New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1911-08-31
William B. HOrnbIoWer CriticiSes
Legislation Against Bust
ness Interests.
HITS AT CRIMINAL CLAUSE
Tells American Bar Association
Attempt to Regulate Prices by
Commission Is an APP
palling Suggestion.

against business interests" was voiced by
William a Hornblower. Of New York. In
an address on Antitrust Legislation and
litigation az to-nights session Of the an
nual meeting of the American Bar Asso-
citation He ursed that business receive
an opportunity TO adjust itself to the pres
eni law as interpreted by the Supreme
Court"
Between sessions the lawyers visited Har-
ward University. paying special attention
N tho law departments. The address OF Mr..
Hornblower. of New York, was made in
huntington Hall. I'm the Massachusetts In
sutute Of Technology. and was the feature
Of the evening session.
Mr.. HornbCwer discussed al length the
enactment. enforcement and judicial inter
pretauon Of the Sherman antitrust law,
md SAID that It failed 70 comply with what
: he considered the requisites OF a proper
statute, namely: THAT It's language should
he capable OF application 10 all cases COW
cred by such language construed in It's
ordinary and natural sense; that it should
he applicable 70 all persons and corporations
coming within its terms without arbitrary
discrimination. and that II should be clear
ana certain IN its provisions so that all per-
sons can be guided thereby h said:
This statute never has been and never
can be literally and strictly applied To 40
apply II would produce chaos IN the business
world. The statute must be applied not &C
corulng 10 It's language but according 70
as reasonable meaning or else IL becomes
tne instrument Of Injustice and OF ruin 10
the mercantile community.
While the maxim that competition is
inc life Of trade IL IN a certain sense q
which competition becomes the death OF
trade. 1t may well be that two competitors
. carrying on business IN competition with
eacn other may engage In such rUinOuS
competition by cutting prices or otherwise
mat one or the other must necessarily be
driven 10 the wall InOue competition may
thus lead 10 monopoly, while a reasonable
regulation or reasonable agreement be-
tween the competitors NAV prevent mOnop-
CIV. A rigid and drastic statute overreaches
itself, while reasonable and Just statute
which Is readily enfOrCea bic will accomplish
beneficial results. Prohibition Of all com
nnations and Of all restraint of trade is
unwise. Civilization means cooperation,
cooperation means combination. combina-
ton means restraint OF competition.
In approving the construction OF the sher-
man law a laid down in the recent Stand
ard on and Tobacco decisions Of the United
States Supreme Court the speaker said:
The test as laid down by the Chief JUS
tee M his opinions in those cases and con-
CURED I'm by all the justices except JUS
ice Harlan is that contracts are within
the statute which "unduly" restrain trade
Statute Made Logical.
tt s quite true that this word apparently
lnterJects into the statute a test which the
statute itself does not apply BY the in
sertlOn Of this word 'unduly' however
tie statute Is made logical reasonable and
enforceable. II Is quite true that the test
uf what IS due or an undue restraint Of
trade is left an open question, which the
court must decide IN each case as IL comes
zap. upon the facts and circumstances Of
tlat case. but the same is true OF vast
nlmber Of other matters which are the
subject Of litigation. Where a hard and
fast rule cannot be applied. then II rs neCes-
SsrN that discretion should be allowed 10
The courts in determining between what is
lawful and what is unlawful what per-
m.ssibe and what not permissible
Touching on the criminal aspect Of the
Sherman law. Mr.. Hornblower said:
Public opinion appears now 10 be clamor-
ins for victims. II IS not satisfied with
damages or iniunCtions or possible receiver
ships. but punishment OF individuals is
loudly called Tor. Protests are even made
against mere pecuniary fines. Actual i'm
prs0nment Of the offenders is demanded
Tor myself. and at the risk of being out
NJ accord with the present state Of public
sentiment. 7 do not hesitate 70 say that the
sweeping penal provisions 0f this law are
unWise and unjust. and should be made
more limited iu their scope and much more
definite and certain. Penal statutes in
voIVinc personal punishment which are not
based on moral distinctions are wrong in
There may be and frequently are acts
Of moral tUrpitude committed in the crea-
ton o. IN the conduct OF combinations IN
restraint Of trade. such acts OF moral
tgrpituGe n properly defined in advance,
may well be made criminal Such acts Of
moral turpitude are, for instance, the use
~ unfair means 20 suppress competition
and 10 C-7isn ont rivals. and agreements
with councillors TO raise prices or 70
restrict production. To make restraint n
trade criminal irrespective n its char
a0fer and purposes. and irrespective OF
tle methods pursued 70 accomplish the re-
Sfrairt. fs 20 punish alike the mtenUonal
--uaiefsctor ana the honorable and upright
business man who has been guilty only or
z technical violation of a prohibitory law.
Threatens the Republic.
Al schemes for control Of executive
action. whether perm ssive or prohiniuTe,
r-ethe~ exercised by the President or by
snv subordinate authority, are. submit.
rarugnant 10 our American traditions and
principles r this Is 90 become govern
ruerf hv executive ediCt or by bureaucratic
domination. the dsvs ~ republican instl-
tgt'ons are certainly numbered
Another suggestion has been recently eN-
plotted and has the support or ape 40
vocates namely. the creation hy the fed
oval government Of commission or num-
her ~ commissions who shall have power
30 regulate grices OF ar'ic'es So 90 ~ az
DaOins suggestion The Imagination -
staggered when one undertakes N think
ear soberlv and calmly what the Sugges-
can enable sucn CON mission 70 perform
if- work with Intelligence and with safety
20 the best interests Of producer and con-
sumner -.
ferUrared and enforced By the supreme
Court rs quite adequate. so FAR, a. leaSt
ae civil remedies are concern@1. 70 Inret
any further attempts AZ dangerous asEre-
cations of capital
I'm his address IN the day session former
Justice Brown bitterly opposed the recall
q Judges
The very idea that a Judge could ne CON-
pelled % descend from his bench and Vndl-
cste his right 20 retain his seat b. an ap-
pssl 10 the public is the last recourse OF
political folly he said.
IN referring 10 the movement TO give the
people a more direct voice in the election
u their legislative officers. Justice Brown
called attention TO popular election OF sen
stors. saying
1T NAV we'll be doubted whether a sen
ator chosen BY a Legislature may no, more
honestly represent his state ana It's people
than one chosen BY political caucus OF
primary and indorsed by popular vote
Praised Commission Rule.
speaklng Of the tendency 70 a restriction
~ enc nonular vote in the election OF egls-
! RefrigeratOrS
Do.fr. - Cleanliness. Efficiency