by George Howard Earle, Jr.

“ 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. ”

“ Every justice agreed that the contract in the Addyston case concerning admitted rights of property of the parties was illegal, because it tended to restrain trade; then why not any other form of contract that tended to the same evil? What special form of sanctity has a sale as contrasted with any other evil contract? Sales in all directions had been limited where tending to evil, and for centuries, and without doubt! With trade as it has since been conducted, the tendency in the Knight sales has been demonstrated to be as deadly as the sale of discretion in the Addyston. ”

“ The right of freedom, of election, or enjoyment of untrammeled participation in national trade?
It does seem that when the national government itself grants a right and undertakes its protection against both States and people, takes its sole protection upon itself, and declares it of the highest importance, it should warrant at least as high a sanction of policy as the right to sit in a chair from which nothing but mere comfort is intended or expected. ”

“ There was, therefore, an inherent and inevitable conflict between these two phases of man's liberty: the liberty to bind himself, that is, to contract, and the liberty to remain unbound —the right to contract pro tanto and of necessity destroying the other right. This balance being even—liberty against liberty—public policy had to control the issue; and trade, being of vital interest to the public, the contractor was permitted to choose his freedom to contract wherever such choice advanced trade. ”

“ It would be an anomaly if a nation's law and religion were diametrically and irreconcilably in conflict on such a subject. As to our civilization, to deny this position would be equivalent to the assertion that civilization is not civilization, for civilization is coöperation among men! ”

“ If in a given case the power be lawful and the mode in which it is exercised be not such as to directly burden, there is no regulation of commerce, although as an indirect result of the exertion of the lawful power some effect may be produced upon commerce." But, of course, the mere fact that a result merely "may be produced" and as "an indirect result" cannot even at common law amount to the "dangerous probability" constituting "tendency" with which the law deals. ”

“ Why was a man permitted to covenant that he would protect a good-will that he had sold? Simply because every one, for centuries, had considered that the best way of insuring that the business would go on; would maintain, or increase trade. No one had thought that a man would invest capital in a business that he might destroy it. Just a few months before the Knight case this subject had been carefully considered by the House of Lords itself, and a similar conclusion reached. ”

“ 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. ”

“ Civilization is but a curtailment of competition, a substitution of coöperation for universal strife and enmity. To say, therefore, that a restraint of competition is equivalent to a restraint of trade, is to admit that, however far civilization has advanced, it has not yet eliminated a barbarous degree of selfishness ”

“ It is confusing to be told that all arrangements tending to stifle competition in national trade are direct and illegal restraints, but that, of course, a partnership that might make such competition even a fraud is, nevertheless, perfectly legal; that "unifications of interest" by complete ownership are indirect and legal, while they are also the most dangerous and illegal forms of direct restraint; that absolutely every restraint of trade is illegal, though there are many exceptions to this rule, without exception ”

“ Where there are two powers, one in the State, another in the nation, one in individuals, or another in the nation, the exercise of the one power is not to be destroyed by the mere existence of the other, where that exercise is bona fide, with no intent or purpose of invading, or manifest, or natural tendency to invade it. ”

“ Two towns unconnected by a railroad were certainly not forbidden to have a railroad because a railroad would, in a sense, be a monopoly. What was and has always been the evil was substituting for "competition," where that was either established or naturally and ordinarily possible, "sole sale" or "unified tactics" as to prices, and not at all to prevent the starting of a new industry. And that this was the intent of the common law and statute of James declaring it is shown by the reservation of right to grant patents for new inventions. ”

“ 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." ”

“ One other question of great interest yet to be settled is whether the infringement of the constitutional right to pursue happiness through national trade is actionable per se, or requires proof of actual damage?
That, of course, is a mere question of policy, and depends upon the quality and importance of the right. More accurately, of whether there is such a right; for if there is, there must be an action for its invasion. ”

“ 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: [1] "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." ”

“ A mere look at the statute books, at the decisions of the courts, at the public press, at political conventions, or any other declarations of public opinion in the last few years, must convince any one that this is not the time to relax the safeguards thrown around society by the presumption of illegality in the absence of adequate explanation, where power and interest so unite that the public may be made to contribute enormous sums to those accomplishing such union. ”

“ In view of all this, it is absolutely impossible to say that he was finding that it was lawful and "sanctioned" by the States, or any of them, to deprive the country of its industrial agencies, to destroy business, stop commerce and production, that national trade might be limited and the profits of monopoly be swollen! ”

“ 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. ”

“ The truth is, that the trusts have placed what was an unmixed agency for good among the most dangerous instruments of evil, and the courts have ultimately become conscious of the change; and that is the sole difference in the Knight and Securities cases.
It must never be forgotten that "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. ”

“ 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 ”

“ In prohibiting monopolies, and attempts at monopoly, Congress and the common law never intended or could have intended to prohibit necessary and useful things that in their nature had to be to some extent monopolies. ”

“ Great discussion has been had as to whether the damage must be to a trader, or to one in the way of his trade, or one in matters involving national trade. This subject seems free from difficulty. We are all citizens of a common country—a wrongful act prohibited, and by proper authority, and damage promised to those who suffer from that act, must be redressed! If there be, for example, a conspiracy against national trade, there can be no reason to doubt that any one injured by anything done as part of or in pursuance of that conspiracy should recover. ”

“ The first and most important thing to be remembered in this connection is that the doctrine has no application whatever to tortious or involuntarily suffered restraints, its sole application being to cases of voluntary or contractual restraint, involving in its accomplishment no wrongful means or end. This is constantly overlooked in argument, and leads but to confusion and error. The doctrine of "tendency," indeed, if properly understood and limited, comprises the whole doctrine of "indirectness" within itself. ”

“ Glamorgan: [2]
"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. ”

“ 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. ”

“ To combine to add all the benefits of cooperation to all of those safeguarded by competition, cannot, possibly, be a public evil; but nevertheless the courts have a right and duty to, and do, in the first instance examine each such case critically. ”

“ Just as it is believed that "tendency" is the paramount consideration in cases of restraint, and is limited and defined by the doctrine of "indirectness," so I believe that the basis of our civilization, law, and religion is "coöperation." Though constituting the greatest source of human power for either good or evil, coöperation in turn is limited and defined by the doctrine of competition, that it may accomplish legitimate purposes only. ”

“ 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. ”