# The Liberty to Trade as Buttressed by National Law/Intra-State Acts

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CHAPTER XI
Intra-State Acts.
So far as criminal liability under the Act is concerned, intra-state acts are only important as evidence tending to prove the interstate offence. The making of the combination, etc., is in and of itself the offence; and nothing further need be said on this phase of the matter.
But where a recovery under the Seventh Section is sought, they become of great importance; indeed, they may be vital.
The Act was manifestly drawn by a masterhand, as is shown in many respects.
As an example, acts in restraint must be of two or more; there must be some combined action. It was not overlooked that, otherwise, everyone who did not use his property, or stopped using his property to its full working capacity, might find himself subject to suits and penalties.
But the strongest illustration of the legal knowledge and precise and proper use of words of the drafters of the Act is found in this Seventh Section: "Any person who shall be injured in his business or property * * * may sue therefore * * * and shall recover threefold the damages by him sustained," etc. No one not an able lawyer could have drawn that section, for it exactly follows the principles of the common law.
The right to sue is, as at common law, made dependent not upon damage at all, but upon ​"injury"; that is, "injuria," which, in turn, is "invasion of legal rights"; "obstruction," or "hindrance," as Lord Holt would have called it.
But at common law, as Broom says (Maxims) at p. 157: "Although damnum absque injuria is a matter of frequent occurrence, yet injuria absque damno may be said to be unknown to our law; for 'a damage is not merely pecuniary, but an injury imports a damage when a man is thereby hindered of his right.' Per Holt, C. J. Ashby vs. White, 2 Ld. Raym. 955." This is finely stated by Lord Esher, M. R., in Campanhia vs. British (1892), 2 Q. B., at p. 405: "Damages," he says, "cannot be asked for as being themselves a cause of action. No one can seek damages on the bare assertion that he is entitled to damages, and therefore claims damages. Damage is sometimes stated to be a cause of action, but then damage means injury. Damages are one of the reliefs asked for as the compensation for an injury. But then the injury is the cause of action." Which is almost a paraphrase of the Act!
The fundamental, the original purpose of damages was the preservation, the vindication of the enjoyment of rights; that is, of liberty itself; and, thus, arose the necessity of the constitutional right and provision guaranteeing a trial by jury in civil cases; for juries were always considered by freemen as the best appraisers of the value of that intangible thing called liberty, upon which, however, the value and enjoyment of all tangible things must ultimately depend. And no one but a jury has any constitutional right to fix them in an action for tort. Watt vs. Watt, (1905), A. C. 120.
​The framer of the Act must, therefore, have understood this, and in giving the action for the "injuria," not the mere pecuniary "damage," he not only made the Act conform with the general theory of the common law, but brought it within its liberty-protecting principles.
But he went further—following the Statute of James I, and knowing that in all cases the injury imports some damages, he provides that, in this case, for the better protection of trade, that damages, or any damage, shall be threefold.
This being all so, it follows that, as no action is given in the absence of "injuria," the Act positively contemplates and requires that some right, either at common or statutory law, or under the Constitution, must be obstructed or hindered by some part or act of the conspiracy, &c., to justify a suit under this statute.
But that means, and must mean, that two things are absolutely necessary to found a civil action. First, that two or more have combined in restraint of trade, or one or more have attempted to monopolize; and, second, that through that combination, or attempt, or some act a part of it, the plaintiff has been hindered in some right. Damage alone will not do; its absence alone is also not a defence.
This is well expressed in Rourke vs. Elk, 75 N. Y. App. Div., at p. 148.
This, then, brings us to the subject matter of this chapter.
As national and constitutional rights are, if not entirely, at least chiefly, the liberty or right to enjoy other rights; and as those other rights are, as we have already explained, also chiefly, if not entirely, ​protected by and within State jurisdiction, an action for damage must, in practically every case, involve that which is both interstate and intra-state.
In other words, the object, or the intent, must be to invade national right; but the means equally must, almost of necessity, be some intra-state matter.
Nothing could be more thoroughly intra-state than the specific transactions described in Atlanta vs. Chattanooga, 203 U. S. 390.
Whilst our objects, our purposes, may be interstate, they must almost inevitably be achieved chiefly, if not entirely, through intra-state acts and things.
It is of the first importance to bear this in mind, as otherwise error cannot be avoided.
Take the Knight case, for example. There the object was to profit by manufacture, not by curtailing trade. It was held perfectly legal to control a number of Pennsylvania refineries with this object, though manufacture could not be carried on except through imports of raw sugars. In the Addyston case, it quite as much related to the control of manufactures, even, indeed, to a less control; but as, under the circumstances, it was fair to presume that the object was to lessen competition and thus restrain trade, it was unanimously held to be illegal; and just so in the Montague and the Loewe cases. Some control of manufactures was sought in each case; but the legality of that control was determined by the purpose, the object of that control, ascertained, of course, from its real tendency under the circumstances. Thus, in both the Knight and Montague cases, import into a State was a necessity of the business; but, ​as in the former the "manifest object" was to do the business, and thus probably increase imports, it was held to be legal, an indirect restraint; whilst in the latter, as the purpose was to curtail the plaintiff's business, it was held to be a direct and, therefore, illegal restraint of that interstate trade which was a necessary incident of it.
And it must be so in each case.
All things are of necessity within the States, and are all subject to State jurisdiction; and the national jurisdiction does not attach, cannot attach, until, or unless, a use of them is intended against nationally protected right; but when that intent, that object is once reasonably inferred from the natural and real tendency of what is done, the national jurisdiction is as firmly established as that of the State was primarily.
The manufacture of rifles must be a purely State matter; but those who manufacture them with the object of shooting every one who dares exercise his freedom to trade between two States, would find the national jurisdiction reached him, notwithstanding every rifle was made in a single State, and as a purely intra-state matter.
No doubt the Debs riots in Chicago were a local offence, committed in each separate instance within a State, but their reasonable results being to stop national trade, the Supreme Court found no difficulty in stopping them. In re Debs, 158 U. S. 564.
Since, therefore, an inv~ion of a right which, in almost every conceivable case must be an intra-state right, is a necessity of an action under the Act, the argument that it is a defence to an action where ​the prohibited combination or attempt is properly inferred that intra-state matters are involved is absurd, however constantly made.
Where there is the "dangerous probability," constituting tendency, the "object," the "intent," to invade national right, the fact that that object includes, and is furthered by intra-state matters is, as Chief Justice Fuller points out in Loewe vs. Lawlor, 208 U. S. 274, "negligible"; and this is as clearly pointed out in the Swift case, 196 U. S., at p. 397, and even before that in Montague vs. Lowry, 193 U. S. 38. And should require no further discussion!