The Washington herald., 1911-01-11

pany Of Great Britain, which was
brought into the suit filed by the govern
ment as one Of the defendants against
the charge OF being engaged in a con-
spiracy in restraint of trade.
incidentally. the Sherman law was
construed by counsel in a way to exempt
the American Tobacco Company from its
penalties.
The profound legal argument was va
ried at times by flashes Of humor, as
when Justice Harlan, who is celebrated
as a chewer of tobacco. complained to
Attorney Hornblower Of the poor quality
Of chewing tobacco on the market.
1T is rotten observed the justice.
mournfully. I'VE cannot get any good
chewing tobacco any more
Exonerates English Concern.
Mr.. HornblOwer. who was in the act of
defending his British client. the Imperial
company. solemnly acquitted that con-
Germ OF the responsibility.
THE English people do not chew, l am
told said Mr.. Hornblower. Person
ally, 1 have no knowledge of the quality
Of chewing tobacco. I presume the only
demand for it in Great Britain Is by
Americans who are abroad and demand
the comforts of home"
Chief Justice White aroused some in
terest by telling De Lancey Nicoll that
a planter in Louisiana had complained to
him that the tobacco trust methods had
ruined the business Of tobacco growing.
THE story may have been untrue" add
ed the Chief Justice. and Attorney Gen
eral Wickersham laughed.
When the court adjourned until to-day
Attorney Hornblower was arguing. Mr..
Hornblower discussed the scope and ap-
plication of the Sherman antitrust law.
COnxtructiOn of Law.
He summarized the points that have
been settled by the courts in constituting
the law as follows:
First-That every such contract in re-
straint of trade is not necessarily in
valid;
Second-That the contract for the pur-
chase of business with covenants not to
compete is not invalid:
Third-A manufacturer has the right to
buy OF a dangerous rival, even il such
purchase worked an incidental restraint
of trade. If the principal object be to
protect a business.
At the suggestion of Chief Justice
White, it was agreed that Mr.. Horn
blowers summary should be submitted
to the court later as supplementing his
brief. and the order was extended by
agreement among counsel, to include all
oral arguments made in the case.
There was unusual interest manifested
in the brief argument Of John G. John
son, the eminent Philadelphia lawyer. He
declared that the Sherman law was a
statute to promote commerce. not to
restrain it The government proposed to
force the American Tobacco Company.
which had three-fourths of the COM
merce. to quit business and permit the
concerns that had only one-fourth to
continue.
Might Destroy Property.
The effect of the decree asked by the
counsel. according to Mr..
Johnson. would be. perforce. to drive the
American Tobacco Company out of bust
ness and thus infiict a destruction of its
property. form of punishment never
by the law. He planted the
defense upon the courts decision in the
knight case, which he said applied.
The object of the Sherman law, Mr..
Johnson averred, was not to make a new
law against conspiracies In restraint OF
trade, but to apply the well-known prin
ciples of the common law. There was no
Federal common law: the enactment ap-
Piled the common law, but did not enlarge
upon it.
There is no word in the sherman act
to forbid acquisition of property" said
Mr. johnson. THE most valuable acqui-
sftions by the American Tobacco Com
pany were of good win. trademarks. and
brands" He assisted there was no au-
thority in Congress to forbid sale OF
property.
.'Thc legislature cannot compel . man
to compete" said Attorney johnson. IF
there Is no legal duty to compete, and
A buys B. or B.buys A, no law has been
for no legal obligation has there
by been violated. Individuals and private
owe no legal duty to COM
pete. The Northern Securities case diners
from the present case because It was
public service corporation and has
legal obligation to the public to compete
Abuses Only Unlawful.
'Monopolizing is more than acQufsi-
tion," continued Mr.. johnson. "Combina-
lions in themselves are not unlawful. 1t
S their abuses that were unfawtci at COM
non law and are lawful under the Sher-
man act"
Mr.. Nicoll declared that the theory OF
he government that there was q stihing
II competition by every purchase OF new
property made by the trust.
There is no competition between the
smoker Of the Havana cigar and the
smoker of a domestic cigar" said Mr.
Nicoll, for the user of one Is rarely the
,ser of the other. There is no competi-
lion between the snuh used by the
swedes in the Northwest and the highly
favored snuff used by New England fac
ory girls"
II wondered who consumed snuff." in
crpesed Justice Holmes. II never knew"
Mr. Nicoll reminded the court that the
ate Justice Peckham had held that the
mere purchase OF a competing concern
lid not Of itself constitute restraint Of
rade, even though there was Incidental
Elimination of competition.
Cites Two Propositi6ns.
Mr. Nicoll stated two propositions rs
the governments case.
First, that although conpetition may
ave been eliminated and the elimination
nd the effect of restr1ining commerce.
md such elimination Of competition and
estFaint of trade was not material. yet
here was such manifest intent 70 re-
Itrain trade 70 bring the defendants
vithin the lsw.
The second proposition related 20
cvenauts taken by the trust from tudi-
,iduah from whom Il purchased plANfes
'enetaliy repugsknnt 10 The 6heSuAn ~.
- tend. Indicating that he a. not con-
ede 9hae tAe esveenuseef;s ps11ai6as ves
och. y M, NleoN haA eeoteo. 3 6
- 49, Amesna - Il = 49, enna1ern&I