Page images

doubt, will be better than ours, your complicated balances and intermediary powers. ... Your combinations of balanced powers only tend to separate and complicate individual interests rather than to unite them. ... I have never understood the subtile distinctions, so incessantly repeated, respecting the various forms of government. I know but two descriptions, — the good and the bad. The good, which is yet to be found; the bad, the great secret of which is to draw, by a variety of means, the money of the governed into the pockets of the governors. That which the ancient governments acquired by war, our moderns obtain more certainly by financiering ; it is only the difference in the means which makes any variety. I believe, notwithstanding, in the possibility of a good government, where the liberty and property of the people being respected, one may see the general good necessarily resulting, without your balances or particular interests. Such would be a simple machine, the springs of which, being easily regulated, would render unnecessary the complicated appendages of wheels and balances, so difficult to be kept in order by those unskilful people who usually meddle with the affairs of government. ... I dare to predict that we approach such an epoch.” That epoch was the French Revolution ; that government, without balances or particular interests, was the Reign of Terror. The admirers of Plato's republic had at last given it a practical trial.

The original draft of the plan of government which is found in the constitution of Massachusetts was the work of John Adams. The constitutions of other states were moulded after this. From these the constitution of the United States was formed. All these constitutions embody Montesquieu's system of checks and balances, and they are more nearly allied to the English constitution than it would be prudent at all times to acknowledge. Except that the president has more power than the king, some have thought that the caucus system was the chief difference. But these constitutions were not formed without a struggle. Plato, Hobbes, Filmer, Milton, Locke, Algernon Sidney, and Rousseau, as well as Montesquieu, were more or less in fashion. John Adams was a believer in Montesquieu, some others were not. Montesquieu ran the gauntlet of criticism. Adams's opinion of the value of his work is shown in a letter to James Madison, written many years after, in which he says, –

I am not an implicit believer in the inspiration of infallibility of Montesquieu. On the contrary, it must be acknowledged that some of the philosophers have detected many errors in his writings. But all their heads, consolidated into one mighty head, would not equal the depth of his genius or the extent of his views. . . . When a writer on government despises, sneers, or argues against mixed governments, or a balance in government, he instantly proves himself an ideologian. To reason against a balance, because a perfect one cannot be composed or eternally preserved, is just as good sense as to reason against all morality, because no man has been perfectly virtuous. . . . Montesquieu ... might have taught them more sense.

This review is not the place to speak at length of Montesquieu as a political economist; but a notice of The Spirit of Laws would be imperfect without some mention of the subject. It may be briefly said that he may dispute with Quesnay the title of instructor of Adam Smith. He had seen the workings of protection, and was a free-trader. His opinions upon the subject of taxation, though perhaps not strictly correct in all particulars, are in the main sound, and somewhat in advance of those popular in this country at the present day. They may be summed up as follows : Taxes are always an evil. They injare liberty and property in several modes. According to the mode of their operation, they affect different classes of citizens in a different manner. But labor is the source of all property, and ultimately the laboring man must bear the great burden of taxation. Landed property does not differ from other property, and may be considered as the machinery of an art or trade. “The public revenues are a portion that each subject gives of his property, in order to secure or enjoy the remainder. To fix these revenues in a proper manner, regard should be had both to the necessities of the state and to those of the subject. The real wants of the people ought never to give way to the imaginary wants of the state. Imaginary wants are those which flow from the passions and the weakness of the governors, from the vain conceit of some extraordinary project, from the inordinate desire of glory, and from a certain impotence of mind incapable of withstanding the impulse of fancy. Often have ministers of a reckless disposition imagined that the wants of their own mean and ignoble souls were those of the state.” Commentaries on American Law. By JAMES KENT. Twelfth edition. Edited

by 0. W. HOLMES, Jr. Boston: Little, Brown, & Co. 1873. MR. HOLMES says, in his preface :

I have devoted more than three years to the attempt to bring this work down through the quarter of a century which has elapsed since the author's death. While it has been in progress I have tried to keep the various subjects before my mind, so far as to see the bearing upon them of any new decision in this country or in England. Almost all my more important notes have been partially or wholly rewritten — many of them more than once – in the light of cases which have appeared since their first preparation; and every case cited has been carefully examined in the original report. In order to avoid encumbering the text with frequent interruptions and an unmanageable body of notes, the additions to each of the author's subdivisions bave generally been compressed into one subordinate essay. Great care has been taken to insert nothing which does not contribute to the main current of the discussion, to condense as far as possible what has been inserted, and to make each of the more important notes a whole in itself when that could be done without repetition.

When a law-book has passed through a few editions, and has been annotated by several different editors, the notes are apt to become confused and cumbrous. The student is perplexed by their want of unity. Instead of being illustrations of the text, they have by that time degenerated into bulky groups of names of cases. A case has from time to time been added, not because it illustrates, controls, modifies, or expands the principle expressed in the text, but because, having a relation more or less remote to the subject-matter of the treatise, it must be placed somewhere, and it is as convenient to give it the place it occupies as any other. This random sprinkling of new cases into the notes of a new edition is a work which can be done by a pepper-box as well as by an editor. This is not what has been done in the work before us. While all of Chancellor Kent's notes have been retained, the notes which have

been added to former editions since his death have been entirely swept away, with the exception of one by Mr. Justice Kent, the son of the Chancellor, and some by Judge Comstock. These notes are enclosed in brackets, and marked with the initial of the author. The notes of the present editor are printed in double columns. By this arrangement a little care will now enable congressmen to avoid quoting criticisms made in the notes upon cases decided since Kent's death as “ the opinion of the learned Chancellor.”

We have read every one of the present editor's notes to the four volumes. Beginning as a critic, we continued to read as a student. We believe the work to be admirably done. It is a successful attempt to bring forward the many subjects embraced in the work to the present position of the law. This has been done by carefully written subordinate essays upon the leading points of each subject. The notes upon international law (for many new and interesting questions of international law grew out of the late civil war) will well repay a perusal. The notes upon the jurisdiction of the United States courts (which embrace the subject of appeals from state courts, and of the removal of suits from state to United States courts) give a mass of important information, not collected elsewhere. Various questions of constitutional law are ably treated in a set of notes, each of which is placed in proper connection with the text. The notes to the second and third volumes, upon the various subjects of mercantile and maritime law, may perhaps be regarded as models of what notes may be. We doubt if they can be read without a slight feeling of regret that so much learning and labor should have expended itself in the subordinate position of an annotator.

The editor tells us he has taken great pains to condense, as far as possible, what he has written. We are afraid he has condensed it to a fault. If that be a fault, it is the most virtuous one a law writer can commit.

Reports of Cases relating to Letters Patent for Inventions, determined in the Su

preme and Circuit Courts of the United States. By WILLIAM HUBBELL FISHER. Volume I. Cincinnati : Robert Clarke & Co. 1873.

These reports, including, as they will, all patent cases not contained in Robb's Patent Cases and Fisher's Patent Cases, will be welcome to the profession. The decisions expounding the patent laws of the United States, in many instances rendered by the judges of the Supreme Court on their circuits, and often revised by that court on appeal, are as nearly harmonious as is possible in a numerous series of cases on a given subject, arising in almost every state of the Union; and it is peculiarly gratifying that the whole of this consistent branch of the law is to be contained in a few compact and well arranged volumes.

The present volume contains some important cases upon the construction of the patent laws, and in it there are numerous cases relating to some of the most celebrated inventions of our day.

Among those relating peculiarly to the construction of the statutes, we note the following :

In Blanchard v. Sprague, in this circuit, Judge Story held that the extension of the Blanchard patent for the machine for cutting irregular forms was of no effect, because the act of Congress granting it described the patent as being for a machine, and dated January 12, whereas the patent was in terms for an engine, and was dated January 20.

In Kneass v. Schuylkill Bank, Judge Washington held that under section 20 of the Judiciary Act of 1789, costs might be awarded against the plaintiff in a patent suit when he recovered less than five hundred dollars as damages.

Burr v. Gregory is to the effect that the circuit courts of the United States do not have jurisdiction to enforce specific performance of contracts for the conveyance of patent rights.

In Wilson v. Turner, and several other cases, the validity of an assignment of an extension before it is granted is established.

In Sparkman v. Kelsey, it is held that no suit can be maintained for an infringement which the plaintiff designedly induces defendant to commit.

Allen V. Blunt establishes the jurisdiction of the circuit courts in suits upon patents between citizens of the same state.

In Wilbur v. Beecher, and several other cases, Judge Nelson holds that in actions at law the plaintiff may recover as damages the profits which the defendant has made by infringing.

The famous case of Gayler v. Wilder is reported in these pages, in which the Supreme Court, impelled by the logic of Daniel Webster, advanced the theory that an invention of modern date might become like one of the “ lost arts” in the eye of the law, which the profession have not yet ceased to puzzle over.

The Woodworth planer is the subject of nineteen cases here reported, and the Parker water-wheel is the burden of several more, in one of which it was stated that two hundred suits upon the same patent were then pending in the same court.

The same elegant typography which graces Fisher's Patent Cases is found in this volume, but the blush which mantled the pages of the former work, in departing from the accustomed black and white of law books, is wanting in this one. The general excellence of the typography is marred by very few errors, though the compositor does attribute to Judge Nelson (p. 258) the assertion that it is the “providence" of juries to settle questions of fact (which some lawyers doubt), and the specification of the Woodworth patent is out of place under the title of Hogg v. Emerson, pp. 629–632.

The work of the author is well done. The statements of the cases exhibit the work of a careful hand where they depart from the originals, and the head notes and index are very full and clear.

The book is illustrated with well executed engravings of the inventions in litigation, and they will, as the author says, render the decisions upon them at once intelligible and capable of being cited upon analogous mechanical questions. The only omission which we note is that of the names of counsel in Parker v. Stiles, p. 319. We regret that the case of Parker v. Ferguson is not reported more at length. The points made by counsel might aid in reconciling the case with others. Judge Nelson apparently held that a patent might be defeated by evidence of the existence of a prior machine without proof of its having been used, and this is a question of importance.



We reluctantly add that the faculty, which the author evinces elsewhere, of stating much in a few words, might have been profitably exercised in reducing the statement of the case and the arguments of counsel in the case of the Washington, Alexandria, and Georgetown Steam Packet Co. v. Sickles, in which twenty-two pages are given to them, and five pages are given to the opinion of the court, which contains a statement of the case, and disposes of one of the two exceptions argued upon ground not taken by counsel; and perhaps a similar criticism will lie to the report of the succeeding case of Hogg v. Emerson; but these are faults copied from Howard's Reports.

A Digest of the Decisions of the Federal Courts, from the Organization of the

Government to the Present Time. By FREDERICK C. BRIGHTLY, Esq., of the Philadelphia Bar, Author of The United States Digest, A Digest of the Laws of Pennsylvania, A Treatise on Equity, &c. Vol. II. Second Edition. Philadelphia: Kay & Brother, 17 and 19 South Sixth Street, Law Booksellers, Publishers, and Importers. 1873.

The merits of Mr. Brightly's Digests are so well known to the profession, that this new volume hardly calls for extended comment. It is constructed on the same system as the author's previous works, and is in no respect inferior to them.

We cannot, however, agree with Mr. Brightly in thinking his system the true one. He says, in his preface:

There are two methods of making a Digest of Decisions ; one is a succinct statement of the facts of a case, with the judgment of the court upon those facts; the other, to give the principle of law decided in the case in the fewest possible words consistent with clearness of expression. The author has chosen the latter plan, and he believes it to be the one most acceptable to the practitioner. It is obvious that no Digest will entirely supersede the necessity of referring to the original sources of authority; but what is wanted by the practising lawyer is a Digest which will enable him to see at a glance the principle of law that has been decided, without the trouble, in a hurried examination of authorities in his office, of studying out for himself that principle, by an application of the judgment to the facts of the decided case. This has been attempted in the present work.

We have preferred to let Mr. Brightly state the arguments in support of his method himself. We are content to take from him also what seems a conclusive answer, when, in deprecating the criticism of such as may think he has occasionally stated the principle decided in a case erroneously, he says, "No two lawyers invariably draw the same conclusion from a decided case.” The practising lawyer, in his hurried examination of authorities, gets from our author's work only his opinion as to the principle decided in a given case, and, if he is fortunate enough to possess two digests, he may find such contradictory statements as will make him wish that the facts had been stated, and he had been left to draw his own inferences. In the majority of cases, courts merely apply well-settled principles to new complications of fact, and the whole value of such cases is lost if the facts are not stated. “Money paid under a mistake of fact can be recovered " would undoubtedly be a correct statement of the principle decided in a hundred cases ; but if that statement was the only

« PreviousContinue »