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,[1] 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
- ↑ 4 H. of L. C. 178 (1853).
25
