Page:Earle, Liberty to Trade as Buttressed by National Law, 1909 28.jpg

 as part of a single plan. The plan may make the parts unlawful. * * * The statute is directed against a series of acts, and acts of several, the acts of combining, with intent to do other acts. 'The very plot is an act in itself.' But an act, which in itself is merely a voluntary muscular contraction, derives all its character from the consequences which will follow it under the circumstances in which it was done. When the acts consist of making a combination calculated to cause temporal damage, the power to punish such acts, when done maliciously, cannot be denied because they are to be followed and worked out by conduct which might have been lawful if not preceded by the acts. No conduct has such an absolute privilege as to justify all possible schemes of which it may be a part. The most innocent and constitutionally protected of acts or omissions may be made a step in a criminal plot, and if it is a step in a plot, neither its innocence nor the constitution is sufficient to prevent the punishment of the plot by law."

The law is a practical science, and by "tendency" it means something real, something, as Mr. Justice Holmes puts it, which amounts to "dangerous probability." As he so well says (Swift case, 196 U. S. 396): "Where acts are not sufficient in themselves to produce a result which the law seeks to prevent—for instance, the monopoly—but require further acts in addition to the mere forces of Nature to bring that result to pass, an intent to bring it to pass is necessary in order to