dearthers and regrators and forestaller and forestall

We saw in the previous essay that a statute in 1552 forbade forestalling, engrossing and regrating but that these practices seemed to be permitted after the statute was repealed in 1772. Actually, the picture is a bit more complicated (as you probably surmised). The purpose of this and the next essay is to give a more nuanced account of the history of these "crimes," and to define the words as precisely as possible. They cannot be understood, as argued previously, without an understanding of the royal prerogatives in trade in the 15th-18th centuries. That is, the crown, and merchants to whom the crown had given monopolities or awarded franchises or fairs, had a vested interest in making sure that interlopers didn't enter the system in ways that might drive up prices. What was at stake was the maintenance of a government-sponsored monopoly and the keeping down of prices. That is why the 18th century Scottish legal thinker, John Erskine, could characterize the forestallers and regrators as committing a crime of considerable "enormity" due to "its mischievous consequences to the commonwealth," An Institute of the Law of Scotland (Alexander MacAllen ed., 1838), at 1095. This and the next essay will seek to trace some of the legal developments beyond what was indicated in the previous essay as well as the development and meaning of the terms.

The Common (And Statutory) Law of Forestalling, et al.

The most helpful law review article describing these activities in brief scope is William L. Letwin, "The English Common Law Concerning Monopolies," 21 UChiLR 355, 367-73 (1954). As is to be expected, there is a treatise on the subject, by William Illingworth, An Inquiry into the Laws, Antient and Modern, Respecting Forestalling, Regrating, and Ingrossing (1800), but the latter was unavailable to me. William Blackstone briefly discusses these crimes in 4.12 of the Commentaries and more modern treatments (such as that by Holdsworth) is dependent on these.

Let's begin with the period before the passage of the 1552 statute. Forestalling at common law before the 13th century was said to be "an inclusive term for all unlawful attempts to raise prices" (Letwin, 368). By a statute in 1266, however, it became more precisely focused, for that statute defined forestallers as those "that buy anything before the due hour, or that pass out of the town to meet such things as come to the market." It is here that we have the essence of what will be known as the crime of forestalling--someone who intercepts or prevents goods from making their way to the market for the purpose of buying up the goods and selling them at a higher price. We almost have a picture of this in our mind--we can see a person, as it were, lying in wait as a farmer takes his goods toward market, and offers to pay the farmer slightly less than the market price so that the farmer will be able to sell his goods and quickly return to his farm. Then, the forestaller would sell the goods for a higher price. This would not only "drive up" the price of goods but would prevent merchants at the fairs from getting the products to sell. It would cut the heart out of the royally-approved economic system of the country.

The OED captures this definition of forestall: "to intercept (goods, etc.) before they reach the public markets; to buy (them) privately with a view to enhance the price: in former days an indictable offense." A quotation from 1467 has: "That they forstalle no fysshe by the wey." And, by 1592, the meaning of the term could include more than "dead victuals" (its original signification) as when someone stated: "First I alledge against the Grasier that he forestalleth pasturs and medow grounds, for the feeding of his cattell." A person who practiced forestalling could be said to "forestall the burgh" or "forestall the market." Blackstone defines the essence of the crime as follows: "The offence of forestalling the market is also an offence against public trade." Thus, even though there was a general (non-legal) definition of forestall, to intercept or lie in wait for, the legal concept became the vehicle for the meaning of forestall to enter into our modern vocabulary.

Regrate

According to Letwin, regrating originally meant simply retailing or buying in bulk and selling in small lots (368). However, it seems more accurate to say that the offense of regrating, especially in view of the 1552 statute, had to do with buying up market commodities (esp. "dead victuals") in order to sell them again at a profit in the same or neighboring market (within four miles distant). The earliest attestation of the verb is from 1467: "That Bakers..regrate no corne commynge to the market, in peyne of lesynge." [lesynge means "falsehood" or "lie".] From the actual words of the 1552 statute:

"Whatsoever person..shall by any meanes regrate obteyne or gett into his..possession in any fair or market, anye corne wyne fishe (etc.)...and doe sell the same agayne in any fayre or markett holden or kepte in the same place, or..within fower myles thereof, shallbe..taken for a Regrator."

And, from 1707, "Without fail, they cause all Persons that..shall Regrate fish (that is to say Buy Fish and Sell the same again in the said Market) to be apprehended."

But we see the connection with yet other words from a 1612 Commentary on the Biblical book of Titus: "As by monopolies, enhansing, ingrossing, and regrating corne or other commodities." Or, from 1613: "Against the forestallers, regraters, and dearthers of corne, fish, drinke, fire-wood, victuals carried over sea.."

Let's conclude our treatment of these terms and realities in the next essay.

1703