HOME

TheInfoList



OR:

Engrossing, forestalling and regrating were marketing offences in English, Welsh and Irish common law. The terms were used to describe unacceptable methods of influencing the market, sometimes by creating a local monopoly for a certain good, usually food. The terms were often used together, and with overlapping meanings. They became obsolete in 1844. Blackstone's Commentaries described them as offences against public trade: forestalling—''the buying or contracting for any merchandise or victual coming in the way of the 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.'' regrating—''the buying of corn or other dead victual, in any market, and selling it again at the same market, or within four miles of the place. For this also enhances the prices of the provisions, as every successive seller must have a successive profit.'' engrossing—''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.'' Blackstone described a
monopoly A monopoly (from Greek language, Greek el, μόνος, mónos, single, alone, label=none and el, πωλεῖν, pōleîn, to sell, label=none), as described by Irving Fisher, is a market with the "absence of competition", creating a situati ...
as ''"the same offence in other branches of trade"'', i.e., not food.


Forestalling

Blackstone says that this was a
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
offence. The derivation does not come from setting up a stall in front of another but buying before the goods got to a stall in open market. Typically, forestalling referred to the practice of intercepting sellers on their way to a
market Market is a term used to describe concepts such as: *Market (economics), system in which parties engage in transactions according to supply and demand *Market economy *Marketplace, a physical marketplace or public market Geography *Märket, an ...
, buying up their stock, then taking it to the market and marking it up, which is a type of
arbitrage In economics and finance, arbitrage (, ) is the practice of taking advantage of a difference in prices in two or more markets; striking a combination of matching deals to capitalise on the difference, the profit being the difference between the ...
. It could also mean the creation of partnerships or agreements under which goods would not be brought to market. Forestalling is often used and understood as a catch-all clause for marketing offences. The
Domesday Book Domesday Book () – the Middle English spelling of "Doomsday Book" – is a manuscript record of the "Great Survey" of much of England and parts of Wales completed in 1086 by order of King William I, known as William the Conqueror. The manusc ...
recorded that "foresteel" (i.e. forestalling, the practice of buying up goods before they reach market and then inflating the prices) was one of three forfeitures that
King Edward the Confessor Edward the Confessor ; la, Eduardus Confessor , ; ( 1003 – 5 January 1066) was one of the last Anglo-Saxon English kings. Usually considered the last king of the House of Wessex, he ruled from 1042 to 1066. Edward was the son of Æthe ...
could carry out through England.
Pollock Pollock or pollack (pronounced ) is the common name used for either of the two species of North Atlantic marine fish in the genus ''Pollachius''. ''Pollachius pollachius'' is referred to as pollock in North America, Ireland and the United Kingd ...
and
Maitland Maitland is an English and Scottish surname. It arrived in Britain after the Norman conquest of 1066. There are two theories about its source. It is either a nickname reference to "bad temper/disposition" (Old French, ''Maltalent''; Anglo Norm ...
, ''History of English Law'' Vol. II, 453
As early as 1321 the practice of forestalling was recognized as a specific offence and was regulated in
London London is the capital and largest city of England and the United Kingdom, with a population of just under 9 million. It stands on the River Thames in south-east England at the head of a estuary down to the North Sea, and has been a majo ...
in the early twelfth century, and in other cities and towns, including goods coming by land or sea. However, originally the word itself was not used. In the laws of
Henry I of England Henry I (c. 1068 – 1 December 1135), also known as Henry Beauclerc, was King of England from 1100 to his death in 1135. He was the fourth son of William the Conqueror and was educated in Latin and the liberal arts. On William's death in ...
forestalling was the crime of assault on the
highway A highway is any public or private road or other public way on land. It is used for major roads, but also includes other public roads and public tracks. In some areas of the United States, it is used as an equivalent term to controlled-access ...
, an offence against the King's Peace. It acquired the meaning of the marketing offence through the distribution of the regulations of the
Marshalsea The Marshalsea (1373–1842) was a notorious prison in Southwark, just south of the River Thames. Although it housed a variety of prisoners, including men accused of crimes at sea and political figures charged with sedition, it became known, in ...
whose officers were empowered by
Edward I of England Edward I (17/18 June 1239 – 7 July 1307), also known as Edward Longshanks and the Hammer of the Scots, was King of England and Lord of Ireland from 1272 to 1307. Concurrently, he ruled the duchies of Aquitaine and Gascony as a vassa ...
to regulate trade in the shires. In time these regulations became known as the Statute of Forestallers, though probably never passed by any formal process. The laws provided for heavy penalties against forestalling. In practice the normal penalty was a
fine Fine may refer to: Characters * Sylvia Fine (''The Nanny''), Fran's mother on ''The Nanny'' * Officer Fine, a character in ''Tales from the Crypt'', played by Vincent Spano Legal terms * Fine (penalty), money to be paid as punishment for an offe ...
, or, for repeated cases, exposure in the
pillory The pillory is a device made of a wooden or metal framework erected on a post, with holes for securing the head and hands, formerly used for punishment by public humiliation and often further physical abuse. The pillory is related to the stocks ...
.


The Act against Regrators, Forestallers and Ingrossers

In 1552
Edward VI Edward VI (12 October 1537 – 6 July 1553) was King of England and Ireland from 28 January 1547 until his death in 1553. He was crowned on 20 February 1547 at the age of nine. Edward was the son of Henry VIII and Jane Seymour and the first E ...
's Parliament passed an Act to regulate trade, saying in the preamble, as so often, that previous laws had proved inadequate (5&6 Edward VI c. 12)iii. The Act excluded from the penalties it imposed the purchase and sale "in open Fair or Market" of "corn, Fish, Butter or Cheese, by any such
badger Badgers are short-legged omnivores in the family Mustelidae (which also includes the otters, wolverines, martens, minks, polecats, weasels, and ferrets). Badgers are a polyphyletic rather than a natural taxonomic grouping, being united b ...
, Lader, Kidder, or Carrier" as was granted a licence by three
Justices of the Peace A justice of the peace (JP) is a judicial officer of a lower or ''puisne'' court, elected or appointed by means of a commission ( letters patent) to keep the peace. In past centuries the term commissioner of the peace was often used with the sa ...
from the County in which he dwelt.


The Act touching Badgers of Corn and Drovers of Cattle, to be licensed

Like its precursors this Act was perceived to be inadequate, so in 1562 the Parliament of Elizabeth I passed a further Act, tightening the regulation of badgers and drovers (5 Elizabeth I, c. 12 iv). The Act recited that "such a great Number of Persons seeking only to live easily, and to leave their honest Labour, have and do daily seek to be allowed and licensed . . . being most unfit and unmet for those Purposes . . . diminishing the Number of good and necessary Husbandmen". Under this Act a licence could only be granted under strict conditions. Badgers had to be male, resident in the shire for 3 years, householders, (have been) married, and 30 years of age, or more. Household servants or Retainers could not apply. In addition to buy corn or grain out of market or fair to sell again, the licence had to contain "express words" allowing this. Licences could only be granted at Quarter Sessions, and by three Justices, of whom one had to be of the
Quorum A quorum is the minimum number of members of a deliberative assembly (a body that uses parliamentary procedure, such as a legislature) necessary to conduct the business of that group. According to ''Robert's Rules of Order Newly Revised'', the ...
. Each one had to sign and seal the Licence. The Licence could be granted for no more than a year, and all licences expired on 1 May unless expressed to last longer. The Justices were entitled, but not required, to require a "bond or surety" by recognizance from or for the Badger. This could be up to £5, the maximum penalty for a first offence against the Act. The Clerk of the Peace, or Deputy Clerk, but no lesser officer, had to write out the Licence, which cost 12 pence, and to enter the terms of licences in a register, which had to be produced at the Quarter Sessions. The Act was written in very detailed terms. The stringent technical requirements suggest that the legislature were concerned not only that markets were being threatened by competition from unregulated traders but also that Licences were too freely available, either legitimately because the Justices did not know how many were being granted, but also that they were being obtained illegally, perhaps from corrupt court officials or counterfeiters. Counterfeit licences for vagabonds and others were a constant problem. In practice licences were granted outside these conditions, including to women. Although Badgers, in common with most travellers in medieval and Elizabethan times, were required to have a Licence, and presumably carried it with them and produced it if challenged, there was no requirement in the legislation for them to wear a badge. There is anecdotal reference to it, and it is possible that in practice there was a custom or habit for them to do so, or be required to do so at some markets, (e.g.,
Smithfield Market Smithfield, properly known as West Smithfield, is a district located in Central London, part of Farringdon Without, the most westerly ward of the City of London, England. Smithfield is home to a number of City institutions, such as St Bartho ...
).


Repeal

The Acts regulating badgers were repealed in 1772 by 12 Geo III, c 71, An Act for repealing several laws therein mentioned against Badgers, Engrossers, Forestallers, and Regrators and for indemnifying Persons against Prosecutions for Offences committed against the said Acts. However, it was found not to have effectually repealed them because of repeated prohibitions in previous Acts. In 1800, one John Rusby was indicted for having bought ninety quarters of oats at 41s. per quarter and selling thirty of them at 43s. the same day.
Lord Kenyon Lloyd Kenyon, 1st Baron Kenyon (5 October 1732 – 4 April 1802), was a British politician and barrister, who served as Attorney General, Master of the Rolls and Lord Chief Justice. Born to a country gentleman, he was initially educated in Ha ...
, the presiding judge, argued strongly against the repealing act, and addressed the jury strongly against the accused. Rusby was heavily fined, but, on appeal, the court was equally divided as to whether engrossing, forestalling and regrating were still offences at common law. Another repealing act was required in 1844 when 7 & 8 Vic. c. 24 (''An Act for abolishing the Offences of Forestalling, regrating and engrossing, and for repealing certain Statutes passed in restraint of Trade''), finally tidied up the law by repealing 19 other Acts passed between the reigns of Henry III and Edward VI.


Notes


References

* *W. Blackstone, Commentaries on the Laws of England, vol IV, 15th Ed. London 1809, p. 157-8. *Britnell, R.H., Forstall, forestalling and the Statute of Forestallers, English Historical Review, 102, 1987, p. 89-102


External links


Statuta de Forstallariis (Statute of Forestallers), c. 1300
{{DEFAULTSORT:Engrossing (Law) Legal history of England History of competition law