# The Liberty to Trade as Buttressed by National Law/Indirectness in Relation to Cases of Non-Assent

CHAPTER VI
"Indirectness" in Relation to Cases of Non-assent
It is manifest from what has been said, that this doctrine of indirectness can but apply to cases of assent. Lacking assent you have mere torts, invasions of right; and in such cases the doctrine of the maxim "dolus circuitu non purgatur" applies in full force.
It is a striking fact that in no such case has the Supreme Court ever denied a citizen redress for an invasion of his constitutional right and election to engage in national trade!
The acquirement of power by unlawful means, or the unlawful use of it in such manner as possibly to affect the Nation's rights in its trade, never overcomes the prima facie presumption of illegality always arising in such cases. Good purposes are not legally to be deduced from bad purposes or evil acts.
The doctrine of "indirectness," resting upon the lawfulness of what is done, can have no relevancy whatever to that which is in any way unlawfully done—to any tort or conspiracy! When people begin to do unlawful things that may injure national trade, there is always enough "dangerous probability" for the law to interfere at once. "Indirectness" meaning, in this connection, nothing more than "mere unintended possibility from lawful exercise through lawful means, of lawful rights or powers," an intended restraint upon trade itself must be illegal. It is illegal to strive to destroy, in any degree, that upon which public welfare depends. It makes no difference how indirect the means adopted, how ​lawful in themselves. Acts, any acts done in furtherance of a conspiracy to restrain are illegal. A plot to restrain National trade is a direct invasion of the express words of the Act, is as "direct" an invasion as anything can be, and "indirectness" of any or all means cannot make that which is itself direct, unlawful; indirect and legal; nor can they change what is expressly in itself denounced as criminal, into the pure and innocent, though the trusts frequently attempt to make them do so!
This is fully expressed by Judge Woods in the much-commended opinion in U. S. vs. Debs:
"A conspiracy, to be sure, consists in an agreement to do something, but in the sense of the law and therefore in the sense of this statute, it must be an agreement between two or more to do by concerted action something criminal or unlawful, or, it may be, to do something lawful by criminal or unlawful means. A conspiracy, therefore, is in itself unlawful, and, in so far as this statute is directed against conspiracies in restraint of trade among the several States, it is not necessary to look for the illegality of the offence in the kind of restraint proposed; and since it would be unnecessary it would be illogical. * * * Any proposed restraint of trade, though it be in itself innocent, if it is to be accomplished by conspiracy, is unlawful."
Again, Judge Taft says, in Thomas vs. Company: "The breach of a contract is unlawful; a combination with that as its purpose is unlawful, and is a conspiracy; * * * therefore, this ​combination was for an unlawful purpose and is a conspiracy within the statute."
And so it was also determined in the Addyston case: "Another aspect of this contract of association brings it within the term used in the statute, 'a conspiracy in restraint of trade.' * * * One of the means adopted by the defendants * * * was * * * illegal and fraudulent. * * * No matter what the excuse for the combination by defendants in restraint of trade, the illegality of the means stamps it as a conspiracy, and so brings it within that term of the Federal statute."
It results that, while it has for manifest reasons been necessary to carefully scrutinize intent and tendency when all that has been done was to exercise a lawful power in lawful manner, and thus to exclude "tendency" from the mere possession of such power unaccompanied by temptation or proved intent to misuse, there is no such reason in the case of wrongdoers, that they may be left free to exploit the public. Where illegal conduct is thought necessary, innocence of ultimate purpose need not and is not assumed; nor does public policy require that the State should run any risk of the possibility being converted into accomplished injury. Everything is to be presumed against such wrong-doers; and full precaution is justifiable that the public may not suffer. While the probabilities of lawful conduct may be confined to beneficial results, the probability of crime is injury. For crime is not resorted to where "legitimate means and lawful methods" will suffice. In any event, no public policy can require the taking of any chances in favor of such wrong-doers.
* ↑ 64 F. 748 (1894). See In re Debs, 158 U. S. 564 (1895); Loewe vs. Lawlor, 208 U. S. 274 (1908).
* ↑ 62 Fed. 818 (1894).
* ↑ Angle vs. Company, 151 U. S. 1 (1894).
* ↑ 85 F. 293 (1898).
* ↑ Affirmed, 175 U. S. 211 (1899).