448 CONGRESSIONAL RECORD-SENATE. JANUARY 15, 

PETITIONS, ETC. 

The following petitions, &c., were presented at the Clerk's desk, 

under the rule, and referred as stated : By Mr. ALDRICH : The petition of W. }.,. Bayne, M. D., and 20 

others, citizens of Macomb Illinois, for legislation to prevent the adulteration of sweets-to the Committee of Ways and Means. 

Also, the petition of T. N. Marynis and 40 others, citizens of Watseka, Illinois, of similar import-to the same committee. 

Also, the petition of George H. Kemp and 12 oth.ers, citizens of 

Barnesville, Ohio, of similar import-to the same committee. 

Also, the petition of P. H. Davies and 26 others, citizens of Canton, 

Illinois, of similar import-to the same committee. 

.Also, the petition of John C. Kingston and 25 others, of the State 

of New York, manufacturers of lasts, against the extension of the 

shoe-last patent of Nathaniel Jones-to the Committee on Patents. 

By Mr. ATKINS: The petition of citizens of Tennessee, for the 

improvement of the navigation of Duck River-to the Committee 

on Commerce. 

Also, papers relating to the war claim of George W. Mifileton-to 

the Committee on War Claims. 

4Jso, memorial of the American Public Health Association, asking 

the publication of an index to the medical library in the office of 

the Surgeon-General-to the Committee on Appropriations. 

By Mr. BACON: The petition of John C. Kingston· and others, 

against the extension of the shoe-last patent of Nathaniel Jones-to 

the Committee on Patents. 

By Mr. BALLOU: The petition of John C. Kingston and others, 

of similar import-to the same committee. 

Also, memorial of th~ sngaF importers and dealers r¥. Providence, 

Rhode Island1 against the proposed change of duties on sugar-to the 

Committee ot Ways and Means. 

By Mr. BANNING: The petition of citizens of New York, against 

the extension of the shoe-last patent of Nathaniel Jones-to the Com-. 

mittee on Patents. 

By Mr. BICKNELL: The petition of G. Westinghouse and others, 

against extending the Birdsell clover-huller patent-to the !:lame committee. 

Also, the petition of John C. Kingston and 25 others, manufacturers 

of lasts, against extending the shoe-last patent of Nathaniel Jonesto the same committee. 

By Mr. BOUCK: The petition of citizens of Nekama, Wisconsin, for legislation to prevent the adulteration of sweets-to the Committee of Wavs and Means. 

By Mr. BOYD: The petition of S. H. Thompson & Co. and other 

firms, of Peoria, Illinois, for such a change of the tariff as will admit 

all raw sugars not above No.16, Dutch standard in color, at one rate 

of duty-to the same committee. 

Also, the petition of s. H. Thompson & Co. and other firms, of Peoria, lllinols, for legislation to prevent the adulteration of sweets-to 

the same committee. 

By Mr. BRIDGES: The petition of citizens of :Massachusetts, against 

the extenl:!ion of the sewing-machine patent of McKay & Mathiasto the Committee on Patents. 

By Mr. CARLISLE: The petition of the ladies of the Protestant 

Episcopal church at Dayton, Kentucky, for additional legislation to 

.suppress the prnctice of polygamy-to the Committee on theJ udiciary. 

By Mr. CHITTENDEN: The petition of G. 'Vestinghouse & Co. 

.and others, against the extension of the Birdsell clover-buller pat-

-ent-to the Committee on Patents. 

.Also, the petition of Jolin C. Kingston and others, against the ex- tension of the shoe-last patent of Nathaniel Jones-to the same committee . .Also, resolution of the senate of the New York Legislature, opposing the passage of the Army reorganization bill, or at least the portions of it relating to the ordnance department, United States ar- senals, and ordnance stores-to the Committee on Military Affairs. 

By Mr. COX, of New York: The petition of Ralph King, for com- pensation for services as United States consul at Bremen, Germanyt-o the Committee on Foreign Affairs. 

By Mr. CRITTENDEN: The petition of Samuel S. Case, of Booneville, Missouri, for bounty for himself and others-:-to the Committee 

()n Invalid Pensions. 

By Mr. DEAN: The petition of :Mrs. Horace Manning and 14 others, 

for legislation that will make em~ctive the anti-polygamy law of 

1862-to the Committee on the Judiciary. 

By Mr. DEERING: The petition ef citizens of New York and Ohio, 

ag_ainst extending the Birdsell clover-huller patent-to the Committee on Patents. 

Also, the petition of citizens of Buffalo, New York, against extending the shoe-last patent of Nathaniel Jones-to the same committee. 

By Mr. FINLEY: The petition of Allen Campbell and 40 others, of 

Crawford County, Ohio, against the extension of the Birdsell cloverhuller patent-to the same committee. ·By Mr. FRYE : The petition of Elisha T. Totman and others, for 

the establishment of a life-saving station at Cape Small Point, :Mainet.e the Committee on Commerce. 

By Mr. GUNTER: The petition of Joseph W. Estep, for the removal 

of the charge of desertion-to the Committee on Military Affairs. 

By Mr. ~ASKELL: The petition of citizens of Pleasanton, Kansas, 

for a commission of inquiry concerning the alcoholic liquor trafficto the Committee on the Judiciary. 

By Mr. HOOKER: The petition of Henry Blackman, late postmas· 

ter at Brookhaven, Mississippi, to be relieved from accounting for money stolen from him by burglars-to the Committee of Claims. By Mr. JONES, of Alabama: A paper relating to the establishment 

of a post-route from Grove Hill1 via Winn's Mill, to Jackson, Alabamar-to the Committee on the Post-Office and Post-Roads. 

By Mr.MORSE : Memorial of the harbor commissioners of Boston , Massachusetts, relative to the improvement of Boston Harbor-to the Committee on Commerce. 

By Mr. MULDROW: Papers relating to the war claim of Abner McCollnm-to the Committee on War Claims . By :Mr. OVERTON : The petition of Stella Hillis and other women, of Rushville, Pennsylvania, for such legislation as willmake .effective 

the anti-polygamy law of 1862--to the Committee on the Judiciary. .Al~o, the petition o.f Mary. E: Th?ma and 42 other,women, of Stev- ensville, Pennsylvarua, of s1m1lar 1mport-to the same committee. 

By Mr. PRICE: The petition of the Women's Christian TemperMlCe Union and 36 citizens of Malcolm, Iowa, for a commission-of in· 

qniry concerning the alcoholic liquor traffic-to the same committee. 

Also, the petition of the Women's Temperance Union o.f the sixth 

congressional district of Iowa, of similar import-to the Bame com- mittee. 

Also, the petition of the Women's Christian Temperance Union and others of Keokuk, Iowa, of similar import-to the same commit- tee. 

By :Mr. RICE, of Ohio: The petition of Sarah J. Rauch, Lucinda J. 

Maple, and 80 other ladies, of Columbus Grove, Ohio, for such legislation as will make effective the anti-polygamy law of 1862--to the same committee. 

By Mr. RYAN: The petition of women of Reno County, Kansas, of 

similar import-to the same committee. 

By Mr. SAMPSON: 'l'he petition of Mrs. E. B. Woodruff, Mrs. H . T. Cunningham, Mrs. B. Ewalt, Mrs. A.M. Bonebrake, Mrs. A.M. Weyers, Ellen McClelland, Emma Ball, Susan Lewis, Kate Sears, and 

605 other women, of Knoxville, Iowa, of similar import-to t he same committee. 

By MF. SHALLENBERGER : The petition of 32 women of Lawrence County, Pennsylvania, of similar import-to the same committee. 

By Mr. SLEMONS: The petition of citizens of Pine Bluff, Arkansas 

for an appropriation to protect the river front of said city-to the Committee on Commerce. 

By Mr. STRAIT: The petition of Mrs. S. L. Sherred and 20 other ladies, of Shakopee, Minnesota, for legislation to make effective the 

anti-polygamy law of 1862--to the Committee on the Judiciary. 

.Also, memorial of Henry M. Rice, of St. Paul, Minnesota, and ot hers, 

in refe1·ence to the improvement of lake navigation-to the Committee on Commerce. 

By Mr. TUCKER: Memorial of citizens of Charlotte County! Vir- ginia, asking relief from the present onerons tobacco tax-to t he Committee of Ways and Means. 

.Also, the petition of JohnS. Barbour, receiver of the Washington 

City, Virginia Midland, and Great Southern Railroad Company, for legislation to enable the Post-Office Department to establish a double 

daily ruail service oVer said line of roa-d-to the Committee on the Post-Office and Post-Roads. 

By M.r. 'VILLIAMS, of Alabama: The petition of citizens of Bullock County, Alabama, for a post-route from Mount Level to Indian 

Creek, in said county-to the same committee . 

IN SENATE. 

WEDNESDAY, January 15, 1879. 

Prayer by the Chaplain, Rev. BYROY SUNDERLAlm, D. D. The Journal of yesterday's proceedings was read and approved. 

PETITIONS Al\"D 1\tE~IORIALS. 

Mr. WITHERS prese:t;1ted the resolutions of a public meeting of citi· zens of Powhatan County, Virginia, protesting against the injustice 

of the tobacco tax; which were referred to the Committee on Finance. He also presented a memorial of a committee of the Public Health 

Association, appointed at its late meeting in Richmond, Virginia, in 

favor of such legislation as will secure national sanitary reRults; which was referred to the select committee to investigate and report the 

best means of preventing the introduction and spread of epidemic 

diseases. 

Mr. BOOTH presented the petition of James Powell, of San Francisco, praying for such le~islation by Congress as will enable him to 

present and prove his clarm for dama~es caused by the capture of the 

wha1i.ng-sbip Edward Cary by the rebel cruiser Shenandoah during the late war; which was referred to the Committee on the .Judiciary. Mr. CONKLING. I present a petition signed by a lar~e nUJDber of 

soldiers whose 'regiments and companies are given, praymg for legislation touching their bounties. This does not relate to the arrear-s 
1879. CONGRESSIONAL RECORD-SENATE. 449 

of pension bill, but prays for special legislation iu.special case . I 

ask its reference to the Committee on Pensions. , Mr. INGALLS. It should go to the Committee on Military Affairs 

if it relates to bounty. Mr. CONKLING. The chairman of the Committee on Pensions says 

it belongs rather to the Committee on :Military Affairs, and I ask that 

it take that direction. 

The VlVE-PRE8IDENT. The petition will be referred to the Committee on Military .Affairs. 

Mr. CONKLING. I present also the memorial of Samuel G. Wolcott, 

of Oneida County, New York, who represents himself as one of the 

bmw, fide purchasers of laml through bonds issued for the Des Moines 

River improvement in Iowa, and remonstrating against the passage 

of a bill now on the Calendar of the Senate, which professes to quiet 

the title to those lands. I move that the memorial lie on the table. 

The motion was agreed to. · Mr. CONKLING presented the petition of ,V. E. 'Vebster and a large number of others, soldiers resident in Auburn, Cayuga County, 

New York, praying for the passage of the bill (H. R. No. 4234) granting arrears of pensions; which was ordered to lie on the table. 

He also presented the petition of Van Ness Brothers and a number 

of. others, merchants and shippers in the city of New York, praying 

for the passage of the bill (H. R. No. 354i) to regulate interstate 

commerce, and to prohibit unjust discriminations by common carriers; 

which was referred to the Committee on Commerce. 

Mr. HOAR presented the petition of Mary L. Turner, widow of 

Sidney S. Turner, deceased, of Westborough, Massachusetts, praying 

for the extension of letters-patent granted to her late husband for an improvement in the wax-thread sewing-machine; which was referred 

to the Committee on Patents. 

The VICE·PRESIDENT presented the petition of Abigail F. Voter 

and 101 other women, of New Vineyard, Maine, p:t;,aying for the passage of a law prohibiting the sale of intoxicating-liquors in the District of Columbia, except for medical, medicinal, and scientific purposes; which was referred to the Committee on the District of Columbia. COURTS IX COLOR..o\.DO. 

~Ir. EDMUNDS. I am instructed by the Committee on the Judiciary, to whom was referred the bill (S. No. 763) to provide for hold- .... ing terms of the circuit and district courts in the district of Colorado, 

which passed the Senate at tbe last session and was sent to the HotlSe 

and was returned with an amendment and again referred to that 

committee, to report it with a recommendation that t he amendment 

of the House of Representatives b~ disagreed to. I think, as I see the 

Senator from Colorado [Mr. TELLER] is not here, that I had better, 

although I a.m not authorized by the committee to do so, move also 

that the Senate ask a conference on the disagreeing votes of the two 

Hbuses, as that will keep the matter in hand where it can be taken 

up and disposed of. . I make that motion, that the Senate disagree to 

the Honse amendment and ask a conference thereon. 

The VICE-PRESIDEl\TT. That order will be entered. 

REPORTS OF C0!\1MITTEES. 

Mr. EDMUNDS. I am instructed by the Committee on the Judiciary, to whom was referred the bill (H. R. No. 5315) to restore the 

records and files in the district and circuit courts of the United States 

for the western district of Texas, lately destroyed by tire, to r~port it ~h an amendment striking out all after the enacting clause and 

insert what the committee report, and also an amendment to the title 

to conform to the amendment. "The. nature of the amendment simply 

is to make a general provision of law for restoring records and files 

that are lost instead of this specia1 one for the State of Texas. I ask 

to have it printed. 

The VICE-PRESIDENT. The bill will be placed on the Calendar. 

Mr. McDONALD. To the Committee on Public Lands was referred 

the memorial of William McGarrahan, praying the correction of a clerical error in the record of a patent to the land grant known as the 

Rancho Panoche Grande, in California. That committee at the last 

session of the prese11.t Congress reported adt"ersely to the prayer of 

the memorialist, but asked .leave to prepare a more complete report on the subject to be submitted totheSe'nate. Theyrespectfnllysubmit their report, and I now present it. 

The VICE-PRESIDENT. Does the Senator desire it to be read at 

length' 

Mr. McDONALD. I ask to have it printed. 

The VICE-PRESIDENT. It will be printed and laill on the table, 

subject to the call of th~ Senator from Indiana, 

Mr. SARGENT, from the Committee on Naval Affairs, to whom was referred the bill (S. No. 1098) to transfer Paymaster Robert Burton 

Rodney frowth~ retired list to the active list of the Navy, reported 

adversely thereon; arid the bill was postponed indefinitely;. 

Mr. SARGENT. I iJ.m instructed by the same committee, to whom was referred tbe bill ~S. No. 900,) for the relief of Egbert Thompson, 

to report it adverselr, relief having been given in another form. 

The VICE-PRESIDENT. The l)ill will be postponed indefinitel:v. 

Mr. SARGENT. J am also directed by the same com~ttee1 to whom was referred the bfll (H. R. No. 356) directing method'{)£" annual estimates of expendifures to be submitted bom Navy Department, to 

report it ad.verseJy, for the reason that the mode of requiring these 

estimates seems robe too complicated in tbejr judgment. 

VTII-29 

The VICE-PRESIDENT. The bill will be postponed indefinitely. 

Mr. SARGENT. I am also directed by the same committee, to whom was referred the bill (S. No. 750) to provide for experiments and :th6 ·purchase of movable torpedoes for military and naval defense, to 

report it adversely. The appropriation asked for is very large, and 

the committee thon.£!tt they would not recommend it at this session. 

The VICE-PRESll1ENT. The bill will be postp·oned indefi~tely~ 

1\Ir. SARGENT, from the Committee on Naval Affairs, to whom was referred the bill (H. R. No. 3344) to authorize the appointment of 

apothecaries as warrant officers in the United States Navy, reported 

adversely thereon, and the 'bill was postponed indefinitely. 

He also, from the same committee, to whom was referred the petition of certain seamen serviniY' on the United States steamship Paw- nee at Port Royal, South Car~a, praying for an increase of pay and 

rates, reported adversely thereon, and th~ committee were discharged 

frolll. the f-urther consideration of the petition. 

He also, from the same committee, to whom was referred the petition of G. L. Dyer, master United States Navy, praying to be restored 

to his proper position on the Naval Register in the line of promotion, 

reported adversely thereon, and the committee were discharged from 

its further consideration. 

He also, from the same committee1 to whom was referred the petition of Hugo Osterhaus, United States Navy, asking that Master W. 

1\I. Wood, United States Navy, be restored to his proper rank, next 

afterW.P.Ray,masterUnitedStatesNavy,reportedadverselythereon. 

Mr. COCKRELL. What action was had upon that by the com- mittee f 

Mr. SARGENT. It is reported adversely. The Senate disposed of 

the matter in another form, as the Senator from Missouri may be 

aware, at the last session, which makes this action proper. 

The VICE-PRESIDENT. The committee will be discharged from 

the further consideration of the petition. 

Mr. SARGENT, from the Committee on Naval Affairs, to w,hom was referred the memorial of Henry Erben, United States Navy, praying 

to be allowed to appear before the proper naval board of officers for 

examination for promotion, reported adversely thereon, and the com- mittee were discharged from its further consideration. 

He also, from the same committee, to whom was referred the petition 

of H. 0. Rittenhouse, master United StatesNavy, praying to be advanced to his proper rank in the Navy, reported adversely thereon, 

and the committee were discharged from the further consideration of 

the petition. · · Mr: HEREFORD from the Committee on Claims, to whom was re- ferred the bill (H. it No. 3186) for the relief of the Commercial Bank 

of Knoxville, Tennessee, reported it without amendment, and .submitted a report thereon; which was ordered to be printed. 

BILLS IXrRODUCED. 

1\Ir. INGALLS (by request) asked, and by unanimous consent obtained, leave to introduce a bill (S. No. 1620) to extend the jurisdiction 

of justices of the peace of the District of Columbia, and to regulate 

proceedings before them ; which was read twice by its title, and"referred to the Committee on the District of Celumbia. 

He also asked, and by unanimous consent obtained, leave to introduce a l)ill (S. No. 1621) to establish the judicial district of the Indian T~rritory; which was read twice by its title, and referred to the Committee on Indian Affairs. 

Mr. ANTHONY asked, and by nnanimous consent obtained, leave 

to introduce a bill~· No. 1622) appropriating money for payment of 

bounty to officers and men of Flag-Officer Farragut's fteet; which was read twice by its title, and referred to the Committee on Naval 

Affairs. 

Mr. BERNSIDE asked, and by unanimoUB consent obtained, leave 

to introduce a bill (S. No. 1623) authorizing the retirement of Brevet 

Major-General William W. Averill, United States A:rmy, with the 

rank and pay of a brigadier-general; which was read twice by its 

title, and referred to the Committee on Military Affairs. 

He also asked, and by unanimous consent obtained, leave to introduce a bill (S. No. 1624) to authorize the Secretary of the Treasury to 

purchase land adjacent to the custom-house in the city of Providence, 

Rhode Island; which was read twice by its title, and referrea to the 

Committ.ee on Public Buildings and Grounds. 

Mr. GROVER asked, and. by nnanimoUB consent obtained, leave to 

introduce a bill (S. No. 1625) to remove the political disabilities of 'William T. Welcker, of California; which was read twice by its title, 

and referred to the Committee on the Judiciary. · , 1\Ir. DORSEY a.sked, and by unanimous consent obtained, leave to 

introduce a bill (S. No. 1626) providing for the payment of certain 

obligations of the District of Columbia; which was read twice by its 

title, aud referred to the Committee on the District of Columbia. 

Mr. DORSEY. I present several communications to accompany the 

bill, which I move be referred to the Committee on the District of 

Columbia and printed. • , The motion was agreed to. 

Mr. MAXEY aBked, and by unanimous consent obtained, leave to 

introduce a b~ (S. No. 1627) making appropriation for the purchase 

of Fort Clark, 1.'exas; which was read twice by its title, an:d referred 

to the Committee on Military Affairs. 

Mr. GORDON asked, and by unanimous consent obtained, leave to 

introduce a bill (S. Ko. 1628) to amend the act entitled "An act for 
450 CONGRESSIONAL RECORD-SENATE. JANUARY ~5,. . . 

the relief of Robert Erwin;" which was read twice by its title, and 

referred to the Committee on the Judiciary. 

Mr. CONKLING. By request, and not understanding in full its 

merits, I ask leave to introduce a joint resolution for reference to the 

Committee on the District of Columbia. 

By unanimous consent, leave was granted to introduce a joint res- olution (S. No. 47) touching assessments of property in the District 

of Columbia; which was read the first time by its title. 

Mr. I>A VIS, of Illinois. Let·it be read at length. 

The joint resolution was read the seco_nd time at length, and re- ferred to the Committee on the District of Columbia, as follows: 

Resolved by the Senate and House of Representatives in Congress assembled, That no sale of any property for revised assessments shall be advertised until each citi- zen, or his agent, shall have received the revised statement and shall have an opportunity to have all proper credit for work done under "permit" credited 

upon said bills and all errors committed by the board of audit corrected, after 

which thirty days' notice shall be given to come forward and pay said balances, and wherever work has been done by the citizen himself, by permit or otherwise, the same shall be a credit upon his bill; that no brick walls, stone steps, nor coping wall shall be charged in the assessment bills against private property OJltside the 

building line, but shall be charged to the general fund, and no grading unless done 

immediately in front of said premises. 

\IEND~""T TO POST-ROUTE BILL. 

1\h·. MITCHELL submitted an amendment intended to b~ proposed 

by him to the bill (H. R. No. 5218) to establish post-routes herein 

named; which was referred to tne Committee on Post-Offices and PostRoads. :MEMORIAL SERVICES TO PROFESSOR HENRY. 

Mr. WITHERS. I offer the following resolution and ask that it 

lie on the table until to-morrow, when I shall call it up: . 

R esoZved, That the Senate will now take a recess until 7.45 p. m., at which time 

they will meet in this Chamber and proceed to the Hall of the Honse of Re\)resentatives to participate in the ceremonies commemorative of the life and sel'Vlces 

of Professor Henry, late Secretary of the Smithsonian Institution. 

The resolution was ordered to lie on the table. 

CHEYENNE INDIANS. 

:Mr. VOORHEES. I offer the following resolution : 

R esolceil, That the Committee on Indian Affiurs be, and is hereby, instructed to inquire into the circumstances which led to the recent escape of the Cheyenne Jn. diana from Fort Robinson, and their subsequent slaughter by the United States 

forces who were charged with their custody ; aml that said committee report its findings to this body. · 

The Senate, by unanimous consent, proceeded to consider the reso- lution. 

Mr. ALLISON. I do not know that I object to the inquiry, but I 

do not see how the committee can obtain any additional information 

unless some power is given to it other than that which is provided 

in the resolution. 

Mr. VOORHEES. I know nothing about that; I only know in view 

of statements that are appearing in the press, attributed to officers of 

the highest character in the .Army, the affair ought to be investigated 

for our own credit and for the credit of the country. 

Mr. CONKLING. If the Senator will hear me one momentYr. VOORHEES. Certainly. . Mr. CONKLING. I will say to him that his resolution is all-sufficient for the present. If the committee find that they want more power they can ask for more power. This initiates the inquiry, and 

I think too it would be very well that the inquiry should be made. 

Mr. ALLISON. I only wish to 8ay to the Senators favoring this 

resolution, that the Commissioner of Indian Affairs has made a full 

report of his version of this matter, and there are reports in the War 

Department from the military officers. If the in9. uiry is to go beyond 

those two things, which are accessible of course at any time by a call for information, some additional power must be given to the 

committee. I have no objection to the resolution. 

Mr. VOORHEES. I will only say. in response that this matter will 

be referred to the Comn:iittee on Indian Affairs by the resolution, and 

if they are not satisfied with the information that is here and desire 

to obtain more, and think more ougkt to be obtained, they can ask 

for further powers to obtain it. 

The resolution was agreed to. 

1\IILITARY ACADEl\IY APPROPRIATIO~ BILL. 

:Mr. ALLISON. I ask leave to make a report from the committee 

of conference on the Military Academy appropriation bill. It may 

not be necessary to read the report in full. There are only one or two 

subjects of conference, and the differences have been divided. I ask 

that the report be concurred in. 

:Mr," ED~1UNDS. Let us hear what it is. 

The Teport was read, as follows : . The committee of conference on the disagreeing votes of the two Houses on the 

amendments of the Senate to the bill (H. R. No. 5230) making appropriations for 

the support of the Military Academy for the fiscal year ending Jnne 30, 1880, and 

for other purposes, having met, after full and free conference ha>e agreed to rec- ommen~1 and do recommend to their respective Houses, as follows: 

That tne Senate recede from its amenilments numbered 1, 2, 3, and 4. 

That the House recede from its disagreement t~ the amendment numbered 9 

and agree to the same. ' 

That the House recede from its disagreement to the amendment numbered 5 

and agree to the same with an amendin.ent as follows: In lien of the sum pro~ poeed insert "$900 ;" and the Senate agree to the same. That the Honse recede from its disagreement to the amendment numbered 7 and aw-ee to" the same with an amendment as follows : In lieu of the sum pro: posed insert "fl,500 ;" and the Senate agree to the same. 

That the Honse recede from its disagreement to the amendment numbered 8 

and a~ee to the same. with an amendment. BB follows: In liea of the sum pro~ posed msert "$3,100 ;" and_the Senate agree to the same. · W. B. ALLlSOX, 

H. G. DAVIS, 

.lfanagers on the part of the Senate. 

M. J. DURHAM, 

A. HERR SMITH, 

Jlanage1·s on lhe part of the House. 

Mr. EDl\1UNDS. I wish the Senator having the report in ch~ge · would be kind enou~h to explain exa~tly what all this means, so that we can understand 1t. 

.Mr. ALLISON. I will explain the report briefly. The first amendment inserted by the Senate provided for increasing the compensation to two professors on the grou.nd that the First Comptroller of 

the Treasury had decided that they were entitled t&compensation as colonels rather than as lieutenant-colonels, under a section of the 

Revised Statutes; but, inasmuch as that decision is in cou:fl.ict with 

the estimates made by t.he Department the House insisted that we should appropriate according to the estimates, and we have so appropriated the 'present year. T~e next point relates to a clerk ~f. the treasurer at the academy. 

We mserted an amendment anthonzmg the treasurer to appoint a clerk at a salary of 1,200 a year. The other House agree to the· clerk, but provide a salary of $900 instead of $1,200, to which the- Senate conferees have assented. · The Senate also mserted an appropriation of $3,000 to provide electrical apparatus for making experiments in electricity. The House 

thought that was too mucn and agreed to the insertion of 1,500 

which we have accepted. ,. I believe those are all the items included in the report. 

The report was~onc ed in. 

· DISTRICT WATER RATES. . 

Mr. DORSEY. ask the Senate to proceed to the consideration of 

Senate bill No. 1529. 

Mr. D.A. VIS, of West Virginia. Let it b~ read for information. 

The bill ~S. No. 15~) to authorize the commissioners of the District 

of Columbia to adjust and fix the water rates within said District was read by its title. 

The VICE-PRESIDENT. Is there objection to the prese,nt consideration of this bill! 

Mr. ANTHONY. This bill will excite some discussion, I suppose, 

and I suggest to the Senator from Arkansas that we utilize the re- mainder of the morning hour by proceeding to the consideration of 

unobjected cases on the Calendar under the resolution that was passed 

yesterday for .Iiex:t Friday. 

Mr. DORSEY. It is very important that this bill should be passed 

at the earliest day practicable, so that it may go to-the Honse and 

become a law at the present session of Congress. It is represented 

by the District commissioners that th~ tax received from the water 

register now is wholly inadequate to pay the expenses of the department and the interest upon the water debt. I believe that under the 

present law the manner of levying the tax is simply absurd. The 

tax now is assessed according to the front of the lot upon the street, 

without any regard whatever to the amount of water used, the num- ber of faucets in the house! or the size of the house generally. Of 

course. one man may use one hundred times as much water in his 

dwelling as his neighbor and not pay half as much for it. I shall be 

very glad if the bill can be acted upon now. It is a very short one,. and I doubt whether it will lead to Q.iscussion. 

Mr. KERNAN. I wish to ask the chairman of the Committee on the District of Columbia how long the present law has been in force t 

Mr. DORSEY. I think since the establishment of the water-works. ·:Mr. KERNAN. That was away back in 1869 Y 

:Mr. 'DORSEY. Yes, sir. 

Mr. BECK. I hope that bill will lie over unless the Senator can answer me a question. I happen to live tern porarily in a portion of 

the city where the neighbors all arouru:l. me say they can get no water 

at all. Is there any provision made in the bill to supply them with 

water if they are to be taxed for it T Unless the Senator can answer that question I wish the bill to lie on the table for the present, for 

the people liviug on the hill object very much to an increase of tax. 

for water which goes to the benefit of n. few people in a particular· neighborhood, and excludes, as is now pra.ctically done, all the people 

living in that part of the city from getting any water at all, although 

they pay as much tax as those who have an, abundant supply of water. 

If tho Senator cannot answer that question, I should like to look at 

the bill, and for that-purpose have it go over until to-morrow. 

Mr. DQRSEY. This bill is intended to meet .the &bjection which· the Senator from Kentucky raises, and which I know to be a real 

objection. In a letter which I hold in my band from the commissioners they say that ''from the want of mean~ the commissioners are· now unable to lay a section of twelve-inch pipe, at a cost of $7·500;. 

which would materially improve the supply of w;ater upon the hi~h grounds of Capitol Hill," where I think there 1s no supply at all m- many of the houses, and the commissioners have no money with 

which to lay the mains to convey the water to the points necessary. 

:Mr. BECK. I desire to say, and my informatJ.on is very vague I 

admit, that one of the ~at difficulties is that they have· what iscalled a stand-pipe, drawmg the water away from tbe hill to the navyyard for Government operations; and but for this'.stand-pipe draw-
.

 

1879. CONGRESSIONAL RECORD-SENATE. 451 

ing it away they could get water; but as long as it remains they 

cannot get any. I ~sire that those people may have water; that is 

all. 

:Mr. DORSEY. I understand that last year we erected a stand-pipe 

at a very la.rge expense, and now the commissioners are without money 

to convey the water from that stand-pipe to the part of the city intended to be benefited by it. 

The VICE-PRESIDENT. Is there objection to the present consideration of the bill f 

Mr. DAVIS, of West Virginia. I should like to ask the Senator 

from Arkansas whether there is a printed report or any information 

by which the Senate can act upon this matter intelligently. This)is a subject that needs some consideration, I have no doubt; but it must 

be borne in mind, as the SeRator from Arkansas has just stated, that 

since 1869 the system has remained just as it is now. That being the 

case, and no petition having been presented here, there must be some special reason why we should move in the matter just at this time. 

Again my impression is that this matter should be well considered 

before the Senate takes final action upon it. I. do not know how long or how thoroughly the Senator or his committee may hav& considered 

the subject, but it is one that needs attention. 

Mr. DORSEY. I hold in my hand a report of the water commissioner of the District, and also a letter from the District commissioners, exlllaining in detail the reasons why this bill ought to pass. If the billiB taken up, of course I shall send these documents to the 

desk to be read. 

Mr. BECK. I hope the Senator from Arkansas will have printed in 

the RECORD the informati,on which he thinks we ought to have in 

reference to the bill. In that case I shall endeavor to get all the 

information possible in the course of to-night or in the morning and 

aid him in bringing up the bill in the morning after having an opportunity to read the documents to which he has referred. I should not like to be required to vote upon the bill now. l\1r. DORSEY. Then I ask leave to present the documents and to 

have them printed in the REcoRD. · )fr. ANTHONY. They had better be printed for distribution to 

Senators in the usual way, and not be printed in the REcORD. Such a course cumbers the REcoRD with a great deal of unnecessary matter. 

::.\1r. DORSEY. The papers are very short. 

l\Ir. DAVIS, of West Virginia. I agree with the Senator from Rhode 

Island, and think the papers ought to be printed in the usual manner. 1\!r. DORSEY. They are very short communications. I have no choice as to the mode in which they are printed, whether in the 

RECORD or otherwise. · l!r. BECK. Is there objection to their being printed in the REcoRD Y 

llr. DAVIS, of West Virginia. Yes. 

lli. EDl\1UNDS. The matter of expense is all the objection. 

The VICE-PRESIDENT. The papers will be printed, and the bill 

will go over, subject to the call of the Senator from Arkansas. 

PRESIDENTIAL APPROVAL. 

~message from the President of the United States, by Mr. 0. L. PRUDE~, one of his secretaries, announced that the President had 

this day approved and signed the act (S. No. 986) for the relief of 

William S. Morris, William S. Mann, Charles A. Oakman, George W. 

Hillman, the Union Transfer Company, all of Philadelphia, the Union 

Transfer Company of Baltim9re, Maryland, and John R. Graham, late 

of Philadelphia, now of Washington, Distric~of Columbia. 

THE CALENDAR. 

llr. A1i~THONY. I move that the Senate proceed during the residue of the morning hour to the consideration of uriobjected cases on the Calendar, under the rule adopted yesterday. The VICE-PRESIDENT. Is there objection to the suggestion of 

the Senator from Rhode Island f The Chair hears none, and the Calendar will be called under the resolution adopted yesterday. The 

Secretary will report the bills on the Calendar in their order. 

The :first business on the Calendar was the joint resolution (S. R. 

No.8) authorizing Captain Jonathan Young, of the United States 

Navy, to accept a betel-nut box and silver medal from the Emperor 

of Siam. 

~Ir. SARGENT. · I object to that joint resolution. 

The VICE-PRESIDENT. Objection is made, and the Secretary 

will repofi! the next•bill on the Calendar. . . The next bill on the Calendar was the bill (S. No. 263) to provide 

for a survey of an inland water-route and canal from the ~issippi River to the Atlantic Ocean. . · Ml'. INGALLS. Let that lie over .Mr. President. 

The VICE-PRESIDENT. It.is objected to, and the next bii will 

be reported. EXTRA PAY TO SOLDIERS" OF liEXICAN WAR. 

The next bill'on the Calendar was the bill (H. R. No. 376) for the 

payme;nt to the officers and soldiers of the lfexican war of the three 

months' extra pay provided for by the act of July 19, 1848. It directs the Secretary of the Treasury to pay to the officers and soldiers "en~aged in the military service of the United States in the war with 

MeXIco, and who· served out the time of their engagement or were honorably discharged," the three months' extra J?ay provided for by 

the a.ct of July 19, 1848, and the limitations con tamed in that aot, in 

all cases, upon the' presentation of satisfactory evidence that such 

extra eompensa.tion has not been previously received. 

The bill was reported from the Committee on Military Affairs with an amendmel\t to insert at the end the following proviso : . 

Protlided, That the provisions of this act shaJl include also the officers, petty offi- cers, seamen, and marilles of the United States Navy employed in the prosecution of said war. 

Mr. EDMUNDS. Let us hear the report read. 

The VICE-PRESIDENT. The report will be read. 

The Secretary read the following repert submitted by Mr.· MAxEY 

January 2-2, 1878 : • 

The Committee on Military Affairs, to whom was referred the bill (H. R. No. 

376) entitled ' 'An act for pa.vment to the officers and soldiers Qf the Mexican war," 

&c., have had the same under consideration, arid submit the following report: The act of July 19, 1848, which Honse bill No. 376 seeks to revive, was" repealed " 

by the act of July 12, 1870. (Sections 4, 5, chapter 251, volume 16, Statutes at Large, pages 250, 251.) According to the construction of that law by the account- ing officers of the Treasury-though it will be observed that neither the act of July 19 1848, granting extra. pay to the men of the .Army, nor the act of An gust 31, 1852, 

(chapter 109, volume 10, pag_e 100,) granting extra pay to persons in the naval service on the coasts of Mexico ana California (the same as had been allowed to the Army serving in California, see chapter 78,1850, volume 9, pages 504, 505) are specifically mentioned as being included in the laws repealed by- sa.id act of July 12, 1870. A. proviso to House bill No.. 376, on line 12, after the words" received," to wit- '' Provided, That the provisions of said act shall include also the officers, petty · officers, seamen, and marines of the United States :Navy employ!¥1 in the prosecu- tion of said war"- woold perhaps be just and proper. 

The debate in the Hoose (see CONGilE!:;SIONAL REcoRD, Jan nary 19 instant) when 

the bill passed, will give some light on the subject. The same bill passed the House .Tune 30, 1876, and some remarks were made by 

Mr. RIDDLE and others on the merits of the case. (See REcoRD, July 1, 18i6.) 

Your committee therefore recommend the passage of the bill, amended by the 

proviso. 

~1r. WITHERS. I desire t9 offer an amendment adding the words 

" the revenue service." 

The, VICE-PRESIDENT. The :first question is on the amendment 

of the Committee on Military Affairs. 

Mr. EDMUNDS. Let us hear the amendment of the committee 

reported again. 

The amendment was read. 

Mr. EDMUNDS. I move to amend the amendment recommendecl 

by the committee by adding after the w01-d "war," in the last line, 

the words ''and the war for the suppression of the rebellion." 

Mr. WITHERS.· I should like to ask how that would follow ? It 

is not germane to the bill. 

Mr. EDMUNDS. I think it is very germane myself. 

Mr. WITHERS. Let the amendment of the committee be reported as it is proposed to be amended. . The VICE-PRESIDENT. It will be reported. 

The SECRETARY. The proviSo as proposed to be amended would 

read:. 

Provided, That the provisions of this act Shall include also the officers, petty offi- cers, seamen, and marmes of the United States Navy emvloyed in the prosecution of said war and the war for the suppression of the rebellion. ' 

Mr . .ALLISON. It seems to me if the amendment is applied to sea- men who were employed in the war of the rebellion, it ought also•to 

be applied to soldiers. · Mr. ED}IDNDS. So it ought, but this is the proviso of the com- mittee. When we come to the body of the bill, we can endeavor to 

:fix that. · Mr. MAXEY. The bill now under consideration came to the Senate 

from the House and was referred to the Committee on Military Affairs. It was acted on by that committee and reported favorably to 

this body. On a former occasion the bill was called up for consideration, under what was known as the Anthony. rule, and. some discussion then took place upo:a it. Being myself in charge of the bill, at 

the request of the Senator from Vermont, [Mr. EDMUNDs,] which was in the nature of an objection, the bill was passed over. The RECORD 

of that date will show the correspondence which led to the presenta- · tion of this bill audits pa.ssa~~ by the House. The whole purpose and 

design of the bill is to equalize the three months' extra pay which was granted by legislation many years ago. I had the dates at that 

time, and by reference to the RECORD they will be seen, together with a reference to the volumes of the United Sta~es Statutes at Large. 

The whole purpose, as I say, is to equalize the three months' extra 

pay among all those who served in the Mexican war. The Secretary of War at that time con.Strued the law to be that the three 

months' extra pay applied only to volunteers .and did not apply to 

those in the regular Army. It was deemed by the committee, and 

I think it equitable and just, that all those who served their country· in Mexico, a foreign country, should .be equally entitled to this gratuity on the part of the Government; and therefore the provisions of 

the law should be extended to those. who served in the Army. of the 

United States equally. It was considered, and l think properly, that 

those who were in the marine service (and there were officers and 

soldiers in the marine service in Mexico) and who did active service 

there should be included, and so the bill was amended by the com- mittee so as to include in like manner those of the Navy who served 

in the Mexican war. The whole desi¥n and scope of the bill was simply to place those 

who had not received their three months' extra pay upon an equal 

footing with those who had and who had done no other or better 

service than those who did not receive it. That is all there is of it. 

I do not myself believe that the amendment offered by the Senator 

from Vermont is germane to the bill or could prop~ly be at:ta.ched to 
. I 

452 CONGRESSIONAL RECORD-SEKATE. 

it as part of the measure, because the bill relates only to one war- the Mexican war--and it ha.s no reference whatever t<> the late war. Mr. EDMUNDS. Mr. President, the officers and soldiers and sailors 

of the last war had provisions made for them that have not been car- ried out; and therefore, if we are going to undertake to readjust' 

questions of bounty and extra pay, and so forth, for the soldiers of 

the Mexican war, let us do it for the soldiers of a war quite as jmportant as that. . Now as to the bill itself, I should like to ask the honorable Senator from Texas if there is any official report in the possession of the 

Senate from the War Department or any other Department, which 

sets forth exactly what this three months' extra pay was, what the 

extent and application of the three months' extra. pay alluded to in 

the bill, provided for by the act of July 19, 1848, was i how many 

have received it; how many have not received it, and now it happens that those who were entitled t.o it by the law and did not receive 

it, failed to receive itt 

Mr. MAXEY. A correspondence was opened up by the Committee on Military Affairs with a view of' arrivin~ ;:Lt the record referred -to 

by the Senator from Vermont. A commurucation wa-s presented from 

the Paymaster-General in that regard. It seems that the matter was referred to the Paymaster-General, through an auditor, for final settlement of those matters. Accompanyin(J' that.came an official oopy of a letter from Secretary Marcy, which tie Senator may perhaps recollect; he read it at the time. All those papers were before the Senate 

at the time this matter came under discussion, and the Senator objected at the last session of Congress. I thought I could lay my hand 

upon the papers, but I had no thought that the bill was coming up 

this morning, and I have not got -them now. Those papers showed 

the construction placed by Secretary Marcy on the a.ct. 'l'he Senator 

examined them at the time, and the REcORD will show that he said 

to the Senate that he believed the Secretary was correct in his con- struction. Secretary Marcy construed that the legislation did not 

grant three months' extra pay to those in the Regular Army of the 

United States. 

The object of this bill, as I stated before, is to place them on terms 

of equality with others, and let in all who have not heretofore re- ceived their pay-officers of the A:rmy, Navy, and marines, and all 

soldiers who have not been paid this three months' extra pay-on 

the same footing as volunteers. · Mr. EDMUNDS. I am so unfortunate as not to be able, even with 

the clear explanation of the Senator from Texa-s, to understand precisely what the state of the law was in 1848 here referred to, and 

precisely what has occurred, and what were the difficulties or misconstructions then that led to anybody being debarred from his extra 

pay who by that act was entitled to it. Now if we have in the files 

ef the Senate or anywhere else official information which shows ex- actly what that was, !shall be glad to see it. .Are there any papers '1 

Mr. MAXEY. I will state to the Senator that I had those papers on the previous diseussion. If I had the RECORD of the former debate, that would show the whole of them. 

Mr. EDMUNDS. It maybe that they are in the files of the Senate. 

Mr. MAXEY. The Senator took part in that debate, and the whole 

of it came out there. 

Mr. EDMUNDS. But it has entirely gone out of my mind; I do 

not remember anything about it. 

The Senator from Texas speaks of this bill being intended to apply 

only, if I correctly understand him, to the officers and soldiers of the 

regular Army and the regular Navy of the United States. The bill 

does not say so. It speaks of all officers and soldiers engaged in the 

military sendee of the country in the Mexican war. Mr. MAXEY. I stated that there were quite a number of persons 

who were entitled as volunteers to that three months' e~tra pay who 

had not drawn it; but under a statute which passed some time in 1870 or 1871 all these claims were ba,rred. 

Mr. EDMUNDS. How barred! 

Mr. MAXEY. An act passed which prohibited payment of any furwed, or may hereafter die, wHhout recehing tho three months' pay herein provided 

for, shall be entitled t~ receive three months' extra pay. • 

Now, there is no" pay herein provided for" unless a provision shall 

be found in some one of the acts here referred to, which acts are not 

quoted or referred to except by their date. So I suggest to the honorable Senator from Texas that perhaps he will want on review to 

make this bill more explicit as to the provision to which it really does 

refer, this provision which I have read being aa it seems to me inadequate to the purpose of the bill. · 

Then, to confuse still more the confusion that may be found, come in th~ amend~ent of the Sen~tor from Vermont, which it will be 

perceived proVIdes ·that the sailors of the late war-confining it to 

the present amendment-shall receive the three months' extra pay 

which was pro'!ided in :'I'D act · approved on the 19th of July, 1848. Well, that was mconvemently before the war for the suppression of 

the. rebellion; and it so happened that all the acts which existed then 

fixed a rate of pay by the month for soldiers and sailors quite different from the rate applicable to the war of the rebellion. So that 

wjth the amendment we should have here a sort of compound com- minutive confusion, and I think that the Senator from Texas pe'rhaps 

had better let this bill lie over until he finds his memorandum and 

is able to refer to the act to which he meana to refer more fully so- that we may all understand it alike. ' 

Mr. MAXEY. I think the suggestion of the Senator from New 

York is correct. I will simply state that I did not call up this bill 

this morning. I supposed it would be reached on Friday under the 

order adopted yesterday, and I expected to be prepared on Friday to 

submit it to the Senate. 

The VICE-PRESIDENT. Under the order adopted upon the su~Ygestion of the Senator from New York, the bill will go over. o 

Mr. EDMUNDS. I should like to say one word before it goes over if there be no objection. 

Mr. CONKLING. I withdraw the suggestion so that the Senator may be hea.rd. 

Mr. EDMUNDS. 1\fy amendment wa.s drawn on the idea that thi 

bill that it is proposed to pass into a law, in legal effect actually provides for giving three months' extra pay to the soldiers of. the .Mexi- can war when the present law, the law of 1848, did not give it to 

them. My amendment, therefore, wa.s intepded, if we are to give a bounty of three months' extra pay to the soldiers of the Mexican 

war, good, bad, and indifferent, to provide that we shall give a bounty of three months' extra. pay to the soldiers and sailors in the war for the suppression of the rebellion. I think it will turn out when 

you come to examine the act of 1848 and the history of it, that the soldiers and sailors are to get this money, not because the act of 1848 

provided it for them, but because this bill provides it for them ; and so I say if this bill is to provide three months' extra pay for the soldiers of the Mexican war, then it ought to provide three months' 

extra pay for the soldiers in the war of the rebellion. . Mr. MAXEY. I have now the debate that I referred to, which is 

in the RECORD of Aprill8, 1878, and which shows precisely what was said then when the matter was entirely fresh, not only by the Senator from Vermont but by myself. It is all here and all the acts are re- ferred to and given. 

Mr. EDMUNDS. As the bill goes over, I will take that RECORD 

and look at it. 

The VICE-PRESIDENT. The bill goes over. The Secretary will 

report the next bill. . NATIONAL OBSERVATORY. 

The next business on the Calendar was the joint resolution (S. R. No. 16) authorizing the appointment of a commission of scientists to 

investigate and report upon the establishment and location of au additional national observatory. 

Mr. EDMlTh"'DS. That has never been referred, has it f 

The VICE-PRESIDENT. It ha.s not been referred. 

Mr. PADDOCK. It may lie over. The VICE-PRESIDE~TT. The resolution will be pa-ssed over. ther claims under this previous legislation. Mr. EDMUNDS. ·Can the Senator refer me to that act 'I WILLIAM B. WHITING. 

Mr. 1\fAXEY. I have sent for the REcoRD. That will show the The next bill on the Calendar was the bill (S. No. 6471 granting a whole of it. pension to William B. Whiting. · Mr. EDMUNDS. I do not remember any such act. Mr. SARGENT. Unless the committee are ready to have that bill 

Mr. MAXEY. I have not got all the papers at my desk. The REc- indefinitely postponed, I ask that it go over. ORD will· show them, and I have sent for it. I made a minute of it Mr. WITHERS. I should be glad to have it take effect. • · at the time. · The VICE-PRESIDENT. The bill will be passed over. 

Mr. EDMUNDS. Can the Senator give me the title of the act of LAUREJ.""''A c. P. HASK:IYS. 

1870 to which he refers, or the subject of it Y The next bill on the Calendar was the bill (S. No. 413) to increase 

Mr. CONKLING. If I do not interrupt the Senator from Vermont the pension of Laurena C. P. Haskins, which was reported adver&ely in the midst of a sentence, I will make an observation about this mat- from the Committee on Penaions. 

ter while he js looking at the books. Mr. INGALLS. Let it be indefinit~ly .postponed. . It seems to me without the amendment of the Senator from Ver- The VICE-PRESIDENT. That order will be made if there be no mont this bill is involved in so much difficulty that I venture to aug- objection. 

gest to the Senator from Texas it is hardly worth whjle to attempt to THE ~nLITIA. 

dispose of it in this morning hour. s 

The bill provides that certain pel·sons described shall receive the The next bill on the Calendar was the bill ( . No. 104) amending 

pay allotted to certain other pe;rsons in an act referred to. I have section 1661, title 16, (The Militia,) of the Revised Statutes of the. 

that act before me, and, unless I have omitted something in reading United States. . it over two or three times, there is no provision in the act sustaining The VI~E-PRESID~NT. The ~onr o~ one o'?lock h~ arrived .. The 

this reference. The only section applicable to it that I can find con- Senate will proceed With the consideration of 1ts unfi.rushed busmess. eludes in this way: . I REVISIO:N OF THE PATENT LAWS. 

Or who died in service, or who ha-.ing been honorably discharged have since The Senate, as in Committee of the Whole, resumed the considera-
I 

18'19. v CONGRESSIONAL RECORD-SENATE. 453 

tion of the bill (S.l1o. 300) to amend the statutes in relation to patents, 

and for other purposes, the pending question being on the amendment 

of l\Ir. MATTHEWS to the second section. 

l\Ir. CHRISTIANCY. If it be in order now, there being another 

amendment pending presented by the Senator from Ohio, I have his 

consent-to move to make a verbal amendment in the fourth line of 

ection 2 to remove the verbal ambiguity which he pointed out when h~ addre~sed the Senate yesterday. That is, to add after t~e word 

"pronounced," in line 4, the words "as well as in all such smts hereafter instituted." That will remove the ambiguity. 

The VICE-PRESIDENT. Is there objection to this amendment~ 

The ChaiJ' hears none, and it is agreed to. The question now is upon 

the amendment proposed by the Senator from Ohio, [Mr. MATIHEWS,] 

which will be read. · · The SECRETARY. The proposed amendment is, in section 2, line 10, 

to strike out all afiier the word " cases," where it first occurs, down 

to and including tb~ word "awarded," in line 23; in line 27, to strike 

out all after the word " case," down to and including the word "~ecovery," in line 29; to strike out lines 36, 37, 3 , 39, down to and rnclnding the word " aforesaid," in line 40, and in lieu thereof to insert 

the following: 

No aooount of profits or savings hall in any case b allowed; but evidence 

thereof may be admitted as tending to prove what shall be doomed a reasonable 

license fee as compensation for the i.ilfringement. 

The VICE-PRESIDENT. The qnest!on is on this amendment. 

Mr. WADLEIGH. I call for the yeas and nays. 

The yeas and nays wer" ordered. 

Mr. WITHERS. I understand there are several amendments 

offered. Is it proposed to take the vote on all of them collectively 7 

Mr. DAVIS, of illinois. It is necessary to take the question on the 

whole amendment of the Senator from Ohio. It embraces one subject. 

Mr. MATTHEWS. It is all one amendment. 

Mr. EDMUNDS. I should like to know, in the fu·st place, whether 

this amendment-which I could not understand from the readingis an amendment to the text of the bi.l.ll in section 2; or is it an amendment to the nmendments of the committee f 

Mr. MATTHEWS. It is an amendment to the text of the bill. 

:Mr. EDMUNDS. Do I understand the Senator from Ohio to mean by this amendment that in case of an infringement of a patent, and a recovery and establishment of that patent in a court of equity, no ~..ccount of profits is to be taken, but that the whole measure of re- dress snail be a license fee' 

.Mr. MATTHEWS. The precise effect of the amendment, if adopted, 

would be first to make the rule and measure of damages in equity 

and at law the same, and then to make that rule what shall be con- sidered a fair compensation for the loss to the plaintiff by way of dama~es for the injury which be complains of, excluding any com- putatwn or account of either profits or savings as such a measure of 

damages, but allowing evidence of them as tending to prove what the 

damages consist of. 

Mr. EDlfUNDS. As I beard it read, I understand that the license 

fee is the test of bow much the party is to recover, "what would be a fair license fee," according to the reading from the desk ; and if that 

is the sole rule in a matter where the Constitution reco~izes such 

property, if Congress choo es to do so, as being an exclusive right to 

its use, if anybody may invade this exclusive right which the Constitution speaks of, and may pay the average license fee, then yon 

have disposed of the whole value of your patent laws. If you are to 

say to the owner of a patent that be shall net have any exclusive use of it, but everybody is free to infrin~e it at the only risk of paying 

the ordinary license fee for use and occupation, then you bad better 

say in terms that everybody shall be at liberty to invade a patent, 

whether by accident or by design and have absolute freedom of use, an·d that the owner shall collect of the party who uses it what a jury 

would say is a fair sum for use and occupation; that is, what be 

would have been wi1ling, if he bad wanted to rent it out, to take as a fair compensation for the use of his machine or the right to make it. 

It appears to me that such an amandment would overthrow the 

whole patent system and the whole value of the patent system. 

Mr. HOAR. You have an injunction left. · Mr. EDMUNDS. You have an injunction left, but it is too late 

usually. 

Mr. CHRISTIANCY. With an amendment which might be made at the end of this section, and which I presume, if this amendment 

shall be adopted, the committee will accept, though I am not auth6rized to speak for"it, I should be in favor of this amendment proposed 

by the Senator from Ohio unless the Committee on•Patents object to 

it. They have given a great deal of consideration to this subject; 

t hey have had aJl the various interests in the country represented, 

both those of patentees and those of alleged infringers, and have 

spent a great d'eal of time getting up a bill to harmonize all interests 

and the views of all parties. I am therefore very loath myself to offer 

any amendment to the work of. the committee i but there is one class 

of cases in which it seems to me justice requrres that the patentee 

should be allowed to recover profits, and but one class, and that class 

js where the invention from its very nature is such that it would be 

for the interests of the patentee to retain the entire monopoly of his 

patent; such, for instance, as Mr. Edison's telephone. If he chose to 

retain the entire monopoly of the manufacture of that instrument I 

can see no good reason why any man who should violate that patent 

should not respond in profits, why be should not pay all the profits 

which be might make from the manufacture or sale. There the profits . would in justice and equity measure a fair compensation, ana it is only 

in that class of cases that profits do measure a fair compensation. 

In the class of cases to which I have alluded profits constitute a proper measure of a fair compensation for the injury done to the 

patentee. Why Y Because but for the act of the defendant the owner of the patent might have made the same. But in most patents, in 

ninety-nine out of one hundred at least, and probably a larger proportion, it is for the interest of the patentee that others should n e his invention and should pay him a royalty or a license fee, and therefore, in all that large class of cases I see no reason for allowing any 

profits at all as profits. The evidence of profits, however, I think, 

ought to be allowe-d to be given asoneof theitemstoshowwhat would 

be a proper meaBnre of damages as it tends to show what is the value 

of the -patent which has been infringed. It would be one of the 

elements to show what would constitute a proper license fee. 

But as to the first class of cases whi<:5h I have mentioned, I confess 

that I have great difficulty in voting for the bill without a provision 

allowing profits to be recovered; that is, where it is for the interest 

of the patentee to retain his monopoly. It is an exclusive right, and 

it does seem to me that we are taking a very high position when we undertake to say that he shall sell it at whatever a jQ.ry may assess it to be worth when it would clearly be for his inMllest not to sell it at 

all, and therefore, if I could have my own way in reference to this 

bill-for I am discussing it in rather a discursive manner-! would 

adopt the amendment proposed by the Senator from Ohio, an<.l then 

add an amendment taking out -of the operation of this section the 

first class of cases which I alluded to, and I propose that now to the 

committee. The measure is one for which they are responsib1e more than I. I only make this as a suggestion, and I am very unwilling 

to antaO'onize the committee in anythiilO' pertaining to a bill over which they have spent so much time, an3. to which they have given so much consideration. 

Mr. WAD LEIGH. Mr. President, the amendment :proposed by the 

Senator from Ohio abolishes any account for profits m all cases. It seems to me that the remarks of my friend the Senator from 1\lichigan upon that point are correct: that it would be unjust to the patentee to abolish profits in all cases, because in some cases he may 

wish to have the exclusive use of his invention. Take, for instance, a pin-machine by which the patentee may be able to manufacture 

pins to supply the whole market. It is for his· interest that there 

should be no use of it by others, and under the theory of the Constitution, and under the law, he has the right to manufacture pins for 

the market himself, and to allow no one else to do so under 4is patent. It seems to me that in such a case as that-and there are many cases of that kind-to compel him to sell his invention at such a price as any jury may say he ought to have for it is a violation of the ex- clusive right granted to him by -the Constitution and' the law. 

Now, Mr. President, this bill has been the result of very much care and deliberation on the part of the committee. There have appeared 

before the committee all parties interested in patents. The bill, to a certain ext~nt, is a compromise between those conflicting interests. 

To amend it materially and vitally, as this amendment proposes to 

do, will affect to a great extent the interests of people who have not 

been heard upon any question of this kind. I think that before any 

material amendment of the patent laws is adopted that amendment 

should be discussed, the parties who are to be aftected by it should 

be heard before Congress ; and for that reason, if for no other, I should 

be compelled to oppose the amendment of the Senator from Ohio, 

because no man came before the committee and proposed to abolish 

profits entirely, no one asks for that; and the Senator- from Ohio in 

his opposition to this bill asks what no person asked, so far as I know, 

before the Committee on Patents, and lte asb it, too~ upon grounds 

which seem to me-and I say it with all due aeference to him-to be 

absurd. One of these grounds is that the appointment of an auditor 

to take an account in a matter which no jury can possibly understand 

is unconstitutional, a violation of the constitutional right of trial by jury. 

Why, Mr. President, in theNewEn~landStatesauditors have been 

appointed from time immemorie.l unaer laws like this. All complicated accounts go to an auditor appointed by the court. He examines 

them, and no jury could properly examine them. He makes a report 

upon them, and that report being adopted by the court goes before 

the jury as print4 facie evidence of that account. The question of the 

constitutionality of such laws has again and again been brought 

before the courts of those States, and they have been decided to be 

constitutional. There is not a decision opposed to them in the United 

States that I am aware of. Are we to presume that the courts of the 

United States, against the decisioHS of all those courts which have 

censidere<lsimilar questions, are to decide that such a law is uncon- stitutional~ 

Mr. President, it being vastly for the advantage of courts and f(}r 

the advantage of justice that matters of this kind which cannot possibly be understood by a jury should in the first place be sent to an auditor, I prefer to leave that question in this law to the courts of 

the United States. If this is an unconstitutional provision iet them so decide. But ina.smnch as whenever the question has arisen before 

the State courts the State courts have decided such laws to be con-
CONGRESSIONAL RECORD-SENATE. / JANUARY 15, 

stitutional, I prefer to treat such lawtl as constitutional nntil the 

Supreme Court of the United Stat-es shall have decided the question. . Then, too, it is said that any fixing of the measurement of damages is unheard of. W4y, Mr. President, t£ the fixing of the meaaure of damages is not unj~st, nobody has a ri~ht to c~mplain; it is in 

violation of no body's nghts. The Senator from Ob10 makes no com- plaint that the measurement of damages is unjust to anybody, as I 

understand. 

Mr. MATTHEWS. The Senator is entirely mistaken. I did make 

that specific objection, that it was not the rightful measure of damages. I shall endeavol' to explain it when the Senator concludes. 

Mr. 'V AD LEIGH. Then I will speak upon that ttuestion. The bill 

simply provides that an account of profits shall be taken in a case where the infringer mn.nufactures and sells the machine itself or sells 

the product thereof. In such cases there is no difficulty or but very 

little difficulty in fixing the amount of profit which the party bas 

!received. That profit he has made from the property of the plaintiff. 

In most ca es it would be the true measure of damages. So it seems 

to me, and so it appeared to the committee. 

But I do not desire to multiply words upon this bill. As I have 

said before, the bill bas been before the committee for a long time ; 

the whole matter has been the subject of earnest consideration on the 

part of the committee, a full consideration; and all interests have 

appea.red before the committee. As I said before, nobody proposed 

to go so far as the Senator from Ohio now proposes. 

Mr. CONKLING. Will the Senator let me ask him a question and 

make a remark 7 

Mr. WAD LEIGH. Certainly. 

Mr. CONKLING. The Senator aims, I think, a serious blow at the 

pendin(J' amendment when he says that it affects interests which have never b

0

een heard before the committee or,here. I want to inquire 

whether it is not true that, dismissing the amendment and taking the 

bill as it would stand without it, interests are then affected which 

have never been heard 7 For example, have all the men or all the 

interests been heard which are to be not only affected, but, as I 

understand it, altogether denied by this secontl section 7 I mean, 

among others, those whose inventions have been employed without 

profit ascertained by fi!ales, but merely as elements of economy, of 

saving in processes. I mean those whose inventions have been 

adopted by extensive mill-owners, by corporations manufacturing 

goods, fabrics of various sorts, by railway companies, and by others 

who, utilizing the invention in the manufacture of appru;atus and 

implements which they construct themselves, have saved very largely, 

but who, as I cannot help understanding this section, are given virtual impunity against all in:ventors. Now, I inquire whether all the men orJ!.ll the interests thus to be affected were heard before the 

committee, and if it was after a hearing in behalf of those interests 

that the committee has proposed a section, which, it seems to me,-I 

may be mistaken about that, the Senator is much more intelligent 

about it,-leaves them remediless f 

Mr. WAD LEIGH. The bill thus affecting those who claim to have 

savings allowed as profits was printed more than a year ago. Five 

thousand copies of it were printed for distribution. TJ;10se copies 

have been furnished to every patentee or every user of a patent who 

desired one. · The arp;uments before the committee upon this very 

point have been circulated broadcast among-those interested in patents; a.nd the question .as to whether savings should be considered 

' as profits and the abuses growing out of that rule have been fully 

considered by the committee, and everybody who was· interested in 

having savings thus treated has had an opportunity to be heard, and, so far as I know, bas been heard before the committee, if be desired. 

When my friend, the Senator frem New York, aaks me if every man in the United States who is interested in this matter has been heard, 

I am forced to answer, probably not. . Mr. ·HOAR. I should like to inquire of the Senator from New 

Hampshire whether thl view in favor of allowing savings to be com- puted was not presented to the committee 8y very able counsel, representing' clients who were interested in favor ,of that view, both 

orally and by correspondence very fully Y 

Mr. WADLEIGH. Certainly, and fully considered by the committee, and those parties have had a full opportunity to be heard, and 

have been beard, so far as I know. And the commit-fee came to the 

unanimous conclusion that the abuses which grew up under that rule 

required the adoption of a different oB.e. 

Mr. CONKLING. The Senator says five thousand copies of this bill were printed and sent. broadcast. That explains to me the great 

number of letters which come daily to me and which have been com- ing for a "long time, not only from patentees and inventors, but fro.m 

other persons, some of whom I know to be discerning and believe to 

be just persons, who think that this is a mistake, an experiment 

which will be regretted, an injustice sure to be experienced if it becomes a law and continues. 

The Senator says that having heard, not every man-Of course I 

did not mean to ask such a question, but having heard arguments in 

behalf of the idea that a man whose machine saves money was entitled to some consideration at least, the committee deemed it_necessary 

to adopt a different rule, and he leaves us to infer that they selected 

the rule here adopted as the appropriate one · to substitute. I venture, then, to ask the Senator to state in brief,-it may have been stated 

before, but I have not heard it,-the argument which answers a case 

like this: here is a man who confessedly did invent a useful and a . novel thing which yon cannot use, which I cannot use, but which can be used only by those conducting special kinds of business on a large· 

scale. They, without license or authority, appropriate it. They carry 

it as an increment of value and an element of cost, and advantage, 

into vast quantities of productions which they make and use in their own affairs, selling none of them, for there is no market except t<> 

others engaged in like business, and they for themselves respectively 

manufacture also. Now, when this inventor comes to complain, un- less the case happens to be one in which not merely saving, not merely 

economy, not merely a-dvantage has been achieved by appropriating 

his invention, but also profit over and above all the gross expenses 

involved in the business, the answer this law makes to him is, as I 

understand it, "We know yon not; you are an inventor; you are a meritorious inventor; your invention is one exceedingly useful, but it i 

not applicable to general and promiscuous use i. the farmer on his 

farm, the dairyman in his daii·y, the plowman in the field, does not use this invention. If be did, you might have a remedy. It is only 

used by large aggregated capitalists; they use it, and they make it, and therefore there is no answel' fo~ you except that answer which 

Marshal Ney is said to have made on his return from Moscow when a friend, freezing in the snow, appealed to him by the memory of early 

friendship to do something for him, and turning his head he said, 

"You are one of the victims of war," and passed along. 

If that be true of this section, as many of these correspondents ay 

it is, I submit to the Senate that in a forum in which justice is sought 

it is worthy of inquiry, and particularly so when we are dealin(J' with a statute which in all its sections assumes that you h_ave o

0

nly to 

transfer the illustration to some man who nses a stove-damper, or a door-latch, or a window-fastener, or some one of the innumerable 

triftes that enter into the economy of life, and he may be prosecuted, not only the vendor but the purcha-ser, because there in the manufacture in detail of this article and its sale there are ostensibly profits 

above the cost of producing it. There the inventor has his remedy 

after some measure (and the Senator from New Hampshire tells us it is a just measme) for th• infrinJ!ement. 

Now, I say that to utter together these two provisions, leveling 

the severe provision at all the people individually who are buyers 

and users, a~d aiming the provision for impunity and immunit' at 

the strong, the powerful, the able, the 'intelligent, the organized, seems to me to furnish groll.J?.d for the allegation that there is a twofold injustice: first, an injustice toward the one class whom I have described; and, second, au aggravation of that injustice becau e in 

respect to another class the provisions fail. 

I did not mean, Mr. President, certainly at this moment, to sa'' 

anything about thi;B bill. I wish. to vote for the bill if :r -::an, and 

certainly I do not wish to fail to vote for it if it is likely, if it i verv likely, plainly likely to improve the patent system; but I ®nfess ·r 

have some hesitation about a leap in the dark, and although I have no doubt the committee has performed conscientiously and carefully 

its duty, I have not seen until very recently evidence of the fact that 

the bench or the bar of the country had been sufficiently aroused on this subject to give the aid that they could give and which I must 

think from communications sent to me they are now in the act of 

giving in this regard.. It is a very old saying that everybody knows more than anybody; and the ablest committee in this body or any 

other, may sit and listen to attorneys representing one interest and 

counsel representing somebody else and come to a most conscientious 

and intelligent conclusion, and still in a matter so complex as this it 

is more than .. likely that when the converging rays of a great many 

minds' are turned upon that ~bject new considerations and new thoughts may be suggested which it is well worth while to utilize 

Now I beg to say again that I did not rise to criticise this bill; 

but in reading the second section again and again and reading it by 

the light of complaining communications that come to me, I confeSs 

that if I sat to-morrow in my office and a client were to come and 

consult me about his rights under this section, as I now understand 

it I should be compelled to make a statement to him which would 

enable him to put to me a very awkward question, which he would 

put if he were to say, "why then did you vote for such a law as that ?" So that I should be glad in voting for it, for one, to be able 

to justify it here and to be able to justify it when it comes to be a statute if it shall, and to operate in the cases which it is intended to cover. · 

Mr. WAD LEIGH. Mr. President, the communications "to which mv friend, the Senator from New York, refers, a:re not of modern tlate. 

I have been receivin~ them by bushels, I may say, ~ver since this bill was introduced i.ato \jOngress. They and their arguments have been 

fully considered before the committee, and after considering them, and after bearing these complaints by the bushel, the committee has 

unanimously decided that this bill should pass. I do not undertake 

to say that every member of this committee prefers all the provision 

of this bill to any provision which he might get up or make ; but 

what I do say is, that the committee has unanimously come to the con- clusion that this bill as it stands, if it passes, will be for the interest 

not only of patentees, but of the public. 

Now, what kind of a right is it that is taken away from these suffering patentees' And in that connection I must say that patentee or combinations owning- patent-rights are sometimes as powerful us anybody else. There are in this country combinations of capitalist_, 
1879. CONGRESSIONAL RECORD- . SENATE. 455 

who own large numbers of patents and who do business UJ?On those 

patents. and they are strong enough under the law a.s it 1s now to 

.crush any patentee at their will; and that is one thing which the 

committee was desirous to get rid of, and I will tell my friend the 

.Senator from New York how and why. Take, for instance, the invention of some. improyement in a loom which is used by a manufacturing company in a. factory. It may be a very small invention, but a desirable one, and it ~oes into general use. Looms are made embodying that invention. The manufacturers who buy these looms know 

nothing about the invention; they cannot know anyth!ng about it. 

They do not suppose they are infringing any body's right; but they 

buy these looms with this little invention, which is perhaps imperceptible to anybody who is not particularly skilled in patent-rights, .and who has not examined the whole subject. They put the looms 

into their mill and operate the improvement in their looms. Under 

the law as it is now, after fifteen or sixteen or seventeen years, along comes a gigantic combination or company owning numerous patents, 

of.w)Jich this is one, and it calls upon the manufacturing company 

forwhat'l For damages Y Oh, no, not at all; but that it shall account 

for the profits it has made by that invention during that whole time. 

They demand an account of profits. Consequently this corporation, 

this mill company, this manufacturing company has to go into all 

its books, go over all its accounts for those years, ascertain how much 

profit has been made each year, and at the end of all they have a computation that may last months or years to find out how large a part of all they have made for seventeen years is due t<l that little 

thing in the loom. Of course everybody knows that no one can find 

it out; it is a matter of guess after all; but under the law as it is now that goes into the account of profits in many ca.ses. Now, what 

I say is that if that patent is in the hands of a powerful combination, 

that power which they have enables them to crush their adversary. 

What manufacturing company would not pay almost any amount 

ather than be subjected to an inquisition of that kind Y Who can tell what the result is .to be? 

Mr. President, the results of this rule have been as absurd as might 

be e:xpected. Take the swedge-block cases, where it was proved that 

the machine was of no use whatever, because after all had been done 

by it that could be done, it did not produce a result that was profitable. The rails which had been operated by it were not worth enough more after the operation to pay the cost of the operation. 

Mr. EDMUNDS. Why did they resort to the operation then 'l 

Mr. WAD LEIGH. They did not know anything about the patent; 

that is, they did not know who were. the parties who claimed it. It was claimed thnt they must account for the difference in cost between doing that by hand and doing it by that machine, and a decree was ent.eretl against them for $1,700,000 for what was of no value 

whatever. The court finally arbitrarily reduced it to $400,000, which was enormously unjust and oppressive. 

Mr. DAVIS, of Illinois. The Senator is mistaken as to the swed~eblock cases. This was a process, a mode of mending exfoliated rails, 

protected by a patent. The old manner of doing it was by hammer, 

.and the rule adopted was how much the railroad company saved between that old mode and. the ltlode which was invented by Turrill. 

That was it ; nothing else. It was susceptible of positive demonstration, there was no gue sing about it at all, that the company bad 

.done this; but it was too much, of course; it was too large an amount. 

That, however, wa.s the rule adopted. 

Mr. ·wAD LEIGH. In that case there was no ~uessing. My friend, 

the Senator from Illinois, is right. 'fhe court sa1d that the defendants 

must pay just what had been sayed between the cost of doing what 

they had done by hammer or by hand an<l 'doing it by that machine, 

when the truth was th;tt what they had done was of no benefit to 

them whatever. The rails might better have been left as they were ; .they had better bave cut off the rails and thrown away the ends. 

Mr. DAVIS, of Illinois. They discovered that after they had use_d 

the process of Turrill for years and would not pay him anything. 'Then they discovered that by a new process they could do it a great ·deal cheaper. Mr. CONKLING. May I nak a question in that connectionf 

Mr. WAD LEIGH. Certainly. 

Mr. CONKLING. · I understand the honorable Senator from New 

Hampshil'e to commend these provisions n'ow because they protect 

.manufacturers from what he calls an inquisition, and he asks what 

would not a manufacturing company rather pay than submit its books .and accounts to be pried into. Feeling the force of that, I call attention to the section at line 36-- · Mr. WADLEIGH. I did not intend to make that the main point 

against this system at all. 

Mr. CONKLING. I was so much impressed by it myself that I 

thought it was a capital point in the Senator's argument. I feel the 

force of it very much, and I speak seriously. 

:Mr. WADLEIGH. The terrors of tbatinquisition were as nothing 

.compared to the decrees which miglrt follow it and compared to the 

amounts which might be wrung from parties for the use of inventions nearly or absolutely worthless. 

Mr. CONKLING. I think the Senator disparages his own point and 

treats unkindly his own offspring; and I repeat it struck me with .a great deal of force when he said that there were grave objections 

to investigating all the accounts of manufacturing corporations. 

'Therefore I was about to bring to his attention a provision of the 

bill that the committee proposes and to ask him what was the view 

of the committee at that moment in this regard: 

No account of savings shall in any case be allowed ; and no endence or account of the defendant's profits sbaU in any case be admitted, except as to actual profits resulting from nraking for sale or selling the thing patented, or the product thereof as aforesaid. . 

And I inquire whether it is more onerous for a corporation to submit to an inquiry bow much it has saved in its operations than to 

submit to an inquisition of all its books and accounts provided th& case is one in which it appears that it has made a profit Y Why is it 

that those who have made a profit out of" the product thereof as aforesaid" should be subjected to an inquisition any more than the 

people who have done the same thing but realized their profit by 

the-saving which has nourished and made profitable the other branches 

of their business T 

I thought, if the Senator will pardon me a moment further, that one of the greatest objections to the income tax was the very thing at . which he DOW levels his remark, the prying, snuflj.ng inquisition to 

which it subjected the private affairs of persons, natural and artificial; and therefore as I .said and said seriously, his remark in that 

respect struck me. But when I find in the bill that fish is to be made 

of one and flesh of another, and by no means the distinction in favor . of the most meritorious persons, I am unable to see entirely why one man should be treated in one way and another man should be treated 

in a different way in the same bill and upon the allegation that the 

way in which ~he one man is to be treated is unfit treatment for any man. 

:Mr. WAD LEIGH. Mr. President, if, for instance, my friend the 

Senator from New York, invents and patents a machine and I make 

that machine and sell it, it is a very easy matter to take an account to 

ascertain what I make upon it. The price for which I sell each ma- chine can be ascertained as a matter of course, and it is easy to com- pute the cost of each machine in that manufacture. That can be 

easily arrived at.. It does no injustice. The profit is an actual profit, 

if .any is made; and the inquisition is no such inquisition as follows 

the taking of an account where the machine is simply used in a busi- ness. 

Mr. CONKLING. If the Senator will pardon me, he does not un- derstand me or I do not understand him. 

Mr. WADLEIGH. Let me get through, :Mr. President. Now take 

the other case. ~up pose that instead of manufacturin~ that machine 

for sale, or manufacturing its product ;md sellin~ that, 1 put that marchine into a factory as a small part of a complicated business; I go 

along in that business, under the present law, for seventeen years or nearly seventeen years, and then I am called upon to render au ac- count of profits. What is the amount of profits f ..c\.11 the profits that 

I have made in the business for seventeen years ; and then it is for 

the court to decide how much of those profits is due to the single ma- chine of my friend the Senator from New York. · What the committee have said is that in view of .the fact of the 

inconvenience of taking an account of that kind, and because the 

expense was enormously great, so that a powerful patent combination could crush any adversary by it, and in view of the fact that it 

is absolutely impossible to arrive at any correct result in such a case as that, for it must be merely guess-work as anybody can see, it is 

inexpedient to continue that rule, especially as decrees made nndet 

it have been exorbitant and unjust .. Now, as to savings, there is not only the objection which I have. 

stated to a certain extent, though not to so large an extent as I have 

named, against the rule of allowing savings to be considered in an aceount as profits, but there is a further objection. My friend the 

Senator from New York says that it is ·easier to ascertain wbat the 

saving or the economy is of using a patented machine than to take 

this a-ccount of profits. Toot is undoubtedly trne. But under the 

present law where an account of savings is taken, those savin(J's thus 

ascertained are regarded as profits, and the plaintiff has a right to~ decree for those profits and for the amount thus found. 

What has proved to be the practical operation of this rule f Let me cite an instance. There appeared before the Committee pn Patents the other day a very ingenious machine for sewing on the bottoms of shoes-for bottoming sewed shoes. I think it was shown that 

before the invention of that machine the cost of bottoming a pair of 

shoes was about forty cents ; but the royalty which the proprietors 

of that machine exact from the parties who use it is so·mething less 

than two cents a pair, I think. We will call it two cents. When 

that machine goes into use it immediately reduces the price of shoes, 

and that was proved to us. The price went down so that the cost of 

bottoming a pair of shoes in the selling price, where two cents royalty 

was)>aid to the owner of the patent, would not be more th;m about 

five cents. Now suppose that an innocent infringer-and, by the way, 

at least nine-tenths of the infringements are, I think, innocent-uses 

the·machine. There is a controversy 1n many cases as to who owns the patent-right or who was the inventor. A man buys one of these 

machines. He uses it. He uses it for seventeen years, and then 

comes a patent combination which has proved that it is the owner of 

the patent, and requires hinrto account, and requires him to account 

under the rule of savings. Under that rule he would have to account 

for the difference between the cost of the old way of making, which 

is forty cents, and the new way, which is two cents. He would have 

to pay for each pair of shoes bottomed by t h at m:whine the sum of 
456 CONGRESSIO~AL REC0RD-SENATE. JANUARY 15, 

thirty-eight cents, when he could not in any market ha>e got more than five cents. That is the practical operation of this rule. 

The case which I have given is not a real case; but the evidence 

before your committee shows that under this rule by which savings 

must be accounted for as profits, ,such to some extent would invariably be its operation. That is unjust, and patentees cannot afford to 

have a law under which such wrongs may be committed. 

The danger is..! Mr. President, that if the law is not amended it will 

be repealed, ana. that waS' one of the arguments which induced the 

committee of the Senate to propose to change the rule. 

Mr. CONKLING. May I ask the Senator to state to the Senate a case or refer us to an authority in which any court ever held that the 

rule of damages would be, not the difference in fact, not the saving 

in fa~t, but the saving as it would have been if the m'ar~et could have 

been held up as it was before, and the man could have put in his 

pocket the thirty-ei~ht cents not one of which he ever did put there f 

Will tlle Senator reter us to a case in which the courts haYe held that 

that is the present rule of damages f 

Mr. WAD LEIGH. The courts have decided generally that under 

this rule of savings the difference between the cost of the old way 

of doing a thing and the new way by the invented machine is the 

profits . .Mr. CONKLING. But decided it in cases where the infringer did 

not sell, but where for example a railway company had been in the 

habit of repairing no matter what in a certain way ;-there are many 

illustrations-adopting the new way there was a net saving of so much, and the court said that was the measure of damages¥ Now 

will the Senator refer me to a case where the courts have said in the case of a manufacturer for sale, that although in point of fact he did 

not save a cent, although there was no appreciable saving ~tall, the measure of damages would be. the difference between what it used to 

cost him and what would have been his saving if he had been able 

after applying the new Jilrocess to sell at wbat he got before T That 

is the case aa be states It, and I want to ·know what court ever decided thatf 

Mr. WADLEIGH. No court bas laid down any such specific rule a.s my frien~ the Senator from New York has suggested; but the 

courts have generally laid down rules covering the cases which I have 

.named, and the operation of those rules laid down by the courts has 

been such as I have stated. ~h'. CONKLING. I did not state the rule. The Senator stated it. 

He stat~d, if he will pardon me, that it used to cost to bottom a pair 

of sewed shoes forty cents; that a man made an invention which after 

deducting the two cents royalty cheapened the bottoming of those 

shoes thirty-three cents; but the man did not sell t.he shoes for any more than he did before. The market price immediately graduated 

itself accordingly. Having stated these as his premises, the Senator 

stated that under the present rule of law the courts would say that 

the measure of damages was the difference between nothing and forty 

cents a pair, less the royalty and the actual remaining cost at three 

additional cents, five cents in all. Now, if there is any such case as that, I !!hould like to know what court ~ver so decided. 

Mr. WAD LEIGH. The Supreme Court of the United States decided 

in the case of Mowry vs. Whitney that the difference between the cost 

of the old method and the coe.t of the new was the profits in that case. Mr. CONKLING. In the case of a vendorrin the case of a man manufacturing for sale or selling, or in the case of a railway company 

repairing its track f · Mr. WADLEIGH. Tlrere was no railway company in the case. Mr. CONKLING. No, in that case; but I put It for the sake of the 

distinction. 

Mr. WADLEIGH. Inasmuch as there was no railway company in 

the case, it. is a little unfair to ask me what the court would ha'i·e 

done if there had been one.in it. · Mr. CONKLING. I do not ask that. 

Mr. WADLEIGH. Let me state another case. A machine was invented for splitting wood, and the defendant used that machine for 

splitting wood. It was proved thathe made no profits whatever. It 

wa.sfproved that the use of that ma.chine lowered the price of wood 

per cord so that although the use of the machine saved some forty 

cent-s a cord in the wood, yet that the market price of the wood prepared by the machine did not begin to cover the forty cents. · The 

court held in that ca.se-the case of Meys t·s. Conover, I think-that 

the profits were the difference between the cost of splitting wood by 

hand and :the cost of splitting it by that machine, and a very larae 

decree was entered against the defendant although he had ma3e 

nothing at all. 

Mr. CONKLING. Mr. President, some moments ago the Senator 

from New Hampshire commented, if I un·derstood him, upon the ease with which segregated savings could be determined in one case and 

the difficulty or impossibility of :finding them out in another. He 

said that if a man manufactured a machine for sale it was easy to 

determine the saving to him if he made profit by doing so, while if 

he manufactured the same machine and used it in his business it was likely to be guess-work to determine the advantage there. I should 

like to state two or three familiar cases tb the Senator, and see what 

he would do with them, because I think be fitted his case to his 

theory and not his theory to the practical case. Hera is a man, for example, manufacturing wagons. If one will 

go into the neighborhood of Newark, New Jersey, be will :find a fruitful field of illustration. Here are men making wagons and selling 

them, not in parts, but a wagon as an entirety. The simplest wagon one makes involves the use of a number, I might almost say a great 

number, of patented inventions. There are patents on the skein, 

there are patents on the threads of the screws which he may use; 

there are patents on the process by which a deposition of one metal 

upon another takes place so as to make plate or electrotyping ; in 

short from the top of the wagon to the tire which rests on the ground 

nearly every incident has been the invention of somebody, and, unless 

the patent has died, is covered by a patent. That is a very familiar case moderately stated. It is a case the like of which occurs in every 

center of industry this cou.n.try owns. Some man wakes up calling 

himself a patentee; he is sixteen years old and he has a patent in 

respect of the shape of a bolt or in respect of one of the links of the 

elliptic springs which are placed nuder thj.s wagon. Now, will the 

Senator from New Hampshire tell me that the mode of ascertaining 

and segregating the profit derived from the use of that little thing, as he said in his other case, is easier or simpler than the mode <Jf 

ascertaining the saving from the use of that same article by a man who used it in his bm~iness, instead of putting it on a great varietyof other thinO'S and offering the whole for sale f 

Mr. WADLEIGH. If my friend the Senator from NawYorkdesiresan answer now, I will say that in the case he names I thin'k it would be 

exceedingly difficult to ascertain what share of the defendant's profits were due to the plaintiff's invention; but great as would be that difficulty, it would be nothing as compared with the. difficulty of deciding 

what proportion of the profits of the defendant were in a large and 

extensive business in which he used tha~ wa-gon and what proportion 

of the profits of that whole business in which he used the wagon was due to the particular thing that myfriend the SenatorfromNewYork 

speaks of. There is a vast difference between the two. Great as thedifficulty is in the one case, it is nothing CQmpared to the difficulty in 

tlie other. ' 

Mr. President, the Comntittee on Patents found the law as it stands 

requiring an account to be taken in both these cases. They did )lot 

go so far as my friend th.e Senator from New York suggests, not so far as they miaht have gone, not so far as some of the committee wished 

they should go, if r niay properly say so, but th()y did abolish the 

rule a.s to the most difficult and the least satisfactory class of cases. I am aware that what remains of the rule in this bill will be exceedingly difficult in many cases to carry out ; but, as I s~id, the difficulty 

in those cases of carrying out this rule is as nothing compared to thedifficulty of deciding in an extensive business in which that wa-gon 

might be used the particular proportion and share of the profits of 

that whole business due to that little thing in the wagon. 

Mr. CONKLING. Nobody can doubt, Mr. President, woo has listened to the Senat()r from New Hampshire.z that he says that, in his own language; that he has said it; and we .llave every reason to believe 

that he will continue to say it. I was seeking for reasons. Logicians. 

sometimes speak of a petitio principii; they sometimes ~all assertion 

"begging the question;" and whether the Senator is right about this· or not, perhaps we shall see more cleal'ly when we look further into it. 

Now let me state another case that I was in the act of stating when 

the Senator made his last remarks. Here is a manufacturer of steamengines, locomotives for railway companies. Probably somebody 

knows the number of patents or patented articles employed in con- structing a locomotive-engine; I do not; but the number is very great. 

Mr. WADLEIGH. Verylarge. 

Mr. CONKLING. Very large indeed. Now it is quite familiar to 

all of us (and a good mahy States whose Senators I see here are fields 

in which illustrations can be found) that concerns are engaged in 

constructing locomotive-engines; they make a great number of them, 

and every one of them represents a large sum of money, so that every concern en~aged in producing locQmotive-engines in considerable 

quantities nas a great total of annual business, and their accounts 

of course are very diversified and perhaps in some cases complicated. 

Here comes a man with a patent which relates to something or other 

to be used on a Yankee bonnet to catch sparks on an engine. It is one small thing, smaller than the ·bit of watch-spring which goes 

somewhere into an article of dress, a hatt~r a cravat, or whatever it 

may be; it is almost infinitesiinal in its bUlk or importance when com- pared with this !ITeat iron horse in making which it is used. Now the 

Senator asserts that it is comparatively ea.syto ransack the accounts 

o.f this locomotive-engine company, to go through all of them, t:> add 

and subtract and divide and analyze and :find out what proportion of 

the profits of this great concern comes from the use of a particular 

mode of bending a wire or securing an angle in a Yankee bonnet used on the spark-arrester of a locomotive-engine. I deny it, and I should 

be willing to rest my denial upon the uninstructed intelligence of any man. It is not so ; it cannot be so. On the contrary it would be 

much easier for an uninstructed man to calculate an eclipse than it 

would be to take such accounts as I am speaking of, and from tltem 

deduce the aliquot part, segregated from all this wilderness of items 

and of elements, referable to the use of this one little trifling thiBg. 

And yet the bill provides in substance, changing the language from 

negative to affirmative, that accounts and eviaence of profits may be gone into in respect of a.Jl persons who make profits and who are engaged in making for sale or selling "the thing patented or the 

product thereof as aforesaid." What those words "the product thereof 

as aforesaid" are intended to mean, I should like to ask the Senator 
1879. CONGRESSIONAL RECORD--SENATE. 457 

from New Hampshire. "Or the product thereof as aforesaid "-does 

that mean the article produced by the use of the machine ' 

llr. WAD LEIGH. Of course. 1\Ir. CONKLING. The Senator says ''of course." Then I have made a very inadequate statement of my objection; then I have fallen 

short, as I think, entirely in stating the whole of the objection to this. 

Now we are told that, notwithstanding the objection, notwithstanding the impossibilities (for they amount to those) stated by the Se_nato:r from New Hampshire, we are to enact that in the case of all 

persons whatever engaged in any business, no matter how complicated and extensive, an account may be required and e~idence may 

search and analyze their accounts for all })Urposes whatever known 

to the law now, if they have made profits and if they manufacture 

machines for sale, in respect of all the outcome, all the facts of every name and nature of the use of any patented article in the production 

of anything whateve1-. If that is the design of it, I venture to say 

with more confidence than that with which I began, that, instead of 

abolishing the rule in the more offensive and less meritorious cases an.d preserving only so much of it as the committee thought, or as the 

Senate might think, was comparatively harmless, we are perpetuating and reasse_rting a part of the rule which has in it every element 

of vice to be found in the rule as it now stands, and which applies it 

arbitrarily in instances no more meritorious, no more compassable, no more easy of judicial ascertainment as distinguished from guesswork than the other cases to be excluded by this section. I venture 

to say that, aft.er learning the meaning attributed to these words, 

which I was at ffrst in doubt about, and to say it with considerable 

confidence that I am not mistaken about it. 

Let m~ put the third case I was going to put. I take now the instance of men not engaged in making railway-carriages for sale, (as 

many concerns are whose names I might mention,) but the instance 

of railway companies which manufacture their own carriages, if they are only rubble cars, or platform cars, or burden cars of some· sort. 

Here is a man who has a patent for the manufacture of axles in such a way as to avoid the possibility of a sand-crack in the iron; and I take 

that particular case because of a very leading instance to which the 

railroad between Albany and Boston was a party the case of Hager- man vs. The Great Western Railway Company, where a man sued for an injury that befell him, which injury grew out, as it seemed; of a sand-crack in an iron axle, which the experts said there was no mode 

of detecting, no mod~ known to science in which the buyer could find 

it out. The court of last resort in my own State said "that is no an- swer to this action; there is a process in its manufacture by which it can be prevented, whether there be a. process that will discover it afterward or not; and a common carrier of passengers, acting at his peril, if 

need be, must himself manufacture the apparatus with which he en- gages in this dangerousllusiness i he must himself see to it that he appli{ls all the precautions; but there is a mode of making iron axles 

by which sand-cracks will not occur." That railway company, admouished by the court, manufactures its own iron axles, and manu- factures them \lY a process patented, not because it is a machine, but 

because it is a chemical process patentable by law. This company 

resorts to that process, and it makes axles all of which are good and 

stanch and reliable ; and it is sued. Will it be said even in that 

case-and I have taken it because it is a much more difficult one and 

much more open to objection than many another I might have putwill it be said in that case that it is not as easy to ascertain the 

savings to the railway company from the use of this process as it 

would be had that railway company been the manufacturers of cars for sale, and used this mode of making the arxles which it put in ita cars and sold the whole as an entirety like the wa~on with which I 

began as an illustration 1 And if that is to be sa1d, why will it be 

aid, and how can it be proved by reason! I do not know. I can- not see after hearing the Senator. On the contrary, it seems to me that if a man were to invent a process by which one of the eight or nine tenths of the fuel which now goes utterly to waste in the use of 

the steam-engine might be save<11 tne.man who adopts that process ana runs his engine with it in his own business is one as to whom 

you could ascertain and weigh in golden scales the advantage to him 

just as well as in the case of his next-door neighbor wh_o adopts the same adjustment or apparatus for his engine and sells it to some- body else. If not, why not '? 

Mr. President, I fucline to think that/the argument against givin~ 

evidence of savings-! do not speak of an account in the technical 

ense-and looking at the books of defendants for that purpose, 

proves too much for thiR-section. If it be sound as stated, then I say 

that I see little excuse and no justification for the provisions here 

made. If the argument is unsound or if it may b~ answered, then I 

do not see why it is not answerable as well in respect of one defendant as another, and I do not see why this section as it stands does 

not make, more than I supposed in the beginning, arbitrary and therefore unjust discriminations between different persons. 

Mr. HOAR. Mr. President I suppose in dealing with any rulo of 

damages in patent causes, whether the rule is to be declared from 

the bench or enaeted in legislation, it is easy to state in the vast multitude of contrivances which are the subject of patents cases in which 

the rule would work injustice, cases in which .another rule would be more just; but all that can be done, whether by the courts• or by legislation, is to provide a simple, practical, general rule which will 

work justice, according t o the experience of men: in a majority of 

cases. Now, undoubtedly, a. Senator a~ .. take an hour, as an hour 

has been taken, a Senator may take a day, a Senator may take a week, 

and he would not have exhausted the list of supposable cases in which 

it is more difficult to take an account of the profits tllan it is to take an account of the savings in other supposable cases. But still the 

fact remains that the section as reported by the committee excludes 

accounts in cases in which as a rule they are more burdensome to 

parties and less likely to contribute to-doing practical justice in the 

cause, and ad~ts accounts in the class of cases in which as a rulethey are more likely to do practical justice in the cause, and less 

(according to the experience of persons conversant in such trials} 

likely to be instruments of injustice and oppression. 

Now what is. the rule as the committee have 1eft it Y The Senate 

will remember that the nlle of law permitting the account of thesaving to the particular individual by reason of the trespass upon 

the patent-right of a patentee is a departure from the general practice adopted in damages in all other cases, and the admitting evidenceof the price for which the thing sold on the other hand is precisely in 

correspondence with the rule of damages in all o~her cases where the common law prevails as a system. Suppose a person by force and 

without right takes possession of my dwelling-house, or my mill, and 

maintains against me the occupation of that dwelling-ho~se or of 

that mill for a considerable peri<>d of time. The injury to me by the 

deprivation of the use of my property, the jury get at as well as they can upon the evidence; but the special fact whether the man saved in his business by having the occupation of that property so- tortiously gotten into his possession is a fact which would be excluded 

from the consideration of the jury, and in regard to which evidencewould not be admitted. The answer would be,_" it is the remote, 

and not the proximate result; it is a· result which might have happened, or might not; " and therefore, as I said, the ()ld nlle which 

a-dmits an account or evidence of savings in any case in patent-causes 

is an exception to the almost universal rule of damages appliea in all 

other cases-by the tribunals of this country. 

Mr. EDMUNDS. Does the Senator (if I do not 4tte1Tnpt him) re- member any instance in which any statute of the United States or of any State has regulated a rule of dama~s in an action at law f 

Mr. HOAR. That is another proposition altogether. It is not a question, I submit respectfully to the Senator from Vermont, pertinent to the particular point with whklh I am now dealing. 

1\fr. EDMUNDS. I thought it was, or I woultl not have asked it. 

Probably I am mistaken. · · -

Mr. HOAR. I do not mean that it is not pertinent to the general: 

question we are discussing, but I am dealing now with the question 

of the wisdom of this rule, not with the question what the reason is 

for enacting a ru1e of damages by statute. 

In the next place, in regar'"d to the sale of the thing, the profit for 

which the party has sold it, that is the regular, and ordinary, and 

usual test of damage. A man is deprived of a horae, or his d wellin ahouse is tortiously burned up, or any other property is destroy;!;. 

its market value is one1 and ordinarily the true, test of the dama~e, 

and the market value ascertained by a sale of the very thing. in dispute is of course evidence admissible. The committee therefore 

restore the rule of damages in patent causes as nearly as may be tO' an analogy with that rule which the universal sense of justice, where 

justice is administe.J;"ed according to the forms of the common law, 

has established in all similar cases. The Senate will observe in the cases which have been put by the 

Senator from New York and the Senator from Ohio, how ample and 

extensive the remedy is left. In the first place the remedy by injunction remains untouched, so that what-ever expenditure may have 

been made by the infringer in his business, however inconvenient theabandonment of a manufacture or a use being an infringement may 

be to the defendant, the inexorable injunction comes down and protects the plaintiff absolutely for the future; the statute only deals. 

with damages for the past. It leaves open in the first place where 

the 6wner of the patent is himself using it, making it profitable tohimself as an article, the use of wh~ch is to be licensed, and in that case the license fee which he has established by a number of trans-

.actions is themeasnre of damages. Nobody, I suppose, will question 

the justice of that, so that if he has held it open to mankind and has 

established his price, that price which the defendant shall pay, with 

the addition of a special award to be made by the coart in a case of 

willful infringement, is to be the remedy. In the case supposed by 

the Senator from Michigan; and I think by the Senator from New 

York, where the owner of the patent does not propose to open it to 

public use but proposes to avail himself of his constitutional property 

by a use made by himself, there a license fee not having been established, the reasonable compensation or license fee for the use is to bedetermined by all competent evidence an abundant and ample com- pensation in such cases. If the use by the ll:V'ringement wou1d be a destruction of the purpose to which the owner of the patent had 

applied it by-the destruction of his business, then of course the jury 

in determining wha.t it weuld have been reasonable for him to-impose 

as a condition to that use would have regard to that important circumstance. 

It seems to me, therefore, Mr. President, that as the practical and 

general rule, the rule of damages which the committee have report&! in the bill is the sound and correct one. And now I propose to answer the question put by my honora.bliJ 
458 CONGRESSIONAL RECORD-· SENATE. JANUARY 15, 

friend, the Stmator from Vermont, whether it bas ever been known 

that the rule of damages has been established by legislation. There .are vocy many instances in our legislation where legislatures and parliaments have been compelled to interfere to alter the rule of law 

..established by the courts in regard to this matter of damages. The 

matter of highway dama~es is a familiar instance in the New England 

:States. We have from t1me immemorial had special statutes on that 

subject on our statute-book and have made a now one within the last 

twelve months in Massachuaetts. 

Mr. EDMUNDS. If my honorable friend thinks that the cas~ of 

what be calls highway damages meets the inquiry I made to him, I ·respectfully submit that I think he did not understand it. I inquired 

whether be knew of any statute which undertook to regulate tho nue -of damages in an action at law between man and man for property. 

I suppose what he means by "highway damages," as that seems to be .a general New England systtlm, is where property is appropriated for 

the public use under the power of eminent domain. · Mr. HOAR. No, I speak of injuries to travelers-damages sustained 

by travelers. 

Mr. EDMUNDS. That they shall not get over $5,000 damages ' 

Mr. HOAR. Or may have double damages in certain cases. Mr. EDMUNDS. That does not regulate the principle on which 

.c]amage.s are to be assessed. It only &ays there shall be a maximum 

limit. · . · Mr. HOAR. It seems to be a pretty sharp limitation on the prin-

-ciple on which they were to be assessed. 

Mr. EDMUNDS. Not on the principle, but · on the degree of its 

.application. 

Mr.HOAR. But, Mr. President, thewholepatentlawisthecreatnre, 

the property in theincorporealandintangiblethingcalledaninvention -or discovery is itself the creatur.e of that paramount act of legislation, the Constitution oftbe United States. The whole law is entirely 

not the result of common-law principles, but the result of· special 

statute enactment at every step-both law and the remedy. Now, it 

is found by a complaint coming from the great a.gricultnral interest 

-of the country, coming from the great railroad interest of the country, 

..coming from the great manufacturing interest of .tl1e country, that 

the power which the patent law puts in the bands of complainants 

who desire to oppress innocent defendants, and of defendants who 

-desire to resist meritorious honest complainants requires of them the 

abandonment of their legal rights or the incurrin~ of the expense of 

costly, protracted, burdensome investigations, lastmg often years and 

years-there wa& one case referred to before the Patent Committee 

which bad lasted some twelve or fifteen years if I mistake not-into 

the details of vast businesses and great occupations. I say the com- plaint came that that was a grievance which rather than to further 

.endure, these great interests were prepared, if necessary, to sacrifice 

the entire patent system itself; and the committee found and believed 

that that complaint from those great classes of our citizens endan-

.:gered the entire patent system, and that to endanger the patent system of the country was t-o endanger its manufacturing supremacy and 

its place in the ranks of civilization among the nations of the earth. 

'The committee under these circumstances adopted the best practical 

method of remedying this grievance that they could devise. They 

left the right to the account of profits open in the ca-ses whereas as .a rule they believed that account of profits could be made practicable 

cheaply au<r was required by the justice of the cause. They destroyed 

the right to the account of savings in cases where as a rule they believed that to lea_ve it open would be burdensome, costly, tend to -enormous delays, and would be to overthrow as a rule and as a gen-

-eral practice the administration of justice between the parties in such causes. Now, the committee believe, in spite of the thousand ingenious .cases which may be put of exceptions, that to require in a simple litigation in regard to some sli~ht patented article an account of the 

va-it business and an inspection of the vast books of the person who 

may use that article in one of his processes, as a general rule is urjnst 

.and unwise, and that on the other hand to leave open to parties the 

right to require an account of the profits for which the thing has 

.actually been sold which theinfringerbaspurloinedfrom the owner, 

is wise, reasonable, andjust; and although you can undoubtedlyput -cases where the latter may be more burdensome than the former, yet .as a general rule it will not be the case. Mr. WAD LEIGH. Mr. President, I do not desire to delay action 

upon this bill, because if it is to pass, action must be bad upon it .-soon, and I shall add but a single remark to what has been said by 

my friend, the Senator from Massachusetts. 

The Senator from New York in his last remarks took it for granted 

that this bill abolished all evidence of what savings could be effected 

by a J>atented invention, as I understood him. That the committee 

-did not understand to be the case. The bill provides: 

That nothing herein con~ed shall exclude other evidence as to the utility and 

.advantage of fhe invention as one element to aid in determining a license fee where none has been established. 

What is "the utility. and advantage" oi an invention if it be not 

the saving that that invention will e1l'ect in the business or manu- facture in which it is used Y Your committee believe that under that 

provision of this bill evidence can be admitted showing what saving 

the invention will effect, and thnt is all the provision there need be 

.u.pon that subject. 

Then we are told that the committee made this and the committoo 

made that provision. Mr. President, those provisions exist in the 

present practice of the court. Tht' committee makes nothing. It 

abolishes· a certain rule to o. certain extent where the committee 

believed that 'rule bas been most unsatisfa.ct.ory and most unjust in 

its operation. It does not wholly abolish it. And the committee do 

not make that portion of the rule which they leave unmolested. The 

committee believe that far as this bill goes it is an improvement upon 

the present law, and that if passed, as my friend the Senator from 

Massachusetts has stated, it will benefit not only the public but patentees as well. · 

Mr. CON.KLIJSG. Mr. Pr.esident, whatever errors we may fall into. we shall be inexcusable if we do not avoid any mistake upon thw 

bill while there is yet a misunderstanding of the meaning. The 

Senator from New Hruppshire thinks such a . misunderstanding iE 

mine; and to ascertain how that is, I want to submit an actual case to him and get him to tell me, if he will, what becomes of it under 

this bill. I will take now the instance of an iron concern whose 

business it is to carry on puddling. That concern is losing a, hundred dollars a day. I wish the case I am putting were an imaginary 

one; but it is not. An invention is made for puddling iron, :md the concern supposed adopts that invention, and it is so valuable that, 

instead of carrying on business at a loss of one hundred dollars a. 8.ay as before, they save ninety dollars and the loss per day is only ten 

dollars. Will the Senator from New Hampshire tell me would the 

invent.or in that case be able to recover or not, and, if he would be 

able to recover, under w bich one of the clauses of this proposed statute f 

Mr. WADLEIGH. In the case supposed by my friend, the Senator 

from.New York, evidence could be presented showing what advantage the patented invention had been, the effects that it bad produced, the saving that it had made-- ' 

Mr. D.A. VIS, of Illinois. I do not understand that. • Mr. CONKLING. Nor do I either. 

Mr. WAD LEIGH. I ask that I shall not be interrupted by my 

friend, the Senator from Illinois. . I say so because in that case what the invention can do in the way 

of savings is" the utility and advantage of the invention." Now what 

cannot be done, what this bill prevents from being done, is going into a:a account of all the business in which that invention bas been 

used to ascertain in the first place what the profits of that invention 

have been, and then what proportion of the profits is due to the invention, or compelling the defendant in such a. case to account for 

savings as profits when these savings in no case would be his profits, 

but aimost always, from the natural operation of the laws of trade, 

would be very many times greater than those profits. 

Mr. CONKLING. Before the Senator from New Hampshire sits 

down, will he be good enough to look at some of the lines of this 

section between line 1 and line 15, and tell me whether he means to 

leave standing what he bas now said, in spite of the pronsions there 

found f 

Mr. WADLEIGH. What is the particular point f 

Mr. CONKLING. I .call the Senator's attention esJ1ecially to line 

10, beginning with the word "except." .. Certainly his understanding 

is so .unliko mine about a ma~ter which seems to me pretty plain that one of us must have read this very carelessly. 

Mr. WAD LEIGH. I answered the question of the Senator from 

New York so far a& it relates to evidence of savinW,i being admit;ted 

in the case to which he referred that it can be admttted. No account 

of savings can be required, but they may be proved in certain cases to establish what the damages of the plaintiff are, what the advaDtage derived from the use of that invention is, what the invention 

will do in the way of saving. • Now, in answer to the question of my friend the Senator from New 

York just put1 it is true that this bill abolishes all accounts for profits 

where no profits have been made--

?r-Ir. CONKLING. Does the Senator mean what he says now! 

Mr. WAD LEIGH. Where no actual profits have been made. 

Mr. CONKLING. That it abolishes all recoveries for profits where no profits have been made f 

Mr. W .A.DLEIGH. No; all accounts for profits. That is,· the ac- count for profits in all other cases is based upon actual profits which 

the defendant has received. .A. rule ha-s been adopted in patent causes which compels a defendant to account for profits where he ba-s made 

none, and to account for profits where there have been simply savings, 

although he bas made a loss in his business and no profit at all. Now, 

the view of the committee was, that where there had been no profits 

at all, nobody ought to be required to a.ccount for l>rofits which were simply imaginary ; that in all such cases the plamti.ff should suow what injury he had suffered from the use of his invention; that he 

should not compel the defendant to pay profits when there had been 

none, but that in all such cases he should show by evidence the 

utility anc1 advantage of his invention, and by all other competent 

'and material evidence just what he was entitled to . Mr. D.A. VIS, of Illinois. Now, Mr. President, I will say a word, as the Senator from Ohio [1\Ir. 1\IA.TrHEWSl does not seem to be in his 

seat. I certainly did not wish to be offensive to the Senator from 

New Hampshire in rising at the time that I did. I thought he supposed I was offensive to him. · Mr. WAD LEIGH. I did not.think of such a thing . Mr. D.A. VIS, of Illinoi . I did not mean to be so at all. I simply 
.1879. CONGRESSIO;NAL RECORD-SENATE. 459 

meant to state that that was not the understanding I bad of the sec- tion, nor is it the understanding of very many abler men than myself. 

Mr. HeAR. There are not many abler. 

Mr. DAVIS, of illinois. I consider that tbere·are. It seems to me that clearly this section proposes to do two things: to abolish all 1 -account of profits in a chancery suit, unless profits have been made. 

Now, the case cited by the Senator from New York when he last sat 

-down--

Mr. WAD LEIGH. That is the intention of the committee. 

Mr. DAVIS, of illinois. I will go on a little while, I know that we say this man who is engaged in the manufacture of iron and is losing $10(} a day gets hold of a patent invented by somebody and uses it ~nd loses $10 a day; and is not that II!an richer in consequence of 

using that invention, and should lte not pay for it Y Is not that the 

true measure ! It is the net advantage to that man which he has in 

the business. 

:Mr. CHRISTIANCY. I ask the Senator from Illinois whether it is 

fair to p.resume that a man who is losing 100 a day will constantly 

keep on in a.ny business ' . ' Mr. DAVIS, of Illinois. Yes, sir; many manufacturers who are losing that amount 4o it to keep their hands together. They do it to 

keep in such a position that when better times come they can ma.nn- factlfre at a profit. That is the answer to that question. . This bill proposM that there shall be no accomit of savings, tba.t is, 

there shall be no account of profits where no profits have been made. 

It cnt.s off savings entirely. The Senator from New Hampshire thinks 

-that the proviso, which I shall read, allows the court to receive an .account of savings. Why not put it in plainly T 

Provided, That nothing herein contained shall exclmle other evidence a8 to the 

utility and advanta11:e of the invention aa one element to aid in determining a license 

-fee where none has been established. · 

The Senator from Ohio wants evidence touching the subject of 

profits and savings to be considered by the court in determining what 

is the proper license fee ·to be established in that case. You cannot 

-establish a license fee in all cases alike. It depends upon the utility 

.of the invention, the magnitude of it. It j.s very small in some cases, .and very large in others. · Mr. WAD LEIGH. Will my friend, the Senator from illinois, let me state right here my answer to that ~ 

Mr. DAVIS, of Illinois. Oh, yes. 

Mr. 'VADLEIGH. I believe that the bill abolishes the technical 

.account for savings, and in' the case which tho Senator supposes the 

.court would not decree that an account should be taken showing the 

.savings which the defendant had mafte in his particular business, 

going over his books and all his business affaus, ascertaining the 

whole amoimt of his savings and then deciding how much was due to 

-this particular ~achine, and thereby a~certaining the savings which 

the invention had effected. But what does it authorize¥ It authorizes the plaintiff, by any evidence he may see fit, ex.cept by an ac- -count going over nil the business matters of the defendant or going .over his savings, to prove the saving his machine will efl'ect, what is 

its utility and its advantages,; and that can be done without any 

taking of a technical. account at all. 

Mr. DAVIS, of Illinois. When you say that the court shall not .allow a patentee to take an account of profits yon cut Lim off from 

.everything in the· world that is available to him. When you say 

that the advantage to the infringer of the patent cannot oe estimated 

inside of the profit you take it away entirely. The Senator says it 

is a great hardship to have the books of a manufacturer opened up 

ior investigation. Yon have that done when you allow an account 

for profits. Yon are to investigate for years and years to ascertain 

whether there have been any profits or not, when it is very difficult 

to prove that; but it is very easy tt) prove that this man has been 

advantagecl $100 a day or $500 a day by the use of a particular 

moohine. 

Then, again, Mr. President, if all account of profits is to be disallowed. unless profits are actually made by the infringer, why con- fine this case to the thing actually patented or the product thereof f 

As I said the other day, this excludes a large class of cases where serv- ice is performed. It excludes a spoke in a wagon-wheel if it has been 

patented ; it excludes machinery in a mine; It excludes machinery 

by which houses are built; it excludes the brake by which a railroad. train is run, and a thousand other things of that kind. Where· serv- i ce is performed it certainly should be put on the sa.me footing as ·" the thing patented or the product thereof." I simply rose because· the Sena.tor from Ohio [Mr. MATIHEWS] was not in his seat at the 

time. 

Mr. CONKLING. While the Senator from Ohio is rising, I ask him 

to allow me to get a piece of information. The Senator from New 

Hampshire-and I was about to reply to that, but I was very glad 

tha.t the Senator from illinois proceeded~alled attention to these 

words: · 

P·rovided, That nothing herein contained shall exclude other evillence as to the 

utility and advantage of the invention as one element- . 

I ask the Senate to obse'rve thisto aid in detel'1llining a. license fee where nonelms been •established. 

Not to aid in determining the damages; not to aid in informing the court or jury how much the on~ man is entitled to recover of the 

.other on the question of profits or savings; but simply to make an 

adjustment, to fix a standard of ·the royalty which the one man should 

pay to the other for the use of his invention. I ask the Senator from 

New Hampshire to tell me whether this bill, should it become a law, is at that point to speak both backwards and forwards, or whether it 

is to speak only of the future; in other words, in a given case, when 

this license fee has been established, whether the decree is to be one under which this license fee would be paid as of a past time, running 

from the beginning of the patent down to the date of the decree, or whether it is to be a license fee. fixed as the rate at which for the 

future the infringer is to.pay f . Mr. DAVIS, of illinois. The past use, of course. Mr. CONKLING. I want to see as to that, because I am informed 

by one member of the committee that it is not" of course;'' that the' reverse is the meaning. Will the Senator from New Hampshire be 

good enough to tell me which of these two meanings the committee 

does ascribe to this language Y 

Mr. WAD LEIGH. What copy of the bill has the Senator t 

Mr. CONKLING. ·The words are on page 5, at line 40, and so on. It is the proviso that the Senator read; and I want to know whether after a man succeeds in establishing by this proof what the license 

fee should be he is to be enti tied to recover for the past infringement 

a.t tha.t rate, or whether it is a license fee to be established for future 

proceeding. 

Mr. WADLEIGH. The copy of the bill which the Senator from 

New York has in his hands is not the copy I have;· and conse- quently--

Mr. CONKLING . But I have called the Senator's attention to the 

proviso which. he read in the Senate, which is in all the copies of the 

bill, and which I will read to him again, as he read it to me: 

Provided, That nothing herein contained shall exclnde other evidence as to the 

utility a.nd advantage or the invention as one element to aid in determining a license fee w~ere none has been established. • 

My question is whother it is the intention that that determination 

shall be one under which for the future the infringer is to pay, or whether the meaning is that the complainant may recover for all the 

past time this license fee per annum 7 . Mr. WAD LEIGH. The chairman of the Committee on Patents 

[Mr. BooTH] has in his hands a similar copy of the bill that the Senator from New York has. · Mr. CONKLING. I did not hear the Senator from New Hampshire. 

Mr. WADLEIGH. That part of the bill which answers the question 

of the Senat6r from New York is found from the twenty-fourth to the 

twenty-ninth line of section 2, and it is as follows : 

If a license fee ha.s not already been est_a,blished by a reasonable number of trans- actions ap-plicab_le to the case at bar, a license fee for the use actually made shall 

be determined from all the evidence in the case. 

If that language is not plain, I do not know what is plain language. 

Mr. CONKLING. Will the Senator be kind enough to those who 

like me have difficulty about the .clause, to tell me wllether the language I have read to him means that tlle license fee is to be established 

for the future, or whether it means from the beginning of the patent a recovery is to be had for the amount of this license fee for each 

elapsed year 7 

Mr. 'V AD LEIGH. If the license fee is to be "for the use actually 

made," the Senator from New York can answer the question as well as I can. I apprehend that no use of the patent could ha.ve been 

made in the future, n.nd consequently the license fee would not cover its future use. l\Ir. CONKLING. If the Senator from New Hampshire, who is man- agio~ this bill, is content with that answer and that statement, I am ; 

and If i.t· benefits the prospects of the bill I think it benefits them in 

the estimation of those who have not listened to his statement. 

Mr. WADLEIGH. The esta.blishment of a license fee by a patentee 

is undoubtedly in one case evidence of what he should receive in other cases. The establishment of a license fee in one case may be soma evidence in another case to show what the patentee should receive. 

But as I understand the language of the bill it applies to the use actually made; it does not apply to any use that may hereafter be 

made. 

Mr. HOAR. The whole section is a section in regard to a measure of damages for past transactions. There is nothing else in it. 

Mr. CHRISTIANCY. I wish to refer to the subject of savings, 

which was alluded to by the Senator from illinois [Mr. DAVIS] and: 

illustrated by him as he seemed to think in a way which showed the 

soundness of the doctrine of allowing savings as profits. The instance 

which he cited was that of a man engaged in business losing a hundred dollars a day without using the invention and losing only $10 a day with the invention. I then put the question whether it was t o be presumed that such a man would continue to do business at a loss 

of a hundred dollars a day. The reply wa~ that there were manv instances in which he would do so, looking to future operations. No\v 

I wish to put the question in a little different form; but I will not 

call on the Senator tO answer it at this i.Rstant. Here is a man losing a hundred dollars a day, and under certain circumstances he loses .but 

$10. Is it 'to be presumed that when the man i.s losing the $100 a day 

he would be likely to continue to do business at that losing rate as long as the man who was losing only 10 a day, in looking to future 

operations ! . · Let me put one other question. Ought not a man who is doing a losing business to be a.t liberty t.o stop that business whenever be 
• 

460 CONGRESSIONAL RECORD-SENATE. J-ANUARY 15,. 

pleases ·t If so, then the rules of equity established at present by the 

Federal courts are wrong. Why f Because .they go upon the as- sumption that such a man would continue through all time, so far as that is concerne.d, to do business at that particular losing rate, a,nd 

they give him no chance to stop. That is illustrated in a number of cases which I cited here the other day, and to which I will not-now 

refer. Therefore the idea of accounting for savings as profits rests 

entirely upoi»assuming as true what we know is not true. 

I did not rise mainly for the purp9se of replying to that portion of 

the argument. I wish to say here once for .all that I look upon the 

rights of a patentee as sacred as the rights of any other man; that I 

look upon the property of a patent as sacred as property of any other 

kind ; but no more sacred. Such property is entitled to the same protection but to no greater protection. What should be the rule where 

any man has been injured 'I' What is the rule of justice and equity 'I' 

It is that the person injured shall recover a fair and just and adequate 

compensation, and no more. The rnle which is complained of is a fiction of equity which holds the infringer of a patent in 8ll cases as a trustee. It is a pure fiction of law in all cases except where the 

amount of profits wonld tend to fix a just compensation; but where 

the amount of profits has no relation whatever to what wonld be a just compensation, then it ought not to be taken as the measure of 

recovery, because in that case the rnle always m-q.st produce injustice. 

The argument made by the Senator from N6w York in illustrating 

the difficulties and I will say the absurdities of carrying out this fiction of law in accounting for profits where a patent has been given 

for one little item in a machine, is one of the strongest arguments in 

my opinion that could be made against the justice and propriety of 

keeping up this mere fiction of law where it can result in nothing but 

injustice, where the profits do not even tend to show what is a just 

compensation. There is just the one class of cases which I mentioned 

where the profits do tend t~ show, and where they do mea.sure, a just 

compensatfon, and that is where the patentee has cho.sen to retain 

the entire monopoly of his invention and to man~facture and supply 

the market himself. Then when an infringer comes in and manu- factures, the profits ought to be allowed, because but for that infringement the patentee would have made that amount, or at least 

he was prevented from making it. But that is not the case with one patent in a hundred. The ob~ction which the Senator from New 

York makes to the bill is not so strong when made to the bill as it is 

when made to the entire system as it now stands. The very difficulties, the very absurdities, which he has illustrated here are those 

existing in the present course of adjudication in the law as it now stands; and the bill is objected to because it does not cure the law. 

Mr. CONKLING. If the Senator will pardon me, the bill is objecti<mable for another reason. Mr. CHRISTIANCY. There may be other reasons. Mr. CONKLING. If the Senator will pardon me, there ~ some- thing beyond •hat. The bill is objectionable because the distinction 

the Senat-or now points out is ma:de, and made not in favor of the 

innocent, the defenseless, the people who need protection, but made 

in favor of exactly those persons who do not need it. It is an exemption of aggregated capital, of powerful combinations, of intelligent 

persons from a. rule of law which in the same bill we propose to visit 

upon the ignorant, the weak, and those who accidentally become 

subject to it. 

Mr. CHRISTIANCY. I do not so understand it. 

Mr. CONKLING. I do. 

Mr. CHRISTIANCY. In the first place the bill does exempt from 

this rule of profits all mere users of a machine, where the user, that 

is, the innocent owner, does not make or sell the machine or its product. The manufacturer is the one who does it willfully, if anybody 

does, and those who manufacture with a machine and sell its products are the parties who ought to be bound, for before they do that 

they inquire more than the man who simply purchases a mowingmachine or a reaper or anything of that kind. I think the bill is 

just, as far as it goes, but I do not think it goes far enough. I think 

it should not allow an account of profits to be taken in any case except in the single class of oases where the patentee retains the 

entire monopoly of· the patent and refuses to make sale of his license. 

Mr. :MAT'l'HEWS. I apologized yesterday, Mr. President, for as- suming to criticise the work of the Committee on Patents, because I was perfectly. aware of what the committee itself has since advised us in open Senate, 'that it had bestowed unusual care and reflection 

and consideration upon the questions involved in this sectien of the 

bill in reference to the establishment of the rule and measure of 

damages which should apply in all suits, both at law and in equity, 

for the recovery of damages for the infringement of patent-rights. 

But I am certainly not mistaken, as the debate which has sprung up 

to-day proves, as to the importance of viewing critically every legislative attempt to introduce a new rule of decision in cases to be submitted to the arbitrament of judicial tribunals. I doubt whether in 

the histo~ of legislative improvement, from the time of the statute 

of .frauds to the present, any statute seeking to do that bas not introduced more new questions difficult of solution than it has settled 

old ones, the evils of which were hard to be borne. I venture to 

make the prediction here that if this bill becomes a law it will give 

rise to more, and more expensive, litigation than it will compose 

strifes_,which have ariSen under the existing rules. It is with a view 

of simplifying its provisions and removing ambiguities that I have 

moved the amendl'!tent which is now pending; and as the vote is to 

be taken upon it, I desire to call the attention of Senators to the precise effect of the section as it stands compared with what will be the 

effect in case the proposed amendment should be·adopted. 

Let me, in the first place, say a word in passing in reply to th~ 

Senator from Vermont, [1\Ir. EDMUlt.""DS,] who seemed to think that ~contrast with the provisions of the bill as they now stand, the adoptiOn of the amendment would sweep away the exclusive right which 

by the Constitution of the United States is guaranteed to inventors. 

That is a misconception, for the xeason that the actual enjoyment 

of the exclusive right does not depend upon the application of any 

rule of damages. It depends upon the proper, prompt, and effectiveadministration of equity jurisprudence in wieldin"' the power of the 

injunction. It is that writ of prohibition which ~cures by its possession the owner of such a right in the enjoyment of all its privileges; and that is not disturbed either by the bill in its present form. or in the form which it will assume in case the amendment proposed shall be adopted. 

Mr. EDMUNDS. Yes, Mr. President, if the Senator will pardon me~ 

but he seems to leave out of view, when he speaks of the redress by 

injunction, what I suppose he will agree is a well-established principle of equity jurisprudence, that if the answer of the defendant in an inf:tinge!llent case totally denies the equity of the bill, by de~"' 

that the thing complained of is an infringement of an acknowledge~ patent, or dellying the. validity of the patent itself, it having not before been established in some court, then a preliminary injunction 

cannot go, and the patentee must wait until the end of a long litigation before he can get his injunction at all. Then, the Senator says, 

when you come to that, he shall not have any exclusive right at al1, 

but all this man shall be obliged to account for is exactly what, if 

the patentee had been willing to hire him out the right, woul(l have 

been a fair price. 

Mr. MATTHEWS. To be sure the case exists, because there is a period 

during which there would be an unauthorized and illegal usurpation 

and use of the exclusive right; and in that case, as in all other cases,. 

there would be an award by the proper process of an equity court 

of damages by way of compensat.ion which the complainant has in 

the mean time suffered, as ascertained by the final decree. 

Mr. EDMUNDS. Yes, but you say that the damages shall only be. a license fee. 

Mr. MATTHEWS. I say the damages shaJl be the market price 

of the property used, the market value, that which anybody in the 

market would give; and that is all that can be given appropriately 

under the name of damages, except in those cases where the infringement has been willful, as to which special provision is made for an. extra allowance to cover the costs and expenses of asserting, maintaining, and defending the ~ht. 

Let us see what the propositions contained in the bill, as reported,.. are. They are, first, that very thing of which the Senator from Vermont complains, namely, that the old principle of awarding com- pensation in equity cases is abolished. . Mr. EDMUNDS. They still leave actual profits. 

Mr. MATTHEWS. Let us see. It is declared in the very first sen- tence of the section that the rule and measure of dama"'es shall be 

the same, both in actions at law and in suits in equity. The distinction between law and equity in that very particular (in which it has. 

been supposed that equity was more conservative of the property 

xights than a court of law wonld be) is taken away, and the complainant is compelled to rely upon and resort to only that measure and 

rule of compensation which he can obtain by a verdict or award of 

dama O'es as a compensation for the injury which has been inflicted 

upon hlm. I agree that in every case of a. violation of the right the 

complainant ought to have that much. He ought to have a fair, full,. 

adequate, and complete compensation for the loss to him of the enjoyment of his property, just as if it had been visible and tangible personal property, just as if it had been real property on which a trespass had been committed. Further, I am of opinion that every ave- nue of evidence ought to be kept open for proof in . each individual case according to its circumstances, and the amount in such a ca.se should be reasonable and fair, and that that should be left absolutely 

upon that evidence to the discretion of the tribunal charged by law 

with the finding of such a verdict or the making of such a decree, 

without any restraint, without any artificial rules to bind that discretion, without shutting out any light; so that every fact and every 

circumstance which is material and important to the determination 

of the question shall be permitted to be proved. 

Iu undertaking to specify the various oases in which rules for the 

apportionment of this compensation shall be adopted, the bill of the 

committee first takes the case where it is the design and the desire of 

the patentee to put his patent upon the market to make it a subject 

of sale to other persons. In that case it is said by the Senator from 

New Hampshire in advocacy of the bill that no one can object to the 

application of the rule of the market price, where the vendor seeks a market for his wares. The very object he has in view in obtaining bia patent is to use it in that way, that he may by sales of the right 

to any one in the community who desires it obtain a. revenue and inC6me from it. It is said that is a fair rule; that it gives a full equivalent, and th~t when the party sues for damages for the recovery of 

that compensation, the very fact that he is seeking that and not the 

enjoyment and possession of his exclusive right by means of an in· 

. 
I 

1879. OONG_RESSIONAL RECORD- HOUSE. 461 

junction, shows that he is willing to_ give a license to the defendant How can there be any doubt, as to the cases thus excruded, that the 

and will be satisfied with a proper, nsnal, reasonable license fee. effect of that paragraph is exactly that for which the Senator from 

Yet the bill immediately makes an exception from that rule, after Ohio insists! • establishing it a~ a. fair and just rule. After establishing the principle Mr. MA:TTHEWS. I think there can be ~o doubt about it, that in ·that that is all that ought to be claimed, where the patentee desires the very offer which I supposed, where a pafty litigant by his counsel 

to go into the market for the purpose of sale, they except it in all proposes to'show that there were profits made in the manufacture by eases where the defendant has made an actual profit from making for the use of a. patented article, which consisted simply in saving and ale, or selling, or using the thing patented, or the product thereof. in economy, that would b!' excluded by the court on the-,-ound that 

Why should that exception be made. If t.he plaintiff gets all that he no proof or evidence could be submitted on the point, unless it went 

would have asked from qthers for a license to do the thing, why should to the length of establishin~ "actual profits resulting from the makhe as against a party unlicensed recover any greater amount 'f If it ing for sale or selling the thing patented or the product thereof as be said that he ought to be permitted to do so because the defendant aforesaid." ' · may have willfulliY and knowingly violated the plaintiff's right, and The effect of the amendment which I propose as a substitute for so pttt him to the necessity and expense of maintaining it and assert- that language is to remove a.t least any doubt that may arise upon 

ing i~ the answer is that in another clause of the same section that that by declaring: case is provided for by the committee's bill, for in that case the court But evidence thereof may be admitted as tend!-n~ ~oprovewhatshall be deemed 

is authorized to award against the defeated party such sum, by way a reasonable license fee as compensation for the inningelllent. 

of counsel fees and expenses of suit, as it shall deem just and reason- I would be better satisfied, greatly better, to dispense with the use able in order to punish the defendant, if he be the one in default, for of the words "a' reasonable license fee" throughout the entire section, the willfulness, malioiousness, and vexatiousness of his conduct. But and to leave the rights of patentees, both in equity and at law, so far 

if any exception is to be made at all, why not, as inquired by several as the question of compell8ating them for infringement is concerned, 

Senators, make the exceptiQn as broad as the fact, instead of con:fin- to the general rule which now establishes the proper measure of darning Jt only to those cases where an a.ctual profit has beeu made from ages in every other case of violations of the rights of property, giving 

the manufacture or sale of the thing patented or the product thereof f to the patentee that in its fnllest extent, with all the benefit of com- For it is manifest, as has been already so fully pointed out as to obvi- mon-law rules and common-law evidence, and upon that, and beside 

ate the necessity of dwelling upon it again, that actual profits may it, and beyond it, and above it, the extraordinary relief by the writ 

be made just as much in violation of the rights of a patentee by those of injunction to secure him in the possession and enjoyment of his 

who do not manufacture for sale or sell the thing patented or the exclusive right; for after that has been broken and during the time 

product thereof, but who use it merely in their own llusiness and for the cause is pending, and when be is endeavoring t~ establish by 

their own purposes. evidence the fa-ct of the infrin~ement or the fa-ct of his exclusive 

The next proposition of the bill is to deal with those cases where right, he is like every other litigant in court under similar circumby a reasonable number of transactions in the market no market price stances; he is compelled from the nature of the case to accept that 

has been established for the use of the patented article, and there the which the law gives him in lieu of his exl}lusive right, and that is a provision of the bill seems to be perfectly fair; for it declares that in compensation in money for the temporary loss of it. It might as well 

such a case a license fee for the use actually made shall be deter- be said that it was a violation of the right of property to allow as mined from all the evidence in the case. If it had stopped there, it is done in my own State, and I believe in most others, in actions of 

would havesto:qrtedjust where I desire it to stop, for then there would replevin for personal property, where it is open to the plaintiff, if he 

be na limitation upon the }rind and the character and the amount chooses to make an affidavit which establishes in the :first instance his and the degree of the evidence which would be admissible for t.he right to t he writ, to take the defendant's personal property into his 

purpose of proving what was a fair compensation for this use. But possession and acquire a title to it as against the defendant and all 

the bill does not stop there. It goes on and in that connection de- the world, and by virtue of a transfer merely produced and wrought 

clares that- · by the bringing of his auit, leaving to the defendant not the right of 

No account of savings shall in any case be allowed ; and no evidence or account being restored to the possession of the identical property which in 

of the defendant's profits shall in any case be admitted, except as to actual profits the mean time may have been destroyed, but only to such compensaresulting from making for sale or selling the thing patented, or the product thereof tion as a jury may award, based upon. those rules of law and those as aforesaid. rnles of evidence which •in ail other cases of violations of the rights 

We exclude the evidence of such profits, and I take it that evidence of property have been established by the common law for the proof savings would be excluded under the same head, although perhaps tection not only of that plaintiff and defendant, but of us all. I agree 

nbt technically embraced in the words that introduce the sentence, that the right of a patentee under his patent is a right of property 

where only an account of savings is forbidden. But how can you which is secured by the Constitution, and it ought to be protected and 

prove the actual profits made by reason of the use of the invention enforced by the law, bnt exactly upon the 8ame principles and upon 

witpout sho.wing the saving and economy in the manufacture which the same rules of evidence, and his damages measured by the same have been produced by the use of the invented thing f Yet not only principles of law, as in other similar cases. is an account of such profits forbidden, but proof by way of evidence Mr. EDMUNDS. I move that the Senate proceed to-the considera.-

to establish what would be a fair amount for the defendant to pay is tion of executive business. 

forbidden. The other language which admits• other evidence as to . The :notion was a~reed ~; and the Senate proceeded to the con- the utility and advantage o! the. invention as one element only s1~erat10n of e~ecutive ~usm~. After o~e hour and twenty-two 

strengthens the conclusion wh1Ch excludes the evidence of profits and mmntea spen.t m executive sess10n the doors were reopened, and (at 

of savings. four o'clock and fifty-seven minutes p.m.) the Senate adjourned. 

Mr. BOOTH. . Will the Senator from Ohio allow me to interrupt 1 

'lA him for one moment f 

Mr. MATTHEWS. Certainly, sir. 

Mr. BOOTH. In line 36, on the fifth page, does the Senator con- strue the word "account" in the phrase "no-account of savings shall HOUSE OF REPRESENTATIV~S. in any case be allowed" as excluding from the testimony the amount 

the machine itself has saved over any other known device f I know WEDNEsDAY, Jwnuary 15, 1879. 

the intention of the committee was simply to shut out the account Th H technically of the savings and the making of that the measure of e ouse met at twelve o'clock m. Prayer by Rev. W. V. Tt:DOR, damages ; but certainly it was intended that the saving that the Methodist Episcopal Church South, Saint Louis, Missouri. 

machine made should be one of the elements that should determine The Journal of yesterday was read and approved. 

its value and enter into the determination of the license fee. MAL~AGEMENT OF 11\'"DIAN AFFAIRS. 

Mr. MATTHEWS. My answer to the Senator would be that per- Mr. O'NEILL, by unanimous consent, presented a memorial of the 

haps the conclusion which he combats might not be deduced from representatives of the Religious Society of Friends in Pennsylvania, 

that language alone. Taking the section altogether, as a court would New Jersey, and Delaware, remonstrating against the transfer of the 

do it, by the four corners, the inference is to my mind strong that management of the Indians from the Interior Department to the War 

when the offer was made upon an actual trial of a cause to show·the Department; which was referred to the Committee on Military .Affairs, economy by the use of the particnlar machine in the manufacture in and ordered to be printed in the RECORD. 

which it ·was used, it wonld be excludM, not because that wa-s an The memorial is as follows: 

attempt to take an account between the pa.rties, but because it was To the Senate and House of Representatives 

an attempt to show what were the actual profits, which is excluded of the United States in Oongress assembled: 

by the succeeding language. The memorial of the representatives of the Religious Society of Friends in P cnn- l'Jlr. CONKLING. Will the Senator allow me to remind him that he sylvania, New Jersey, and Delaware, respectfully representB that your memorialspeaks of the whole section 7 I suggest to him that he need not deal ists have ;regarded with deep interest and anxiety the proposition now pendinu before your body, to transfer the ma.nagement of the Indians within the United with anythin~ more than the paragraph at which the Senator from States from the Interior Department to the war Department, and they would 

California pomts his quejtion to be able to sary all that he has saii, respectfully but earnestly remonstrate against such-transfer for the following 

because following the words to which the Senator from California reasons: alluded are these : · The pMt history of the Indian nations of this continent proves that they are sus. ceptible to the softening influences of Kindly Christian treatment, and the Euro- And no evidence or account of the defendant's profits shall in any case be admit. pean discoverers found that as they were thus approached they almost invariably t ed, except as to actual profitB resulting from makihg for sale or selling the thing responded in a friendly and even generous spint. The peaceable policy pursued 

pat-ented, or the product thereof as aforesaid. by William P enn and the early settlers of Pennsylvania and Kew Jeriley avoided