« PreviousContinue »
under license from this plaintiff, or is not the subject of prosecution existing, or to exist.
The learned counsel for the defendants says, that it is doubtful whether the plaintiff ever paid any thing for his patent, and that his instrument of purchase recites the consideration of six thousand dollars, after nine years of the patent had gone by. But since you are asked to believe suspicions on the one side, I appeal to you to believe me when I say to you, that I saw and know, that that whole sum was paid, and paid absolutely and in good faith. Yet here stand the defendants, asking you to defraud this man. He has stepped forward and rewarded the inventors, and stands in their place. Let the defendants show that they have paid him, as he has paid the inventors, and they may plead that a monopoly is oppressive.
One of the learned counsel for the defendants, invited you to notice the superior excellence, on their part, in conducting this When you perceive the fragrance, you may be sure the rose is near. When you see a modest man, you may expect to see his merit unfold. You have had an instance of frankness in the miserable design, of holding back that iron wheel, until the very last, and then rolling it in as a wheel cast according to pattern B. You had another instance of frankness and magnanimity, when, after the learned counsel for the defendants, who has just preceded me, had interrupted my associate when he was arguing that the Tiers wheel had never been cast, and was not like our wheel, by saying that the defendants claimed nothing in that respect, and that argument upon it was unnecessary, and then, when my associate had desisted, that same counsel arose, and standing here, perverted the testimony of Tiers in the most extravagant and unwarrantable manner. And when to all this is added the high-mindedness of denouncing our system of patent laws as a monopoly, we cannot be expected to humble ourselves before the superiority of our opponents. I ask you, gentlemen, to believe me when I say, that you are capable of learning something new, in regard to the exercise of this faculty of invention. It is not like creation, an instantaneous and a perfect thing; but it is a progressive and an imperfect thing. Invention, is finding out in the dark. It is groping in a cavern, stored with all things adapted for our purposes. The steam engine was conceived one hundred years before it floated on the water, or traversed the land. It was described in 1783, an engine
as complete as it could be. But the Hudson received, long after that, the first burden of a boat floated by steam. I have seen in a distant land, a monument to the man who perfected the steam engine so that it produced motion. And what was the achievement of Fulton? It was that when the steam engine had been perfected, he stumbled upon the manner of applying it to move a boat. When was the Magnetic Telegraph discovered? The germ of it was brought to light by Franklin, when he brought down electricity from the clouds by means of a kite. Yet that was seventy years ago. And it was only within a few years that the manner of applying that principle has been discovered. A cause precedes an effect. One thing always precedes or produces another. The carriage wheel produced the first railroad wheelof course it was a spoke wheel. The inventor gropes in a cavern, holding on to a chain that is suspended to the throne of God, who permits him to grasp but a single link at a time. There must be the boll of rotting flax, before there can be the bridal veil. There must be the egg before the eagle, the thought before the thing. "We learn upon a hint, we find upon a clue,
From the basket and acanthus is modeled the graceful capital
The shadowed profile on the wall helpeth the limner to his likeness;
The foot-marks stamped on the clay, lead on the thoughts to printing;
The strange skin garments cast upon the shore, suggest another hemisphere;
A falling apple taught the sage prevailing gravitation;
The Huron is certain of his prey from tracks upon the grass,
And shrewdness, guessing on the hint, followeth the trail;
But the hint must be given, the trail must be there, or the keenest sight is as blindness."
The invention of any thing is divisible, like any human fabric or structure. It has a beginning, a middle, and an end. One man may begin an invention. From a footstep in the sand he may conceive the idea of printing. But he dies, and the thought perishes with him. Is he an inventor? Another man takes the hint from him and grasps another link in the chain. You may engrave on a seal the letters of your name and stamp them on wax. That was done long before the invention of printing. But was the invention of printing thereby complete? So far from it, that Faust, who engraved letters on type, and employed a machine to stamp impressions of them on paper, so astounded the world, that it was charged and believed that he was assisted by the devil.
Since, then, invention is divisible, it is important to determine what is the act of invention. Is it the beginning, the middle, or
the end? Is the inventor he who takes the first step, he who stops at the second, or he who completes the invention? All cannot have the reward, though all may be meritorious. The invention is the end, not the beginning. "Finis coronat opus," is a maxim of sound philosophy, that has come down to us through a thousand generations. The law praises and approves the end, and rewards the final inventor. And for this there is a reason, founded in immutable justice, because he alone is a benefactor. He who thought of the invention was a well-wisher to his race. He who desisted and left it unfinished was unfortunate or unworthy. But till it was perfect and practical, the invention was of no value. The final inventor is the benefactor, and for him the odious monopoly was created.
What other rule could there be? The thought may perish and has often perished. Men have died victims to their zeal, in grasping to reach the last link in the chain, which offered itself by aecident to him who came after. But he was successful, and he alone became entitled to the reward. All who preceded him, though deserving, merited only praise.
This is no speculation. There is a rule of law founded in this principle. He who commences an experiment, but only experiments, and produces an imperfect thing, and abandons it because it is unsuccessful, is adjudged not to be the inventor.
The abandonment of a mode raises a strong presumption, either that it failed or was merely an experiment.
If an alleged invention be not pursued, the presumption is that it was not made in a useful form.
The abandonment is an important question for determining whether what took place was experimental, or a perfected and complete invention.
Mere experiment, though successful, is, if abandoned, no ground for a claim to invention. The plaintiff's wheel may have been made before his patentees made it. But if the making of it was abandoned, then there was only experiment, which avails nothing. If those who made it before did not know that they had been successful, the reward belongs to the more fortunate and more persevering inventor.
DEFENCE OF ABEL F. FITCH, AND OTHERS.*
INTRODUCTORY NOTE.-In May, 1851, an announcement was made by the press of Detroit, that an atrocious conspiracy (embracing fifty citizens of Jackson county, in the state of Michigan,) for the destruction of the property of the Michigan Central Rail Road Company, and an indiscriminate war against the lives of passengers travelling on the road, had been discovered, through the activity of agents of that company, and of the police, and that the guilty parties had been suddenly surprised, arrested, and conveyed to jail in Detroit.
The accusation took the form of an indictment for arson, in burning the depot of that company at Detroit, and the proof that of a conspiracy, for the commission of that and other great crimes. The prisoners alleged their entire innocence, and declared that the prosecution was itself a conspiracy, to convict them, by fabricated testimony, of a crime that had not even been committed.
The accused parties denied combination with each other, and even all knowledge of the principal, who was alleged to have committed the crime, and who, as they supposed, had been fraudulently induced to confess it and charge them as accomplices. In applying to be admitted to bail, the sums were fixed so high as to practically deny them that privilege.
Public opinion was vehemently and intensely excited against them, by reason of aggressions, that had been committed in their neighborhood for a long time, seriously endangering the lives of passengers. Among the accused were persons in every walk of life, and while the guilt of some seemed too probable, that of all appeared to be quite impossible. The ten most distinguished lawyers of Michigan, were retained, before the arrest, by the Rail Road Company, to conduct the prosecution, and it was said that every other counsellor in the city and state qualified to defend them, except one, had been induced to decline to appear in their behalf.
They applied to Mr. Seward, at Auburn, by telegraph, after the trial had begun, stating these facts.
He did not hesitate to appear for men whom the public had prejudged and condemned, and whom the legal profession, except for his going to their aid, would have been deemed to have abandoned.
The issues were perplexed. The evidence was of a most extraordinary character. Even now, it is impossible on reading it, to decide which was most improbable, the existence of the crime, or the truth of the defence. The trial lasted four months, and so was the longest, in a jury case, that was ever held. The alleged principal died before the trial began.
One of the chief defendants, and another more obscure, died during its progress.
* Detroit, Michigan, September, 1851.
Twelve of the fifty defendants were convicted, and all the others acquitted. All these circumstances, together with the ability and learning displayed, mark the case as one of the great state trials of this country. Mr. Seward's Argument was published at the time; it reviewed, collated and condensed the testimony of four hundred witnesses, presenting a very complicated series of transactions, private and public.
This speech fills more than one hundred pages in the report of the trial. To that report we refer the reader, regretting that our limits allow us to present only the introduction and the close of so elaborate and interesting a speech.-Ed.
MAY IT PLEASE THE COURT-GENTLEMEN OF THE JURY:
This is Detroit, the commercial metropolis of Michigan. It is a prosperous and beautiful city, and is worthy of your pride. I have enjoyed its hospitalities liberal and long. May it stand and grow and flourish forever. Seventy miles westward, toward the centre of the Peninsula, in the county of Jackson, is Leoni, a rural district, containing two new and obscure villages, Leoni and Michigan Centre. Here, in this dock, are the chief members of that community. Either they have committed a great crime against this Capital, or there is here a conspiracy of infamous persons seeking to effect their ruin, by the machinery of the law. A state that allows great criminals to go unpunished, or great conspiracies to prevail, can enjoy neither peace, security, nor respect. This trial occurs in the spring-time of the state. It involves so many private and public interests, develops transactions so singular, and is attended by incidents so touching, that it will probably be regarded not only as an important judicial event in the history of Michigan, but also as entitled to a place among the extraordinary state trials of our country and of our times.
Forty and more citizens of this state were accused of a felony, and demanded, what its constitution assured them, a trial by jury. An advocate was indispensable in such a trial. They required me to assume that office, on the ground of necessity. I was an advocate by profession. For me the law had postponed the question of their guilt or innocence. Can any one furnish me with what would have been a sufficient excuse for refusing their demand? Hoc maxime officii est, ut quisquam maxime opus indigeat, ita ei potissimum opitulari,* was the instruction given by Cicero. Can the American lawyer find a better rule of conduct, or one derived from higher authority?
A word, gentlemen, on the origin and progress of this
*The clear point of duty is, to assist most readily those who most need assistance.