smith's work be set by the selectmen and committees of the several towns in this state, as the price affixed by them to iron may, in their opinion, make it necessary; and also the prices beyond which innholders may not exceed, in disposing of mixed liquors to travellers and others in their respective towns.

"And be it further enacted,

"(Sect. 2.) That the following articles be hereafter sold at the prices following, or not exceeding such prices; viz.

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Fleece wool, at two shillings and two pence per pound," followed by an enumeration of other articles with their prices, among which were rye, pork, cocoa, coffee, cotton, cotton and linen cloth, rum, molasses, and sugar.

Section 3 then provided

"That when any store, warehouse, or other building shall be opened by warrant from a justice of the peace, in the manner prescribed in the act to which this act is made in addition, or dwellinghouse, or other building and apartment, which they are hereby, in like manner, impowered to enter, the selectmen may not only sell and dispose to the necessitous person applying therefor, but to all others who shall appear to purchase, by retail in small quantities; and also, to innholders, rum, by the barrel, and to bakers, flour, by the barrel, upon the day of executing the said warrant," with sundry provisions then following for the protection of distillers and "retailers of rum and molasses."

The legislature did, however, recognize that legislation of this kind was to be used only under the stress of exceptional circumstances. This appears from the language used by them in Section 4 of this act, which read as follows:

"That the powers and authorities by the last preceding paragraph granted to selectmen and committees, can only be justified in cases wherein the very existence of the community is depending; and must, whenever adopted, be, in its nature, short and temporary, and cannot, with any propriety consistent with the preservation of the common rights of men, be adopted but only in cases wherein the avarice and wickedness of a few endanger the ruin and destruction of the state; and therefore that this instance shall not, at any time hereafter, be drawn, into precedent, excepting in cases of like necessity.”

In other words, Inter arma silent leges.

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By this time the difficulty of enforcing any laws of this character had evidently begun to produce some effect on the minds of the legislators, for they proceeded to provide a body of special officials who were to attend to the enforcement of the act. By section 8 it was provided, That there shall be elected, some time on or before the last day of June next, in each town and plantation within this State, three, five, or seven persons, who shall be under oath to prosecute all breaches of this act, and of the Act for preventing monopoly and oppression,' which shall come to their knowledge, or of which they shall receive information . . . and any person chosen into said office, and refusing to serve therein. . . shall forfeit and pay the sum of Five pounds . . . and when any person chosen to said office shall refuse to serve therein, the town to which he belongs, shall choose some other person in his place, and so as often as the case may require."

6

The difficulties of enforcing any such act, even as they had already become apparent to the members of that legislature, were so great as to lead them to go even further, and provide (Sect. 11)

"That no execution shall, after the fifteenth day of June next, be issued from the office of any clerk of any inferior court of common pleas, or of the superior court of judicature &c., for any sum whatever, unless the plaintiff or plaintiffs sueing in his or their own right, and dwelling within this state, shall first take the following oath; viz., You A. B. do, in presence of God, solemnly declare, that you have not, since the fifteenth day of June, 1777, wittingly and willingly, directly or indirectly, either by yourself, or any by, for, or under you, been concerned in selling any article enumerated in the Act to prevent monopoly and oppression' at a higher price than is by the said acts limited for such article, or by the selectmen or committees in pursuance thereof. So help you God."

This Act was passed May 10th, 1777.

A very short experience under these two acts brought the legislature to a full comprehension of the situation, and on October 13th of the same year both acts were re

pealed, by a very short statute of which the terms are very instructive. It was Chap. 6 of Province Laws 177778, entitled

"An Act for the repealing two acts of the General Court made the present year to prevent monopoly and oppression."

"Whereas the several acts to prevent monopoly and oppression made the present year have been very far from answering the salutary purposes for which they were intended,

"Be it therefore enacted by the Council and House of Representatives in General Court assembled, and by the authority of the same, "That the aforesaid acts. . . be, and they are hereby, repealed, and every part and paragraph of each of the acts aforesaid declared null and void."

The futility of acts of this nature is made further apparent by a letter from Governor Cooke of Rhode Island of May 14th, 1777, part of which is as follows: "Sir: The Consequences arising from the not carrying into Execution the late Acts passed by the several Legislative Bodies of the New England States affixing Prices of Labor and Goods enumerated, are too obvious to need commenting upon.

"This little State hath exerted itself in some measure by prosecuting Persons who have transgressed that Law: but in vain can she alone, put in Execution a matter upon which so much depends. The Consequence hath been an almost intire stop of vending the necessary Articles of Life."

Thereafter, among the Massachusetts statutes, we find "An Act against monopoly and forestalling," Chap. 31, Province Laws 1778-79, which provided in effect that no person should have in his possession grain more than sufficient for the use of his family and immediate dependents until the next harvest time. This act was passed February 8th, 1779, and by its terms was limited to be in force only until the next twentieth day of October. Thereafter it was renewed for two periods of about one year each, when it expired.

The lawyers who drafted those statutes were evidently cognizant of the class of "Offences against Public Trade" mentioned by Blackstone, that is, "engrossing," "forestalling," and "monopolies." Those were the technical offences which, in the minds of the lawyers of that time, constituted the wrongs done to the community by persons engaged in raising prices.

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This review of these old statutes brings us forward one more step. Whereas the old English statutes as to sundry "Offences against Public Trade' did not form part of our American law, on the other hand, there were, as we have seen, in several of the States a number of early statutes, creating those same old offences, under the same old names, " engrossing, ""forestalling," and "monopolies ;" and those early statutes were either repealed, or thereafter became obsolete. I have been able to find no reported case in the reports of any State of a conviction for either of those "Offences against Public Trade,” all of which consisted, in some form, in an attempt to “enhance prices."

This was the situation when the New York statute defining the offence of conspiracy was passed. In other States the situation was much the same when similar statutes were enacted. So, too, it was with what may be termed the common law of the United States. It will be sufficient for our purpose, if we follow, with a slight degree of detail, the situation as it developed in New York.

The Revised Statutes of the State of New York, which went into effect in 1830, contained the following definition of the offence of conspiracy :(a)

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'§ 8. If two or more persons shall conspire, either,

66 1. To commit any offence; or,

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2. Falsely and maliciously to indict another for any offence, or to procure another to be charged or arrested for any such offence;

or,

(a) 2 N. Y. Rev. Stat. 691.

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3. Falsely to move or maintain any suit; or,

"4. To cheat and defraud any person of any property by any means which are in themselves criminal; or,

5. To cheat and defraud any person of any property by any means which, if executed, would amount to a cheat, or to obtaining money or property by false pretences; or,

"6. To commit any act injurious to the public health, to public morals or to trade or commerce; or for the perversion or obstruction of justice or the due administration of the laws;

"They shall be deemed guilty of a misdemeanor.

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"§ 9. No conspiracies, other than such as are enumerated, are punishable criminally."

As to this statute, the following points are to be noted: 1. The offences defined, as had been the case under the common law, were to a large degree connected with the administration of justice.

2. Those offences were largely combinations to commit acts which would be crimes, if committed by a single individual.

The first reported case of any importance which arose under this act was People v. Fisher. (a) That case may be said to have been the primal source in the State of New York of most of the heresies as to combinations to raise prices, of either labor or merchandise.

It is well, therefore, to see precisely what this case People v. Fisher really did decide.

Its syllabus reads thus:

"A conspiracy of journeymen workmen of any trade or handicraft to raise their wages, by entering into combinations to coerce journeymen and master workmen employed in the same trade or business, to conform to rules established by such combination for the purpose of regulating the price of labor and carrying such rules into effect by overt acts, is indictable as a misdemeanor; and it was accordingly held, where journeymen shoemakers conspired together and fixed the price of making coarse boots, and entered into a combination that if a journeyman shoemaker should make such boots for a compensation below the rate established, he should pay a penalty of ten dollars;

(a) 14 Wendell, 9, A.D. 1835.