# The Liberty to Trade as Buttressed by National Law/Intent

CHAPTER III
Intent
The Anti-Trust Act, being a criminal as well as remedial statute, intent is, of course, necessary. But it is also, of course, only intent as legally defined.
As Mr. Justice Holmes so felicitously puts it in Ellis vs. United States: "If a man intentionally adopts certain conduct in certain circumstances known to him, and that conduct is forbidden by the law under those circumstances he intentionally breaks the law in the only sense in which the law ever considers intent."
But there is another viewpoint of importance in this connection, which, in its ultimate results, becomes vital, and that is that from which the law ascertains or presumes an intent as to results flowing from the forbidden acts. It was long since said: "Thought is not triable," but quite as long ago that "actions speak louder than words;" and it may be added that a knowledge of human nature as loudly as either.
When we pass, then, from proved acts, and an inquiry as to the ends sought through them becomes necessary, the legal method is well established, though it has a duality of expression that is sometimes confusing. It may either be said that intent is conclusively presumed under certain circumstances, or that intent is of no importance whatever. But the latter expression is sometimes misleading, as, while in some cases it may be of no importance, in others it is the vital, determinative fact!
To explain this further: An act is done from which certain results naturally, reasonably, or ordinarily may ​be expected. Then it is perfectly proper to say, as the Earl of Halsbury, L. C., does in South Wales Miners' Federation vs. Glamorgan:
"It is, further, a principle of the law, applicable even to the criminal law, that people are presumed to intend the reasonable consequences of their acts." Indeed, this presumption is so absolutely necessary that the Supreme Court has had to apply it even to the enactments of the sovereign States themselves, so interpreting their statutory acts, no matter how they themselves assert their purposes. "In whatever language a statute may be framed, its purpose must be determined by its natural and reasonable effects. * * * The motives of the legislators, considered as the purposes they had in view, will always be presumed to be to accomplish that which follows as the natural and reasonable effect of their enactments." And, in such a case, it is equally accurate to say intent is immaterial; but this may well mislead, and has often misled where proof of intent becomes essential, as it sometimes really does in these cases.
This is best illustrated by the cases themselves. Mr. Justice Peckham says: "It is useless for the defendants to say they did not intend to regulate or affect interstate commerce. They intended to make the very combination and agreement which they in fact did make, and they must be held to have intended (if in such case intention is of the least importance) the necessary and direct result of their agreement."
So Mr. Justice Harlan says in the Securities case: "Is the motive with which a forbidden combination or ​conspiracy was formed at all material when it appears that the necessary tendency of the particular combination or conspiracy in question is to restrict or suppress free competition?" etc.
On the other hand, Mr. Justice Holmes says, in the Swift case: "The statute gives this proceeding against combinations in restraint of commerce among the States and against attempts to monopolize the same. Intent is almost essential to such a combination, and is essential to such an attempt."
There is, of course, no conflict in these opinions; and reading them together there should be no danger of misunderstanding or confusion. But I have known lawyers who argued that intent was immaterial, as well as those who argued that it must be independently proved. Of course, as a rule, both were wrong, for intent is always material in some sense, though inferable from the acts themselves; while, on the other hand, there are cases where, it not being reasonably inferable from the facts of the alleged conspiracy, it is necessary in some legitimate way to establish it to constitute the offence at all.
Lord Watson states this clearly in Allen vs. Flood, 1898 A. C. 102: "The object of an act, that is the results which will necessarily or naturally follow from the circumstances, in which it is committed, may give it a wrongful character, but it ought not to be confounded with the motive of the actor. To discharge a loaded gun is, in many circumstances, a perfectly harmless proceeding; to fire it on a highway, in front of a restive horse, might be a very different matter."
This will be further considered in the next chapter.
* ↑ 206 U. S. 257 (1907).
* ↑ 1905, A. C. 244 (1905).
* ↑ Mr Justice Harlan, Minnesota vs Barber, 136 U. S 321 (1890).
* ↑ Addyston Case, 175 U. S. 243 (1899).
* ↑ 193 U S 328 (1904).
* ↑ 196 U. S 396 (1905).