text:
Le Roy v. Tatham (55 U.S. 156)/Dissent Nelson

Mr. Justice NELSON-dissenting.

The patent in this case, according to the general description given by the patentees, is, for improvements upon, and additions to, the machinery or apparatus of Thomas Burr, for manufacturing pipes and tubes from metallic substances. They declare, that the nature of their invention, and the manner in which the same is to operate, are particularly described and set forth in their specification. In that, they refer to the patent of Burr of the 11th April, 1820, for making lead pipe out of set or solid lead by means of great pressure, the product being wrought pipe, as contradistinguished from cast, or pipe made according to the draw-bench system. The apparatus, as described by Burr, consisted of a strong iron cylinder, bored sufficiently true for a piston to traverse easily within it. This cylinder was closed at one end by the piston, and also closed at the other, except a small aperture for the die which formed the external diameter of the pipe. The core or mandril, which determined the inner diameter, was a long cylindrical rod of steel, on end of which was attached to the face of the piston, extending through the centre of the cylinder, and passing also through the centre of the die at the opposite end, leaving a space around the core and between it and the die for the formation of the pipe. The metal to form the pipe was admitted into the cylinder in a fluid state, and when it become set or solid, the power of a hydraulic press was applied to the head of the piston, which, moving against the body of solid lead in the cylinder, drove it through the die, the long core advancing with the piston and with the body of lead through the die, and thus forming the pipe. The cylinder usually holds from three to four hundred pounds of lead, and continuous pipe is made till the whole charge is driven out.

This plan, though one of deserved merit, and of great originality, failed, when reduced to practice, except for the purpose of making very large pipe, larger than that usually in demand, and consequently passed out of general use. The long core attached to the face of the piston, advancing with it in the solid lead under the great pressure required, was liable to warp and twist out of a straight line, and out of centre in the die, which had the effect to destroy the uniformity of the thickness and centrality of the bore of the pipe.

The old mode, therefore, of making pipe by the draw-bench system, continued down to 1837, when the patentees in this case discovered, by experiment, that lead, when recently set and solid, but still under heat and extreme pressure, in a close vessel, would reunite after a separation of its parts, and 'heal' (in the language of the patentees) 'as it were by the first intention,' as completely as though it had not been divided.

Upon the discovery of this property of lead, which had never before been known, but, on the contrary, had been supposed and believed, by all men of science skilled in metals, to be impossible, the patentees made an alteration in the apparatus of Burr, founded upon this new property discovered in the metal, and succeeded completely in making wrought pipe out of solid lead by means of the hydraulic pressure. The product was so much superior in quality to that made according to the old mode, that it immediately wholly superseded it in the market. The pipe was also made much cheaper.

The patentees, by their discovery, were enabled to dispense with the long core of Burr, and to fix firmly a bridge or cross bars at the end of the cylinder near the die, to which bridge they fastened a short core extending into and through the die. By this arrangement they obtained a firm, immovable core, that always preserved its centrality with the die, and secured the manufacture of pipe of uniformity of thickness of wall and accuracy of bore, of any dimension. The lead after being admitted into the cylinder in a fluid state, was allowed to remain till it became solid, and was then driven by the piston through the apertures in the bridge into the chamber between it and the die, where the parts reunited, after the separation, as completely as before, and, passing out at the die around the fixed short core, formed perfect pipe.

The patentees state, that they do not intend to confine themselves to the arrangement of the apparatus thus particularly specified, and point out several other modes by which the same result may be produced, all of which variations would readily suggest themselves, as they observe, to any practical engineer, without departing from the substantial originality of the invention, the remarkable feature of which, they say, is, that lead, when in a set state, being yet under heat, can be made, by extreme pressure, to reunite perfectly around a core after separation, and thus be formed into strong pipes or tubes. Pipes thus made are found to possess great solidity and unusual strength, and a fine uniformity, such as had never before been attained by any other mode. The essential difference in its character, and which distinguishes it from all other theretofore known, they add, is, that it is wrought under heat, by pressure and constriction, from set or solid metal.

They do not claim, as their invention or improvement, any of the parts of the machinery, independently of the arrangement and combination set forth.

'What we claim as our invention, they say, is, the combination of the following parts above described, to wit: the core and bridge or guide-piece, with the cylinder, the piston, the chamber, and die, when used to form pipes of metal under heat and pressure, in the manner set forth, or in any other manner substantially the same.'

It is supposed that the patentees claim, as the novelty of their invention, the arrangement and combination of the machinery which they have described, disconnected from the employment of the new property of lead, which they have discovered, and by the practical application and use of which they have succeeded in producing the new manufacture. And the general title or description of their invention, given in the body of their letters-patent, is referred to as evidence of such claim. But every patent, whatever may be the general heading or title by which the invention is designated, refers to the specification annexed for a more particular description; and hence this court has heretofore determined, that the specification constitutes a part of the patent, and that they must be construed together when seeking to ascertain the discovery claimed. Hogg et al. v. Emerson, 6 How. 437.

The same rule of construction was applied by the Court of Exchequer, in England, in the case of Neilson's patent for the hot air blast. Webster's Cases, 373.

Now, on looking into the specification, we see, that the leading feature of the invention consists in the discovery of a new property in the article of lead, and in the employment and adaptation of it, by means of the machinery described, to the production of a new article, wrought pipe, never before successfully made. Without the discovery of this new property in the metal, the machinery or apparatus would be useless, and not the subject of a patent. It is in connection with this property, and the embodiment and adaptation of it to practical use, that the machinery is described, and the arrangement claimed. The discovery of this new element or property led naturally to the apparatus, by which a new and most useful result is produced. The apparatus was but incidental, and subsidiary to the new and leading idea of the invention. And hence, the patentees set forth, as the leading feature of it, the discovery, that lead, in a solid state, but under heat and extreme pressure in a close vessel, will reunite, after separation of its parts, as completely as though it had never been separated. It required very little ingenuity, after the experiments in a close vessel, by which this new property of the metal was first developed, to construct the necessary machinery for the formation of the pipe. The apparatus, essential to develop this property, would at once suggest the material parts, especially in the state of the art at the time. Any skilful mechanic, with Burr's machine before him, would readily construct the requisite machinery.

The patentees, therefore, after describing their discovery of this property of lead, and the apparatus by means of which they apply the metal to the manufacture of pipe, claim the combination of the machinery, only when used to form pipes under heat and pressure, in the manner set forth, or in any other manner substantially the same. They do not claim it as new separately, or when used for any other purpose, or in any other way; but claim it, only, when applied for the purpose and in the way pointed out in the specification. The combination, as machinery, may be old; may have been long used; of itself, what no one could claim as his invention, and may not be the subject of a patent. What is claimed is, that it never had been before applied or used, in the way and for the purpose they have used and applied it, namely, in the embodiment and adaptation of a newly-discovered property in lead, by means of which they are enabled to produce a new manufacture wrought pipe-out of a mass of solid lead. Burr had attempted it, but failed. These patentees, after the lapse of seventeen years, having discovered this new property in the metal, succeeded, by the use and employment of it, and since then, none other than wrought lead pipe, made out of solid lead, has been found in the market, having superseded, on account of its superior quality and cheapness, all other modes of manufacture.

Now the construction, which I understand a majority of my brethren are inclined to give to this patent, namely, that the patentees claim, as the originality of their invention, simply, the combination of the machinery employed, with great deference, seems to me contrary to the fair and reasonable import of the language of the specification, and also of the summary of the claim. The tendency of modern decisions is to construe specifications benignly, and to look through mere forms of expression, often inartificially used, to the substance, and to maintain the right of the patentee to the thing really invented, if ascertainable upon a liberal consideration of the language of the specification, when taken together. For this purpose, phrases standing alone are not to be singled out, but the whole are to be taken in connection. 1 Sumn. 482-485.

Baron Parke observed, in delivering the opinion of the court in Neilson's patent, 'That, half a century ago, or even less, within fifteen or twenty years, there seems to have been very much a practice with both judges and juries to destroy the patent-right, even of beneficial patents, by exercising great astuteness in taking objections, either as to the title of the patent, but more particularly as to the specifications, and many valuable patent rights have been destroyed in consequence of the objections so taken. Within the last ten years or more, the courts have not been so strict in taking objections to the specifications, and they have endeavored to hold a fair hand between the patentee and the public, willing to give the patentee the reward of his patent.'

Construing the patent before us in this spirit, I cannot but think, that the thing really discovered, and intended to be described, and claimed by these patentees, cannot well be mistaken. That they did not suppose the novelty of their invention consisted, simply, in the arrangement of the machinery described, is manifest. They state, distinctly, that the leading feature of their discovery consisted of this new property of lead, and some of its alloys,-this, they say, is the remarkable feature of their invention,-and the apparatus described is regarded by them as subordinate, and as important only as enabling them to give practical effect to this newly-discovered property, by means of which they produce the new manufacture. If they have failed to describe and claim this, as belonging to their invention, it is manifest, upon the face of their specification, that they have failed to employ the proper words to describe and claim what they intended; and that the very case is presented, in which, if the court, in the language of Baron Parke, will endeavor to hold a fair hand between the patentee and the public, it will look through the forms of expression used, and discover, if it can, the thing really invented. Apply to the specification this rule of construction, and all difficulty at once disappears. The thing invented, and intended to be claimed, is too apparent to be mistaken.

The patentees have certainly been unfortunate in the language of the specification, if, upon a fair and liberal interpretation, they have claimed only the simple apparatus employed; when they have not only set forth the discovery of this property in the metal, as the great feature in their invention, but, as is manifest, without it the apparatus would have been useless. Strike out this new property from their description and from their claim, and nothing valuable is left. All the rest would be worthless. This lies at the foundation upon which the great merit of the invention rests, and without a knowledge of which the new manufacture could not have been produced; and, for aught we know, the world would have been deprived of it down to this day.

If the patentees had claimed the combination of the core and bridge or guide-piece, with the cylinder, the chambers, and the die, and stopped there, I admit the construction, now adopted by a majority of my brethren, could not be denied; although, even then, it would be obvious, from an examination of the specification as a whole, that the draughtsman had mistaken the thing really invented, and substituted in its place matters simply incidental, and of comparative insignificance. But the language of the claim does not stop here. The combination of these parts is claimed only when used to form pipes of lead, under heat and pressure, in the manner set forth,-that is, when used for the embodiment and adaptation of this new property in the metal for making wrought pipe out of a solid mass of lead. This guarded limitation of the use excludes the idea of a claim to the combination for any other, and ties it down to the instance, when the use incorporates within it the new idea or element which gives to it its value, and by means of which the new manufacture is produced. How, then, can it be consistently held, that here is a simple claim to the machinery, and nothing more, when a reasonable interpretation of the words not only necessarily excludes any such claim, but in express terms sets forth a different one,-one not only different in the conception of the invention, but different in the practical working of the apparatus, to accomplish the purpose intended? I conclude, therefore, that the claim, in this case, is not simply for the apparatus employed by the patentees, but for the embodiment or employment of the newly-discovered property in the metal, and the practical adaption of it, by these means, to the production of a new result, namely, the manufacture of wrought pipe out of solid lead.

Then, is this the proper subject-matter of a patent?

This question was first largely discussed by counsel and court in the celebrated case of Boulton v. Bull, (2 Hen. 31, 463,) involving the validity of Watts's patent, which was for 'a new invented method for lessening the consumption of fuel and steam in fire-engines.' This was effected by inclosing the steam vessel or cylinder with wood, or other material, which preserved the heat in the steam vessel; and by condensing the steam in separate vessels. It was admitted, on the argument, that there was no new mechanical construction invented by Watt, and the validity of the patent was placed on the ground that it was for well-known principles, practically applied, producing a new and useful result. On the other hand, it was conceded, that the application of the principles in the manner described was new, and produced the result claimed; but it was denied, that this constituted the subject-matter of a patent. Heath and Buller, Justices, agreed with the counsel for the defendant. But Lord Chief Justice Eyre laid down the true doctrine, and which, I think, will be seen to be the admitted doctrine of the courts of England at this day. 'Undoubtedly,' he observed, 'there can be no patent for a mere principle; but for a principle, so far embodied and connected with corporeal substances as to be in a condition to act, and to produce effects in any art, trade, mystery, or manual occupation, I think there may be a patent. Now, this,' he continues, 'is, in my judgment, the thing for which the patent stated in the case was granted; and this is what the specification describes, though it miscalls it a principle. It is not that the patentee conceived an abstract notion, that the consumption of steam in fire-engines may be lessened; but he has discovered a practical manner of doing it; and for that practical manner of doing it he has taken this patent. Surely,' he observes, 'this is a very different thing from taking a patent for a principle. The apparatus, as we have said, was not new. There is no new mechanical construction, said the counsel for the patentee, invented by Watt, capable of being the subject of a distinct specification; but his discovery was of a principle, the method of applying which is clearly set forth.' Chief Justice Eyre admitted that the means used were not new, and that if the patent had been taken out for the mechanism used, it must fail.

He observed, 'When the effect produced is some new substance or composition of things, it should seem that the privilege of the sole working or making ought to be for such new substances or composition, without regard to the mechanism or process by which it has been produced, which, though perhaps also new, will be only useful as producing the new substance.' Again, 'When the effect produced is no new substance, or composition of things, the patent can only be for the mechanism, if new mechanism is used; or for the process, if it be a new method of operating, with or without old mechanism, by which the effect is produced.' And again, he observes, 'If we wanted an illustration of the possible merit of a new method of operating with old machinery, we might look to the identical case before the court.' p. 496, 493, 495.

This doctrine, in expounding the law of patents, was announced in 1795, and the subsequent adoption of it by the English courts, shows, that Chief Justice Eyre was considerably in advance of his associates upon this branch of the law. He had got rid, at an early day, of the prejudice against patents so feelingly referred to by Baron Parke in Neilson v. Harford, and comprehended the great advantages to his country if properly encouraged. He observed, in another part of his opinion, that 'The advantages to the public from improvements of this kind are beyond all calculation important to a commercial country; and the mgenuity of artists, who turn their thoughts towards such improvements, is, in itself, deserving of encouragement.'

This doctrine was recognized by the Court of King's Bench in the King v. Wheeler, 2 B. & Ald. 340, 350.

It is there observed, that the word 'manufactures,' in the patent act, may be extended to a mere process to be carried on by known implements or elements, acting upon known substances, and ultimately producing some other known substance, but producing it in a cheaper or more expeditious manner, or of a better or more useful kind.

Now, if this process to be carried on by known implements acting upon known substances, and ultimately producing some other known substance of a better kind, is patentable, a fortiori will it be patentable, if it ultimately produces not some other known substance, but an entirely new and useful substance.

In Forsyth's patent, which consists of the application and use of detonating powder as priming for the discharge of firearms, it was held that whatever might be the construction of the lock or contrivance by which the powder was to be discharged, the use of the detonating mixture as priming, which article of itself was not new, was an infringement. Webster's Pat. Cas. 94, 97, (n); Curtis on Pat. 230.

This case is founded upon a doctrine which has been recognized in several subsequent cases in England, namely, that where a person discovers a principle or property of nature, or where he conceives of a new application of a well-known principle or property of nature, and also, of some mode of carrying it out into practice, so as to produce or attain a new and useful effect or result, he is entitled to protection against all other modes of carrying the same principle or property into practice for obtaining the same effect or result.

The novelty of the conception consists in the discovery and application in the one case, and of the application in the other, by which a new product in the arts or manufactures is the effect; and the question, in case of an infringement, is, as to the substantial identity of the principle or property, and of the application of the same, and consequently the means or machinery made use of, material only so far as they affect the identity of the application.

In the case of Jupe's patent for 'an improved expanding table,' Baron Alderson observed, speaking of this doctrine, 'You cannot take out a patent for a principle; you may take out a patent for a principle coupled with the mode of carrying the principle into effect. But then, you must start with having invented some mode of carrying the principle into effect; if you have done that, then you are entitled to protect yourself from all other modes of carrying the same principle into effect, that being treated by the jury as piracy of your original invention.' Webster's Pat. Cases, 147. The same doctrine was maintained also in the case of Neilson's patent for the hot air blast, in the K. B. and Exchequer in England. Webster's Pat. Cases, 342, 371; Curtis, § 74, 148, 232; Webster's Pat. Cases, 310.

This patent came also before the Court of Sessions in Scotland; and in submitting the case to the jury, the Lord Justice remarked, 'That the main merit, the most important part of the invention, may consist in the conception of the original idea-in in the discovery of the principle in science, or of the law of nature, stated in the patent; and little or no pains may have been taken in working out the best mode of the application of the principle to the purpose set forth in the patent. But still, if the principle is stated to be applicable to any special purpose, so as to produce any result previously unknown, in the way and for the objects described, the patent is good. It is no longer an abstract principle. It becomes to be a principle turned to account, to a practical object, and applied to a special result. It becomes, then, not an abstract principle, which means a principle considered apart from any special purpose or practical operation, but the discovery and statement of a principle for a special purpose, that is, a practical invention, a mode of carrying a principle into effect. That such is the law,' he observes, 'if a well-known principle is applied for the first time to produce a practical result for a special purpose, has never been disputed, and it would be very strange and unjust to refuse the same legal effect, when the inventor has the additional merit of discovering the principle, as well as its application to a practical object.'

Then he observes, again, 'Is it an objection to the patent that in its application of a new principle to a certain specified result, it includes every variety of mode of applying the principle according to the general statement of the object and benefit to be attained? This,' he observes, 'is a question of law, and I must tell you distinctly, that this generality of claim, that is, for all modes of applying the principle to the purpose specified, according to, or within a general statement of the object to be attained, and of the use to be made of the agent to be so applied, is no objection to the patent. The application or use of the agent for the purpose specified, may be carried out in a great variety of ways, and only shows the beauty and simplicity, and comprehensiveness of the invention.'

This case was carried up to the House of Lords on exceptions to the charge, and among others, to this part of it, which was the sixth exception, and is as follows: 'In so far as he (the Judge) did not direct the jury, that on the construction of the patent and specification, the patentee cannot claim or maintain that his patent is one which applies to all the varieties in the apparatus which may be employed in heating air while under blast; but was limited to the particular described in the specification.' And although the judgment of the court was reversed in the House of Lords on the eleventh exception, it was expressly affirmed as respects this one. Lord Campbell at first doubted, but after the decision of the courts in England on this patent, he admitted the instruction was right. Webster, Pat. Cases, 683, 684, 698, 717.

I shall not pursue a reference to one authorities on this subject any further. The settled doctrine to be deduced from them, I think, is, that a person having discovered the application for the first time of a well-known law of nature, or well-known property of matter, by means of which a new result in the arts or in manufactures is produced, and has pointed out a mode by which it is produced, is entitled to a patent; and, if he has not tied himself down in the specification to the particular mode described, he is entitled to be protected against all modes by which the same result is produced, by an application of the same law of nature or property of matter. And a fortiori, if he has discovered the law of nature or property of matter, and applied it, is he entitled to the patent, and aforesaid protection.

And why should not this be the law? The original conception the novel idea in the one case, is the new application of the principle or property of matter, and the new product in the arts or manufactures-in the other, in the discovery of the principle or property, and application, with like result. The mode or means are but incidental, and flowing naturally from the original conception; and hence of inconsiderable merit. But, it is said, this is patenting a principle, or element of nature. The authorities to which I have referred, answer the objection. It was answered by Chief Justice Eyre, in the case of Watts's patent, in 1795, fifty-seven years ago; and more recently in still more explicit and authoritative terms. And what if the principle is incorporated in the invention, and the inventor protected in the enjoyment for the fourteen years. He is protected only in the enjoyment of the application for the special purpose and object to which it has been newly applied by his genius and skill. For every other purpose and end, the principle is free for all mankind to use. And, where it has been discovered, as well as applied to this one purpose, and open to the world as to every other, the ground of complaint is certainly not very obvious. Undoubtedly, within the range of the purpose and object for which the principle has been for the first time applied, piracies are interfered with during the fourteen years. But any body may take it up and give to it any other application to the enlargement of the arts and of manufactures, without restriction. He is only debarred from the use of the new application for the limited time, which the genius of others has already invented and put into successful practice. The protection does not go beyond the thing which, for the first time, has been discovered and brought into practical use; and is no broader than that extended to every other discoverer or inventor of a new art or manufacture.

I own, I am incapable of comprehending the detriment to the improvements in the country that may flow from this sort of protection to inventors.

To hold, in the case of inventions of this character, that the novelty must consist of the mode or means of the new application producing the new result, would be holding against the facts of the case, as no one can but see, that the original conception reaches far beyond these. It would be mistaking the skill of the mechanic for the genius of the inventor.

Upon this doctrine, some of the most brilliant and useful inventions of the day by men justly regarded as public benefactors, and whose names reflect honor upon their country-the successful application of steam power to the propulsion of vessels and railroad cars-the application of the electric current for the instant communication of intelligence from one extremity of the country to the other-and the more recent, but equally brilliant conception, the propulsion of vessels by the application of the expansibility of heated air, the air supplied from the atmosphere that surrounds them. It would be found, on consulting the system of laws established for their encouragement and protection, that the world had altogether mistaken the merit of their discovery; that, instead of the originality and brilliancy of the conception that had been unwittingly attributed to them, the whole of it consisted of some simple mechanical contrivances which a mechanician of ordinary skill could readily have devised. Even Franklin, if he had turned the lightning to account, in order to protect himself from piracies, must have patented the kite, and the thread, and the key, as his great original conception, which gave him a name throughout Europe, as well as at home, for bringing down this element from the heavens, and subjecting it to the service of man. And if these simple contrivances, taken together, and disconnected from the control and use of the element by which the new application, and new and useful result may have been produced, happen to be old and well known, his patent would be void; or, if some follower in the tract of genius, with just intellect enough to make a different mechanical device or contrivance, for the same control and application of the element, and produce the same result, he would, under this view of the patent law, entitle himself to the full enjoyment of the fruits of Franklin's discovery.

If I rightly comprehend the ground upon which a majority of my brethren have placed the decision, they do not intend to controvert so much the doctrine which I have endeavored to maintain, and which, I think, rests upon settled authority, as the application of it to the particular case. They suppose that the patentees have claimed only the combination of the different parts of the machinery described in their specification, and therefore, are tied down to the maintenance of that as the novelty of their invention. I have endeavored to show, that this is a mistaken interpretation; and that they claim the combination, only, when used to embody and give a practical application to the newly-discovered property in the lead, by means of which a new manufacture is produced, namely, wrought pipe out of a solid mass of lead; which it is conceded, was never before successfully accomplished.

For these reasons, I am constrained to differ with the judgment they have arrived at, and am in favor of affirming that of the court below


text:
Page:Life and Works of Abraham Lincoln, v6.djvu/241

1865]

On January 31, 1865, in response to a serenade, the President made the following remarks on the adoption by Congress the day before of the Constitutional amendment abolishing slavery.

He supposed the passage through Congress of the constitutional amendment for the abolishment of slavery throughout the United States was the occasion to which he was indebted for the honor of this call.

The occasion was one of congratulation to the country, and to the whole world. But there is a task yet before us—to go forward and have consummated by the votes of the States that which Congress had so nobly begun yesterday. [Applause and cries, "They will do it," etc.] He had the honor to inform those present that Illinois had already to-day done the work. Maryland was about half through, but he felt proud that Illinois was a little ahead.

He thought this measure was a very fitting if not an indispensable adjunct to the winding up of the great difficulty. He wished the reunion of all the States perfected, and so effected as to remove all causes of disturbance in the future; and, to attain this end, it was necessary that the original disturbing cause should, if possible, be rooted out. He thought all would bear him witness that he had never shrunk from doing all that he could to eradicate slavery, by issuing an emancipation proclamation. But that proclamation falls short of what the amendment will be when fully consummated. A question might be

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


text:
Page:Life and Works of Abraham Lincoln, v6.djvu/243

1865] which lasted four hours, the several points at issue between the government and the insurgents were distinctly raised, and discussed fully, intelligently, and in an amicable spirit. What the insurgent party seemed chiefly to favor was a postponement of the question of separation, upon which the war is waged, and a mutual direction of efforts of the government, as well as those of the insurgents, to some extrinsic policy or scheme for a season during which passions might be expected to subside, and the armies be reduced, and trade and intercourse between the people of both sections resumed. It was suggested by them that through such postponement we might now have immediate peace, with some not very certain prospect of an ultimate satisfactory adjustment of political relations between this government and the States, section, or people now engaged in conflict with it.

This suggestion, though deliberately considered, was nevertheless regarded by the President as one of armistice or truce, and he announced that we can agree to no cessation or suspension of hostilities, except on the basis of the disbandment of the insurgent forces, and the restoration of the national authority throughout all the States in the Union. Collaterally, and in subordination to the proposition which was thus announced, the antislavery policy of the United States was reviewed in all its bearings, and the President announced that he must not be expected to depart from the positions he had heretofore assumed in his proclamation of emancipation and other documents, as these positions were reiterated in his last annual message. It was further declared by the President that the


text:
Downey v. Hicks/Dissent Daniel

Mr. Justice DANIEL, (Mr. Justice GRIER concurring.)

It is my opinion, that the judgment of the Circuit Court, in this case, should be affirmed, upon the questions raised in the argument, 1st, upon the sufficiency of the finding by the jury, as being responsive to all the issues, or otherwise;-2dly, as to the admissibility in evidence of the release to Arnold, in the absence of the subscribing witness to that release, there is an entire concurrence amongst the Judges. But with the views announced as those of the court with respect to the authority and the acts of Doctor Hicks, as the agent of Downey, and as to the consequences deducible from those acts, I am constrained to disagree.

And here I must remark, that, according to my apprehension of the evidence upon the record, as to the authority vested in Doctor Hicks, as agent, and his acts under that authority, and with respect to the conduct of Downey, as principal, in confirmation of those acts,-that evidence has not been accurately stated. It is said by the court, that Doctor Hicks did not act as the agent, but merely as the friend of Downey. There seems to be some difficulty, and even confusion, in this attempt to discriminate between these two characters. True it is, that the agent, however confided in, does not always prove the best friend of his principal; but it is equally true, that the principal would rarely select, as his agent, one whom he regarded in any other light than that of a friend. But the record, according to my apprehension of the evidence, discloses the most ample and explicit authority to Doctor Hicks, to settle the claims of Downey upon the firm of Hicks & Arnold, and exhibits instructions equally clear to Doctor Hicks, to transmit to Downey the amount which this agent, upon the settlement made by him, should ascertain to be owing from Hicks & Arnold to Downey. The record discloses these further facts: 1. The settlement made by Doctor Hicks with Hicks & Arnold; 2. The drawing of a check by these persons in favor of Doctor Hicks, the agent, upon the bank at Natchez, for the amount ascertained to be due to Downey; 3. The presentation of that check by the agent, at the bank at Natchez; 4. The proffer by the bank, of payment in specie of the amount of the check; and the express agreement of the agent with the bank, to commute that check and proffer of immediate payment in money for a certificate of deposit, or post-note, payable at a deferred period, bearing an interest of 8 per centum. So much, then, for the acts of the agent in virtue of the authority originally vested in him; and if there could arise a doubt as to their validity, that doubt could apply only to the transmutation of the demand for the money into a certificate of deposit, or deferred payment, bearing interest. But, supposing there had been room for doubt in this respect, on the ground that the agent had transcended his power, that doubt must be entirely dispelled when the conduct of the principal is considered. Upon being informed, by the agent, of the measure he had taken, and upon having the certificate transmitted to him, the principal said, in reply, that although he would have preferred a payment down in money, yet as the agent had acted for himself as he had done for his principal, he could not find fault with the arrangement. He expressed no apprehensions as to the prudence or safety of the arrangement, but ratified it expressly; and in fact the proof is clear, that at the time, and for some months after, the bank was paying specie; and that its certificates, like the one in question, commanded a premium in the market. In this mode was the entire proceedings of the agent explicitly ratified.

If this apprehension of the testimony be correct, then it is difficult to conceive how the jury could have been misled by the instructions which were given them by the court. Indeed this court, so far as those instructions covered the relation of principal and agent, have not questioned the correctness of those instructions. But it is said, that the court erred in the opinion it expressed upon the subject of the diligence requisite in the application for payment of the certificate of deposit. Let it be conceded that this opinion of the court upon the subject of reasonable diligence was not the law; still it should not affect the decision in this case, because that opinion had no connection with the true character of the case, which depended upon a phase of the evidence to which that instruction had no application, and could not influence. If the agent of Downey was authorized to settle, and had settled with the debtors of Downey, and the latter had accepted from his debtors what he acknowledged was payment, at this point the transaction closed; and unless the parties making payment could be affected by showing fraud or bad faith, the whole matter was terminated by the agreement between the parties. Downey had an indisputable right to receive payment in any medium he might choose, and it is not in the power of a court to control his first choice and give him the right to a second, or to visit, upon those who have applied their means to his satisfaction, and by so doing prevented them being available to themselves to any other possible purpose, the mischiefs resulting from his choice.

But it is said by the court, that Hicks & Arnold, subsequently to the failure of the bank, admitted their liability to Downey for this demand. Here, again, I conceive that the evidence in this cause has been greatly misapprehended, and that a correct understanding of the testimony will show that the admission which has been brought to bear upon this transaction, related to a posterior and wholly different liability of the same parties-to a transaction in which Hicks and Arnold had deposited a certificate of deposit of this bank as collateral security for a debt from Arnold, and that security turning out not to be available, they held themselves bound to satisfy the demand it was designed to secure. This subsequent transaction had no connection whatever with that in which the check in question was given, and on which payment in money was proffered, but for which the certificate of deposit was, by express agreement of the agent, ratified by his principal, taken in full satisfaction.

title: Downey v. Hicks/Dissent Daniel


text:
Vincennes University v. Indiana/Dissent Taney

Mr. Chief Justice TANEY.

I dissent from the opinion of the court.

I do not propose to enter fully into the argument of the case, because I concur entirely in the opinion of the Supreme Court of the State, which is set out at large in the record; and shall therefore briefly state the principles upon which my own opinion is founded.

1. It must be admitted that the State court had no jurisdiction in this case beyond that which the law of the State authorized it to exercise. And in revising their judgment, our jurisdiction is equally limited. The law, under which this suit was brought, authorized the Board of Trustees of the Vincennes University, to file a bill in chancery against the State, in the nature of an action of disseisin, for the purpose of trying the right of the trustees to the lands in question.

The trustees, therefore, are not entitled to a decree in their favor, unless they can show a legal title to the lands, such as would enable them to maintain the common-law writ of entry, Sur disseisin, that is, they must be scised of the lands in feesimple.

2. Indiana was created a separate territory, and its powers and rights, as a territorial government, defined by the act of 1800. This act certainly gave no power over the public lands, for it has no reference to that subject. It merely establishes the territorial government.

The act of 1804, under which the lands in question were reserved for the use of a seminary of learning, has no reference to the powers or duties of the territorial government, in relation to the lands reserved, or to any thing else. It merely provides for the sale of the public lands in the territory, reserving from sale this and other portions of them. But it does not transfer them to the territorial government which was then in existence. It retains them. I do not see how these laws, taken separately or together, can be construed to give the territorial government a right to dispose of them in any way, or divest the title which the United States held, and which this law directed to be retained.

3. This reservation from sale, as well as the reservation of the school sections in the several townships, undoubtedly dedicated them to the uses for which they were reserved; and they cannot be appropriated by the State to any other purpose. But the fund dedicated belonged to the United States, and they alone had the power to transfer it, and to designate the body by whom the trust, created by the act of Congress, should be administered. The law of the State complained of, does not attempt to appropriate the land to a different purpose from that to which it was dedicated. It has been sold and conveyed by the State, and the proceeds appropriated to the support of a seminary of learning in the State. And the only question before us is, whether the trustees have the legal title to these lands, and can recover them back from the persons to whom they were sold by the State, for the purpose of appropriating them to a different seminary.

4. The act of the territorial government of 1806, incorporating this board of trustees, does not grant nor profess to grant the lands to the board. And if it had done so, the act would have been void and inoperative, because the territorial legislature had no right to grant lands which belonged to the United States; nor to exercise any power over them, without the authority of Congress.

5. The act of Congress of 1816, by which Indiana was admitted into the Union as a State, grants these lands to the State for the purposes for which they were reserved. The State is made the trustee.

My brethren have put a different construction on this clause of the law of 1816, and regard this grant as extending only to the additional township mentioned in the law. But with every respect for their opinion, it appears plain to me that this township, as well as the additional one, are both granted to the State by Congress. And I am confirmed in this opinion, because, with all the research I have been able to make, I have not found a single instance in which lands reserved in a territory for the purposes of education, were not afterwards granted to the State, as the trustee to administer the trust, the school sections in the several townships, as well as others.

6. Upon these grounds, I think the plaintiffs in error have not a legal title to this land, and had no right to sell or dispose of it, nor in any way to control the proceeds; and that under the grant from Congress, in the act of 1816, the title and the right to administer the trust was vested in the State of Indiana.

7. The error in the opinion, appears to me to have arisen from regarding the reservation from sale for the purposes of education, as divesting the legal title of the United States, and putting it in abeyance, until some new body was brought into existence, capable of taking the title as grantee, and administering the trust.

It is not necessary to this opinion to discuss the doctrine of abeyance, upon which so much learning and talent has been displayed by Mr. Fearne, in his treatise on Contingent Remainders. It is sufficient to state under what circumstances the title, in the eye of the law, is said to be in abeyance. And Comyns, in his Digest, tells us, that 'when the fee or freehold of the land is not vested in any one, but stands solely in consideration of law, it is said to be in abeyance, or in nubibus.'

I cannot regard the title to lands reserved from sale by Congress, for the purposes of education, as standing in this condition. A reservation is not a grant. It does not pass the title out of the United States, but leaves it where it was before. The uniform practice of the government, and of judicial decision also, appears to have proceeded on the ground that the title remained in the United States, until it was afterwards transferred by the authority of Congress. It is not usual, it is true, to issue patents for these lands, but they have been granted by acts of Congress, which the courts have always recognized as valid conveyances. And I am not aware of any case in which the validity of these conveyances of reserved lands has been doubted by the court; or in which it has been suggested that the title was out of the United States, and in abeyance from the time of the reservation. If such be the result of a reservation, the subsequent conveyance of Congress is of no value. And who is to protect the reserved lands from trespasses and depredations, while the title is in abeyance?

In the case of Gaines and others v. Nicholson and others, reported in 9 Howard, 356, the title to a section reserved for schools, was the matter in dispute. It did not, it is true, involve the question now before us. But it appears, in that case, that the section was one of those reserved for schools in the different townships in the Territory of Mississippi, by an act of Congress passed in 1803; and that afterwards, as late as the year 1815, another act was passed, authorizing the County Court of each county in the territory to lease the sections so reserved, in order to improve them, and to apply the rents to purposes of education within the township; and also to proceed and recover damages against any persons found trespassing upon them. And this law contains an express provision that every lease, in virtue of this act, shall cease to have any force or effect after the first day of January next, succeeding the establishment of a State government. The trustees of the schools, who were parties to this suit, were appointed under a law of the State, and claimed under that appointment. The point in dispute, was whether the opposing party had not a right prior and superior to the State, by virtue of an Indian reservation, made in the treaty by which the territory had been ceded to the United States. And in deciding the question, this court treated the acts of Congress granting the land to the State, and also the law of the State appointing the Commissioners, as valid and constitutional; and it is not suggested, in the opinion, that the inhabitants of the township had a legal title to the school section, or any right to appoint Commissioners to control and administer the fund, unless authorized to do so by a law of the State. In the case before us, therefore, if the act of 1816 does not vest the title in the State, it still remains in the United States, and not in the trustees.

8. If, however, these lands were conveyed to the trustees, by virtue of the act of the territorial legislature of 1806, yet they were but agents of the State, without any private individual interests, and have no ground therefore for this proceeding in equity against the State. The whole fund was created by the public for public purposes. And in the case of the Dartmouth College, (4 Wheat. 629,) the court said, 'If the act of incorporation be a grant of political power, if it create a civil institution to be employed in the administration of the government, or if the funds of the college be public property, or if the State of New Hampshire, as a government, be alone interested in its transactions, the subject is one in which the legislature of the State may act according to its own judgment, unrestrained by any limitation of its power imposed by the Constitution of the United States.' Here the funds are contributed entirely by the public for a public purpose, and these appellants have no private individual interest, and allege none in their bill in behalf of themselves or others, which entitles them to maintain a suit against the State. They are public agents for a public purpose, and nothing more, and so describe themselves. The laws of the State, which directed the appropriation of the fund to the uses for which it was dedicated, are therefore constitutional and valid, under the decision above referred to, and in my opinion the decree of the Supreme Court of the State ought to be affirmed.


text:
Page:Life and Works of Abraham Lincoln, v6.djvu/244

222  restoration of the national authority was an indispensable condition of any assent on our part to whatever form of peace might be proposed. The President assured the other party that, while he must adhere to these positions, he would be prepared, so far as power is lodged with the executive, to exercise liberality. His power, however, is limited by the Constitution; and when peace should be made, Congress must necessarily act in regard to appropriation of money and to the admission of representatives from the insurrectionary States. The Richmond party were then informed that Congress had, on the 31st ultimo, adopted by a constitutional majority a joint resolution submitting to the several States the proposition to abolish slavery throughout the Union, and that there is every reason to expect that it will be soon accepted by three-fourths of the States, so as to become a part of the national organic law.

The conference came to an end by mutual acquiescence, without producing an agreement of views upon the several matters discussed, or any of them. Nevertheless, it is perhaps of some importance that we have been able to submit our opinions and views directly to prominent insurgents, and to hear them in answer in a courteous and not unfriendly manner.

On February 9, 1865, a committee of Congress reported to President Lincoln that he had been reelected by the Electoral College. In response he accepted the trust in the following brief remarks:

With deep gratitude to my countrymen for


text:
User talk:Dagndagn

Author pages
Hi. We would generally only create an author page if someone has a complete work online to which we can put a link, be it onsite or offsite. — billinghurst  sDrewth  06:46, 18 January 2011 (UTC)

title: User talk:Dagndagn


text:
Page:Life and Works of Abraham Lincoln, v6.djvu/245

1865] this mark of their confidence; with a distrust of my own ability to perform the duty required under the most favorable circumstances, and now rendered doubly difficult by existing national perils; yet with a firm reliance on the strength of our free government, and the eventual loyalty of the people to the just principles upon which it is founded, and above all with an unshaken faith in the Supreme Ruler of nations, I accept this trust. Be pleased to signify this to the respective Houses of Congress.

Fellow-countrymen: At this second appearing to take the oath of the presidential office, there is less occasion for an extended address than there was at the first. Then a statement, somewhat in detail, of a course to be pursued, seemed fitting and proper. Now, at the expiration of four years, during which public declarations have been constantly called forth on every point and phase of the great contest which still absorbs the attention and engrosses the energies of the nation, little that is new could be presented. The progress of our arms, upon which all else chiefly depends, is as well known to the public as to myself; and it is, I trust, reasonably satisfactory and encouraging to all. With high hope for the future, no prediction in regard to it is ventured.

On the occasion corresponding to this four years ago, all thoughts were anxiously directed to an impending civil war. All dreaded it—all sought to avert it. While the inaugural address


text:
Salmon Falls Manufacturing Company v. Goddard/Dissent Daniel

DANIEL, Justice, dissenting.

Upon the point made in this case, on the Statute of Frauds, I entirely concur in the exposition of the law just announced by the court. With respect, however, to the proceedings ordered by this court to be taken in this case in the Circuit Court, I am constrained to dissent from the decision of my brethren. My opinion is, that under the 2d section of the 3d article of the Constitution, the courts of the United States could not take cognizance of the controversy between these parties; and that therefore the proper direction to the Circuit Court would have been to dismiss this suit for want of jurisdiction. My reasons, for the conclusion here expressed, having been given in detail in the case of Rundle et al. v. The Delaware and Raritan Canal Company, during the present term, it is unnecessary to repeat them on this occasion.


text:
Salmon Falls Manufacturing Company v. Goddard/Dissent Curtis

Mr. Justice CURTIS.

I have the misfortune to differ from the majority of my brethren, in this case, and, as the question is one which enters into the daily business of merchants, and at the same time involves the construction of a statute of the Commonwealth of Massachusetts, I think it proper to state, briefly, the grounds on which I rest my opinion.

The first question is, whether the writing of the 19th of September is a sufficient memorandum within the 3d section of the 74th chapter of the Revised Statutes of Massachusetts. The writing is in these words and figures.

'Sept. 19. W. W. Goddard, 12 mos.

300 bales S. F. drills 7 1/4,

100 cases blue drills 8 3/4.

Cr. to commence when ship sails; not after Dec'r 1st; delivered free of charge for truckage.

R. M. M.

W. W. G.

The blues, if color is satisfactory to purchaser.'

Does this writing show, upon its face, and without resorting to extraneous evidence, that W. W. Goddard was the purchaser of these goods? I think not. Certainly it does not so state in terms, nor can I perceive how the fact can be collected from the paper, by any certain intendment. If it be assumed that a sale was made, and that Goddard was a party to the transaction, what is there, on the face of the paper, to show whether Goddard sold or bought? Extraneous evidence that he was the seller, would be just as consistent with this writing, as extraneous evidence that he was the purchaser. Suppose the fact had been, that Mason was the purchaser, and that the writing might be explained by evidence of that fact; it would then be read that Goddard sold to Mason, on twelve months' credit; and this evidence would be consistent with every thing which the paper contains, because the paper is wholly silent as to the fact whether he was the seller or the purchaser. In Bailey et al. v. Ogden, (3 Johns. Rep. 398,) an action for not accepting sugars, the memorandum was:

'14 December.

J. Ogden & Co.-Bailey & Bogart.

Brown, 12 1/2, }

White, 16 1/4. }

60 and 90 days.

Debenture part pay.'

Mr. Justice Kent, who delivered the opinion of the court, enumerating the objections to the memorandum, says, no person can ascertain, from this memorandum, which of the parties was seller, and which buyer; and I think it would be difficult to show that the memorandum now in question is any more intelligible, in reference to this fact.

Indeed, I do not understand it is supposed, that, in the absence of all extraneous evidence, it could be determined by the court, as matter of law, upon an inspection of the paper alone, that Goddard was the purchaser of these goods. The real inquiry is, whether extraneous evidence of this fact is admissible.

Now, it is true, the statute requires only some note, or memorandum, in writing, of the bargain; but I consider it settled, that this writing must show who is vendor, and who is purchaser. In Champion v. Plumer, (1 B. & P. New Rep. 252,) the memorandum contained the name of the vendor, a description of the goods, and their price, and was signed by the vendee; yet, it was held that the vendee could not maintain an action thereon, because it did not appear, from the writing, that he was vendee, though it was clearly proved by parol.

In Sherburn et al. v. Shaw, (1 N. H. Rep. 157,) the plaintiffs caused certain real estate to be sold at auction, and the defendant, being the highest bidder, signed a memorandum, agreeing to take the property; this memorandum was written on a paper, headed, 'Articles of sale of the estate of Jonathan Warner, deceased,' containing the terms of the sale; and this paper was also signed by the auctioneer. Yet the court, through Mr. Justice Woodbury, who delivered the opinion, held that, as the paper failed to show that the plaintiffs were the vendors, it was radically defective. Here, also, there was no doubt that the plaintiffs were the vendors, but extraneous evidence to supply this fact was considered inadmissible.

It seems to me that the fact that the defendant was the purchaser, is, to say the least, as necessary to be stated in the writing as any other fact, and that to allow it to be proved by parol, is to violate the intent of the statute, and encounter the very mischiefs which it was enacted to prevent. Chancellor Kent, (2 Com. 511,) says, 'the contract must, however, be stated with reasonable certainty, so that it can be understood from the writing itself, without having recourse to parol proof.' And this position rests upon a current of authorities, both in England and America, which it is presumed are not intended to be disturbed. But how can the contract be understood from the writing itself, when that fails to state which party is vendor and which purchaser?

I am aware that a latent ambiguity in a contract may be removed by extraneous evidence, according to the rules of the common law; and that such evidence is also admissible to show what, in point of fact, was the subject-matter called for by the terms of a contract. Bradlee v. Steam P. Co. 16 Pet. 98. So when an act has been done by a person, and it is doubtful whether he acted in a private or official capacity, it is allowable to prove by parol that he was an agent and acted as such. But these cases fall far short of proving that when a statute requires a contract to be in writing, you may prove by parol the fact that the defendant was purchaser, the writing being silent as to that fact; or that a writing, which does not state who is vendor and who purchaser, does contain in itself the essentials of a contract of sale.

It is one thing to construe what is written; it is a very different thing to supply a substantive fact not stated in the writing. It is one thing to determine the meaning and effect of a complete and valid written contract, and it is another thing to take a writing, which on its face imports no contract, and make it import one by parol evidence. It is one thing to show that a party, who appears by a writing to have made a contract, made it as an agent, and quite a different thing to prove by parol that he made a purchase when the writing is silent as to that fact. The duty and power of the court is a duty and power to give a construction to what is written, and not in any case to permit it to be added to by parol. Least of all when a statute has required the essential requisites of a contract of sale to be in writing, is it admissible, in my judgment, to allow the fact, that the defendant made a purchase, to be proved by parol. If this fact, which lies at the basis of the action and to which every other is but incidental, can be proved by evidence out of the writing signed by the defendant, the statute seems to me to be disregarded.

It has been argued that the bill of parcels, sent to Goddard by Mason and Lawrence, and received by him, may be resorted to for the purpose of showing he was the purchaser. But it is certainly the law of Massachusetts, where this contract was made, and the case tried, as I believe it is of most other States, and of England, that unless the memorandum which is signed contains a reference to some other paper, no paper, not signed by the party to be charged, can be connected with the memorandum, or used to supply and defect therein. This was held in Morton et al. v. Dean, (13 Met. R. 385,) a case to which I shall have occasion more fully to refer hereafter. And in conformity therewith, Chancellor Kent lays down the rule in 2 Com. 511, and refers to many authorities in support of it. I am not aware that any court has held otherwise.

That this bill of parcels was of itself a sufficient memorandum under the statute, or that it was a paper signed by the defendant, or by any person by him thereunto lawfully authorized, I do not understand to be held by the majority of the court.

Now the memorandum of the 19th September, is either sufficient or insufficient, under the statute. If the former, there is no occasion to resort to the bill of parcels to show who was vendor, and who purchaser; because, if the latter, it cannot, consistently with the statute, be made good by another paper not signed, and connected with it only by parol. To charge a party upon an insufficient memorandum, added to by another independent paper, not signed, would be to charge him when there was no sufficient memorandum signed by him, and therefore in direct conflict with the statute. It does not seem to me to be an answer, to say that the bill of parcels was made out pursuant to the memorandum. If the signed memorandum itself does not contain the essentials of a contract of sale, and makes no reference to any other paper, in no legal sense is any other paper pursuant to it nor can any other paper be connected with it, save by parol evidence, which the statute forbids. In point of fact, it would be difficult to imagine any two independent papers more nearly connected, than a memorandum made and signed by an auctioneer, and the written conditions read by him at the sale. Yet it is settled, that the latter cannot be referred to, unless expressly called for by the very terms of the signed memorandum. Upon what principle does a bill of parcel stand upon any better ground?

The distinction, heretofore, has been between papers called for by the memorandum by express reference, and those not called for; this decision, for the first time, I believe, disregards that distinction, and allows an unsigned paper, not referred to, to be used in evidence to charge the purchaser.

In my judgment, this memorandum was defective in not showing who was vendor, and who purchaser, and oral evidence to supply this defect was not admissible.

But if this difficulty could be overcome, or if it had appeared on the face of the paper, that Goddard was the purchaser, still, in my judgment, there is no sufficient memorandum. I take it to be clearly settled, that if the court cannot ascertain from the paper itself, or from some other paper therein referred to, the essential terms of the sale, the writing does not take the case out of the statute. This has been so often decided, that it is sufficient to refer to 2 Kent's Com. 511, where many of the cases are collected.

The rule stated by the Chancellor, as a just deduction from the authorities, is, 'Unless the essential terms of the sale can be ascertained from the writing itself, or by a reference contained in it to something else, the writing is not a compliance with the statute; and if the agreement be thus defective, it cannot be supplied by parol proof, for that would at once introduce all the mischiefs which the statute of frauds and perjuries was intended to prevent.'

The statute, then, requires the essential terms of the sale to be in writing; the credit to be allowed to the purchaser is one of the terms of the sale.

And if the memorandum shows that a credit was to be given, but does not fix its termination, it is fatally defective, for the court cannot ascertain, from the paper, when a right of action accrues to the vendee, and the contract shown by the paper is not capable of being described in a declaration. The rights of the parties, in an essential particular, are left undetermined by the paper. This paper shows there was to be a credit of six months, and contains this clause-'Cr. to commence when ship sails: not after Dec'r 1st.' According to this paper, when is this credit to commence? The answer is, when ship sails, if before December 1st. What ship? The paper is silent.

This is an action against Goddard for not delivering his note on twelve months' credit, and it is an indispensable inquiry, on what day, according to the contract, the note should bear date. The plaintiffs must aver, in their declaration, what note Goddard was bound to deliver, and the memorandum must enable the court to say that the description of the notes in the declaration is correct. They attempt this by averring, in the declaration, that the contract was for a note payable in twelve months from the sailing of a ship called the Crusader, and that this ship sailed on the sixth day of November. But the writing does not refer to the Crusader; and if oral evidence were admissible to prove that the parties referred to the Crusader, this essential term of their contract is derived from parol proof, contrary to the requirement of the statute. It was upon this ground the case of Morton et al. v. Dean, and many other similar cases, have been decided. In that case, there was a memorandum signed by the auctioneer, as the agent of both parties, containing their names, as vendor and vendee, the price to be paid, and a sufficient description of the property. But it appeared that there were written or printed conditions read at the sale, but not referred to in the memorandum, containing the terms of credit, &c., and therefore that the memorandum did not fix all the essential parts of the bargain, and it was held insufficient.

But, further; even if oral evidence were admissible to show that the parties had in view some particular vessel, and so to explain or render certain the memorandum, no such evidence was offered, and no request to leave that question of fact to the jury, was made. Mason, who made the contract with Goddard, was a witness, but he does not pretend the parties had any particular vessel in view, still less that they agreed on the Crusader as the vessel, the sailing of which was to be the commencement of the credit. I cannot perceive, therefore, how either of the counts in this declaration is supported by the evidence, or how a different verdict could have lawfully been rendered.

The count for goods sold and delivered, was clearly not maintained, because, when the action was brought, the credit had not expired, even if it began on the 19th of September. One of the special counts avers, that the notes were to be due twelve months from the 30th of September; but this is inconsistent with the written memorandum, and there is no evidence to support it. The other special counts all declare for a note due twelve months after the sailing of the Crusader, but, as already stated, there is no evidence whatever to support this allegation, and a verdict of the jury, affirming such a contract, must have been set aside.

It may be added, also, that no one of the prayers for instructions, contained in the bill of exceptions, makes the fact that the parties had reference to the Crusader, any element of the contract, but that each of them asks for an instruction upon the assumption that this necessary term of the contract had not been in any way supplied.

I consider the language of Chief Justice Marshall, in Grant v. Naylor, (4 Cranch, 234,) applicable to this case. That great Judge says: 'Already have so many cases been taken out of the statute of frauds, which seem to be within its letter, that it may well be doubted whether the exceptions do not let in many of the mischiefs against which the rule was intended to guard. The best Judges in England have been of opinion that this relaxing construction of the statute ought not to be extended further than it has already been carried, and this court entirely concurs in that opinion.'

I am anthorized to state that Mr. Justice CATRON concurs in this opinion.


text:
Billy Lyons and Stack O' Lee

I remember one September, on a Friday night: Stack O' Lee and Billy Lyons had a great fight. Cryin' when you lose your money, learn to lose

Billy Lyons shot six-bit, Stack O' Lee bet he'd pass. Stack O' Lee out with his .45, said "You done shot your last." When you lose your money, learn to lose

Lord a woman come a-running, fell down on her knees. Crying "O Mr. Stack O' Lee don't shoot my brother please." When you lose your money (guitar completes phrase)

I ain't talkin' 'bout some gambler, goin' to see Richard Lee. Shot one thousand dollars and come out on a three. Crying when you lose your money learn to lose

Lord the judge told the sheriff, "We want him dead or alive." "How in the world, can we bring when he totes a .45?" When you lose your money, learn to lose

Lord a woman told the judge, "My husband's name Jack Shelf." "Won't arrest poor Stack O' Lee better go somewheres else." When you lose your money, learn to lose

title: Billy Lyons and Stack O' Lee


text:
Bloomer v. McQuewan/Dissent McLean

Mr. Justice McLEAN.

Woodworth's patent bears date the 27th of December, 1828, and runs for fourteen years. On the 29th of July, 1830, the patentees conveyed to Isaac Collins and Barzillai C. Smith the right to construct, use, and vend to others, the planing machine invented within several States, including Pennsylvania, except the city of Philadelphia. On the 19th of May, 1832, Collins and Smith transferred to James Barnet the right to construct and use, during the residue of the aforesaid term of fourteen years, fifty planing machines, within Pittsburg and Alleghany county, for which he agreed to pay four thousand dollars. Barnet agreed not to construct or run more than fifty machines during the term aforesaid, and Collins and Smith bound themselves not to license during the term, nor to construct or use themselves during the term, or allow others to do so, in the limits of Pittsburg and Alleghany county.

On the 27th of December, 1842, the patent expired, but it was renewed and extended for seven years, under the act of 1836. This extension expired in 1849; but Congress, on the 26th of February, 1845, passed an act which provided that 'the said letters-patent be, and the same is hereby, extended for the term of seven years, from and after the twenty-seventh day of December, 1849.'

The patentee, by deed dated the 14th of March, 1845, and also by a further deed dated the 9th of July, 1845, conveyed to James E. Wilson all his interest as administrator in the letters patent under the extension by the act of Congress. And Wilson, on the 4th of June, 1847, for the consideration of twenty-five thousand dollars, gave to Bloomer, the plaintiff, a license to construct and use, and vend to others to construct and use, during the two extensions, 'all that part of Pennsylvania lying west of the Alleghany Mountains, excepting Alleghany county, for the first extension, which expires on the 27th day of December, 1849, and the States of Virginia, Maryland, Kentucky, and Missouri, excepting certain parts of each State.'

The defendants continued to run their machines during the residue of the fourteen years, for which the patent was granted, and during the first extension; and the complainant filed his bill to enjoin the defendants from running their machines under the second extension, by the act of Congress.

The contract of the defendants was entered into the 19th of May, 1831, and under it Barnet had a right 'to construct and use during the residue of the aforesaid term of fourteen years, fifty planing machines,' &c. The patent expired on the 27th of December, in 1842. The contract of defendants was made the 19th of May, 1832, leaving about nine years and six months for the patent to run, and this was the time limited by the contract, and for which the consideration of four thousand dollars was paid. This was not left to construction from the life of the patent, but the contract expressly declared the right was purchased 'for the residue of the aforesaid term of fourteen years.'

This term was enjoyed by the defendants, and under the decision of this court, in the case of Wilson v. Rousseau et al. (4 Howard, 646,) the seven years' extension under the act of 1836, was also enjoyed by the defendants. This construction of the act of 1836, in my judgment, was not authorized, and was not within the intention of the law, as was expressed at the time. That extension having expired, another extension is claimed under the act of Congress. This claim is set up to an injunction bill, filed by the complainant, who is the assignee of the patent for a part of Pennsylvania and other States. And by the decision of four of my brethren, just delivered, the defendants are to enjoy this extension, making fourteen years beyond their control. This would seem to imply, that, under the act of 1836, and under the act of 1845, the assignees were the favored objects of Congress. But this is not the case. The patentee who made the invention, and through whose ingenuity, labor, and expense, a great benefit has been conferred on the public, in justice, is entitled to remuneration, and that only was the ground of extension, whether under the law of 1836, or the special act of 1845.

This, as well as the former decision, was influenced by the consideration that the owners of the machines are, in equity, entitled to run them so long as the exclusive right of the patent shall be continued. It is said that the machines are property, and that no act of Congress should deprive the owners of the use of their property. But in this view, the property of the patentee seems not to be taken into the account. He is the meritorious claimant for protection. The assignee for a specific time, rests upon his contract. He has conferred no benefit on society. His investment was made with an exclusive reference to his own advantage. He has no more claims upon the public sympathy than he who rents a mill, a farm, or engages in a business, open to all who expect a profit by it.

But the hardship is supposed to exist, in the fact that, to use the right, a planing machine must be constructed at an expense of some four or five hundred dollars, and this will be lost to the occupier, if by an extension he shall not be permitted to run his machine. The answer is, when he entered into the contract he knew, or is presumed to have known, that the patent might be extended under the law of 1836 or by special act, and if he desired an interest under the renewed patent, he should have provided for it in his contract. Having failed to do this, it would seem to be unjust that, under a contract to run the machine less than ten years, he should be entitled to run it sixteen years. The consideration paid was limited to the term specified in the contract. But, it is answered, that the assignee expected to run his machine after the termination of the contract on which the exclusive right would end and become vested in the public.

Let us examine this plea, and it will be found that a great fallacy prevails on this subject. A right that is common, is no more valuable to one person than another, as all may use it. The injury, then, consists, so far as the licensee is concerned, in the reduction of the value of his machine, by the extension of the exclusive right in the patentee, to the exclusion of the assignee. It is true this deprives him of the monopoly which his contract secured to him. But he has enjoyed this to the extent of his contract, and for which he has paid the stipulated consideration. Now his only equitable plea to run his machine during the renewed patent, arises alone from the supposed difference in the value of his machine, under the renewal, without a license, and where the right becomes vested in the public.

If there had been no renewal, the licensee might run his machine, and any other person might run one. It is a fact known to every observing individual, when a new business is set up, as a planing machine, supposed to be very profitable generally, a competition is excited, which reduces the profit below a reasonable compensation for the labor and expense of the business. If the monopoly continued, as enjoyed under the contract, the consideration paid for the monopoly would be added to the profits, which would make them large. But when the monopoly ceases, the profits, if not destroyed, are reduced by competition, at least as low, if not below the ordinary profit of capital employed in other investments.

If the business of the county or city required the number of planing machines in operation, the licensee could sell his machine at a reasonable reduction for the time it had run. The machines of the defendant had run, probably, from twelve to fifteen years. A considerable reduction would be expected by the purchaser, as a machine could not be expected to last more than twenty years. But suppose it can be used thirty, then one half of the value must be deducted for the wear of the machine fifteen years, which would reduce it to some two hundred and fifty or three hundred dollars.

But suppose the exclusive right should be continued in the patentee, by an extension of it seven years. Then, if the machines were not more numerous than the public required, they would be wanted by their owners, or by others disposed to engage in the business. And I hazard nothing in saying, that, after deducting the compensation from the profits, paid for the exclusive right, they would be larger than could be hoped for, where the right was common. Under such circumstances, I can entertain no doubt, that a machine would sell for more money, under the extension of the patent, than where the right goes to the public.

The idea that to refuse the use of a machine under the extension of a patent, is an unjust interference with property, I think, is unfounded. There is no interference with the property in the machine. The owner may sell it to any one who has a license to use it. It is not the property in the machine that is complained of, but because the right to run it longer than the contract provided for, is not given. The licensee has used the franchise, as long as he purchased and paid for it; and can he in justice claim more than his contract. The extension of the right to use, while the extended patent continues, does a wrong to the patentee, by taking his property, without compensation, and giving it to the licensee. The franchise is property, and it can no more be transferred to another, without compensation or contract, than any other property. It would seem that this description of property is not governed by contract. That a contract to use the franchise ten years, does not mean what is expressed, but may mean a right for twenty years, or any other term to which the patent may be extended.

Every man who has sense enough to make a contract, takes into his estimate the contingency of a loss, to some extent, in going out of the business. He fixes his own time for the contract, and if he wishes to provide for the contingency arising from the renewal of a patent, he can embrace it in his contract for a stipulated compensation.

It may be true, that, unless the contrary appear, when the patentee sells a planing machine, a right to use it may be applied. But the right to construct and the right to use, are distinct. Some purchase of the patentee the right to construct the machine, others to use it. This planing machine cannot be compared to a plough, or any other article which may be considered the product of the patent. The machine is the instrument through which the plank is planed. The plank is the product, and may be sold in the market as other property. But the planing machine cannot be used, without a license. The law protects the franchise, by prohibiting the use of the machine without a license. When Barnet purchased the franchise for the fifty machines, he did not buy the machines for a term as long as the machines could run, but for nine years and six months. The contract, neither expressly nor impliedly, extended beyond that term.

In this view, I think that I am not mistaken, and if I am not, the license is not injured a dollar by the termination of his right to run his machine, as fixed in his contract. But, on whom is the injury inflicted by extending the contract of the licensee with the patentee, and that without compensation? In the present case, the patentee has been injured, by the use of the fifty machines, at least four thousand dollars, the amount agreed to be paid for the right to run them less than ten years. And must not the property of the patentee be taken into the account, as well as the imagined rights of the licensee?

The patentee is justly considered a public benefactor. He has conferred a great benefit upon the world; and he is entitled, under our laws, to at least a compensation for his expense, ingenuity, and labor.

That the patentee is the only one whose interests are regarded, as the ground of extending the patent in the act of 1836, is clear. Now, suppose the patentee has assigned the whole of the patent, without receiving such a compensation as the law authorizes; there can be no doubt he is entitled, on that ground, to a renewal of the patent; and yet, under the decision now given, his assignees would receive all the benefits of the renewal. Should not this fact cause doubts whether the rule of construction of the statute can be a sound one, which defeats its avowed object? If this be the consequence of the assignment of the entire interest by the patentee, any partial assignment must produce the same result, though to a more limited extent. A principle which will not bear this test is not sound.

The act of 1845, extending this patent, annexed no conditions. The exclusive right was extended to the administrator of Woodworth for seven years, from the 27th of December, 1849. But the decision now given, in effect declares this exclusive right is not given. Indeed the object of Congress must be defeated if the machines, in operation at the time of the passage of the act, are to be continued without compensation. It is presumed there are few places where planing machines were not constructed before 1849, the time the renewal took effect, if the public required them. On this supposition, the extension of the patent can be of little or no benefit to the heirs of the patentee. Congress could have granted the act only upon the ground to remunerate the heirs of the inventor.

There seems to be a great mistake as to the profits of this patent. It was a valuable patent, but, as in all other cases, its value excited the rapacity of men who seek to enrich themselves by taking the property of others. The records of the courts show, that piracies were committed on this patent in every part of the country; and that to sustain it, much expenditure and labor have been required. It is stated that the sum of near two hundred thousand dollars has been thus expended to establish this patent. Congress have extended many patents; in some instances conditions have been imposed, in others, the franchise has been extended unconditionally. Now, where the patent is extended by act of Congress, without conditions, I am unable to perceive how the court can impose conditions. Such an act would be legislation, and not construction.

By the act of the 15th February, 1847, the patent of Thomas Blanchard, for cutting irregular forms out of wood, brass, or iron, was extended for fourteen years, from the 20th of January, 1848: 'Provided that such extension shall enure to the use and benefit of the said Thomas Blanchard, his executors and administrators and to no other persons whomsoever, except that a bon a fide assignee of the invention, by virtue of an assignment from the patentee heretofore made, shall have the benefit of this act, upon just, reasonable, and equitable terms, according to his interest therein. And if the said Thomas Blanchard, his executors or administrators, cannot agree with such assignee, the terms shall be ascertained and determined by the Circuit Court of the United States for the district in which such assignee resides, to be decreed upon a bill to be filed by such assignee for that purpose. And provided further, that no assignee shall have the benefit of this act unless he shall, within ninety days from its passage, agree with the said Thomas Blanchard as to the consideration upon which he is to have it, or file his bill,' &c.

Every one must perceive the justice and propriety of this act; under the decision now given, the assignee of Blanchard would have had the benefit of the extension without paying for it. This act, extending Blanchard's patent, was passed two years after the decision of this court in Wilson v. Rousseau, which, under the act of 1836, gave the benefit of the extension to the assignee. This must have been known to Congress, and yet they deemed a special provision in behalf of the assignee necessary. This act, and several others of a similar character, cannot fail to convince every one that Congress did not suppose that the courts have power to annex a condition to a legislative grant.

In the case of Evans v. Jordan and Morehead, (9 Cranch, 199,) this court held, that the act of January, 1808, for the relief of Oliver Evans, does not authorize those who erected their machinery between the expiration of their old patents and the issuing of the new one, to use it after the issuing of the latter.

The above act extended the patent fourteen years, 'provided that no person who may have heretofore paid the said Oliver Evans for license to use the said improvements, shall be obliged to renew said license or be subject to damages for not renewing the same; and provided also, that no person who shall have used the said improvements, or have erected the same for use, before the issuing of the said patent, shall be liable to damages therefor.'

This was a much stronger case for equitable considerations than the one before us. Evans's patent had expired. His improvements were free to the public, and they were adopted by the defendants before he made application to Congress for a renewal of his patent. I will cite the reasoning of the Supreme Court on that case. 'The language,' they say, 'of this last proviso is so precise, and so entirely free from all ambiguity, that it is difficult for any course of reasoning to shed light upon its meaning. It protects against any claim for damages which Evans might make, those who have used his improvements, or who may have erected them for use, prior to the issuing of his patent under this law. The protection is limited to acts done prior to another act thereafter to be performed, to wit, the issuing of the patent. To extend it, by construction, to acts which might be done subsequent to the issuing of the patent, would be to make, not to interpret, the law.' 'The injustice of denying to the defendants the use of machinery which they had erected after the expiration of Evans's first patent, and prior to the passage of this law, has been strongly urged as a reason why the words of this proviso should be so construed as to have a prospective operation. But it should be recollected that the right of the plaintiff to recover damages for using his improvement after the issuing of his patent, under this law although it had been erected prior thereto, arises not under this law, but under the general law of the 21st of February, 1793. The provisos in this law profess to protect, against the operation of the general law, three classes of persons-those who had paid Evans for a license prior to the passage of the law; those who may have used his improvements; and those who may have erected them for use before the issuing of the patent.'

And the court say, 'The legislature might have proceeded still further, by providing a shield for persons standing in the situation of these defendants. It is believed that the reasonableness of such a provision could have been questioned by no one. But the legislature have not thought proper to extend the protection of these provisos beyond the issuing of the patent under that law; and this court would transgress the limits of the judicial power by an attempt to supply, by construction, this supposed omission of the legislature. The argument founded upon the hardship of this and similar cases, would be entitled to great weight if the words of this proviso were obscure and open to construction. But considerations of this nature can never sanction a construction at variance with the manifest meaning of the legislature, expressed in plain and an unambiguous language.'

The above views do not conflict with the opinion of the court in Evans v. Eaton, 3 Wheat. 454. In that case the court say, 'Some doubts have been entertained respecting the jurisdiction of the courts of the United States, as both the plaintiff and defendants are citizens of the same State. The fifth section of the act to promote the progress of useful arts, which gives to every patentee a right to sue in a Circuit Court of the United States, in case his rights be violated, is repealed by the third section of the act of 1800, which gives the action in the Circuit Court of the United States where a patent is granted, 'pursuant' to that act, or to the act for the promotion of useful arts. This patent, it has been said, is granted, not in pursuance of either of those acts, but in pursuance of the act 'for the relief of Oliver Evans.' But this court is of opinion, that the act for the relief of Oliver Evans, is ingrafted on the general act for the promotion of useful arts, and that the patent is issued in pursuance of both. The jurisdiction of the court is therefore sustained.'

There can be no question that the special law extending the grant, as to its validity, is subject to the general patent law. The right was intended to be exclusive, if it be established that Evans was the original inventor of the improvements claimed, and such improvements were stated with the necessary precision. And also that it came under the class of cases on which suit could be brought in the courts of the United States, without regard to the citizenship of the parties. But it could not have been intended to apply to any contract subsequent to the patent, and it could only be held to embrace those general provisions of the patent law which relate to the validity of the patent. Under the act of Congress, a specification was necessarily filed, and it seems to be the practice to issue a patent under the act. This, it appears to me, is unnecessary, as the grant in the act is sufficient. But the schedule is necessary to show the nature and extent of the claim, and these must be sustained on those principles which apply to patents generally.

To give any other construction to the above remarks of the court, would be in direct contradiction to the language used, and the principle decided, in the case above cited from Cranch. In fact, the remark that the relief of Evans was ingrafted on the general law, was made in reference to the jurisdiction of the court, and cannot be extended beyond that and other questions, in relation to the validity of the patent.

This argument of the court, in Evans v. Jordan, applies with all its force and authority to the case before us; and I need only say it was the language of Marshall, of Story, of Washington, and of the other Judges of the court, except Judge Todd, who appears to have been absent. I can add nothing to the weight of the argument; but I will proceed to name the Judges of this court who have given opinions opposed to the decision of this case by four of my brethren.

title: Bloomer v. McQuewan/Dissent McLean


text:
Author:Furry Lewis

Works

 * Stagger Lee

title: Author:Furry Lewis


text: Talk:Billy Lyons and Stack O' Lee

title: Talk:Billy Lyons and Stack O' Lee


text: Index:Low Mass Ceremonial (Burnett).djvu


text: Page:Low Mass Ceremonial (Burnett).djvu/1


text: Page:Low Mass Ceremonial (Burnett).djvu/2


text: Page:Low Mass Ceremonial (Burnett).djvu/3


text: Page:Low Mass Ceremonial (Burnett).djvu/4


text:
Page:Low Mass Ceremonial (Burnett).djvu/5

Successor to

RENWICK W. CROTHERS

122 East 19th Street

NEW YORK

1921


text: Page:Low Mass Ceremonial (Burnett).djvu/6


text: Page:Low Mass Ceremonial (Burnett).djvu/10


text: Page:Low Mass Ceremonial (Burnett).djvu/72


text: Page:Low Mass Ceremonial (Burnett).djvu/71


text: Page:Low Mass Ceremonial (Burnett).djvu/70


text: Page:Low Mass Ceremonial (Burnett).djvu/69


text: Page:Low Mass Ceremonial (Burnett).djvu/68


text: The Art of Distillation

title: The Art of Distillation


text: Page:U.S. Department of the Interior Annual Report 1879.djvu/1


text: Page:U.S. Department of the Interior Annual Report 1879.djvu/2


text: Page:U.S. Department of the Interior Annual Report 1879.djvu/3


text: Page:U.S. Department of the Interior Annual Report 1879.djvu/4


text:
Page:U.S. Department of the Interior Annual Report 1879.djvu/5

Forestry REPORT

OF

, Washington, November 15, 1879.

 * I have the honor to submit the following report of the operations of this department during the past year and such suggestions as in my judgment will promote the public interest:

INDIAN AFFAIRS.

The elaborate report of the Commissioner of Indian Affairs, herewith presented, gives an interesting account in detail of the conduct of the branch of the service in his charge and the condition of the Indian tribes.

The difficulties connected with what is called the “Indian problem” have been steadily growing from year to year, as the Western country formerly occupied as hunting grounds by Indians exclusively, is required for agricultural settlement and mining industry. In the same measure as white men and Indians more and more jostled one another their contact has been apt to result in collision. We are frequently told that the method followed by our Canadian neighbors in dealing with the Indians is much more successful than ours, and that we should shape our Indian policy after that model. Those who say so seem to forget that the condition of things in the British possessions on this continent has until recently been in an essential point different from that existing in the United States. In the British possessions the Indians occupied an immense territory, full of game, where they have long been permitted to roam at their pleasure, without being interfered with by the progress of settlement. There was comparatively little necessity on the part of the government of providing for the sustenance of the Indians, because they could almost wholly provide for themselves by hunting. Under such circumstances the Indian problem was very simple, and peace was easily maintained. Of late, however, as settlements spread and game becomes less abundant in their Indian country, our Canadian neighbors, if we may believe recent reports, begin to feel that difficulties similar to those we have so long had to contend with, are gradually coming upon them, and that thus they are just approaching the same Indian problem which has been disturbing us for so long a time in various forms. It is to be hoped that they will succeed in solving it