File No. 611.627/141.
The Acting Secretary of State to the American Ambassador.
In response to your 801 you are informed that the Attorney General finds that under cover of the German potash law an unlawful combination has been made in Germany, going very far beyond that law in its effect in the United States, where it has effected its purposes not only by acts done abroad but actually through the medium or with the assistance of an American corporation organized by the German mine owners and their agents for the purpose of more effectually carrying out their unlawful scheme.
Therefore sections 73 and 74 of the act of August 27, 1894, are applicable to the facts detailed; and a violation of the Sherman Antitrust Law of July 2, 1890, may also be established. The whole matter should be thoroughly investigated by a Federal grand jury, and the Attorney General asks whether it would unduly interfere with pending negotiations with the German Government if such investigation were to begin immediately.
[Page 218]Section 2 of our tariff act of 1909 may also well apply to the facts presented. The Attorney General summarizes his conclusions on this point to the following effect:
The intention of Congress was manifestly to obtain from foreign Governments by virtue of this clause fair and impartial treatment in commerce, and each case must be determined upon the conditions and facts existing, and no device or subterfuge should be permitted to defeat the legislative intent. The circumstances attending the adoption of the law of May 10, 1910, by the German Government may very properly be considered by the President in determining whether or not the tax was imposed with the specific intent of nullifying the contracts for the sale of potash to American purchasers, and therefore clearly constituting an undue discrimination against the United States.