1. Under the English common law, a mere contract, to raise or maintain prices, of the property of the parties combining, involving no interference with the legal rights of others, did not constitute a crime.

2. Such a combination did constitute a crime under certain early English statutes.

3. Those statutes never formed part of the American law.

4. Similar statutes had been passed at an early date in the State of New York, and repealed.

5. Thereafter was enacted the provision of the Revised Statutes making it a crime, for "two or more persons to to commit any act injurious to trade or

conspire

It was under this provision, that the Court held, that a contract of certain coal dealers in the city of Lockport, forming "The Lockport Coal Exchange," by which they agreed to sell coal at uniform rates, to be fixed from time to time for the combining parties by a five-sixths vote of the Exchange members, constituted a crime.

The question is, whether that statute, under well-established principles and rules of statutory interpretation, admits of such construction.

As to the New York common law on the subject, prior to this statute, there can hardly be said to be an open question. It was the same as the common law of England. As to what was the English common law on the subject, it is sufficient to refer to the Mogul Steamship case already cited. If it be said that that case is not a conclusive authority for a court of the State of New York, the answer is, that it is an authority as to the common law of England. It would seem, therefore, as already stated, that the question, what was the law of the State of New York prior to the enactment of the Revised Statutes, can hardly be said to be an open question.

To establish the position, that the English statutes as to conspiracy, and as to "Offences against Public Trade"

did not form part of the law of our different States, authorities have already been cited.

But in New York the situation on this point was peculiar. The Constitution of the State of New York of April 20th, 1777, reads:

"XXXV. And this convention doth further, in the name and by the authority of the good people of this state, ORDAIN, DETERMINE, AND DECLARE, that such parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the legislature of the colony of New York, as together did form the law of the said colony on the 19th day of April, in the year of our Lord one thousand seven hundred and seventy-five, shall be and continue the law of this state, subject to such alterations and provisions as the legislature of this state shall, from time to time, make concerning the same. That such of the said acts as are temporary shall expire at the times limited for their duration respectively."

Thereafter the New York Legislature, pursuant to the constitutional authority then vested in it, proceeded to pass the following act :

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"CHAP. XLVI.

An Act for the Amendment of the Law, and the better Advancement of Justice.

"Passed 27th February, 1788.

"XXXVII. And be it further Enacted by the Authority aforesaid, that from and after the first Day of May next, none of the Statutes of England, or of Great Britain, shall operate or be considered as Laws of this state." (a)

Provisions similar to the one above quoted from the Constitution of 1777 were inserted in our later State Constitutions.

But it is not necessary to attach any special importance to the statute of 1788. It is sufficient to say, that, under the doctrine laid down by the highest courts in the differ

(a)" New York Laws," Jones & Varick. Vol. II., 1787-89, p. 282.

ent States, under constitutional provisions substantially similar to that of New York, the law as to the early English statutes, as stated by Chief Justice Shaw and by Mr. Bishop, would command general assent. As to our common law, then, prior to the Revised Statutes, the position seems very simple, and somewhat ironclad.

The next question is this: In view of the position under our common law as to the crime of conspiracy, of the fact that there was a well-defined class of criminal "Offences against Trade," of the fact, that all those offences, so far as concern the present question, were statutory, and of the further fact, that those same offences had formerly been created by a New York statute which had been repealed, is it a reasonable or sound interpretation of the later provision in the Revised Statutes, to hold that that provision revived those old statutory crimes, and made criminal an act which was lawful at our common law, and which involved a violation of no legal right of any member of the entire community.

Here it becomes necessary to cite authority as to the interpretation of statutes which change the common law. Our Court of Appeals, in a leading case, held the rule to be, (a)

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that no such change was intended unless the statute is explicit and clear in that direction (1 Kent, Com. 463. White v. Wager, 32 Barb. 250; affirmed 25 N. Y. 328) I am persuaded that a careful analysis of the section referred to will show that no such change, so radical and dangerous, was either made or intended, and that the sole scope and purpose of the section was to declare in explicit terms the existing rule of the common law."

The doctrine has been laid down by Chancellor Kent as follows:(b)

"Statutes are likewise to be construed in reference to the principles of the common law; for it is not to be presumed that the legis

(a) People v. Palmer, 109 N. Y. 110, 118. See, too, People v. Fanshawe, 137 N. Y. 68, 73; People v. Richards, 108 N. Y. 137, 144.

(b) 1 Kent, Com. 464.

lature intended to make any innovation upon the common law, further than the case absolutely required. This has been the language of the courts in every age; and when we consider the constant, vehement, and exalted eulogy which the ancient sages bestowed upon the common law as the perfection of reason, and the best birthright and noblest inheritance of the subject, we cannot be surprised at the great sanction given to this rule of construction. It was observed

by the judges, in the case of Stowell v. Zouche, that it was good for the expositors of a statute to approach as near as they could to the reason of the common law; and the resolution of the barons of the Exchequer, in Heydon's Case, was to this effect."

In connection with this statement of the rule, it is well for us to give from the same high authority its reason (a)

"The common law includes those principles, usages, and rules of action applicable to the government and security of person and property, which do not rest for their authority upon any express and positive declaration of the will of the legislature. According to the observation of an eminent English judge, a statute law is the will of the legislature in writing, and the common law is nothing but statutes worn out by time; and all the law began by the consent of the legis lature.

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"1. Source of the Common Law.-This is laying down the origin of the common law too strictly. A great proportion of the rules and maxims which constitute the immense code of the common law grew into use by gradual adoption, and received, from time to time, the sanction of the courts of justice, without any legislative act or interference. It was the application of the dictates of natural justice and of cultivated reason to particular cases. In the just language of Sir Matthew Hale, the common law of England is, not the product of the wisdom of some one man, or society of men, in any one age; but of wisdom, counsel, experience, and observation of many ages of wise and observing men.' And his further remarks on this subject would be well worthy the consideration of those bold projectors, who can think of striking off a perfect code of law at a single essay. 'Where the subject of any law is single, the prudence of one age may go far at one essay to provide a fit law; and yet, even in the wisest provisions of that kind, experience shows us that new and un

(a) 1 Kent, Com. 471.

thought-of emergencies often happen, that necessarily require new supplements, abatements, or explanations. But the body of laws that concern the common justice applicable to a great kingdom is vast and comprehensive, consists of infinite particulars, and must meet with various emergencies, and therefore requires much time and much experience, as well as much wisdom and prudence, successively to discover defects and inconveniences, and to apply apt supplements and remedies for them; and such are the common laws of England, namely, the productions of much wisdom, time, and experience."

In view of these declarations of a well-established principle, let us consider the language of the statutory provision in question. The statute says "act injurious to trade or commerce.”

It is submitted, that the only reasonable interpretation of that phrase is, that it means an act which violates some legal right, of some individual or class of individuals, in a matter concerning trade or commerce.

Let us now see what was the construction given to it by the Court of Appeals in People v. Sheldon. And in order to be sure of giving the reasoning of the Court with accuracy, it will be well to quote from the report. The head note of the case is as follows:

"A combination between independent dealers to prevent competition between themselves in the sale of an article of prime necessity is, in the contemplation of law, an act inimical to trade or commerce, without regard to what may be done under and in pursuance of it, and although the object of such a combination was merely the due protection of the parties against ruinous rivalry, and no attempt was made to charge undue or excessive prices; where it appears that the parties acted under the agreement an indictment for conspiracy is sustainable.

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Upon trial of an indictment for conspiracy to raise the price of coal at retail and to destroy free competition, the court charged the jury, that if the defendants entered into an organization agreement for the purpose of controlling the price and managing the business of the sale of coal, so as to prevent competition in price between the members of the organization, the agreement was illegal, and if the