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For very many reasons, among them those already referred to, it would undoubtedly be inexpedient to curtail considerably, in America, the right of the accused to have, in proper cases, a legal review of his trial in a court of last resort. The conclusions of appellate tribunals, unaffected by the peculiar facts and circumstances surrounding each case, effectually tend towards uniformity in the application of the great principles of the common law. To make the determination of the trial court final and conclusive would not only promote uncertainty in the law, but would undoubtedly increase the instances now deemed to be infrequent, where an innocent man is compelled to pay the penalty of an atrocious crime.

It is believed that the sentiment of the judiciary, as well as of the Bar of America, would be strongly opposed to any such radical change in our procedure as would deprive the accused of the right of appeal. Undoubtedly, in many States the statutes in this respect are too liberal to the accused, and large opportunities are afforded to him to obtain in this manner an unreasonable postponement of the penalty which justice demands.

So, too, in very many cases, appellate tribunals have been over-nice in finding technical defects in procedure as a ground for setting aside a conviction, where an examination of the whole record must have convinced them that the conviction was just.

A few years ago, some of the most flagrant abuses resulting from this right of appeal were brought to the attention of the American Bar Association. In an address delivered before that association by a distinguished Justice of the Supreme Court of the United States, it was contended that the end of litigation should always be in the trial court, and that in no criminal cause should there be a right of appeal. The subject was referred to an appropriate committee of that association for investigation. Opinions were solicited from distinguished lawyers and Judges in every State in the Union. The great weight of authority thus secured was to the effect that the right of review now accorded to the accused by means of

appeal ought not to be materially abridged, and that cases of notable abuse were far less numerous than had been supposed.

In the trial court the accused is often represented by a young lawyer of limited experience and professional attainment. The State, on the other hand, is usually represented by an eminent lawyer, selected by reason of his conspicuous ability, who necessarily has with the jury the powerful influence of official position and long experience. The trial Judge is often compelled to rule instantly upon important questions of evidence and procedure without an opportunity for reflection and investigation. As our courts are now constituted, it is believed that incalculable injustice would result from any material restriction of the right of appeal.

The criminal laws of every nation reflect notably the ethical characteristics of the people of which the nation is composed. The laws should ever be in harmony with the people's notion of justice and expediency.

A penal code of ideal perfection would be worse than useless unless the people had attained a like degree of perfection.

Public opinion in all modern governments has become the higher law. To legislate much in advance of the average ethical standard of the people is sometimes disastrous, always inexpedient.

The welfare of the State depends therefore first of all upon those agencies of religion and humanity which tend to mould, direct, and enlighten the popular conscience.

XIV

PATENTS

1701-1901

BY WILLIAM K. TOWNSEND, D. C. L.

"What a plastic little creature man is! so shifty, so adaptive! his body a chest of tools, and he making himself comfortable in every climate, in every condition." EMERSON.

EVER since Adam and Eve "sewed fig-leaves together and made themselves aprons," the field of arts has been receiving contributions of inventive thought and mechanical skill to mitigate the rigors of the original curse.

Nor have these inventive contributions been furnished solely by civilized peoples. Thus, the hafts and attachments of the aboriginal weapons disclose or suggest many of the devices used as handles for the modern tool. Thus, too, the Eskimos may be said to have anticipated the pneumatic tire and the compound pulley, and the Zuni Indians the spindle and fly-wheel. The art of printing was practised by the Chinese in the time of Julius Cæsar. A striking illustration of this characteristic of invention was furnished in a case recently heard by the writer where a patent for a singularly novel and ingenious spiral wind of thread was invalidated by an exhibit of rolls similarly wound by the Fiji Islanders long prior to the date of the patent.1

The laws of patents in this country is an inheritance from the royal grants of monopolies in England. There Early English is this radical difference, however. By such grants monopolies. public property was taken from the public and given to

1 Universal Winding Co. v. Willimantic Linen Co., 82 Federal Reporter, 228.

the individual: by the grant of a patent the invention of the patent is bestowed upon the public under a contract for mutual benefit.

Prior to the adoption of the Constitution, the Colonies and States had exercised without question the prerogative of Colonial granting monopolies by way of reward. Some monopolies. of these grants were conditioned upon the presence of invention; others were issued irrespective of its absence. The General Court of Massachusetts made the first grant in 1641 for a method of manufacturing salt. Connecticut "appears to have been the most far-sighted and liberal in the number of its grants for the promotion of the useful arts." By a general law passed prior to 1672, which declared against any monopoly "but such inventions as shall be adjudged profitable to the country," it laid the foundation of the present pre-eminence of its inhabitants in the number and value of their patents." 2

1

The Act of Congress of 1793 seems to recognize the right of a State to grant a patent. The courts of New York have decided in favor of such right.3 The Supreme Court of the United States has left the question

State patents.

open.

Among the constitutional grants to Congress was the power to promote the progress of useful arts by securing for limited times to inventors the exclusive right to their discoveries. Under this authority the first general Patent Act of the United States was passed in 1790.

The Secretary of State, Secretary of War, and the AttorneyGeneral, or any two of them, were authorized to grant a patent on the petition of any one setting forth that he had made any new or useful invention, provided they deemed such invention sufficiently useful and important. The first patent was issued in 1790 and was for "making Pot and Pearl Ashes."

Patent Act of 1790.

1 Campbell's History of Patent System of the United States, p. 10.
2 Revision, 1702, p. 86.

3 Livingston v. Van Ingen, 9 Johnson's (N. Y.) Reports, 507.

By the Act of 1793, the responsibility of issuing a patent was intrusted to the Secretary of State after approval by the Attorney-General. This Act was modelled Patent Act after the English patent system. Under it pat- of 1798. ents were ordinarily granted as a matter of course without examination, on the mere presentation of a petition. The relinquishment of any exclusive right to an invention granted by a State was a prerequisite to obtaining a patent.

It was not until 1836 that the Patent Office was established with a Commissioner of Patents at its head, thus making ample provision for the protection of the public. Patent Office This Act discarded the English system of a grant established. without investigation and restored the earlier system of examination prior to the grant. The real history of the patent law in this country dates from that time.

The United States, by its statutes, says to the whole world that whoever will first furnish to its citizens such knowledge of some beneficial process, device, or manufacture, invented by him, as shall enable them ultimately to receive its advantages, shall have the exclusive right to control its enjoyment here during a term of seventeen years.1

The inventor who thus secures the protection of the patent law occupies a unique position. While he is the most arbitrary of monopolists, his privileges are more jeal- The patentee's ously guarded than are the rights of a ward in privileges. chancery or of a seaman in admiralty. The reasons for this peculiar regard are found in the character of the inventor's wares and of their ownership. They may be more important to the world than were the Sibylline Books to Rome, yet he can conceal them, and the world will never be the wiser: they are personal to the individual and to him only; and true inventive genius is a rare quality possessed by few.

The characteristic impracticability of the great inventor justifies every provision of law and presumption of fact in his favor. The dreamer who sees visions which seem mere perverted notions to the artisan, may yet, by the stimulus of 1 Hanifen v. Price, 96 Federal Reporter, 435.

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