The Washington herald., 1911-01-10
Attorneys Laud and De-
nounce Gigantic Trust.
McREYNOLDS IS EMBARRASSED
Counsel for Government Visibly Out
of Countenance When Subjected to
of Supreme Court as to Just What
Constitutes n Monopoly.

Court of the United States a lawless.
gigantic conspiracy in restraint of trade,
operating in contravention of the Sher-
man antitrust law: it was also portrayed
as a model industrial concern that had
evolved, under economic conditions entire
ly beyond its control, into a benevolent
assimilative corporation that had in
creased business, added to the dividends
of the confiding investors securities, and
raised the price of leaf tobacco, thus
benefiting tobacco growers.
j. c. McReynoldS. special counsel for the
government, assailed the trust and asked
the court to order its dissolution; De Lam
cey NicoIl. attorney for the trust, pointed
out its virtues and declared that it had
not tranSgreSsed the law.
Mr.. McReynoldS yesterday resumed the
argument that he began Friday, opening
the case for the government He spoke
for two hours yesterday, and was fol-
lowed by Mr.. Nicoll. who occupied an
hour. The governments special counsel
was viSibiy embarrassed near the close Of
his argument yesterday by a running fire
of questions from the bench. Justice
Holmes started the inquisition by noting
''ncongruity'' between the views of
Attorney General Wickersham and those
of McReynods. as expressed at the first
hearing of the tobacco trust case, as to
what constituted a monopoly under the
Sherman antitrust law.
Fails to Define Theory.
Repeated efforts by different members
Of the court TO elicit from Mr.. Mercy
nolds just what the theory of the govern
ment attorneys was TO the essential
element of monopoly failed to bring re-
sponse satisfactory to the court. Chief
Justice White referred to the statement
in Mr.. McReynolds' address that COM
bination TO he unlawful and monopoly
should control the major part of the
business in that particular commodity.
Mir MCReN noldS declined to enter into
q mathematical exposition of just what
proportion of business should be control
led to constitute a monopoly within the
meaning Of the Sherman law. Chief Jus
tice White asked him whether, in his
judgment. if two small business men got
together and decided to combine. their
combination would he A conspiracy in re-
straint of trade or an attempt to monop-
olizc business 20 bring them within the
provisions OF the sherman law. Mr.. Nc
REYNOLDS thought not. but was unwilling
10 explain to the Chief Justice why the
small combination would be lawful and
the greater one would not. He reminded
tho court that in various decisions it had
held that where a combination controlled
more than 20 per cent of the business in
any commodity. that it was a monopoly.
VI" reminded the court that for the pur-
poses Of the pending case il was suffi-
cient only to show that the American To-
bacco Company did control more than 80
per cent of the business, and that it had
stiGed competition in its efforts to create
a monopoly.
Justices Press Point.
The justices were manifeStly not salts !
fed to permit Mr.. McReynolds to escape
Holmes pursued the inquiry by inquirng
whether it was the duty of the court to
fix the percentage of business a combi- !
nation might do to bring it within the
definition Of A monopoly. Mr.. Mercy |
nods replied by saying that he thought
tnat each particular case should be de-
cided upon the circumstances arising. |
and that the question OF intent would en-
ter into it. This brought Justice Holmes
To the point of inquiring whether the
proportion CT business actually controlled
or the question of the intent back of the
combination was to be considered as the
essential element to establish a mo-
nopolv.
You hop over" said Justice Holmes.
Il want to drive you to one of the two
points of the dilemma. intent or size. /
If YOU adopt intent the essential ele-
ment of the monopoly, then you would
have IT, abandon the theory that the
size of the combination the amount !
of business it controlled was the de- |
tcrmining factor"
Mr.. McReynolds would not satisfy the |
manifest desire of the court to learn the !
governments theory to the essential !
element of a monopoly. He replied that |
the tobacco case came within. former |
decisions of the court, and suggested !
that he would not advise the court to ven- |
ture out into territory beyond the re- |
ruirementS of the case. He referred to |
'borderland' in the construction of |
the Sherman law in which opinions were |
varied and which nobody apparently I'M
derstood. and advised the court to keep |
out Of the "borderland' long as pos
sible.
NicOlI to Resume To-day.
The nearest Mr.. McReynolds would ,
come to definition of what constituted |
monopoly was to invite the courts
attention to the decision of Justice Nc
Eenna in the Shawnee compress case
in which the court held that the .'es-
sential element" i'm a monopoly is the
power to control prices.
De Lancey Nicoll read from the deci-
sions of Judges Lacombe and Moves in
the lower court acquitting the American
Tobacco Company of being either oppres-
sive coerCive in its methods He
differentiated the American Tobacco Com
pany from other alleged combination by
pointing out that his client controlled
no lands or natural resources; that il |
has never in any one year purchased
one-half Of the raw produce. leaf to-
bacco; that it had never produced in any
one year one-half OF the annual output of
the manufactured products; that it was
not charged with rebating, and that no
independent manufacturer or producer
or user Of tobacco had been heard to
complain in this case of the methods
pursued. He declared that the number
of growers of tobacco had increased
threefold.
Mr.. Nicol did not conclude. The court /
adjourned at 4:30 O'Clock with the under
standing that Mr. Nicoll will resume his
argument to-day.