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certainly without any expectation, on their part, that their action was to be adopted by us, or to conclude us. They have assumed three hundred thousand, as the population of that state. They had an opportunity to know better than we. They had no motive to mislead them. They did decide; they decided under official responsibility. It is true it is their act, not ours. We are not concluded by it; but I do not see how we can refuse to take their action as being a fair guide for ourselves, when we ourselves have neglected to ascertain the fact, the responsibility resting with us, or, having undertaken to ascertain it, we have failed to do so, owing to circumstances which rendered it impossible.
These considerations lead my mind to the conclusion, that it is but just and fair to allow California the additional representative which is proposed by the amendment under consideration.
There is one other question—whether we can do so consistently with the Constitution of the United States ? Upon that point I have only this to say, that the census contemplated by the Constitution of the United States, is a census that is not so radically vicious as to be no census. We have taken a census; it is incorrect; it is erroneous; we must cause it to be corrected before it will be the census which the Constitution of the United States prescribes; otherwise, we shall be at sea in a case of greater magnitude hereafter. It may happen some time that the state of
. Pennsylvania, by erroneous returns, by erroneous enumeration, or by erroneous addition of the figures in the columns of the census, may be returned as having a population of only 100,000 or 200,000. Certainly such a census as that would not bind the government of the United States, or conclude Pennsylvania. It must be corrected somehow; it must be corrected here, and nowhere else. We have, then, I think, the power to correct it, and it is our duty to collect the materials by which to correct it. Having done this, I think we are bound to allow to California the benefit of correction, which is an additional member to that state.
THE PATENT LAWS.*
JUNE 11, 1852.
MR. PRESIDENT,—The Constitution of the United States provides that Congress shall have power to promote the progress of science, and of the useful arts, by securing to inventors and authors the production of their genius for a limited term of years. It is a provision that became necessary in the Constitution of the United States, for the reason that the invention in which property was concerned was a matter of commerce, and commerce was necessarily put under the care of the federal government, instead of under the government of the states. It is an anomaly in the Constitution, because the rights to private property are secured to the owners by the several states with this exception; and I have stated the reason why this exception was made. It was a policy long before adopted by the government of that country from which we have derived some of the most valuable of our institutions—the Government of Great Britain. It was adopted in that country in the time of James I., when all monopolies which had been before granted by the crown, were revised and abolished, and the power of the crown to grant monopolies was thenceforth restricted to the case of patents securing for a limited term of years, to real inventors and authors, the production of their own intellectual labor.
The measures adopted by the Congress of the United States, to carry out this provision of the Constitution, were the same measures which had been earlier adopted by the Parliament of Great Britain. They went to the same extent, and they went no further; and being amended and improved nearly simultaneously in both
* Remarks on a bill to prevent the infringement of American letters patent for inventions by a fraudulent manufacture in foreign countries, and importation of the manufactured products.
countries, they have, with some degree of success, answered the purpose for which they were intended. But a time has come when a case has arisen in which the existing remedies are inadequate to fulfill the constitutional purposes. The manufacturer of a useful machine finds the production of his own patented machine on sale by others, in his own country, his own state, his own town. He seeks his remedy under existing laws. It is ineffectual, because the existing remedies can only be enforced by reaching the person of the infringer who makes the article, and the machine with which the article is manufactured. But the infringer is in Canada, beyond the reach of legal process; his machine is in Canada or Nova Scotia, beyond the jurisdiction of the United States; and the products are, nevertheless, here on sale. Thus the American inventor, who pays a great tax to the government for the privilege of manufacturing his own article, is supplanted in the market by the foreign manufacturer, who uses the inventor's own machine for the purpose without responsibility to him.
Thus, sir, the remedy which is provided by the Constitution, and secured by the law, is inadequate. The right of property is, nevertheless, to be protected, or else the constitutional provision fails. What, then, is to be done? Either you must abandon the duty of protecting the property, or you must furnish a new and better remedy. That is the object of this bill; and it is proposed to be accomplished by providing that the manufactured article produced abroad and brought into the United States, shall be forfeited to the use of the inventor in certain cases. What objection is there to this? It is stated by the honorable Senator from Delaware, [Mr. BayarD] that this bill proposes the introduction of a new principle; but I humbly submit that there is no new principle involved in the matter—nothing that has the dignity, nothing that is worthy of the name of a principle. The principle which we seek to establish is, that the inventor shall be protected in his property, and the duty of Congress is to see that he is protected. The remedy proposed involves no new principle whatever. It is merely carrying out the principle already recognized and established.
But the honorable Senator from Delaware observes, that heretofore we have never seized and subjected to confiscation the manufactured product, but have left it free and open to commerce, and that we therefore shall establish a new principle by seizing the product in this case. Sir, I repeat that this proceeding involves no new principle, for certainly the man who uses the property of the inventor can claim no protection on principle in using it to the injury of his neighbor, who is its lawful owner. It is, therefore, only making the existing remedy more stringent. It is not departing from a principle at all; for the only principle in question is “protection of property by law.” When this new remedy is proposed, two questions arise : first, whether it is necessary; and it is conceded on all hands that property of this kind cannot be protected, unless some new remedy is given, nor can the wit of man devise any other provision which will give additional stringency to the old remedy.
What other question remains about this additional remedy? Simply this: whether it is a remedy which is capable of being perverted to do greater injustice to the innocent than it will afford protection to the patentee. That, however, is guarded against by requiring that the person who is to suffer this penalty shall be proved to have committed a fraud-shall be proved to have had a guilty knowledge that the article he was purchasing was the property of another—the property of an American citizen. Is there anything new in that? No principle is better established than that property stolen shall not be made the property of another by purchase. There is no new principle in saying, that though the thief shall be obliged to surrender the property stolen while it remains in his hands, that when he has sold it in the market, the purchaser shall not have a title to it, even though he purchased it innocently. But in this case we have adopted a precaution in declaring that no man shall be subject to damages in consequence of being in possession of these products, unless it is proved that he knew that it was the production of a machine of an American citizen secured to him by a patent. Now, when you bring this knowledge home to an individual, he is convicted of fraud, and you only apply in this case the old principle, that title shall not be diverted from its lawful owner by fraud.
The Senator from Delaware (Mr. BAYARD] seems to suppose that the remedy is capable of being abused. He cannot deny that it is unquestionable in its nature and character. It is not capable of being abused, because it will be necessary for the person who seeks to prevent another from purchasing these products to give him notice that they are the production of a patented machine or invention. Neither can a case of dispute arise between patentees,
because the owner of a patent must give notice to the intending purchaser, before he buys, that certain goods manufactured by his machine, are on their way from a foreign country; and he must prohibit the purchase; if any one buys after that, he buys with his eyes open, and he must submit to the consequences. It is not a question of conflict of patents, but of violation of a recognized patent. The honorable Senator from Delaware says that an injunction would reach the case, and afford a sufficient protection. This remedy would be defensible only on the ground that the use prohibited was unlawful and injurious. But the provision to which he objects rests on the same ground, to wit: that after notice is given, the use is unlawful and injurious. If it be right to enjoin a merchant not to offer these articles for sale, or to enjoin a purchaser from using them, then it is right to provide that, without a resort to the expensive litigation of an equity suit, the person fraudulently purchasing these articles shall not enjoy the benefit of his fraud. An injunction is never defensible, except on the ground that all other remedies are inadequate. There is, then, no need to resort to an injunction, because previous notice and confiscation in defiance of it would be not only a more simple, but a more adequate remedy also. To require the inventor to sue out an injunction, is to require that he shall be subjected to a great expense, which could be saved by giving a simple notice.
I had so much to say on the question generally.
The Senator from Arkansas (Mr. BORLAND] objects, that if the principle is a sound one, it ought to be extended so as to apply the law to pirated articles manufactured in other countries as well as in the North American British provinces. My reply will be brief. The principle is the same, and it would be easy, and I doubt not it would be right, to extend it; but it is not now necessary to extend it. In those foreign countries which are not contiguous to the United States, there is no such evil as that of infringement upon the rights of American inventors by manufacturing articles with their own patented machines, and sending them here for sale. The only cases which have come to our knowledge, are those in which these articles are manufactured in British North America, contiguous to the United States. This bill, then, is sufficient for present purposes, sufficient for the present administration of justice, without extending it further. Senators representing other portions of the United States than that