USA > Missouri > The history of the bench and bar of Missouri : With reminiscences of the prominent lawyers of the past, and a record of the law's leaders of the present > Part 7
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To the royal prerogative there had come, long before the Statute of Monopolies, cer- tain well-defined limits, however these limits were disregarded. The Sovereign could not grant the sole riglit to sell articles in common use. Letters patent for the sole importation of sweet wines were declared void at a Parliament held in the fiftieth of Edward III. In Darcy vs. Allin, decided in the forty-fourth year of Elizabeth (11 Coke R. 84), it was de- cided as to the manufacture and importation of playing cards, that the grant of the sole riglit to exercise a known occupation is illegal. It was held necessary that the grantee should be at least the introducer of tlie article within the realmn. Also, it was held that the
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PATENT LAWS OF UNITED STATES.
term must be limited to such a time as might suffice for the instruction of others, and that the subject-matter must be such as led to a new trade or manufacture, as possessed the in- cidents of utility and novelty, and would not be prejudicial or inconvenient. (1 Webst. Patent Cases, 7 n).
The conditions of the validity of a patent are stated as follows in Darcy vs. Allin: "Where any man by his own charge and industry, or by his own wit and invention, doth bring any new trade into the realın, or any engine tending to the furtherance of a trade that was never used before, for the good of the realm, in such case, the King may grant him a monopoly patent for some reasonable time, until the subjects mnay learn the same, in consideration of the good that he doth bring by his invention, otherwise not."
In the cloth-workers of Ipswich case, decided in 1615, (Godbolts R. 252) it was said: " If a man hath brought in a new invention and a new trade within the kingdom, on peril of his life and consumption of his estate, or if a man hath mnade a new discovery of anything, in such case the King, of his grace and favor, in recompense of his cost and travail, may grant by charter unto him that he only shall use such a trade or traffic for a certain time, because at first the people of the kingdom are ignorant, and have not knowledge or skill to use it. But when the patent is expired the King cannot make a new grant thereof, for when the trade is become common and others have been bound apprentices to the same trade, there is no reason that such should be forbidden to use it."
Upon these principles of the common law, the patent system of England and the United States has been built up, by constitutional provisions, statutory enactinents, and the deci- sions of the courts.
During the Colonial period, some patent monopolies were occasionally granted by the several Colonies. On the formation of the Federal Government, the Constitution of the United States contained a provision giving power to Congress "to promote the progress of science and useful arts, by securing for limited times to authors and inventors, the exclusive right to their respective writings and discoveries." The terms "inventors" and "discov- eries" had, when the Constitution was adopted, a well understood meaning, based on the practice and law, not only in England, but in some of the States, which, as we have just said, had occasionally protected new and useful inventions by special grants. This clause of the Constitution was a recognition, a century and a half after its passage, of the excep- tion clause to the Statute of Monopolies, (21 James I). In pursuance of this clause, Con- gress passed the Patent Act of 1790, repealed and replaced by the Act of 1793, which was replaced by the Act of 1836. After various amendments, the Act of July, 1870, was passed, which is substantially the existing Act in the Revised Statutes of the United States. This statute granted to the patentee the exclusive right for fourteen years (since changed to seventeen years), and he may make and vend his improvements for two years before apply- ing for a patent, without forfeiting his rights.
The grant of a patent raises a prima facie presumption that the applicant is the first inventor or discoverer of a useful invention carried to the point of adapting it to prac- tical use. The grant is only made after examination at the Patent Office as to novelty, utility and the sufficiency of the specification. But the grant is not conclusive as to these questions, since the application is ex parte and secret. The Government does not guarantee the validity of a patent; and the patent is open to attack during the whole term of its life. The granting of patents is effected without expense to the Government. The fees are paid by the applicants and the office is not only self-supporting, but pays
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THE HISTORY OF THE BENCH AND BAR OF MISSOURI.
annually to the Treasury a large balance of receipts over expenses. This balance in the Treasury credited to the Patent Fund is to-day over five millions. The surplus for the fiscal year ending June 30, 1897, paid into the Treasury by the Patent Office was $317,- 135. The application for patents during the same fiscal year were 43,524, and the num- ber of patents granted, 23,994, including re-issues and designs. The number of applica- tions for patents filed during 1896 was greater than that during any previous year, and the number filed during the first six months of 1897 exceeded by seven per cent the num- ber during the first six months of 1896. The receipts of the Patent Office during the fiscal year ending June 30, 1897, were $1,343,779, and its expenses $1,026,644.
By our modern patent laws a system of monopolies devised and employed by tyrants to enable thein to rule without the Legislature and without the consent of the people, after a struggle to which we are indebted for free government to-day, has been adapted to the promotion of the arts, manufactures and commerce and the most important public interests in consequence of the limitation introduced 270 years ago into the Monopolies Act of 21st James I.
As was said long ago by Jeremy Bentham, "A patent of invention is an instance of a reward peculiarly adapted to the nature of the service, and adapts itself with the utmost nicety to these rules of proportion to which it is most difficult for rewards artificially insti- tuted by the Legislature to conform. If confined, as it ought to be, to the precise point in which the originality of the invention consists, it is conferred with the least possible waste of expense. It causes a service to be rendered which, without it, a man would not have a motive for rendering, and that only by forbidding others from doing that which, were it not for that service, it would not have been possible for them to have done. Even with regard to such inventions, for such there will be when others besides him who possesses the reward have scent of the invention, it is still of use by stimulating all parties and setting them to strive which shall first bring the discovery to bear. With all this it unites every property that can be wished for in a reward. It is variable, equable, commensurable, frugal, promotive of perseverance, subservient to compensation, popular and reasonable."
These are the words of the great philosopher of utility, of the man who introduced the word "utilitarianisin" into our language, whose teaching is inextricably bound up with the legislation of this century, and whose writings are the armory of legal reformers. As a teacher of legislation, his whole laborious life was nothing but a long inquiry of all laws and all institutions whether their utility justified their existence. If any yet retain the vul- gar prejudice that patent laws are a monopoly in an evil sense, they will do well to consider liis wise and temperate words on this subject.
The immense progress which has been inade in the arts and sciences is recognized, at least in a confused and general way, by all men. When one turns to any of the registers of scientific progress, to such works, for instance, as the successive editions of the Encyclopedia Britannica, the rapid progress of the arts and sciences becomes clearly apparent. One is struck, not only with the rapid advance, but with the ratio of increase. Each quarter of a century, or even eacli decade, is much more fertile in discoveries and inventions than the immediately preceding period. Branches of science enter upon a new stage, insomuch that the entire terminology and nomenclature is changed, what was vague becoming more and more precise. With the application of newer principles, the mechan- ical arts and industries have rapidly advanced. Mechanical invention has kept up with the progress of discovery and lias reacted upon it, the new instruments of the ingenious
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PATENT LAWS OF UNITED STATES.
inventor having directly contributed to the discovery of physical properties and laws. To this advance in science the patent laws have so largely contributed that it is safe to say that without this encouragement to invention the world would probably be but little advanced beyond the halting and semi-barbarous methods of three centuries ago. New continents would remain unsettled and uncivilized to the present day, steam would be in its infancy and electricity unheard of.
The great practical movement of the world in our age is a movement for the develop- ment of mechanical inventions and multiplication of mechanical products, and not merely of those that are called "useful," but of those classed with the fine arts. If the artist is the purveyor of the machine, the machine has become the useful, often the indispensable, servant of the artist. In vain would the artist contrive the pattern were the loom not there to enable him to "give to airy nothing a local habitation and a name." In many cases the artist could not live and the art must die, but for the inventor of the mechanical agencies which not only enable him to express his idea, but by mechanical agencies, to put it in circulation. The title of "artist " is, in many cases, justly due to the inventor of some of the astonishingly complex and efficient machines of modern times. Thought, labor and genius are employed in realizing his ideal; and when it is done, it is in machines applied to mere utility, as well as in those that serve the arts, so almost human that its invention itself deserves the name, not only of art, but of fine art.
Patents liave been the means of promoting progress both in the useful and the fine arts. If there is no protection and the inventor discloses his improvement his competitor is relieved of all trouble and expense, and perhaps, having more capital, can unjustly deprive the inventor of the whole fruit of his experience, learning, industry, thought and genius. If the law affords no protection, the inventor must resort to secrecy, a most uncer- tain protection, and one that is injurious to the public, depriving them of the improvement, at least for a considerable time, and tending to injure business by destroying mutual con- fidence. Nor does the protection of the inventor unfairly interfere with free competition. There is no reason why the invention which has cost thought, time and money, should be free to all competitors, which would not logically lead to a community of all goods. One main objection to Communism is that it destroys all enterprise, all energy, all competition, and all incentive to creation. Nor will a simple trade-mark protect the inventor. It may well be that another besides the inventor may be able to make his machine more hand- somely and at a cheaper rate than the inventor himself, in which case the benefit to the inventor would be lost to him, because the trade-name or mark would in most cases pro- tect the particular manufacturer only in the right to mark the thing with the name or mark, not in the right to make the thing itself. The original thought embodied in the machine would be open for the dullest intellect to copy. A field of labor in which none can find profit will soon be abandoned, useful discoveries will be comparatively few, and the arts will cease to advance.
The commercial and industrial growth of the United States is due to the encourage- ment of inventions. Before the age of invention, say 250 years ago, the English-speaking population of the globe was about 6,000,000; it is now probably 150,000,000. A century ago, locomotive power was simply animal power, except for the uncertain action of the wind. By means of the steam engine, the latent heat of coal was made to do the work of horses, and as invention was further applied, a pound of coal in improved engines was made to do the work of three pounds a few years back.
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THE HISTORY OF THE BENCH AND BAR OF MISSOURI.
But the progress of invention has been so rapid that every middle-aged man has prac- tical experience of the revolution in society produced by inventions within his own life-time and it is a inere waste of time to develop this idea or suggest illustrations of it. Putting aside the introduction of new products, and the utilizing of substances supposed to be useless, let us take a single instance-the utilizing of the mysterious power, electricity, which yet in its infancy, promises to afford material help to mnan which shall surpass steam as far as steam surpassed the ox and the horse.
Protection by a temporary monopoly to the inventor encourages invention and the wide publication and diffusion of new discoveries. In 1820, Oersted published the results of his "experiments on the effect of electric conflict on the magnetic needle." Arago at once took up the hint afforded and discovered that a copper wire connecting the poles of a voltaic cell would attract iron filings, and that he could communicate permanent magnetismi to steel needles laid at right angles to the upper wire. Davies made the same discovery in the same year. Schweigger shortly invented his multiplier, and Sturgeon and Schweigger invented the electric inagnet. It was disclosed by Sturgeon in 1825, but probably discov- ered by both some years earlier. As improved by Moll, and afterwards by Henry, the electric magnet soon rose from a lifting power of nine pounds to a capacity for lifting many thousands. Ampere, by his theory of molecular currents, explained the hitherto merely surmised connection between electricity and magnetisin, and ten years later, Faraday dis- covered the law of the induction of electric currents. What electro-magnetism is to-day, we all see in its practical effects. The names of those whose discoveries have mutually stimulated each other along the path of fruitful discovery and invention concerning electro- inagnetism, may be seen in Thompson's treatise on the subject, which summarizes the results of scientific research to a recent period. All this energetic work is due, to a great extent, to the protection afforded the discoverer by the patent laws (see G. H. Stockbridge in the Engineering Magazine for May, 1897). There are already in the United States thousands of miles of electric railways. Electricity is displacing gas for illuminating pur- poses, and not only operates machinery but serves for heating and ventilation. The attrac- tive force created by electricity in soft iron, the action of electricity as a generator of light, heat and power and as a transmitter of sound, the combined use of the vacuumn and the electric current in the production of the electric lamp, the action of light on sensitive filins for photography, and the use of photography for printing purposes-these, and countless others are the classes of new manufactures due to the discovery and practical application of natural laws until quite recently undreamed of.
Invention has modified old industries and created new ones under the stimulation of protection to the inventors. India-rubber manufacture, now indispensable, is the growth of the last fifty years. Aniline was unknown until Perkins' patent of 1856, and counts to-day hundreds of inventions for brilliant dyes. Gun-cotton has changed the science of war. Almninni, the value of which cannot be estimated, was known a year or two ago as a chemical curiosity, but by the invention of cheaper means of production has become an extensive article of commerce. Almost, if not altogether, within our times, the invention of machines for utilizing the cotton fibre have given its commercial value to cotton. The paper machine has rendered modern journalism, with hundreds of thousands of copies per diem, possible; the type-writer, the sewing machine, the bicycle-all these are due to human invention stimulated by the laws which protect the inventor. It is safe to say that but for the patent laws, America would never have known an Edison.
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PATENT LAWS OF UNITED STATES.
The inventions of Hargreaves and Jenning, the spinning jenny and the spinning frame, caused the American planter for the first time, in 1770, to turn his attention to the produc- tion of cotton. The supply only stimulated the demand. The capacity of the Southern States for the production of cotton was almost boundless, and the capacity for its manufac- ture, under the improved machinery, kept pace with its production. The cotton crop of the United States rose from 957 bales in 1826, when the first reliable return was made, up to nearly 5,000,000 bales at the breaking out of the War of Secession in 1860.
The machines and implements of husbandry about half a century ago were the horse plow, the sickle and the flail; what they have become under the stimulus given to invention is known to all. The invention of new means of locomotion led to the settling up of the immense territory of the United States, and the occupation of the territory to a demand for facilities for cultivating the newly settled lands; and human ingenuity again, under the protection of the patent laws, gave us the steam plow, harrow, sower, reaper, thresher, binder, and the innumerable machines through the agency of which America is enabled to feed the civilized world.
The patent laws stimulate profitable invention by securing to the inventors a tangible and salable property, without which they would be discouraged from prosecuting their calling and without which they would be unable to call in the aid of the capitalist to their assistance in perfecting the invention and introducing it to the world. Invention cheapens manufacture, and the increased profit derived from manufactures by the use of machinery, improves the condition of the country and adds to its wealth; and every new manufacture creates a greater demand for labor, raises the scale of wages, and enables the workinan to increase his output with a diminution of fatigue.
It has not been proposed, in a sketch necessarily so brief as this, to give a detailed sketch of the patent laws, or a history of the rules and practical working of the Patent Office. Nor would such a sketch be of any practical utility. Our aim has been to show very briefly, that the origin of the patent system of law was the destruction of tyrannous and grasping monopolies; that the controversies which led to the establishment of its first prin- ciples led also to free government and the recognition of the rights of inan; and that both in a political and in a social sense, humanity and civilization are greatly debtors to those agencies which culminated in the establishment of the Patent Office.
St. Louis, Mo., January, 1898.
THE EARLY BAR OF NORTHEAST MISSOURI.
BY W. O. L. JEWETT.
A T THE time of the Louisiana Purchase all Northeast Missouri was a "howling wilder- ness; " that is, it was the domain of the insects and wild animals and the winds howled without "let or hindrance, " as the country was peopled only by a few wandering Red Men. Now scarcely a forty acres can be found but is enclosed and occupied by some one claiming to be civilized. From 1820 to 1830 settlers began to make here and there clearings in the forests; none dared to brave the flies and storms of the prairies. By the latter date many counties had been organized and courts were opened in a few places; during the following decade the bar at Palmyra became noted for eloquence and ability.
THE MARION COUNTY BAR.
The pioneers found between North and South Rivers and six miles west of the Father of Waters, beautiful rolling ground covered with stately elms and a copious spring of bright, sparkling cold water, and here they planted a settlement which became the seat of justice for Marion County, a center of education, and soon a brilliant bar was developed as above stated.
John Anderson, the first lawyer of whom we find any record as living north of Louisi- ana, in this State, at whichi town also the bar early became noted, settled in Palmyra in 1830, and during the five short years of his life there he gained a great reputation as a good lawyer and an eloquent and brilliant advocate. He was a Kentuckian and acquired his legal start at Transylvania Law School at Lexington. His personal appearance is said to have been attractive and his manners winning, but he died young, after but five years of professional work.
Thomas L. Anderson, who settled in Palmyra in 1832, the second lawyer there of whom we find a record, gained not only a State but a national reputation as an orator and an advocate, and in his palmiest days, the silvery tones of his voice, pleading, with tears in his eyes for liis clients, were all powerful with a jury of open-hearted, sympathetic pioneers, and many a man who deserved the gallows or thie penitentiary was acquitted through his skill and power. Some readers may think the above inconsistent with the statements to follow, to-wit: That Mr. Anderson-"Colonel Anderson" as he was usually called-was one of the best and most upright men that ever lived and a true Christian gentleman. But if these statements at first bluslı appear to be opposed to each other, they may be reconciled when the position and duties of an advocate are considered; that he is bound to use all his ability in presenting his side of the case; that he is opposed to a lawyer supposed to be able to expose any sophistries in his arguments and to fully present the other side, while the court and jury arbitrate between them, and finally decide the matter. A law suit is a battle royal, in which the opposing forces do their best, having regard always for the rules
(54)
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THE EARLY BAR OF NORTHEAST MISSOURI.
and principles of civilized warfare, and there is an impartial tribunal to award the crown to the victor. The great Doctor Samuel Johnson, as quoted by Boswell, once said: "A lawyer is not to tell what he knows to be a lie; he is not to produce what he knows to be a false deed; but he is not to usurp the province of the Judge and jury and determine what shall be the result of evidence, what shall be the result of legal argument. A lawyer is to do for his client all that his client iniglit fairly do for himself, if he could. If by a superiority of attention, of knowledge, of skill and a better method of communication, he has the advan- tage of his adversary, it is an advantage to which he is entitled. There must always be some advantage on one side or the other, and it is better that advantage should be had by talents than by chance. If lawyers were to undertake no causes till they were sure they were just, a man might be precluded altogether from a trial of his claim, though were it judicially examined it might be found a very just claim." And Judge Bay, of this State, an able and honest man and author of the "Bench and Bar of Missouri, " has said: "The lawyer is not to be theorizing upon the probabilities of guilt, but in the absence of any positive knowl- edge, is to presume what the law presumes, that his client is innocent until the contrary is proved."
Col. Anderson had a great practice, not only in Marion, but in most of the counties of Northeast Missouri. From the earliest days up to the war, and to some extent since, the leading members of the bar in Northeast Missouri, and probably all over the State outside of St. Louis, traveled with the Judge around his circuit, and some of them, like Col. Ander- son, were called to important cases outside the circuit. Born on a farm in Green County, Ky., December 8, 1808, his opportunities for education were limited, but he improved them, and was admitted to the bar at Bowling Green, Ky., before he reached his majority. Then he came to St. Charles, Mo., to which place he removed two years before settling permanently in Palmyra. His nature was genial, and he was a most companionable man, and especially was he admired and loved by the younger members of the profession, for he was ever ready to give them good advice and help them out of difficulties, and to even lend a hand in the trial of their cases. As a young man his complexion is said to have been florid and his hair sandy, but when the writer first knew him just after the war, his locks were white. He was of good size and build, always neat, clean shaven and careful to have his boots blacked. In fact he said he could not speak worth a cent without polished shoes or boots on his feet. Being naturally public spirited and greatly interested in political questions, he early became a candidate for office, and in 1846 was elected a member of the Legislature by the Whigs, having also the previous year been a member of the Constitutional Convention. In 1856 he was elected to Congress, his district embracing a large part of Northeast Mis- souri, and was in 1858 again elected, both times by the "Know Nothing" or "American" party. When the excitement of 1860 and 1861 threw the country into strife, he declared himself for secession, but he never entered the Confederate service.
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