to confusion and error. The doctrine of "tendency," indeed, if properly understood and limited, comprises the whole doctrine of "indirectness" within itself.
Sir Frederick Pollock, in "Contracts," page 317, discussing Egerton vs. Earl Brownlow, 4 H. of L. C. 1 (1853), says: "The question * * * was whether there was an apparent tendency to mischief * * * or only a remote possibility of inconvenient consequences. * * * Egerton vs. Earl Brownlow, however, is certainly a cardinal authority for one rule which applies in all cases of 'public policy,' namely, that the tendency of the transaction at the time, not its actual result, must be looked to.” This contrasting "tendency" with "remote possibility" is inherent in the subject, and must have at all times and in all such cases been a necessary part of the mental processes of the courts; but it is remarkable how little prominence it attained before the Nation undertook to protect national trade, and thus required a consideration of State as contrasted with national rights. It is confidently believed that even if the term "indirect" in connection with restraints of trade was ever used in the whole history of the common law, its use or discussion in one thousand years has not equaled either, under the Anti Trust Act since 1895. Indeed, until I found the passage in Pollock, just quoted, I had no reference to the principle at common law, and, even there, the term is not used and the discussion is but as to "tendency." This advantage would have been gained, from so confining the discussion, that it would not have required all the labor of defining and restricting the enunciation of a new term of art. And it is submitted that the doctrine enunciated in the Egerton case, and by Mr. Justice
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