89. A Bill to Prevent Forestalling, Regrating, and Engrossing, and Sales by Auction
Be it enacted by the General Assembly, that if any person shall buy, or cause to be bought, any goods, wares, merchandize, or victual, which at the time of purchase shall be under carriage or transportation to any market or fair within this commonwealth, to be sold therein, or to any city or town wherein there is no public market established or to any port or harbour of this commonwealth for sale, or shall make any bargain, contract, or promise, for the buying or having such goods, or the pre-emption thereof, before the same shall be in or at the market, fair, city, town, port or harbour, ready to be there sold, or shall persuade any person coming to this commonwealth, or any market therein, to forbear bringing any goods, wares, or merchandize thereto, or use any means or device for the enhancing of the price of any such goods in this commonwealth, or any market therein, every such person offending in either of the said particulars is declared a forestaller. But this act shall not extend to any person living more than two miles1 from any town within this commonwealth, and purchasing any victuals, goods, or commodities, necessary for the use and consumption of himself and his family, or those in his employ,2 for one year. If any person shall, by any means, buy, obtain, or get into his possession, in any fair, or market, any victual, that shall have been brought to the said fair or market, to be sold, and shall make sale thereof again, in the same place, or in any other place, within two miles1 thereof, he is declared a regrater. If any person shall buy within this commonwealth, to sell again, in this or any of the confederating states3 of America,4 any goods, wares, merchandize, or victual, which shall have been imported or brought into this commonwealth, from any other place whatsoever, or any commodities, manufactures, or materials for manufacture, raised or wrought within this state, except such purchase be made from the original importer, owner, maker, or manufacturer of such goods, wares, merchandize, victual, commodities, manufactures, or materials for manufacture, respectively, or shall buy to sell again, any victual raised within this commonwealth,5 every person so offending is declared an engrosser. But this act shall not extend to any person purchasing such articles from one who purchased from the importer, and retailing the same more than twenty five miles from any tide water; nor6 to any agent of this commonwealth, or of the confederating states of America, or any of them, purchasing necessaries, really and bona fide, for the use of the army or navy, and not dealing in such articles on the account of himself or any other private persons7 (such agent for the confederating states, or any of them, producing, whensoever called on, sufficient proof of his acting under authority from the confederating states, or some one of them) nor to the managers of any ironworks, purchasing necessaries for the use of those employed about such ironworks, and selling them to such persons;8 nor to the purchasers of materials for manufacture, which shall be really applied to that use in the family of the purchaser, or some manufactory wherein he is interested; nor to ordinary keepers, purchasing victual to be retailed in their ordinaries, or persons keeping private houses for lodging or entertainment, who may buy any kind of victual, and retail the same in their respective houses after it is prepared and dressed for the table;9 nor to persons purchasing wheat to grind into flour or malt; nor to bakers purchasing flour, and selling the same in bread; nor to graziers or butchers purchasing live stock, and selling the same after slaughter;10 nor to the owners of any imported goods sold as being damaged for the benefit of ensurers, or condemned in the Admiralty, and purchased by the said owners. Every person becoming a forestaller, regrater, or engrosser, as before described, shall, on conviction, for the first offence, suffer imprisonment, by the space of one month,11 without bail or mainprise and forfeit the value of the things so by him bought or sold, and for the second offence shall be imprisoned two months, without bail or mainprise, and shall forfeit double the value of the things so by him bought or sold, and for any such offence afterwards committed shall stand in the pillory for such time as the court shall direct, not exceeding two hours, shall forfeit treble the value of the things by him bought or sold,12 and be imprisoned at the discretion of the jury convicting him of the said offence; provided such imprisonment doth not exceed three months.13 No goods, wares, merchandize, victual, commodities, manufactures, or materials for manufacture, imported into this commonwealth, or raised or manufactured within the same (except slaves, stocks, houshold furniture,14 goods condemned in the Admiralty Court, or goods which being damaged are by the law and custom of merchants to be sold for the benefit of insurers, victual, or goods sold on account and for the benefit of the confederating states of America, or some one of them, goods taken in execution, or upon attachments, or distrained for rent or public taxes, or sold by executors, or administrators) shall be exposed to sale at public vendue, under penalty on each person selling or buying at such vendue, for each article so sold, of double the value thereof. All the penalties hereby inflicted shall be one half to the use of the commonwealth, and the other to the informer; and, where the sum doth not exceed twenty five shillings, shall be recoverable with costs, before any Justice of the Peace, and, where it shall exceed that sum by action of debt or information in any Court of Record, and in such action of debt the clerk shall endorse on the writ, that bail is to be required, whereupon the sheriff shall take sufficient bail for the appearance of the defendant, or be answerable himself, as in other like cases, and the court may either rule the defendant to give special bail, or admit an appearance without as to them shall appear just.15 This act shall be particularly given in charge to all grand juries, and it shall be made a part of their oath, specially, that they will present all offences against the same coming to their knowledge, which presentments shall be tried in a summary way, by a jury to be impannelled and charged, unless the court, for very good cause to them shewn, shall continue the same.16
Report description begins Report of the Committee of Revisors Appointed by the General Assembly of Virginia in MDCCLXXVI, Richmond, 1784 description ends , p. 61–2. Other copies, arranged in the probable order of their dates, are: (1) MS (Vi), being the Bill as introduced 29 Nov. 1777, together with a page of amendments, the more important of which are cited in textual notes; the Bill is in a clerk’s hand and the amendments are in the hand of John Tazewell, the former being endorsed: “A Bill to prevent Forestalling, engrossing & Regrating. 1777. Nov: 29. Read the first Time. Read the second Time & commd. to a Com: of the whole on Monday next. To be engrossed.” (2) Dft (DLC), in hand of George Wythe, undoubtedly drawn up for the Committee of Revisors, as the following endorsement shows: “Bills to prevent forestalling, regrating and engrossing, and sales by auction. One was copied, with some amendments proposed by T. J. from the act in October session 1777. The other is more approved by G. W. because it is shorter and, as he thinks, contains all that is good in the other” (see Document iv, 2, below). Diagonal line is drawn through text, indicating that it is the one Wythe did not prefer. (3) Dft (DLC), referred to in the endorsement just quoted, is also in the hand of Wythe and was presumably drawn about the time of the foregoing which he rejected; neither was followed by the Committee of Revisors, since the text here given is closer to the Bill introduced 29 Nov. 1777 than to these two. The text which Wythe rejected partly because of its length consists of one page of 26 lines; the text which he approved consists of 25 lines. (4) MS (ViU); clerk’s copy as described in Editorial Note, above. (5) Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends ix, 382–4, which is the Act as adopted Jan. 1778. For convenience, these variant texts are referred to in notes as Text (1), Text (2), &c.
The purpose of this Bill is obvious but was not stated probably because “An act for enabling the publick contractors to procure stores of provisions,” which was drawn by a committee consisting of TJ and George Mason and was being considered in the House from Nov. 1777 to Jan. 1778 concurrently with the Bill to prevent forestalling, set forth the same purpose explicitly. The preamble to that Act, whose original Bill, MS (Vi), is in the hand of Mason, stated that “divers persons devoting themselves to Avarice and Extortion, and intending to amass Riches out of the Ruins of their Country, or treacherously to betray it into the Hands of it’s Enemies, by forestalling and ingrossing the Provisions necessary for the Sustenance of its Armies in the ensuing Campaign, have industriously bought up, and already got into their Possession, so great a proportion of the Provisions usually brought to Market at this Season, that there is little Hope of our being able to lay up such Stores thereof as will be requisite for the Purposes of the succeeding Year, and some of them refuse to sell the same to the public Agents Contractors and Commissaries or demand such prices as amount to a Refusal, because they wou’d endanger a public Bankruptcy; and others under Pretence of exporting the same for Sale, mean to supply our Enemies therewith” (much of this preamble was struck out by the legislature; see the Act as adopted in Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends ix, 385–7; see also JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , Oct. 1777, 1827 edn., p. 93, 96, 101, 102, 103, 106, 107–8, 112–13. On 20 Nov. 1777 TJ was appointed member of a committee to bring in a Bill to prevent forestalling; he presented draft of Bill on 29 Nov. It was later considered by the House and amended; Senate also amended Bill, and House agreed to all save one of Senate amendments; from this one the Senate receded on 8 Jan. 1778 (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , Oct. 1777, 1827 edn., p. 35, 49, 93, 94, 101, 103, 107). The exceptions in this Act led to abuses and an amending Act was passed at the Oct. 1778 session (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends ix, 580–1); Text (2) and Text (3) were simplified versions of the Bill as first enacted, but the text given here incorporates some of the provisions of the amending Act and was therefore probably selected for inclusion by the Committee of Revisors after Texts (2) and (3) were drawn. Those texts differ greatly in phraseology from all others, but are in substance much the same as the original Act; the chief difference apparently is that Text (3) includes bartering as well as buying and selling in the definitions of forestaller and engrosser. The more important of the variations in the texts considered by the Committee of Revisors are indicated in the textual notes. At the Oct. 1779 session the amending Act of 1778 was revived and continued for another year. At the same time a duty of 2½% was laid upon all goods imported from other states or foreign countries which were intended for sale at vendue within nine months of the date of importation; a prohibition was also laid on owners of such goods and vendue masters to prevent their bidding at sales in order to advance prices, unless bids by vendue masters were bona fide purchases of goods for personal or family use (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends x, 157–8). At the session of May 1781 the Act to prevent forestalling was revived and continued for another year; it was not revived again after its expiration (same, p. 425). Bill No. 89 was presented by Madison on 31 Oct. 1785, postponed 14 Dec. to next session, and brought up again on 1 Nov. 1786; apparently no further action was taken on it (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , Oct. 1785, 1828 edn., p. 12–15, 92; Oct. 1786, p. 16–17).
1. Text (1) and Text (5) read: “four miles”; Text (2) originally agreed with these and was altered to “two miles.”
2. Text (1) was amended by the House through the addition of the phrase “or those in his employ.”
3. Text (1) and Text (5) read “United States.” Text (2) originally read “United States” and was altered to agree with the text here given. This interesting change was probably made by Wythe, since Text (2) is the text which TJ had approved and since the alteration was probably made as Wythe transcribed it. In all other instances where the text as given here employs the phrase “confederating states” or its equivalent, Text (1) and Text (5) read “United States.”
4. Text (1) reads: “or shall buy within any of the United States to sell again in this Commonwealth,” but this was deleted by a House amendment.
5. The clause “or shall buy to sell again, any victual raised within this Commonwealth” is not in Text (1) or Text (5). The exception allowed in the foregoing, in respect to victuals, led to abuses which were the subject of the amending Act passed in the session of Oct. 1778; under cover of this exception, the Act stated, “a practice hath prevailed of buying up great quantities of victual from those who make and raise the same, and withholding it from the poor and from the publick, until they have agreed to give a very advanced price for the same, which practice is found to be mischievous and oppressive.” Accordingly, in respect to victuals, an engrosser was by this Act defined to be merely one who bought within Virginia to sell again in that or in another state any victual raised in the Commonwealth (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends ix, 581–3). Hence the clause “or shall buy to sell again, any victual raised within this Commonwealth” was inserted in Bill No. 89 of the Report description begins Report of the Committee of Revisors Appointed by the General Assembly of Virginia in MDCCLXXVI, Richmond, 1784 description ends in order to make it conform to this amending Act; both Text (2) and Text (3), though differing in phraseology, embrace the same proviso respecting victuals raised in Virginia. This would seem to indicate that these texts were drawn up after the passage of the amending Act of 1778 and rejected in favor of the present text sometime before 18 June 1779.
6. The passage “to any person purchasing … from any tide water; nor” is not in Text (1), being added through amendment by the House. The Senate offered an amendment at this point to insert, after the word “water,” the following: “nor to any person, commissioned by another, to purchase salt for one year’s consumption of his family, such purchase not exceeding one peck for each person therein.” But the House on 6 Jan. 1778 declined to agree to this amendment, and, two days later, the Senate receded from it (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , Oct. 1777, 1827 edn., p. 103, 107).
7. The passage “and not dealing … private persons” is not in Text (1), having been added through amendment by the House.
8. The passage “nor to the managers … to such persons” is not in Text (1), having been added through amendment by the House. The concluding phrase of the amendment as submitted—“at no higher advance than is herein after allowed, to other retailers at the same Distance from Tide Waters”—was struck out along with the matter indicated in note 13, below.
9. The passage “or persons keeping private houses … for the table” is not in Text (1), having been added through amendment by the House.
10. The passage “nor to persons purchasing wheat … the same after slaughter” is not in Text (1) or Text (5). This further exception was added by the amending Act passed at the Oct. 1778 session; however, that Act also contained this further exception: “nor to brewers purchasing barley and converting the same into beer” (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends ix, 582). The last exception was not incorporated in Bill No. 89 of the Report description begins Report of the Committee of Revisors Appointed by the General Assembly of Virginia in MDCCLXXVI, Richmond, 1784 description ends .
11. Text (1) has a blank space; the preceding two words are supplied from Text (5). Texts (2) and (3) provide for amercement or imprisonment or both, at the discretion of the jury.
12. Text (1) reads “shall be set on the Pillory, shall forfeit all his goods and chattels, and be imprisoned at the discretion of the jury.” This severe penalty was struck out by the House; the Act as amended agrees with the present text.
13. The preceding eight words were added to Text (1) through amendment by the House; at the same time the House deleted the following from Text (1): “Every Person who shall buy in this or any of the United States any goods, wares, merchandize, victual, commodities, manufactures or materials for manufacture from the importer, owner, maker or manufacturer thereof, or who now hath any such goods, wares, merchandize, victual, commodities, manufactures, materials for manufacture or commodities heretofore purchased of any Person whatever, shall be obliged to sell the same again in moderate and reasonable quantities for each Family to those who offer to buy for ready money at not more than the rate of percentum advance on the price paid to the Importer, owner, maker, or manufacturer if the said Articles be either Salt or brown Sugar, and for any other articles at not more than the Rate of percentum advance and the Charges of Carriage or transportation to the place where the purchaser shall store or keep them. And every person refusing so to do shall forfeit for every offence the value of the Articles so refused to the person offering to purchase. But this shall not extend to the publick agents purchasers of materials for manufacture or ordinary keepers so far as they are before excepted, nor to persons reserving so many only of such articles as may be necessary for the use and consumption of themselves and their Families for one Year, nor to the makers or purchasers of Any Tobacco for refusing to sell such Tobacco. Every importer selling in Gross, shall, if he be a resident within this Commonwealth deliver into the Clerks office of his County within days after such Sale a list on Oath of the names of all persons to whom he shall have so sold in gross and the price of each Article respectively; and if he be a foreigner, he shall within the like space of time deliver such list into the naval office of the District in which he shall have entered his vessel on pain of forfeiting in either case value of the goods so sold in gross; such list or a Copy thereof attested by the Clerk or Naval Officer, as the case may be, shall be good evidence in any prosecution at law against any person purchasing such goods and retailing the same again at a higher advance than is hereinbefore allowed.”
14. The words “slaves, stocks, houshold furniture” are not in Text (1); they were added by amendment.
15. The following clause appears in Text (1) and Text (5) at this point: “All Acts of Parliament and of General Assembly relating to any thing within the purview of this Act are hereby Repealed.”
16. This final sentence is not in Text (1), Text (2), or Text (5); it is in Text (3), though differently phrased.