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:[1] "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
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