# The Liberty to Trade as Buttressed by National Law/Tendency and Power

CHAPTER IV
Tendency and Power
Around these terms and "competition" has been fought the chief battle in this country for the freedom of man in relation to trade.
Where a result is considered seriously detrimental it has been the uniform policy of the common law to enforce the doctrine that men should not lead or be led into temptation to bring it to pass. And, if the application of it did not originate in cases of restraints, it was certainly very early applied in them. The declaratory statute of James equally prohibits that which "tends" as that which constitutes "sole sale."
The general doctrine has never been more clearly enunciated than in the leading case of Egerton vs. Earl Brownlow, where Lord Brougham says: "But the law * * * taking security against the infirmity of human nature regards the tendency, as well as the act, and removes the motives to offending that it may not have to punish the offence."
Lord Truro, at page 199: "I repeat that what may occur in the particular instance is not the point; it is the general tendency."
And Lord St. Leonards, at page 235: "It is a dangerous power to be placed in the hands of any man with such a temptation to use it—a temptation almost irresistible. God forbid that I should say there are not men who could resist it; but the temptation is ​more than you are justified in laying before a man; more than you are justified in exposing him to. You are not justified in raising so fearful an issue."
The "tendency," then, which the law regards, is tendency to wrong from that which really tempts to its perpetration. Not mere possibility or power; but such possibility or power as, taking human nature as it is, supply such temptation as to create a dangerous probability of some yielding to and committing the offence.
This, then, being the doctrine, it may easily be seen that "power" without interest, or, if you please, temptation, to restrain is not necessarily illegal.
While on the one hand, under some circumstances, "power" may constitute a deadly threat to public interests, on the other it may be innocuous, or even largely beneficial. "Power," therefore, when spoken of as constituting the offence, must always be understood as power coupled with actual intent, or interest, or temptation, to restrain; but that is "tendency." And not only is "tendency" to restrain, to monopolize, denounced by the act of James, but, as Chief Justice Fuller points out in the Knight case: "All the authorities agree that, in order to vitiate a contract or combination it is not essential that its result should be a complete monopoly; it is sufficient if it really tends to that end, and to deprive the public of the advantages which flow from free competition."
The Knight case so strongly demonstrates the danger of holding that power alone does constitute tendency or the consequent illegality, that nothing more need be said on that subject; but that those ​who intentionally conspire to restrain national trade are within the Act is plain, though none of their acts without such intent would have amounted to tendency. He who does, with intent of accomplishing a given result, is certainly estopped from denying that what he did tended to that which he intended that it should tend to.
Sir F. Pollock well says: "It does not lie in a man's mouth to say that the consequence which he deliberately planned and procured is too remote for the law to treat as a consequence. The iniquity of such a defence is obvious in the gross examples of the criminal law. Commanding, procuring, or inciting to a murder cannot have any 'legal consequences,' the act of compliance or obedience being a crime; but no one has suggested, on this ground, any doubt that procurement is also a crime." As will be seen, an intended restraint must always be a "direct" restraint, and no matter how indirect the means of accomplishment.
To summarize: To constitute an offence within the Act there must have been either the intent to commit the offence, or to commit acts, or acquire power tending to it; but "power" alone does not constitute the offence.
Two quotations by the Chief Justice from opinions by Mr. Justice Holmes must ever be kept in view:
"If, as we must assume, the scheme is entertained, it is, of course, contrary to the very words of the statute. * * * It is suggested that the several acts charged are lawful and that intent can make no difference. But they are bound together ​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 ​produce a dangerous probability that it will happen. Commonwealth vs. Peaslee, 177 Massachusetts 267, 272. But when that intent and the consequent dangerous probability exist, this statute, like many others, and like the common law in some cases, directs itself against that dangerous probability, as well as against the complete result." Of course this intent must be proved and inferred, as in other cases, from conduct. Unlawful acts, invasions of liberty, limiting of discretion, the creation of such a temptation as would naturally lead to it; but, however established, when once formed, and followed by action, the offence is established; for intent, being intensified tendency, the offence has appeared, the danger to society has arisen!
* ↑ 4 H. of L. C. 178 (1853).
* ↑ 156 U S. 1.
* ↑ Pollock on "Torts," p. 324.
* ↑ Mulcahy vs. The Queen, L. R 3 H. of L. 306, 317
* ↑ Loewe vs Lawlor, 208 U. S. 298-9 (1908).