Page images

which was first published in 1658; was republished in 1679, and has been inserted in Mr Hargrave's edition of the State Trials, vol. xi. p. 52.

The cases contained in his reports are very concisely given, and very meagre in point of reasoning and illustration, but are of great weight as authorities in the formation of the existing common law. In the words of the old English edition, 'the Cases are select, such as his curious Choice out of the Plenty of his great Observation preferred; and in most of which himself was Counsel, the Weight whereof may well pass for Number.' But the peculiar value of the present edition consists in the great number of excellent notes, with which it has been enriched by the American editor. Indeed, we do not know a book in the lawyer's library, which contains more useful and accurate learning on a great variety of heads, and we think it does real honor to the professional character of the country. It is obviously impossible in a journal like ours to give any thing like an analysis of a merely technical work of this kind, being annotations upon adjudged cases. It is sufficient to say, that many of them are very ample essays upon the subjects they touch, and that they all indicate an extensive and accurate knowledge of the ancient and modern law. Some of the judgments and dicta are critically examined, and doubted or denied; and much useful light is thrown upon the subjects discussed. Upon the whole, we have derived great pleasure and instruction from seeing our old acquaintance in the new dress, which Mr Metcalf has given him. Although his works are 'so excellent in their native beauty,' as the English editor expresses it, yet we think the modern improvements in the law have given it additional strength as well as ornament. A more liberal mode of reasoning upon legal subjects has been adopted, and the Roman code has been freely resorted to, as containing a rich collection of principles recommended by their intrinsic wisdom and equity, and by their having become incorporated into the jurisprudence of almost every civilized and commercial state. The science has been greatly improved, and is still improving, by these means; and we venture to say in none of the countries of the common law, is it in a more flourishing condition, than in the United States. We can now do very well without the modern English reports and elementary treatises. The former contain, at present, hardly any thing but

decisions on local statutes, or trifling distinctions from old cases. It seems to be the object of the English judges of the present day, both in the courts of law and equity, to avoid deciding any thing but the case in judgment; and what is stated as falling from the bench, is given in such a slovenly way as to afford very little instruction. There is frequently a want both of perspicuity and precision in what is reported as the judgments of the English courts, which doubtless proceeds in a great measure from the judges not having time, and wanting inclination if they had time, to reduce their opinions to writing. We believe that sir William Scott and sir William Grant are almost the only eminent judges of recent times, who have drawn up their judgments in writing, and we all see the fruits of this care for their own fame in the superior accuracy and elegance of the judicial opinions of these great men, which, no doubt, partly proceed from their intellectual superiority, but must be in a great measure owing to the circumstance we have mentioned. We think lord Eldon could hardly be so intricate, cloudy, perplexed, and obscure, if he would take the trouble to explain himself on paper. Of course we do not mean by this to say any thing irreverent of that accomplished master of the science of equity. But we do think it is time for us to cut adrift from England in this respect, and that the American lawyer might very safely stop at the end of the long reign of George III, and exclude from his library the crowd of reporters, which annually pour forth from the English press.

ART. XIV.-An Essay on the law of patents for new inventions. By Thomas Green Fessenden, counsellor at law. Boston, 1822, 8vo.

THE law of patents for inventions is daily becoming more interesting in this country, on account of the extraordinary mechanical genius of our countrymen, and the rapid advances which have been recently made in manufactures and the useful arts. A very large amount of property is invested in these branches of industry, which is daily increasing by means of labor-saving machinery. The constitution of the Union has given to congress the prerogative of granting to inventors a monopoly of their discoveries and improvements, as a reward

due to the application of genius and industry to objects so essential to national prosperity. Whether congress has wisely exercised this power, in the details of the patent laws, is a large question, upon which we do not choose to enter in this short notice of a treatise on the subject. It would seem that in confining the benefit of these legislative provisions exclusively to citizens, and in not providing adequate means to prevent patents from being improvidently issued, our legislators have not evinced their usual liberality, wisdom, and skill. But we have nothing to do at present with the policy of the law; our concern is with that system of judicial interpretation, which has been built up on the statutes, copied as they are from the English code, and consequently borrowing and reflecting mutual light from the decisions, which have been pronounced in the tribunals of the two countries.

A good treatise on the law of patents and the kindred subject of literary property, as secured by copy rights, is very much wanted by the profession. A great deal has been done by the national courts of late towards settling its principles, and applying them to the great variety of nice and difficult questions, which occur in this branch, which has not improperly been called 'the metaphysics of the law.' Indeed, the human mind has never been employed upon any subject of a practical character, which tasked more severely its subtlety and acuteness. A work, therefore, deducing its principles in a scientific manner, collecting and classifying the cases, analyzing each case, so as to bring under the proper head the various points adjudged, and subjecting them all to the test of free and candid criticism, would certainly form a very valuable addition to our digests or abridgments of the law. We are sorry that we cannot conscientiously say, that Mr Fessenden's compilation, a second edition of which is now presented to the public, fulfils what the profession have a just right to expect from such a work. In the first place, it entirely passes over in silence some of the most important heads of the subject, such as the extensive jurisdiction, which the Court of Chancery exercises in preventing the infringement of patent rights, as well as copy rights; the general question of jurisdiction; and the vast field of conflict between the state and federal authorities, as connected with this matter. The great case of Livingston and Fulton against Van Ingen, in the Supreme Court of New

York, in which the right of that state to grant a monopoly of the navigation of its waters by steam boats is discussed, is entirely unnoticed. It may indeed be said, that it was not expedient or proper to notice that case, because the same question is now pending before the Supreme Court of the United States, the only tribunal competent to give it a final determination. But we cannot think this a sufficient reason for altogether omitting a cause, which was so ably debated by very eminent counsel, and which, besides the general doctrines involved in it, contains a great deal of useful collateral information on the subject of injunctions, and Mr Chancellor Kent's valuable exposition of the English patent laws. The reader might safely have been trusted with an abstract of so leading a case, even if it were accompanied with a caveat against the heresies contained in it, or what would have been still better, a candid and critical examination of those heresies. If, however, this latter task ought to have been left to the Areopagus at Washington, we see no sufficient reason for keeping out of sight an adjudication of a very respectable state tribunal, which throws so much light upon the subject of the work before us.

Nor is this all. The book is extremely deficient in that methodical arrangement and lucid order, which is indispensable in what is to serve both as an elementary treatise and as an index to the reporters and to preceding abridgers. It contains no original matter whatever; and does not give a proper statement of the principles on which the cases, which are quoted, depend. It does not analyze each case, and refer the different principles it contains to their appropriate heads; but copies the cases at large (and sometimes with the arguments of counsel and marginal notes) from the original reporters, and leaves the reader to grope his way as well as he can through a long labyrinth, for which the compiler furnishes no other or better clue, than is to be found in the book from which he makes his extracts. The case of Evans against Eaton, for example, is copied verbatim from the third volume of Mr Wheaton's Reports, in which it takes up the unreasonable length of more than fifty pages, into Mr Fessenden's book. This long and tedious case, which we think must be read over several times before it can be perfectly understood, ought to have been carefully dissected, and the elementary doctrines, which could fairly be deduced from it, should have been arranged and preNew Series, No. 13.


sented under the various heads, to which they respectively belonged. The most ordinary index maker would not think of jumbling them together under one title, and least of all should the whole case have been given en masse, as a part of the text of an elementary work on a particular branch of the law. If this is to be considered as only a digest of authorities, humble as is the task of the mere abridger, he cannot be said to execute it with fidelity by merely copying the marginal notes from the books of reports; and if it was thought desireable to give the cases at large for the convenience of reference, they should have been annexed in the appendix, as Mr Montague has done in his treatise on the law of partnership. Upon the plan here adopted, it would be quite an easy mechanical task to make a law book:-Search the indexes for the different heads of your matter, copy from preceding elementary writers some of the general principles belonging to it, extract from, or rather cut out of the reporters the cases, which have been adjudged upon it, make a title page and index to the whole, secure your copy right, and send the book to your printer.

Among the cases entirely omitted in this compilation, and some of which are of very great importance, are the following: Ex parte Fox, 1 Ves. & Beames, 67. Hope v. Stevenson, 3 Bos. & Pul. 565. Hill v. Thompson, 3 Meriv. 612. The King v. Wheeler, 2 Barnwell & Ald. 344. Moore v. Reid, 9 Johns. R. 521. Morrill v. Worthington, 14 Mass. R. 389. Newberry v. James, 2 Meriv. 446. Ex parte O'Reilly, 1 Ves. Jur. 112. Parsons v. Barnard, Same v. Wigton, 9 Johns. R. 144. It does not appear, that the editor has made any considerable additions to the former edition, except the case of Evans against Eaton, above referred to, and the very able judgments delivered by Mr Justice Story in the Circuit Court, which contain a great body of valuable learning on the law of patents, which have already appeared in Mr Gallison's and Mr Mason's reports, but which the reader may find it convenient to have collected in a single volume.

« PreviousContinue »