ants of much apprehension that they may be compelled to pay under the name of profits what has never come into their hands and what the plaintiff has never lost, actually or constructively.

It is obvious that, in many cases, the use of an invention does not result in profits. It is used for enjoyment, and not for profit. There is a kind of sewed shoe manufactured in this country, which is the subject of a patent. About twenty-five million pairs are made and sold annually. The persons who use them. do so generally not because they are cheaper or more economical than pegged shoes, but because, though more expensive, they are more comfortable. The advantage the user obtains is not more profit, but more comfort. But how can a court of equity take an account of this kind of advantage?

In view of the consequences which have been found to follow the application of the rules of equity in taking an account, and of the impossibility of taking an account, in many cases it has been thought that the distinction as to the amount to be recovered between cases at law and in equity should be abolished, and that the same rule should be applied in both. By the statute of 1870, courts of equity were empowered to assess damages in addition to profits; but the distinction between damages and profits was not done away with. It may well be doubted whether it would be just or judicious to take away from courts of equity the power to compel a defendant to surrender the profits he has actually made in the unlawful use of an invention. The profit to be made from an invention is usually the temptation to its infringement; and in many cases the profits which are anticipated are often seen to be much greater than the damages which the defendant may at law be compelled to pay. The knowledge that he may be compelled to surrender the profits he may make from the unlawful use of an invention, will often deter a party from infringing, when his liability to pay damages will have no such effect.

It may also well be doubted whether it can be wise or safe to attempt to lay down by legislation positive rules in relation to the amount which may be recovered, either at law or in equity. The rule laid down by the Supreme Court in Mowry v. Whitney operated favorably for the defendant; but its application to certain railroad cases at the West gave results which it is hardly possible to regard as just, and which would give to the owners of

the patents a compensation for the use of the inventions many times greater than they could possibly have obtained if their rights had been fully respected, and perhaps much greater than the whole profit made in operating the roads.

It will be safer and wiser to relieve the courts from the rules they have laid down, and vest them with the widest discretion, than to impose upon them other and different rules.

CHAUNCEY SMITH.

JEREMIAH MASON AND THE BAR.1

THE subject of the Memoir before us is still well remembered as one of the greatest and most famous of American lawyers, who, although practising in a country town, and never appearing in the great arena for a national reputation, the Supreme Court of the United States, yet acquired such a reputation before his removal, late in life, to Boston; and of whose great knowledge of law, keen sagacity, trenchant logic, and caustic humor, those who used to know him still delight to talk and to relate anecdotes.

But, like most other eminent lawyers, Mr. Mason has left little save the reminiscences of his surviving friends, and the traditions of the bar, to perpetuate his memory, or to prove his great abilities; and the materials for any account of his professional life are extremely scanty. A most interesting fragment of autobiography which he left, together with his correspondence and other family papers, were placed by his son, some years since, in the hands of an accomplished gentleman, who joins to the necessary professional knowledge much literary ability and experience; and from them has been compiled a very handsome volume, prepared only for private distribution, but well deserving to be published, which forms an agreeable contrast to the hastily and imperfectly prepared Memoir of Lord Abinger that we recently reviewed. Mr. Hillard had in his work the great advantage of a familiar personal acquaintance with Mr. Mason; and it is needless to tell his brother lawyers that he has performed his task with characteristic skill and good taste.

Jeremiah Mason, the son of a Revolutionary officer of the same. name, and a descendant of Major John Mason, the Puritan commander in the Pequot war, was born at Lebanon, Connecticut, on the 27th of April, 1768. He was the sixth of nine children. His father, who was a farmer, seems to have been a man of some

1 Memoir and Correspondence of Jeremiah Mason. [By G. S. HILLARD.] Privately printed. Small 4°. Cambridge, 1873.

position and influence. Of his mother, whose maiden name was Fitch, he speaks in his autobiography with much affection:

"Kindness and benevolence were instinctive with her. She seemed never to fall under the influence of any angry or malevolent passions; she was kind to all who approached her, or came within the sphere of her influence, and this was followed by its natural consequence. I doubt if there was a person in the world that owed her ill-will, or felt an inclination to do her injury. . . . She was anxiously desirous to give all her children the best education in her power, and it was owing much to her influence with my father that I was enabled to obtain a collegiate education."

His father lived in a retired situation, which suffered from the inconvenience of having few facilities for education. Till after the age of fourteen, he attended school but three winters, and then only for three months in each winter. What other instruction he had, he received at home. In 1782, he began to prepare for college at a school about six miles from home, under a Mr. Tisdale, a graduate of Harvard College; and who, he says, "was a good scholar, and had kept the school, I believe, forty years, and had become quite aged." In less than two years, he was fitted for examination, and was admitted to the Freshman class of Yale College, in 1784.

...

"The requirements for admission to that college were then very low. In Latin, the examination was confined to a part of Virgil and a part of Cicero's Select Orations; in Greek, to the Evangelists. My attainments, though slender, were equal or superior to that of a majority of my class. The college was almost entirely destitute of funds, and unable to employ competent professors. . Yet, with such slender means of instruction, a good deal of hard study was enforced. President Stiles had excellent talents for government, was both loved and respected, and maintained a sound discipline. A boy that would not study had an uncomfortable time of it."

...

The discipline of Yale College was then widely different from that of any college now existing, and the Freshmen seem to have been treated very much as the Sizars used to be at Cambridge and Dublin; and as boys are, under the fagging system, in the English public schools.

"As was usual, I had been examined, and was admitted at the time of commencement; and, at the end of the ensuing vacation, I returned to New Haven to join my class. I arrived the afternoon of the first day of the

term, and, having put up my horse and engaged lodgings for the night, I, towards evening, went up to the college to see the splendor of my future residence. While standing in the college-yard (as the enclosure was called), a man booted, and with a horsewhip in hand, approached me, and asked if I was a Freshman. I answered 'Yes, sir.' — 'Take off your hat, then, when in the presence of one of the government of the college.' He added, 'Go and ring the bell for prayers,' and passed into the college building. I was confused by this harshness, and went immediately to what I supposed to be the chapel. The door of the belfry was open; but on entering I could find no bell-rope. I looked into the chapel: nobody was there. After looking again for the bell-rope, and finding none, and feeling a little indignant at the rude treatment I had received, I left the chapel, and returned to my inn. There I found several of my classmates, with whom I soon became acquainted. I told them the story of the treatment I had received, and of my apprehension of trouble from my disobedience of orders. This led to an ardent discussion of the demerits of the fagging servitude to which, by the ancient college regulations, the Freshmen were subjected. By the college laws, the Freshmen were placed in what we deemed an improper subjection to the members of the other classes. The superiors had the right of requiring of the Freshmen certain menial services, such as sending them on errands to any part of the town, bringing water from the pump at all times, except during study hours and college exercises. They had also the right of requiring the attendance of Freshmen at their rooms, to be there instructed in the rules and practice of good manners. Whatever might have been the original object and effect of this practice, it had now fallen under much odium, and was exercised mostly by the young Sophomores for the purpose of vexation. We were unanimous in its condemnation as tyrannical and degrading."

It was probably from such regulations as these that the modern custom of hazing took its rise. The following day, Mason met the tutor who had ordered him to ring the bell:

rope.

"He, in a harsh manner, took me to task for disobedience of his orders in not ringing the bell. I plead inability by reason of there being no bellHe disallowed my excuse, saying that the rope was drawn up into the second story of the belfry; that I could have found it easily enough, if I had tried. After giving me a severe reprimand, he excused me from further punishment, in consideration of my ignorance of his dignity and of college laws, and dismissed me with a strong caution to look out for the future. Alarmed by falling so soon under ill-opinion by the government, I went immediately to my father, who was then in New Haven attending a session of the legislature, of which he was a member, — and explained to him my grievances and apprehensions. He was acquainted with Mr. Tal