. That this is not now considered indictable in England is evident from the fact that societies for the aid of the alleged Sir Roger Tichborne, in his claim on the Tichborne estates, and for the prosecution of a series of ecclesiastical offenders, have been openly instituted, without any attempt to check or suppress them, though their effect is to conduct legal proceedings against opponents whose zeal and power stimulate them to take the extremest measures for their own defence. a a This was ruled not to be a contempt of court in R. v. Skipworth, 12 Cox C. C. 371. See post, § 3435. |