New-York tribune., 1911-01-02
Brief in the Tobacco Case.

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Brief in the Tobacco Case.
The brief of the government in the TO-
bacco case was made public tonight. 1t
has been prepared by Attorney General
W'ckorsham and his special assistant J. c..
,js. Mr. Wickersham is supervising
also the preparation Of the forthcoming ar
guments of the government in the Stand
ard Oil dissolution suit Hence it is gem
orally believed that the theories advanced
in the toOacco brief will be followed in the
Standard Oil case. and If approved by the
Supreme Court would be the law of the
land for years to come.
In contrast with the subordination of the
point year ago, when the tobacco case
was argued before the court for the first
time. the government now emphasizes its
position that the Sherman antitrust law
should not be interpreted so as to put the
stamp of illegality upon every sort of re-
straint Of interstate or foreign commerce
Such a theory has been advanced before
in the interest Of the good trusts" as dis
tinguished from the bad ones. At the
same time, the government demands that
the right of Congress 10 regulate inter-
state and foreign commerce be preserved
untrammeled To this end il would allow
Congress the power to strike al things pos
sibly outside of interstate commerce, such
as a monopoly of manufacture II the d.
rect and unnecessary consequences thereof
be TO nullfy rules for the regulation or
interstate and foreign commerce. The lat
ter argument Is set more positively than
year ago, when 1t was mentioned rather
incidentally i'm the brief then submitted TO
the court.
The revised argument Of the government
starts with the promise that the VIII OF
Congress in respect 10 the power to regu-
late interstate and foreign commerce is the
supreme law, unless shown to conflict with
some provision Of the Constitution. The
government asserts that Congress has the
power not only to indicate its VIII. but
also the power TO enforce observance OF it,
So the conclusion is reached that II
reasonable necessity" arises Congress may
strike down by statute a thing outside of
interstate or foreign commerce Whlch inter-
feres with this supreme will.
In order for a reasonable necessity TO
arise it is said in the brief that certain
nearness Of relationship must exist be-
tween what the statute directly strikes and
Interstate or foreign commerce. That re-
Iationship. 1t is acknowledged, probably is
not susceptible Of rigorous definition.
Mere indirect. incidental or remote effect
on commerce is not sufficient" the govern
ment SAYS, but whatever, as a natural
and probable consequence, will occasion
material hndrance 10 the efficacious oper-
alton of the lawful will Of Congress in
reference thereto is near enough"
This reasoning is defended as not In
yolving the assertion Of federal power gen
orally to regulate or control production or
manufacture within the states. The gov
ernment says that IT leaves these subjects
just where they always have been and
must remain-with the state governments.
1T only asserts" explains the govern
ment, power to debar those engaged in
production or manufacture from acts
transactions the direct and necessary con-
sequence of which would he to nulllfy rules
for the conduct Of interstate commerce
admittedly within the power If Congress
10 prescribe. And this is but TO say that
the power is real. supreme"
From this point of view the government
contends that the majority of the court
knight case 1t says
There is radical difference between
permitting federal power derived from the
commerce clause to operate on subjects not
OF commerce for the essential ends above
indicated and its restricted extension 10
anything affecting the same. And we sub
init. with dlffidence, that failure TO give
adequate weight TO this distinction ana
fully 10 recognize that the power 10 regu-
late commerce, for limited purposes and
under the circumstances pointed out. au-
thorizes legislation touching what Is no
part thereof, caused the majority to hold
in the United States against II. &. knight
& Co. that The act prohibiting contracts,
commissions and monopolies In restraint
OF interstate commerce did not apply 10
monopoly Of sugar refinerios which dis
tributed their output therein.
IT is asserted by the government that its
argument disposes OF the defence by the
American Tobacco Company that II is en-
Caced merely I'm the manufacture OF to-