common law doctrine of "tendency," properly understood, also fully covered the subject.
As the purpose is to consider the Knight case separately in this connection, what has been said will only be justified shortly here. But first, a word of caution. It is not the purpose of this essay to justify the findings of fact of that case, the inference of interest or tendency; and tendency is a question of fact[1] of any particular case. Such findings, however important to the particular case, are of no importance to any one else, binding neither juries nor the court itself, in later cases. This has been ably pointed out in a restraint case where the inferences of fact of another restraint case, previously passed upon by it, were again unsuccessfully urged upon the House of Lords.[2] An exact parallel of the Knight and Securities cases, in America!
And, in addition to this, it must never be forgotten that while the law remains and should be permanent, that conditions of civilization and trade are constantly changing; and that it was held under prior conditions, that certain conduct did not tend to restraint; still, under subsequent ones, it is permissible to hold that tendency may be clear even from identical conduct. So that identically opposite decisions may only demonstrate the unchangeable quality of the law's hostility to restraints of prosperity, however brought about.[3]
- ↑ 171 U. S. 581 (1898).
- ↑ See Lord Lindley's opinion as to Allen vs. Flood in Quinn vs. Leathem, 1901, A. C. 533-4 (1901).
- ↑ See Egerton vs. Earl Brownlow, 4 H. of L. C 1 (1853) [Lord St. Leonards's opinion]; Maxim vs. Nordenfelt, (1893) 1 ch 630 (1894), A. C. 535; Gibbs vs. Consolidated Gas Co., 130 U. S. 396 (1889), Fowle vs. Park, 131 U. S. 88 (1889).
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