6i6
THE GREEN BAG
country," he says, "and the statutes with reference to the acts known as badgering, forestalling, regrating and engrossing, indi cated the mind of the legislature a.nd of the judges that certain large operations in goods which interfered with the more ordinary course of trade were injurious to the public; they were held criminal accordingly." Re ferring to the repeal of the penal statutes by the statute of George III, he says "the common law was left to its unaided opera tion," and that subsequently the statute 7-8 Viet., c. 24 (supra) had "altered the common law" by abolishing the offenses named. And he adds, that "the comparison of the operative part of the statute with this proviso (i.e., section 4 (supra) of the Act) goes far to draw the line between lawful and unlawful interference with the ordinary course of trade or of the market." It is said to have been resolved by all the judges, that all writers of false news1 are indictable and punishable. And, even at this day, the fabrication and publication of false news, producing any serious public detriment, would probably be regarded as criminal and punishable.2 During Britain's war with the first Napoleon, in 1814, several persons were charged with conspiring to raise the price of the public funds by means of a false rumor that the French Emperor was dead. The intent, it was alleged, was to inju re and aggrieve all the subjects of the King who should, on the day of spreading the rumor, purchase any share in the public Government funds. The act charged was held to be indictable, the end as well as the means being illegal.3 In discussing the question whether the offenses referred to are part of the law of the United States,4 the commentator already 1 4 Read. St. L. 154; Digest Law Lib. 33. 1 Folkard's Law of S. & L., 7th Ed. 727. • Rex v. De Berenger, et al. (1814), 3 M. & S. 67 . 4 English statutes, which were in force prior to the date of the declaration of independence, seem to be recognized by United States jurists as com mon law generally in the states. Bishop, C. L., vol. i, s. 520.
mentioned has the following pertinent obser vations : "It is reasonably plain that the common law of our states has not adopted these offenses in terms as thus defined [i.e., the offenses of forestalling, etc., as defined by Blackstone, who simply reproduces the statutory definitions from 5-6 Edw., 6, c. 14]. Yet it does not follow that the principle from which the law proceeded has not become an inheritance with us. Modified, therefore, and thus adapted to our altered situation and circumstances, there is ground for deeming them criminal offenses in States that recognize common law crimes.1 . . . If we accept these offenses as pertain ing to our unwritten law, their modified form will adopt itself to the suppression of present evils — evils obvious even to super ficial observation. And thus modified, the English law of this subject, prevailing when our colonies were settled, seems as well adapted to our circumstances as it was to those of the mother country. Therefore, in just principle, they are a part of our common law wherever statutes have not provided to the contrary.2 . . . The only old statute which much concerns us is 5-6 Edw. 6. c. 14, which must be deemed common law with us as far as applicable. . . . Where in this country this Act has not been repealed, we have not the same occasion for doubt whether these are common law offenses, but we have doubt as to their precise extent and nature. In reason, forestalling, considered apart from ingrossing and regrating, seems to be committed wherever a man by false news, or by any deception, gets into his hands a controlling quantity of any one article of merchandise and holds it for an undue profit, thereby creating a perturbation in what pertains to the public interests. If rn circulates the false news, or uses the other deception to enable others to operate in 1 Referring to remarks of Campbell, [., in Ray mond v. Leavitt (1881), 46 Mich. 447; 41 Am. R. 170.
- Quoting 7 Dane Abr. 39, et set].
