/ 

516 CONGRESSIONAL RECORD-SENATE. JANUARY 17, 

this evening's session as provi_ded for by the order of both Houses of 

Congress having been fittingly realized, the duty remains to me to 

declare this House adjourned until to-morrow at twelve o'clock. 

·PETITIONS, ETC. 

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

under the ·rule, and referred as stated: . By Mr:BAKER, of New York: The petition of women of Bridgeport, New York, for such legislation as will make effective the antipolygamy law of 1862-to the Committee on the Judiciary. 

By Mr. BAYNE: Resolutions of the Chamber of Commerce of 

Pittsburgh, Pennsylvania, recommending an appropriation for the 

completion of Davis Island dam-to the Committee on Commerce. 

Also, resolutions of the Chamber of Commerce of Pittsburgh, 

Pennsylvania, _calling the attention of Congre s to the present unjust 

construction of the tariff regarding tin plate and recommending 

relief-to the Committee of. Ways and Means. · By Mr. BLAffi: The petition of James H. Burns and 115 others, of 

th.e Allegheny and Beaver County convention of the Independent 

Order of Good Templars, for the passage of the bill providing for the 

appointment of a commission to investigate the alcoholic liquor 

traffic-to the Committee on the Judiciary. 

By :Mr. BREWER: The petition of citizens of Glass Rivet·, Michigan, for a post-route from Monica to Glass River, Michigan-to the 

Committee on the Post-Office and Post-Roads. 

By Mr. BURCHARD: The petition ofT. F. Reinsmith. and others, 

for legislation to prevent the adulteration of sweets-to the Committee of Ways and Means. 

Also, the petition of Mrs. John A. Slater and others, of Lyndon, 

lllinois, for legislati-on that will make effective the anti-polyga.my law 

of 1862-to the Committee on the Judiciary. 

Also, the petition of citizens oi Lyndon, lllinois, that the pension. ·Gf Mrs:Ellen J. Higley, be increased to $3() per month-to the Committee on Invalid Pensions. 

By Mr. BURDICK: The petition of Mrs. E. B. Shaw, Mrs. C. H. Talmage, and 100 other ladies, of_West Union, Iowa, for such legislation as will make effective the anti-polygamy law of 18&2-to the Committee on the Judiciary. · . By Mr. CASWELL.: The petition of Mary A. Davis and others, of 

Spring Green, Wisconsin, of similar import-to the same committee. 

By Mr. COBB: The petition of John Calvert, for compensation for 

the care of W. ~ Calvert, an insane discharged soldier-to the Committee on War lJl.aims. · By. Mr. COX, of Ohio: The petition of Hannah M. Wright, widow 

of Brevet Brigadier-General Joseph J. B. ·wright, late colonel and 

surgeon in the United States Army, for a pension-to the Committee · on Invalid Pensions. 

Also, the petition of William Wilson, for relief from a charge of 

desertion during the late war-to the Committee on Military Affairs. 

By Mr. CRAVENS: Papers relating to the war claim of Green V. 

Childers-to ·the Committee on War Claims. 

By Mr. DEERING: The petition of citizens of Chickasaw, Floyd, 

Butler, and Bremer Counties, Iowa, for the amendmeat of the patent 

laws so as to protect innocent purchasers of patented articles-to the 

Committee on Patents. ' 

By Mr. ERRETT: The petition of 140 women of Braddocks, Pennsylvania; for the enforcement of the laws against polygamy-to the 

Committee on the Judiciary. 

By Mr. GARFIELD : The petition of Leonidas Carson anu 50 others, 

citizens of Mahoning County, Ohio, for such legislation as shj),ll pro- . t-eet the public health against the adulteration of sweets-to the 

Committee of Ways and Means. . Also, the petition of· N. Case and 63 other , citizens of Orangeville, 

Ohio, for the passage of a bill to equalize the bounties of soldiocs of 

the late war for the Union-to the Committee on Military Affah·s. 

By Mr. HEWITT, of Alabama: The petition of H. D. Moore and J. 

B. Short, of Hanceville, Blount County, Alabama, to be relieved from 

the bail bond of Victor L. Taylor-to the Committee on the Judiciary. 

By Mr. HUNTON: Papers relating to t-he claim of the heirs of 

James Barnett-to the Committee on Revolutiona_ry Pensions. 

Hy Mr. KETCHAM: The petition of Mrs. James E. Dean and 59 

other ladies, of Fishkill, New York, for the enforcement of the antipolygamy law of 1862-to the Committee on the Judiciary. 

By Mr. KIDDER: A·pa.per favoring the present system of publicland suryeys, from Henry Esperien-to the Committee on Public 

Lands. . Also, the petition of William Crozua and others, for the esta.blishment of a land office near Kampeska, Dakota Territory-to the same ()Ommittee. 

Also, the petition of D. F. Winter and others, of similar importto the same committee. 

Also, the petition of D. F. Spaulding and others, of similar importto the same committee. 

Also, the petition of E. F .. Train and others, of similar import-to the same committee. 

By .Mr. LAPHAM: i'he petition of Ann Easto, for a pension-to the 

Committee on Invalid Pensions. · · · Also, the petition of Olive Stephenson, for a pension-to the Committee on Revolutionary Pensions . 

• 

Also, the petition of citizens of Naples, New York, that a p!lnsion 

be granted Mrs. Olive Stephenson-to the same committee. 

By Mr. MARTIN: The petition of James A. Tenant, for compensation for property taken and used by the United States Army-to the 

Committee ~n War Claims. 

By Mr. ~YHil!: The petition of the women of Cairo, New York, 

for legislation to make effective the anti-polygamy law of 1862-to 

the Committee on the Judiciary. . Also, the petition of women of Dashville Falls, New York, of similar import-to the same committee. 

By Mr. MITCHELL: The petition of ladies of the Linden Presbyterian church, Lycoming County; Pennsylvania, of similar importto the same committee. 

By Mr. PEDDIE: The petition of Elizabeth Hearsey, for a pension-to the Committee on Invalid Pensions. 

By Mr. S~UTH, of Georgia: The petition of citizens of Colquitt 

and Worth Counties, Georgia, for a post-route from Moultrie to Ty-Ty, 

via J. B. Korman's House and Warrior Bridge-to the Committee on the Post-Office and Post-Roads. 

By 1\lr. VAN VORHES : Papers relating to the pension claim of 

Stafford Palmer-to the Committee on Invalid Pensions. 

Also, the petition of John Q. "White, fer a pension-to the same committee. 

Also, the petition of Nellie G. Pasco and 30 other women, of Belpre, 

Ohio, for ~egislation that will make effective the anti-polygamy law 

of 1 6~-to the Committee on the Judiciary. 

IN SENATE. 

FRIDAY, Janua.ry 17, 1879. 

Prayer by the Chaplain, Rev. BYRO.N Su~""DERLAND, D. D. . · The Journal of yesterday's proceedings was read and approved. 

CREDENTIALS. 

Mr. MORGAN presented the credentials of George Smith Houston, 

chosen by the Legislature of Alabama a. Senator from that State for 

the term beginning March 4, 1879 ; which were read and ordered to 

be filed. EXECUTIVE COIDfUKICATIONS. 

The VICE-PRESIDENT laid before the Senate a. communication 

from the Secretary of War, transmitting copies of reports from the 

commanding general of the Department of Missouri in regard to the 

establishment of a military post in the vicinity of El Paso, Texas, 

and recommending an appropriation of $40,000 for that purpose ; 

which was referred to the Committee on Military Affairs, and ordered .to be printed. . He also laid before the Senate a communication from the·Secret.ary 

of War, transmitting, for the information of the Committee on the 

District of Columbia, a letter from the Chief of Engineers and a copy 

of a report of S. T. Abert, United States civil engineer, on the improvement of the sanitary condition of Washington and the deepening 

of the channel of the Potomac River; which was referred to the Committee on the District of Columbia, and ordered to be printed. 

He also laid before the Senate a communication from the Secretary 

of the Interior, transmitting, in response to a resolution of the Senate 

of the 14th instant, all the information in possession of the Department on the subject of railroads through the public domain in the 

Territory of Arizona; which was ordered to lie on the table and be 

printed . PETITIONS Al\""D 1tU:MORIALS. 

Mr. MORGAN presented the petition of Mary T. Jones :md John C. 

Jones, of Autauga County, Alabama, praying compensation for a mill 

and other property destroyed by United States troops during the late 

war; which was referred to the Committee on Claims. 

Mr. MATTHEWS presented the petition of George Sadler aud others, 

citizens of. Ohio, praying for the passage of the bill (H. R. No. 4234) 

granting arrears of pensions; which was ordered to lie on the table. 

Ml·. DAVIS, of lllinois, presented the petition of J. W. Barker and 

others, citizens of Pittsburgh, Pennsylvania, praying for the passage 

of the bill (H. R. No. 4234) granting arrears of pensions; which was ordered to lie on the table. · Mr. GROVER presented the petition of E. J. H. Brodie, ordnancesergeant, United States Army, stationed at Fort Stevens, Oregon, 

praying for a suitable recognition by the Government of the United 

States for long and faithful military service; which was referred to 

the Committe~ on Military Affairs. . Mr. KERNAN presented the petition of A. T. Stewart & Co., importing merchants, of New York, complaining of alleged wrongful 

a()t of United ·States officers at the port of New York as to imports, 

specifying a number of grievances and praying that the matter be 

investigated; which was referred to the Committee on Commerce. 

Mr. WHYTE presented the petition of Marcus Bitzlee and others, 

citizens of Maryland; the petition of Joseph N. Jones and othe~ 

citizens of Frostbur~h, 1\Iaryland; and the petitiomof Jeremiah Whit- more and others, cittzens of Frederick County, Maryland, praying for 

the passage of the bill (H. R. No. 4224) grnnting arrears of pensions; 

which were ordered to lie on the table. · 
1879, C6NGRESSIONAL REOORD-SENATE. 517 

Mr~ DAVIS, of West Virginia., .presented the petition of H. N. Wordoo. and others, citizens ofMoorefield Junction1 \Vest Virginia, praying for the passage of the bill (H. R. No. 4234) granting arrears of 

pensions; which was ordered to lie on the table. 

Mr. WITHERS presented the petition of Charles ,V. Owston and 

othen;, citizens of Oil City, Pennsylvania, praying for the,passage of 

the bill (H. R. No. 4234) granting arrears of pensions; which was ordered to lie on the table. • Mr. PAD DOCK presented the petition of A. L. Bixley and others, 

citizens of Nebraska; the petition of William H. Kellow and others, 

citizens of Nebraska; and the petition of E. S. Chadwick and others, 

citizens of N~braska, praying for the establishment of a mail-route 

from Genoa to Saint Paul, in tha.t State; which were referred to the 

Committee on Post-Offices and Post-Roads. 

Mr. PAD DOCK. I present a petition signed by Theodore C. Dennis, of Boston, Massachusetts; William P. WiW, of Brooklyn, New 

York; G. W. Worth, ofBaltimore, :Maryland; P. H. Goodwin, of New 

York; J. C. Smith, of Chicago, Illinois; and Moses Church, of Worcester, Massachusetts, praying fm; the passage of the bill to increase the 

pa.y of letter-carriers. As the bill on this subject is pending, I move that the petition lie· upon the table. · The motion was ~OTeed to. Mr~ BUTLER. I present a memotialof the National Grange on the 

subject of the unjust discrimination of railroad freights. I ask that 

it be read and printed in the RECORD. 

The VICE-PRESIDENT. If there be no objection, the memorial 

will be read -at length. 

The memorial was referred to the Committee on Commerce, and 

read as follows : 

Xo the Honomble Senators and Members of the H ow;e of Representatives in Oongre.ss assembled: 

· The National Grange, composed of representative men and women of twelfty. even different States of this Union, were in annual session at Richmond, Virginia, from the 20th November last till the 1st December, inclusive, and during the &ession instructed their executive committee to memorialize Congress upon the subject of existing discriminations in railroad freights. Pursuant to these instructions we, the said executive committee, believing that 

the snbstitute to House bill No. 3547, presented by Mr. REA.Gil, o£ Texas, is in ac- <J9rd with the views of the National Grange, do earnestly solicit the passage of said 

bill for the following reasons : First. That freight charges on nll of our through lines of transportation are whimsical and subject to unjust, unreasonable, a.nd violent fluctuations. 

Second. Terminal points are invariably accorded discriminations prejudicial to , all intermediate points, thereby compelling producers and consumers of one section to pay the transportation of another section of the country. 

Third. Railroads are common carriers built by the people for the common weal, and should not be tolerated as arbitrary and crushing monopolies . .Fourth. Competition among parallel1ines is no lonuer a. safeguard against mo- nopoly ; for organized combination effectually establi~es the one and defeats the 

other, to the great injury of the commerce of the country. 

Fifth. Spoonlators are allowed rebates and drawbacks to such an extent that 

large capitalists can buy the products of the West at a higher price and sell the same at a lower price in the eastern markets, and yet realize a larger marginal profit than the honest shipper of more limited means. Sixth. Con~ss alone can grapple with these mammoth monopolies, who, by reason of their magnitude, eitlier defy or evade the laws of individual States. 

And your memorialists would ever pray. . SAMUEL E. ADAMS, Minnesota. 

S. H. ELLIS, Ohio. 

HENLEY JAMES, Indiana. 

D. WYATT AIKEN, South Carolina. 

• Mr. THURMAN. I present certain resolutions of the city council 

of the City of Cincinnati, Ohio, adverse to certain provisions of what 

is called the patent bill now under consideration. The bill having 

been reported, I move that these resolutions He upon the table. 

The m1>tion was agreed to. 

Mr. CONKLING presented the petition· of Frank S. Witherbee and 

George Duncan, of New York, praying for the passage of a law changing the name of the steamer Florence Witherbee to The Florence; 

which was referred to the Committee on Commerce. 

Mr. CONKLING. I ha.ve !feceived a petition si!med by a number of 

citizens of New York, praying for the passage of the bill (H .. R. No. 

4234} granting arrears of pensions, which passed the Senate yesterday. I suppose I should present the petition, nevertheless. i move that it lie upo~ the table. 

The motion was agree~ to. 

REPORTS OF COMMITTEES. 

Mr. ALLISON, from the Committee on Finance, to whom was referred the bill (S. No. 599) to authorize the killing of fur-seal and 

other fur-bearing animals within the limits of Alaska Territory, 

reported :adversely thereon; and the bill was postponed indefinitely. 

Mr. PATTERSON, from the Committee on TeiTitories, to whom was refened the bill (8. N~. 1582) providing for ~n additional associate 

justice .of the supreme court of the Territory of Dakota, reported it 

without amendment. 

REPORT 0~ FISH AND FISHERIES. 

MT. ANTHONY. The Co-!Dmittee on Printing, to whom was referred .a resolution to print 5,900 extra -copies of the report of the Commis-

-sioner of Fish and Fisheries for the year 1877-'78, have instructed me 

to report the same without amendment, and to recommend its pa sage; . and I ·ask for its p1'6Seht consideration. 

The resolution was considered by una,nimons consent, and agreed 

"tlo: ::w follows-: 

.Resolvecl by ·the Senate, (the House of Representcrtiucs concur-rin!J,) That there be 

printed 5,000 extra copies of. the report of theCommissioner of Fish and ~heriea 

for t~e year 1877-'7Srof which 1,500 shall be fox: the use of the Senate, 2,500 for the use of tbe House of Representativ-es, and 1,(1()0 co~es for the use of· the Commissioner of Fish and Fish<.:L.-!es ; the illust-aticns to ~e ::r.ade bv. the Public Printer 

under the direction of the Joint Committee on Public Printing: 

l!r. PAD DOCK subsequently said : I uBderstaml that the resolution 

reported from the Committ!3e on Printing in reference to the publication of the report of the Commissioner of Fish and Fisheries was adopted without amehdmeut. My attention was diverted at the time. 

The number of volumes of that report authorized by the r_.esolution, as I understand it, seems to me to be quite insufficient. This is a most 

interest.ing subject, an<l the report is a very able and interesting and 

useful one. There is no interest that is attracting greater attention 

in the country at the present time than that of fish culture. I should 

like to have a reconsideration of the vote by which the resolution was adop.ted, in ·order that I may offer an amendment to increase the 

number, as no more than fi\e thousand copies have been-ordered. 

The. VICE-PRESIDENT. Is there objection to thereconsideration 

of .the vote by which the resolution to print extra copies of the report 

of the Commissioner of Fish and Fisheries 'Yas adopted V The Chair 

hears none, and the resolution is before the Senate.- . · Mr. PAD DOCK. I move to strike out the word "five," where it occurs before " thousand," and insert the word "fifteen." This is one of the most useful reports that have ever been published by order of 

Congress. 

1\Ir. SAULSBURY. I should like to inquire of the chairman of the 

Committee on Printing·how many copies of the report · have already 

been printed. 

1\Ir. ANTHONY. This report has not been printed. This is the 

usual number that has been printed at previous sessions of Congross. 

Mr. SARGENT. It is the report for the year 1877-'78. 

1\'Ir. SAULSBURY. I think we had better adhere to the usual 

number. 

Mr. ANTHO},~. The report is certainly a very valuable ont}, and 

T"ery interesting to the whole country. 

l\Ir. P ADI)OCK. The demand for the report last ye.ar was uni ver- sal almost. So far as my experience goes at least, that was the fact, 

and it was almost impossible to get a copy of the report. 

Mr. SAULSBURY. I have no doubt the report is very valuable to 

certain persons, but I judge it is not such a report as will be gen~rally appreciated. If we depart now from the usual number, it will 

become a precedent to be followed hereafter in reference to all·. these 

reports. We are doing a very large amount· of printing in the Senate. 

There are a great many other reports besides those on the subject of 

fish and fisheries that we ought to have printed i but if we keep on multiplying the editions of reports that have already been P,rinted 

and continu-e to print large numbers, I do not know where we shall 

stop. . Mr. MORRILL. Mr. President, the report of the commissioner and 

the work of the commissioner has proved a splendid success, as has 

been witnessed in every place where it has been tested on rivers, lakes, ·and on the ocean, increasing the amount of food of the country, so that living is to be made cheaper hereafter: I regard the work as perhaps one of the most useful that has ever been encouraged by Congress. I therefore hope that a larger number of this report than was propo ed by the Committee on Printing will' be printed. 

Mr. BECK. I do not know that I have anything to add to what 

has been said by the Senator from Vermont; but aa I· have the floor 

I desire to say that I have looked into this question with some care, 

and I believe that we ought to have at least fifteen thousand copies 

of the report. All over the section of the country which I represent 

demand is made for them, and the people take such an interest in 

them as I have never seen taken in other reports. I have tried to 

buy copies in order to supply the clemancl. Of coufEe it is a report on fish and fisheries, but it is something that everybody seems to 

want to know about. The subject is new. Professor Baird in late 

years has made immense discoveries in regard to the power of developing fish everywhere; and he is still going on w:i.th the work. 

All along the coast e\erywhere he is showing the people bow to make 

the waters of the country produce food for the people, perhaps more abundantly than the best land in the country. I hope the amendinent 

will be agreed to, notwithstanding the objection of the Senator from 

Delaware. I know that we have never printed a report of more value 

to every one. The VICE-PRESIDENT. The question is on the amendment of 

the Senator from Nebraska, increasing the number of copies from 

five thousand to fifteen thousand. 

The amendment was agreed to. 

Mr. ANTHONY. The resolution will require an additional amendment. 

Mr. SARGENT. The resolution should now be referred ba-ck to the 

Committee on Printing for correction, because as the number is increased from 5,000 to 15,000 the distribution of the report shonlll be 

differently ananged. I therefore suggest that it be recommitted to 

the committee that the details of the resolution may be corrected . :Mr. PADDOCK. l think in a moment the relative increase in the 

distributjon may be arranged. I think the Secretary has already made tbe computation . Mr. SARGENT. Very well. I withdraw the suggest-ion. 
518' CONGRESSIONAL RECORD-SENATE. JANUARY 17, 

The VICE-PRESIDENT. AB thns amended, to make the distribution agree with the increased number, will the Senate agree to the 

xesol u tiori! 

The resolution, as amended, was agreed to. 

NARRATIVE OF POLARIS EXPEDITION. 

Mr. ANTHONY. · I am also instructed by the Committee on Printing, to whom waa referred a resolution to print 1,000 copies of the 

NaiTative of the Polaris Expedition for sale, to report it without 

amendment, and to recommend its passage. I a.sk for its present con- sideration. 

The Senate, by unanimous consent, proceeded to consider the reso- lutio~, as follows: · 

Resolved, (t/te HO'USe of Representatives c071C1Lrring), That there be printed 1,000 

copies of the Narrative of the Polaris Expedition for sale by the Public Printer, 

under the direction of the .Joint Committ-ee on Printing, at the cost of publication 

with 10 per cent. added thereto. 

Mr. ANTHONY. The committee have always been very anxious to 

promote the sale of public documents. An edition of this book was printed for sale with some hesitation on the part of the Senate, but 

the whole edition has been exhausted and the1·e are calls for additional copies. 

The resolution was agreed to. 

BILLS INTRODUCED. 

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

introduce a bill (S. No. 1636) for the ~alief of Henry T. Fuller and 

others, sureties upon the official bond of William H. Waterman, formerly superintendent of Indian affairs for Washington Territory, and 

from liability on the judgment rendered on such bond; which was read twice by its title, and, with the accompanying papers,· referred 

to the Committee on the Judiciary. 

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

introduce a bill (S. No. 1637) granting a pension to Hugh O'Neil; 

which was read twice by its title, and.referred to the Committee on 

Pensions. 

Mr. McDONALD asked, and by unanimous consent obtained, leave 

to introduce oa, bill (S. No. 1638) -to appoint Spruille Braden an ensign 

in the United States Navy; which was read twice by its title, and 

referred to the Committee on Naval Affairs. · . Mr. DORSEY asked, and by unanimous consent obtained, leave to 

introduce a. bill (S. No. 1639) to authorize the purchase of a life-size 

portrait of ~he late Major-General George H. Thomas; which was read twice by its title, and referred to the Committee on the Library. 

Mr. COCKRELL asked, and by unanimous consent obtained, leave 

to introduce a·bill (S. No. 1640) for the relief of JaeobD. Felthousen 

and the heirs of William H. Akins; which was read twice by its title. 

Mr. COCKRELL. I introduce the bill by request, as it is for the 

extension of a patent-right; . and I am, as a matter of course, not com- mitt-ed to the support of the bill by introducing it, nor am I com- mitte<11).gainst it. I move its reference to the Committee on Patents. 

The motion was agreed to. 

Mr. COCKRELL. I also move, in connection with the bill just introdncedt that the bill (S. No. 553) for the relief of William H. Akins 

and Jacoi>·D. Felthousen, their heirs and assigns, which was reported on the lOth of May, 18i8, by the chairman of the Committee on Patents, and the accompanying report, be recommitted to the Committee on Patents, that they may consider the bill just introduced in lieu of 

the original bill, anP. act upon it. 

The motion was agreed to. 

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

introduce a bill (S. No. 1641) for the relief of the Vicksbnrgh and Meridian Railroad Company from taxes improperly paid; whic-h was read twice by its title, and referred to the Committee on Railroads. 

Mr. EDMUNDt:; asked, and by unanimous consent obtained, leave 

to introduce a bill (S. No. 1642) to amend section 5356 of the Revised 

Statutes of the United States; which was read twice by its title, and 

referred to t~e Committee on the Judiciary. 

AMENDMENT TO POST-ROUTE BILL. 

Mr. DAVIS, of West Virginia, submitted an amendment intended 

to be' proposed by him to the bill (H. R. No. 5218) to establish postroa.da herein named; which was referred to the Committe on PostOffices and Post-Roads. · 

SUPPLY OF WATER ON CAPiTOL HILL. 

Mr. DORSEY subJD.itted the following resolution ; which waa con- sidered by unanimous consent, and agreed to~ 

.Resolved, That the commissioners of the District of Columbia be, and they hereby are, ·directed to report to the Senate what action by Congresa, if any, is necessary to secure to the residents of Capitol Hill, anll other elevated portions of the city 

of Washington, a proper supply of water; what appropriation of money, if any, is 

required for thls purpose; and to transmit to the Senate such facts relating thereto as they may doom important. 

HALL'S SECOND ARCTIC EXPEDITION. 

Mr. ANTHONY submitted the following concurrent resolution; 

which was referred to the Committee on Printing: 

Resolved lnJ the SP:nate, (the H01tBe of Representatives concurring,) That there be 

printed 5,000 additional copies of the Narrative of Hall's Second Arctic Expedi- tion, of which 1,200 copies shall be for the use of the Senate, 2,400 copies for the use of the House of Representatives, 150 copies for the use of the Navy Depart· 

ruent, 250 copies for t-he lli!e of the N:n·al Observatory, amll,OOO copie to be s()ld 

by the Public Printer, under the direction of the Joint Committee on Public Printing, at the cost of printing and binding, with an addition of 10 per cent. 

TRANSACTIONS OF TREASURY DEPARTMENT. 

Mr. SAULSBURY. I submit a resolution of inouiry. 

The resolution wa.<~ read, as follows: · 

. Resolved, That the Secretary of the Treasury be, and he is hereby, directed to mform the Senate of the amount of commissions or other compensation paid to bankers, brokers, firms, companies syndicates, and individuals for services in 

negotiating the sale of bonds and other: obli~ations of the United States from the 

year 1862 until the present time; when. and to whom, such com}llissions or com- ~tion was paid, and when paid to syndicates, firms, corporations, or compa- mes, to state the names of the persons composing the samo ; and also to inform 

the Senate whether any. and, if any, what amount of commissions or other compensation has boon paid to bankers, brokers, firms, companies, syndicates, and individuals for services rendered in refunding any of the bonds of the United States, and, if any snch payments have been made, to state when and to whom made; and, also, whether interest ha.s been paid on called bonds at the same time that interest was accruing on the bonds sold to redeem the same, and whether such double interest has 

been uniformly paid while the refunding operation has been in progress or on bonds 

sold for resumption purposes, specifying whether there has been any exception to snch payments of double interest, and who was Secretary of the Treasury at the 

time of such exception. and how mnch double interest has been paid on each class 

of bonds and the tot.al amount thereof, and whether the money received for bonds 

sold by any bank or syndicate has in all cases boon allowed to remain on deposit with the national banks acting as' Government depositorfes pending the call of 

bonds, specifying the names of the banks and the length of time during which the 

proceeds oftne bonds sold have been left on deposit with each bank, and whether at any time any gold coin has been delivered by the Treasury to any parties con- cerned in the negotiation of United States bonds or otherwise in exchange for or upon the security of United States bonds, or in advance of the payment thereof, 

pending any call of bonds on which interest was allowed or paid up to the date of 

the maturity of the call, and also whether any money in t.he Treasury held for the 

payment of overdue called bonds has been left on deposit without interest in any 

Government depositor.v, and what was the largest amount thereof at any one time, stating the names of the banks in which such money was deposited, and what 

security the Treasury held for the payment thereof when demanded. 

The VICE-PRESIDENT. Ia there objection to this resolution f 

Mr. MORRILL. Mr. President, if the Senator introducing the reso- lution proposes to have it referred to the Committee on Finance, I 

have no objection. . Mr. SAULSBURY. No, sir. 

Mr. MORRILL. It certainly ought to go to the Committee on Fi- nance. To resolutions asking for legitimate information I kave, for 

one, not the slightest objection; but I think it the part of prudence 

not to impose a vast amount of work upon the department, involving the labor of thirty or forty clerks for a month, unless there is some good object to be attained. I do not know but that a large 

portion of the information asked for is already in print; but I think 

it is eminently a resolution that ought first to be considered by the 

Committee on Finance. 

Mr. SAULSBURY. I believe a mere 1-esolution of inquiry it is not 

usual to refer to any committee. This is a mere inquiry to be made 

of the Secretary of the Treasury about matters which he will be able 

to answer. There is no doubt bot that he can give an answer without much labor or without much hesitation. It simply inquires as to matters of which the people have a right to know. 

Mr. MORRILL. I must object to its consideration now, unless the 

Senator will allow it to go to the Committee on Finance. 

Mr. SAULSBURY. No,' sir; I prefer that it be printed and lie on the table. _ 

The VICE-PRESIDENT. The resolution goes over under the rule. 

WITHDRAWAL OF PAPERS. 

· Mr. HOWE. I have a letter from the Treasury Department asking 

that certain papers used in the ca.se of Harlow J. Phelps be returned 

to the Treasury Department. They are required in New York on Monday next. I ask that the order may be made at this time. 

The VICE-PRESIDENT. The Chair hears no objection, and that 

order will be entered. . J.\.IRS. MARIA B. CRAIG. 

Mr. THURMAN. I ask the unanimous consent of the Senate that 

the order of the Senate, made at the present session, indefinitely 

postponing the bill (H. R. No. ·3116) grantin~ an increase of pension 

to Mrs. Maria B. Craig, may be reconsiderea and the bill again re- ferred to the Pension Committee of the Senate. I have spoken to 

the chairman of that committee and he makes no objection to t~ 

reconsideration. There are certain reasons, with which I need not 

interrupt the Senate, why I think this action ought to be had. 

The VICE-PRESIDENT. Is there objection t To the proposition 

of the Senator from Ohio the Chair hears no objection. The order 

will be entered. 

RESTORATION OF COURT RECORDS • 

Mr. EDMmTDS. I move that the Senate proceed to the consideration of 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 fire. I make this motion because 

it is very important to the interests of justice between private par- ties, and the United·States as well, that the records which were un- happily destroyed there should be restored immediately. Everything 

of course is at a stand-still. I ask the Senate,· therefore, to take up 

the bill now. The motion was agreed to; and the Senate, as in Committee of'the 

Whole, proceeded to consider the bill. 

The bill was reported from the Committee on the Judiciary with 
I 

1879. CONGRESSIONAL RECORD-SENATE. 519 

an amendment to strike out all after the enacting clause and in lieu 

to insert: · 

That section !l02 of the Revised Statutes of the United States is hereby amended so as to read as follows : In any proceedings in. conformity with law to restore the records of any conrt of the United States which have been or may .be hereafter l?St !>r ~estroyoo. the 

notioo required may be served on any non·resident of the district m which such court i~:~ hclU anywhere within ~ejuri.sdiction .of t~e Unit~d State!! or in any for· 

ei.,.n countrv · tbe'proof of service of such notice, if made m a foreign cduntry, to be"' certified 'by a minister or consul of the United States in such country, under 

hi.S~~~~a.~l:f·section S03 of said Revised Statutes is hereby amended so as to read as follows : . A certified copy of the official return, or any other official pal>er of the Uruted 

States a.tt.orney, marshal, or clerk,,or other certifying or recording. offict'r of any court of the United States, made m pursuance of law, and o~ file m ~y depart- ment of the Government, relating to any causem:: matter to which the Umted States was a party in a.ny such cow;t, the record of wli1ch has been or may be lost or des· 

troyed may be filed in the court to which it appertains, and shall have the same force a'nd effect as if it were an original paper or other document made to or filed 

in such court· a.ndin any casein whieh the names of the parties and the date and amount of jud!!ment or decree shall appear from such return, paper, or document, 

it shall be lawful for the court in w~ch they are filed to iss?e the Pt:OJ?er process to enforce such decree or judgment, m the same manner as 1f the ongmal record 

remained in said court. And in all cases where any of the files, papers, or records 

of any court of the United States have been or shall be lost or destroyed, the files, 

recoriis, and papors which, pursuant to law, may ha.Yo been or may be restored or supplied in place of such records, files, and.p~pers, sha.ll have the same force an~ 

effect, to all intents and purposes, as the ongmals thereof would have been enti· 

tied to. SEc. 3. That section 904 of said Revised Statutes be amended so q.s to read as fol- ~~: . That whenever any of the records or files in which the United States are mte~· 

estecl of any court of the United States have been or may be lost or destroyed, It 

shall be the duty of the attorney of the United States for the district or court to which such files and recor<ls belong, so fa1• as the .iudf;eS of such courts respect. ively shall deem it essential to the interests of the Umted States fc;>r su.ch reco~ 

and files to be restored or suppliec.!J· to take such steps, under the direction of srud .• judges, as may be necessary to enect such restoratio.n ?r substitution .• includin~ 

such dockets, mdices, and other books and papers as said Judges shall think proper. 

Said judges may direct-the perfonnance, by ~e ~ler;ks of said courts re~ectively 

and by the United States attorneys, of any duties mc1dent thereto; an<lsmd clerks 

and attorneys shall be allowed such compensation for services in the matter and 

for lawful disbursements as may be approved by the Attorney-General of the 

Unite<l States, upon a certificate by the judges of said courts stating that such 

claim for services and disbursements is just and reasonable; and the sum so allowed 

shall be paid out of the judiciary fund. 

Mr. MAXEY. I simply desire to say that the bill as it passed the 

House restored the records-of the district and circuit courts of the 

western distxict of Texas, which were destroyed in Novembbr last by 

fire. The entire business of that court has been clogged ever since 

by reason of the loss of the records. The Judiciary Committee 

thought proper, a-s it was a special bill for a. special purpose, to use 

it as a basis for a general bill, &nd therefore they have presented the 

.amendment which covers the object bad in view by the bill as it 

passed the House and takes into consideration all like cases. ,I ask 

that the amendment be adopted, and that the bill be passed as x•ecom- mended by the committee. . Mr. EDMUNDS. Mr. President, the committee to which this bill was referred found on an examination of the bill and upon consultation with the head of the Department of Justice that the bill itself was defective in respect of the very purposes it had in ~iew. Although 

it followed exactly the provisions of an act about the ~cords that were destroyed in Illinois a few years ago, there was an omission in 

respect of giving effect to the restoration of those papers, which was extremely dangerous. It was therefore necessary to make an amendment. That being ascertained, we thought it better to make a general provision, about half of which already exists in the Revised Statutes and the other half does not. As to the half that already exists, 

in respect of the records of private parties, the committee made a general provision to cover the future as well as the past, where the 

;records and files of a court mn.y unhappily be destroyed. I presume 

this brief explanation will be satisfactory to the Senate as to the propriety of putting the bill in this form. • . Having ma.W that statement, I notice one or two clerical or typographical errors in the amendment which I beg to have corrected. 

In section 2 of the amendment, line 11, after the word "original," 

should be inserted the words " report, return/' so as to read ; 

.And shall have the SaDie force and effect as if it were an original report, return, 

paper, or other document made to or filed in such court. 

It does not make grammar as it is now. It is a clerical omission. 

The VICE-PRESIDENT. That amendment will be made. 

Mr. ED :MUNDS. Then in section 3, line 9, the word "for ~· should 

read "that." It now read·sSo far as .the judges of snch courts respectively shall deem it essential to the 

interests of the United States for such records and files to be restored or supplied. 

"For" should be "that," in order to make it proper and grammatical reading; and ''to" after the word "files" should be stricken out. 

The VICE-PRESIDENT. That amendment will also be made. 

Mr. EDMUNDS. That being done, I believe the committee's amendment needs no further amendment. 

The amendment reported by the Committee on the Judiciary, as modified, was agreed to. 

The bill was reported to tbe Senate as amended, and the amendment was concurred in. 

The amendment was ordered to be engrossed and the bill to T.>e 

read a third time. ·The bill was read the third time, and passed. 

The title was amended so as to read :· " An act to amend tho Revised Statutes of the United States relating to records and files in 

the district and circuit courts of tb? United States destroyed by fire." 

MESSAGE FR0:'\1 THE HOCSE. 

A message from the Hou~:;e of Representatives, by Mr. GEORGE M. 

ADAMS, its Clerk, announced that the Honse lrad passed the bill (S. 

No. 109) defining the manner in which certain land-scrip may be assigned and located or applied by actual settlers, and providing for the 

issue of patents in the name of the locator or his legal representatives. 

The message also announced that the House had concurred in t.he 

amendments of the Senate to the bill (H. R. No. 5067) to (livide the 

western district of Missouri into two divisions, and to prescribe the 

time and places for holding courts therein, and for other purposes. 

E~""ROLLED BILLS SIGXED. 

The message further announced that the Speaker of the House had 

signed the following enrolled bills; and they were thereupon signed 

by the Vice-President: ' 

A bill_(H. R. No. 5067) to divide the western district of.Missouri 

into two divisions, and to prescribe the times and places for holding 

courts therein, and for other purposes ; and 

A bill (H. R. No. 4234) to provide t.hat all pensions on account of 

death, or wounds received, or disea.se contracted in the service of the ·, 

United 

granted, 

States 

or which during shall 

the 

hereafter 

late war of 

be 

the 

granted, rebellion, shall 

which 

commence have from 

been ~ 

tbe date of death or discharge from the service of the United States; 

for the payment of arrears of pensions, and other purposes. 

REYISIOX OF THE PATEXT LA.WS. .. 

1\Ir. WAD LEIGH. I move that the Senate proceed to the consideration of the bill (S. No. 300) to amend the statutes in relation to patents, and for other purposes. 

The VICE-PRESIDENT. The unfinished business of the Senate is 

the consideration of the bill for the revision of the patent laws, and 

it comes up under the rule without a motion. 

Mr. Al\"'THONY. This da.y was assigned for the consideration of 

unobjected cases on the Calendar. I hope the Senator from New Hampshire, who has yielded so gracionsly-ancl gracefully to several other 

bills, will yield to these and allow the Calendar to be proceMed with. 

Mr. WADLEIGH. I shall be obliged to refuse the request of my 

friend, the Senator from Rhode Island. . 

The VICE-PRESIDENT. The order of the Senate in reference to 

unobjected cases on the Calendar would take effect at one o'clock, in 

the absence of the unfinished business of the Senate, which has priority . Mr. ANTHONY. Then I move that• the Senate proceed to the con- sideration of the Calendar under the rule that was adopted· for to-day. 

Mr. WAD LEIGH. My motion has precedence, Ithink. I ha Ye moved 

to take up Senate bill 1'\o. 300. 

The VICE-PRESIDENT. Such a motion is not necessary. The 

bill comes up of course under the rule. The Senator from Rhode 

Island moves to postpone the present and all prior orders for the purpose of considering the general Calendar under the rule which was adopted on his motion for to-day. The question is on the motion of · the Senator from Rhode Island. · 

Mr. ANTHONY. I hope the Senate will agree to take up the Calendar. We are toward the close of the last session of this Congress, 

and there are a great many bills on the Calendar which will be lost 

unless they are acted upon at once. The bill amending the patent 

law is sure to have consideration. It has had consideration during 

the whole session, and I think it is going to take the remainder of the 

time. 

Mr. WADLEIGH. Senate bill No. 300 will have tO' go to the House 

very soon in order to have action upon it there at this session. Consideration upon it has proceeded to a considerable length, and the 

debates are fresh ·in the minds of Senators. My frie.nd, the Senator 

from Illinois, [ 1\Ir. DA "\'""IS,] assures me that he· is not a ware of_ any further 

considerable discussion, and the prospect is that in a very short time 

to-day we shall pass the bill and dispose of it. I ask my frtend, the. Senator from Rhode Island, to give me au opportunity to pass that 

bill. 

The VICE-PRESIDENT. The question is on the motion of the Senator from Rhode Island, that the Senate lay aside the pending and all 

prior orders and proceed to the consideration of the general Calendar. 

The question being put, there were on a division-ayes 15, noes 20; 

not a quonrm voting. · The VICE-PRESIDElot"T. The Secretary will call the roll of the 

Senate. 

Mr. THURMAN. I suggest that there be another eli vision. There 

are a number of us here who did not understand the question. Mr: McDONALD. I ask for the yeas and nays. 

Mr. CONKLING. Let us have a new diyt'lion first. 

Mr. McDONALD. My object is simply to get a quorum. 

Mr. THURMAN. There is manifestly a quorum here. 

Mr, CONKLING. Another division will reveal a quorum. 

Mr. McDONALD. Very well, let there be another division, then. 

The question being again put, there were on a division-ayes 17, noes 2'2. So the motion was not agreed to. . The ~enate, aa in Committee of the Whole, resumed the considera.-. 
520 CONGRESSIONAL RECORD-SENATE. JANUARY 17.,. 

tion of the bill (S. No. 300) to a-mend the statutes _in relation to patents, and for other purposes. · The VICE-PRESIDENT. The pending question is on the ·amendment proposed by the Senator from Ohio [Mr .MATTHEWS] upon which 

the yeas and nays have been ordered. 

Mr. EDMUNDS. Let it be reported. 

The VICE-PRESIDENT. The amendment will bs read f<T information, 

The SECRETARY. The amendment is, in section 2, line 10, to strike 

ont all after the word" cases," where it first occurs, down to and in~ 

eluding the word" awarded," in line 23; in line 27, to strike out all 

after the word " case," down to and including tlie word "recovery/' 

in line 29; and to strike out lines 36, 37, 3 , 39, and down to and in- cluding the word " aforesaid','' in line 40, and in lieu thereof to insert 

t he following : 

No account of profits or savings shall in any case be allowe<l; but e>idence 

thereof may be admitte<l as tendin~ to prove what shall be deemed a reasonable 

license fee as compensation for the infringement. 

Mr. EDMUNDS. I should like to have the Senator from Ohio tell us what the state of the law will be, that amendment being adopted 

and becomfug a law, in respect of cases in equity, in view of the provision of the Constitution respecting trials by jury. I happened to 

be present the other day in a court of the United States, where a · patent cause was on htjaring, and I heard one of the counsel maintain 

with earnestness--

Mr. WHYTE. We should like to hear the Senator from Vermont, 

but the noise in tho Chamber is so great that it is impossible. 

The VICE-PRESIDENT. Order! Senators will please be seated. 

Mr. EDMUNDS. I was saying, 1\Ir. President, that I desire to have 

he Senator from Ohio explain to us.what in his opinion, if he chooses Jto give it, the state of the· law will be if this provision is to become • a. law in such a way that the patent laws simply provide that there 

shall be no account of profits in cases in equity where there are now ·accounts of profits, but that the rule shall be a rule of damages to be 

measured in a certain way, in view of what I was stating when the 

Senator from Maryland rose, that happening the other day to be in a circuit court of the United States where a p;:~>tent cause -was on argu- . ment, I heard a very distinguished counsel make with earnestness and 

sincerity the point, under the existing law even, that the provision of 

the Constitution requiring ~ial by jury (with which we are all famil-

.iar and which I need not recite) stood in the way, notwithstanding 

the statute, of the right of a coU.rt of equity to proceed to ascertain 

any damages at all; and therefore that the decree of the court in that ·case which was being settled) t4e rights of the parties having already 

been pronounced upon tm the same occasion or before, must be con- futed, notwithstanding the existing statute, to taking an account of 

profits and savings. Now, then, if by statute we erase from the jurisdiction and rigbt of ~court of equity the power to take an account · of profits and savingsl if the poipt of this gentleman was correct, we hall have deprived the courts of equity in all patent cases of any 

right to give any redress at all except a simple injunction . . What I 

desire is an explanation from my honorable friend from Ohio on that 

point. 

Mr. MATTHEWS. :Mr. President, as I understand the matter, as t he law now stands, the owner of a patent-right which has been infringed has his election to pursue one or the other.of two remedies. 

He may bring his action at law to recover damages for the infringement, and the amount of his damages is a. question to be determined 

by the verdict of a jury upon the evidence adduced before it showing 

the loss to which he bas been sn bjected by virtue of this infringement of his rights; or he may pursue his remedy in eqRity, which ie 

for the purpose of obtaining an injunction to restrain anti prohibit 

the defendant from infringing upon his rights, and on obtaining an injunctian on the l!earing upon the :rp.erits, which is a final adjudication of the rights of the parties, perpetuating that injunction he is 

then, according to the course of practice in courts of equity, entitled 

to have compensation for the injury which he has been compelled to 

submit to in the mean time. by virtue of the fact or the law that the 

court of equity ha.ving obtained jurisdiction of the cause for one purpose is entitled to hold it in order to do complete justice between the 

parties. d · th t t· h · f f · In ren enng a compensa wn t e practice o courts o eqmty adopting;:~> rule to that end is to'tnrn the tlefendant convicted as a wrong-doer into a trustee de scm U)')'t and to charge him as if h0 had 

in law and in fact occupied a fiduciary relation toward the owner of 

the property, and so take an account of the profits which the defendant had made in the mean time by the use of the plaintift''s property. 

The bill as reported by the committee abolishes the distinction between the rule of damages in actions at law and the rule of compensation based upon· an account of profits as it has heretofore· obtained 

in courts of equity; and the amendment proposed by me does pot 

touch that part of the bill. The committee seek to substitute for the 

existing rnle in equity practice as to profits· another rule in respect to 

profits, also interpolating into the action at law an account in certain 

excepted cases of actual pro:fits, but in both instances, in both rules, 

Qxcludmg that which may become in some cases necessarily a part 

of the very computation necessary to arrive at what actnaJ profits maybe. 

My proposition was intended not to interfere with the main purpose 

of t.he section in respect to reducing to unity and identity the rules 

of equity and of common law in respect to the measurement of tho. 

compensation, but to have one rule in both cases and to substitute 

for all accounts of either saVings or profits the ordinary common-law 

rule giving to the complainant who had suffered an injury by the use- of the property by another what in the opinion of the tribunal con- stituted for that purpose should be a fair, rea.crona.ble, full, adequate 

compensation for that loss; and I do not understand that a man loses more or less in point of fact because he happens to seek his remedy 

by -an action at law or by a, suit in equity. So that I do not untlerstand that any constitutional provision is violated unless it be one which undertakes because the suit is in equity merely to prescribe by 

statute a rule of compensation which is different from that heretofore 

adopted by the courts. 

Mr. EDMUNDS. :My point was not that this proposition of theSenator from Ohio violated any constitutional rule; but it was an inquiry whctMr, supposing this point about the . Constitution to be a. sound one, (in regard to which I express no opinion,) it wa.s the purpose to deprive a court of equity of any power to give any other redress 

in any patent cause except the simple injtmction, because the effect 

of the amendment is to cut off from a court of equity any jurisdiction 

to take an account of actual profits even, which the committee's bill 

provides for. Therefore a court of equity under this amendment 

has no power to take an account of actual profits. Theil what is it 

to do·Y It is to take an account of damages. But, say the gentlemen 

who contend that way, the Constitution does not allow a court of 

equity to take l}>n account of damages per se; you may take the damages into consideration in connection with the question of estimating 

profits, bnt per se it has not any jq.risdiction. The effect, therefore,. 

of this amendment would be, supposing this claim about the Constitution to be correct, to say that a court of equity shall not under any 

circumstances give any other redress in ~patent cause than the simple prohibition of use, turning over the party to a court of law to get 

his damages, to the great benefit, I may add, of all lawyers and othe~ 

people of that kind, becanse they have two suits instead of one. Mr. WAD LEIGH. Mr. President, this amendment had been debated 

at great length prior to the adjournment last night, and a vote had 

been taken upon it, six voting in favor and thirty-two ag~\n.st itr 

barely lacking a quorum, which nec88sitated another call of the roll • I do not propose after that to say anything more upon this amendment. I trust now that we shall have a vote. 

Mr. BECK. :Mr. President, I desire to say a word before the vote 

is again talron. Upon the vote of yesterday I voted for the amendment of the Senator from Ohio on the yeas and nays, simply ou theidea that I regard the present patent law as in many instances cloinrr 

great injustice to the people; and sympathizing very fully, so far ;;, 1 am advised, with what has been said by the Senator from Minnesota [Mr. Wh'IDOM] and by those gentlemen who seek to curtail t1le 

power of patentees over the people, I thought I was voting for an amendment that did help to curtail it. If, however, it is unconstHutional or there is any difficulty on that point, I do not desire to go so far in my efforts to curtail the power of patentees as to do anything 

that is in violation of the Constitution. Therefore I suppose I shall 

change my vote and vote against the amendment, if there is any 

doubt on that subject. I only desire to add that I shall never fail to. 

vote to curtail the present rights of patentees, which I think are absolutely enormities in many regards. 

Mr. :MATTHEWS. Mr. President, after the- expression of opinion 

indicated by the vote of yesterday, I a'8k leave of the Senate to withdraw the amendment. , 

The VICE-PRESIDENT. To this the Chair hears no objection. 

1\Ir. DAVIS, of illinois. Mr. President, I now propose the amendments of which I have given notice. I do not care about discussing 

them. 'fhey have. been inci~entally discussed throughout this debate; I discussed them as fully as I could on the 20th of December, 

and they have been discussed substantially by the Senator from Ohior 

the Senatpr from N~w York, and others. 

The VICE-PRESIDENT. The amendments will be reported and 

acted upon separately. The first will be reported. 

The SECRETARY. In section 2, lines 11 and 12, it is 1)roposed to 

strike out the words "for sale or," and in line 12 insert after theword "selling" the words "or using;" so as to read: 

Except ii cases where the defendant has made an actual profit from maldnrr se!ling, or using the thing patented, or the product thereof. , 0 

:Mr. DAVIS, of Illinois. I will read a. part of the section : 

If a. license fee has already been established by a reasonable number of t:-a.ns ~ 

actions applicable to the case at bar, such license fee, or a portion thereof, accord - ing to the extent and duration of the infrin~ement proved, shall be the measm-oof. 

the plaintiff's recovery in all cases, except m cases where the defendant has J.:l:Hlll 

an actual profit from making for sale, or selling the thing patented, or tho prot! net thereof. ~ 

I want to amend it so as to strike out the words" for sale " iu 1ho· eleventh line and insert in the twelfth line the .word "or using," 110 

as to read if amended, '' the defendant has made an actual profit from. 

making, selling, or using the thing patented or the product thereof/" 

An account of profits under this is confined now by this section to cases where the thing patented or the product thereof is solU. L 

want to extend it so that where service is performed by railroad com- panies, where anybody is using a, patented thing but does not manu- facture it for sale, this provision as to an account shall apply. 

Mr. McMILLAN. I trust; this amendment will not be adopted. 'I'h& 
' 

1879. CONGRESSIONAL RECORD- SENATE. 521 ' 

effect of this amendment would be to m~ke every person using a patr en ted article, under any circumstances, without a license from the patentee, liable for profits just as for manufacturing or selling the article. 

That question was discussed some d~s ago, and 'I think the Senate 

are pretty well. satisfied that the principle should not apply to citizens 

who merely use a patented article for their private purposes, and in 

many instances without a knowledge of any infringement of a patent, as is the case in the State I havQ~ the honor in part to represent at this 

time, with regard to the drive-well referred to on the day of the 

former debate, where there are multitudes of suits instituted against our citizens which are very burdensome to them a•d which involve 

no principle of justice whatever. 

Mr. EDMUNDS. But my friend ought to remember that the drivewell was the only thing that enabled Her Majesty's government of 

Great Britain to conquer that Nubian or whatever other king he was at MagdalJa. They could only get across the deserts in that way. 

Mr. WINDOM. I hope the Queen of Great Britain will pay for it, 

then. 

Mr. EDMUNDS. I have no objection to that. 

Mr. DAVIS, of Illinois. I do not want this amendment to be voted 

upon on the theory that the drive-well is the sole thing to which it can apply. Here is a railroad company that uses a brake, a mill that uses a patented thin~, a manufacturer who uses a patented thing and 

does not sell it. ThiS may be illustrated by many things used in the 

building of houses ; there are a thousand things th~t might be mentioo~ • I do not care about discussing the question; but I want the Senate 

to vote understandingly. I do not understand how a railroad com- pany that uses a patented bridge should not paffor it as well a.s if it 

sold the thing patented. ~h. WADLEIGH. I agree with my friend the Sena.tor from Illinois 

that a railroad company that uses a brake should pay for it. What 

t his bill provides is that the railroad company hall not go into a.n account of its whole business, eveqt~ing, and then undertake to 

apportion the share of the profits of that busine s due to the use of 

that railroad-brake. This account for profits, in cases where the 

invention is simply used, i'8' extremely expensive and long- - Mr. DAVIS, of illinois. But I would ask the Senator if that is any 

different from the case of a manufacturer manufacturing India-rubber goods or anything else 'I Is there any difl'erence at all 't You do 

bring a bill in equity and require an account for profits. Yoa have 

said here that savings shall not be taken into consideration. Why bould not a railroad company, in the thousand cases in which service 

is performed for it by a patented thing, pay for it the same as for the 

patented thing itself' 

Mr. WADLEIGH. My friend t1ie Senator from Illinois interrupted me in the middle of a sentence, and I shall have to leave the rest of 

it unsaid because I have forgotten what I was saying. But the distiaction between the two cases was very well argued the other day, 

particularly by the Senator from Massachusetts, [Mr. HoAR.] Where 

the patented article is sold, er where its product is sold, the case is 

very different from where a machine or the patented invention is 

simply used. In the one ca.se there may be some difficulty, a.nd a good 

deal of difficulty, in taking an account of profits, but in the other case it is generally absolutely impossible to take an account which is at 

alljust. . I trust that the amendment of the Senator from Illinois will not 

be adopted. ., Mr. WHYTE. Mr. President, I hope the Senator from lllinois will 

amplify by argument his proposition. My friend from .New Hampshire said that it bad been all argued. ' Well, but it was before a 

different jury. It bas not been argaed here very fully; at·least I 

have not heard it argued very fully, and I do not know that the REc- ORD discloses any full argument upon the subject. 

But why an account of profits or a.n account of savings in a busi- ness where a patented article is used sh~uld not be exammed into by a court is a matter that I cannot understand. Why a party who infringes a patent by its use should not pay for it is a thing that I can- not understand; and the simple reply is that because his whole busi- ness does not actually make a profit, therefore you cannot inquire 

into the use of the particular patented article- - Mr. WAD LEIGH. If the Senator will look at the section he will see that it covers the whole question. 

Mr. WHYTE. But this applies only to makin~ for sale or selling 

the patented article or the product thereof. Tb1s is ~overed up in 

very tine language. I am rather afraid that there is a snake in this 

branch of the case. · It is not plain enough for a man of ordinary comprehension like myself to see it exactly, and I would rather have 

it a little plainer. I have read the bill and examined it-very carefully; but I sa.w a bill that had two little words," if any," in it once, 

and it was a very serious bill when it came to be carried into execu- tion. 

The proposition in the amendment proposed by·the Senator from 

California, [Mr. BOOTH,] which seems to have baen adopted by the 

committee; does not cover the case contemplated by the Senator from 

illinois, and I do not see why there should not be a close examination 

into the business, whether it is profitable or not profitable, to ascer- • tain whether by the use of a patented article a branch of that busi- ness has not been carried on at a cheaper rate t han without the use of that patented article, as for inst~nce-- · - , 

lir. HOAR. Will the Senator from Maryland allow• me to ask if.: 

he can see any reason why a trespa:ss committed more than six years. ago should not be paid for, as much as a trespass committed six 

moil ths ago f , 

Mr. WHYTE. Well, I do not see any reason, except that the statltte· of limitations bars it. 

Mr. HOAR. I know; but I ask· for the reason of the statute of 

limitations. Is not the reason the fact that the experience of man- kind shows that more injustice is done by going into an io.quiry in 

regard. to transactions more than six years old, involving expeusB 

and litigation, than there is by drawing a limit at that.period f Now,. 

the testimony of a vast number of persons on both sides of patent 

questions before the committee wa.S, with remarkable unanimity, t<>-

the effect that the ha.bit of going into an ~ccount of saviJlgs of great. 

business conc~rps which used p:>..tented articles enabled a wealthy com- plainant, who required it of a defendant, to make patent causes so expensive and burdensome that they broke down the defe11.dants, 

and enabled wealthy defendants resisting poor and honest complainants to make the pursuit of their remedy so burdensome that they 

practically destroyed it ; and for that reason the committee were of 

opinion that it would bo more just, as a general rule, to abolish ac-· counts of savings altogether, leaving the general amount of damages' 

to be settled, however, by the jury or by the court on the whole. evidence in the case, gathering it from the general nature and char-· acter of the invention and the business. . Mr. DAVIS, of Illinois. I should like to ask a question of the Sen-- ator who bas just taken his seat: whether the committee took'testimony upon the subject as it affects a poor man who has mnde an in- · vention which all the railroads of the country use f Here is a poor- . man who makes an invention. All the railroads of the country use it. They combine against him. He has to :fight them. He has no. money to do it with. They can go on and use his invention a.nd not 

pay him for it at all. He is in a different position altogether from. those who manufacture a thing patented for sale. 

Mr. WHYTE. I am much obliged to the Senator :frt)m illinois for--

answering the question propounded to me by the Senator from Massachusetts. My friend from New Hampshire says that a clause in this. bill covers the c.ase which I have jut~t suggested; but it is a remarkable fact that Mr. Raymond, who seems to represent the combined . railroad companies of the country, should object to this very amendment of the Senator from Illinois upon ~he ground that "the second· section of tho bill proceeds upon the theory that savings resulting. from the use of a patent can in no case constitute a just measure of 

the plaintiff's recovery." There is the very point. Mr. Raymond 

stands upon the very ground that such an inquiry ought not to bB 

gone into, -because it constitutes no just estimate of the measure of.. 

damages, though my friend from New Hampshire indicates that it 

is already covered by .the bill, when the la.wyer who seems to have . been arguing mostly this case before the committee says that.the bill 

excludes any such theory. 

~his is a new argument, since the bill has been in Committee of 

the Whole, and the amendments were offered by the Senator froiiL 

lllinois; it is no old argument, but it is an argument addressed to us now when we are about to vote upon this proposition of the Senator 

from Illinois. And he cites a case with which I am familiar myself,.. 

for I argued one of its branch~, the case of Conover, where peoplB· used a wood-splitting machine in their business of selling coal and. 

wood, and when we sued them for infringinO' our wood-splitting-machine patent, the reply was that their whole busine:;s had been un- profitable, and· that we could not go into an inquiry in regard to the USEa of our patented article because they had lost money in carrying. on a. general·coal and wood business. And it is just such people to. whom this bill, if enacted into a law, will be beneficial. It is to help.. 

them. Why should that be so, 1\Ir. Preside11t! Because a man car- ries on a general business improperly, negligently, without goodjudgment, and loses money by it, if forsooth he uses a patented article lllcarrying on that business a11d is asked to pay for it, if we own thepatent, we are told that the business has been carried on at a loss,, 

and we cannot go into any inquiry in regard to the use of our particular patent. Mr. President, that cannot be just. Why a patented 

article should be accounted for if you can sell it, why if it forms a. component part of a product that should be paid for, and yet you: should not pay for using a patent the property in which is just as valuable and ought to be just as much protected as the property in 

the other sort of patent, I cannot understand. I cannot see why there 

should not be an inquiry in regard to the use of a patented article just'. as much as an inquiry where you sell the article patented. 

Mr. WAD LEIGH. My friend the Senator from Ma.ryland starts. 

out with the proposition that the infringer of a patent should pay for 

his use of it. I agree with him entirely in that proposition. He says 

that the advantage derived from the invention, or the savings which 

it is capable of making, should also be inquired into. I agree with 

him in that. Then, where do the Senator from Maryland and myself 

differ f I cannot state wherein we differ better than by referring to 

an actual case, the Cawood patent case, which is reported in the 

fourth volume of Otto. It is one of the swedge-block cases. In that. 

case there were several patents for repairing the ·exfoliated ends of" 

rails upon railroads. The railroad companies defendants in this case used on~ of those patents, there being a. controversy at the time as to... 

which of the patents infringed upon the other. They repaired their 

, 
522 CONGRESSIONAL RECORD-SENATE. JANUARY 17, 

•rails according to a certain patent. It turned out that the patent 

that was used was an infringement upon another patent, the owner of which bron~ht snit against them for that. They offered to prove . -upon the trial that nothing was saved by the use of this machine at 

all, because repairing the ends of rails in that way was absolutely 

useless ; that the effect of it was such that in a short time the same exfoliation occurred again, and it" wa.s absolutely worthless. The ··court refused to allow them to do so upon this groum1, that when they 

undertook to use this machine there were two methods open to them; ·one by taking up the rails and repairing them in the old-fa ·hioned 

way upon the anvil, which it was estimated would cost thirty-six 

-cents a foot, which I think would be more than the foot of rail would 

be worth now; the other was by using the plaintiff's machine; and , that inasmuch- as they chose to use the plaintiff's machine they saved 

the work that would have been required to be done by the anvil pro- .cess by the old way, and that they should account for the difference 

in cost under that rule which exemplifies the doctrine of technical 

savings that my friend the Senator from Maryland advocates. In that 

case, where 'the defendants offered to show and could have shown 

that t.hey derived no advantage at all from the plaintiff's invention, .a decree was rendered for nearly $1,500,000 against the railroads. 

Now, my friend, the Senator from Delaware, inquires why the railroads are opposed to that system. Why, Mr. President, I should think 

they would be. Everybody who does business upon those railroads 

;should be opposed to any rule by which such extortion as that can be wrought out. Such decrees as that would burden the whole busi- ness int~rests of the country if they were enforced; and other injus- .ttce equally flagrant has been wrought under the rule to which I 

refer. Now we say that that shall not be the rule any longer, but 

that a new r:nle shall be adopted, and that is that in order to show what 

the defendant should pay the plaintiff may prove what his machine 

will save as a part of "the utility and advantage" of the machine, 

that he may go fully into evidence to show what advantage the ma- -chine will effect, :what it will save, what it is worth, but that a machine 

which can produce no useful results whatever, the work of which is 

good for nothing, shall not be paid for ·at any such rate as that to 

which I have alluded. . Mr. DAVIS, of Illinois. I did not intend to discuss this question at 

all, and I told th~ Senator from New Hampshire that I would not dis- ·cuss it; but discussion has been brought on without any wish of mine. 

The Senator from Maryland and the Senator from New Hampshire .are discussing a different thing from that to which this amendment 

applies. I agree that it is very difficult in such a case as the swedgeblock case to fix a true invariable rule. I do not believe that in any 

.such case you can fix an invariable rule upoh the subject, and my 

-second amendment applies to that because I have left it to the court 

to say, when they have taken the account of sa.vings, what is a fair 

-compensation under all the circumstances by a reference to the nature, 

the magnitude of the invention, as well as the use to which it is put. 

The swedge-block case I tried myself in connection with Judge 

Drummond. The Senator from New Hampshire is a little mistaken 

.about it. The old process for mendinff. exfoliated rails was by the 

.anvil. The new process was by Turrills patent. All the railroads 

abandoned the old process and used the new. After a. while there were inventions that superseded Turrill's, so tl}at they could do it cheaper by 

:Other inventions than they corlld by Turrill's; but they used Turrill's 

.during all the time that the other inventions had not been made, and 

the question was how much the railroads saved in doing that over the 

old mode of mending by the anvil and hand. That was a subject 

of actual, definite computation from the railroa.ds themselves. The ~ 

judges there felt the force of the objection that tills was too much of a remuneration; I agree that it is too much. How are you going to measure that Y Yon muet leave it with the court. This man was entitled to something, and although his invention was superseded by 

others, that was no reason why the railroad companies should use that 

invention without compensation until it was superseded by others. 

What I want to get at in this first amendment is to put all ,these 

things alike; and then my subsequent amendment I think improves 

the section because it leaves the law ~object to the court to decide .after they have heard the evidence what is a fair remuneration under 

the circumstances. 

Mr. WADLEIGH. I have here the case to which I have referred, .and I desire to read a. sentence or two from the opinion of the court. 

'The court S!LY: · 

It has been argued that it would have been better for these defendants, if, in- .stead of repairing the crushed and exfoliated en dB of the rails, they had cut off 

the ends and rel.a1d the sound parts, or had caused the rails to be rerolled. Experi- ence, it is said, has proved that repairing worn-out ends of rails is not true econ- omy, and hence it is inferred that defendants have derived no profits from the use .of the plaintiff's invention. The argument is plausible, but itiB unsound. Assuming that experience has demonstrated what is claimed, the defendants undertook to repair their injured rails. They had the choice of repairing them on the common anvil or on the complainant's machine. By selectin~ the latter they saved a large 

part of what they must have expended in the nse ot the former. To that extent they had a positive advantage, growing out of their invasion of the complainant's patent. If their general business was unprofitable, it was the less so in cense- quence of their use of the plaintiff's property. (4 Otto, 710, Cawood Patent.) 

In that case the court assumes that the railroad companies would 

have repa.ired those railil by the anvil process at a cost of thirty-six 

cents a foot if they had not had the plaintiff's invention to repair 

-them with. • 

The VICE-PRESIDE~'7. The question is on the amendment proposed by the Senator from Illinois. 

Mr. CHRISTIANCY. Mr. President, I wish to sn.y a word iu reply 

to the last statement made by the Senator from Illinois. H:e says that 

by the adoption of his amendment we get rid of those general or universal rules so as to do justice in eacl;l particulo.r case. Now, I con- tend that the adoption of that amendment will pot into this bill an iron rule which will adopt a rule of recltvery entll'ely independent Qf 

any idea of mere compensation. As the bill now stands the user of a patent is notJ liable to account for profits, bot he is liable for all 

damages done, all the injury to the patente~--

Mr. CONKLING. Who is'? 

Mr. CHRISTIANCY. The infringer, the mere user, is, as the bill now stands, liable to all damages; a full compensation can be recov- ered from him; as the bill now stands profits cannot. With the amendment of the Senator from Illinois profits can be. , Mr. DAVIS, of Illinois. Savings cannot but profits can. Mr. CHRISTIANCY. I am speaking now of the mere user of a patent. The case is exactly as I put it. The mere user of a patent, under 

the bill as it now stands, is not liable to account for profits, but with 

the amendment proposed by the Senator from IllinolB he will be liable to account' for profits ; and now what are those profits f They are not founded at all on the idea of compensation; and if the Senator 

will look to the ninety-third United States Reports, pages 68 to 71, 

he will fine that all idea of profits being placed upon the ground of 

compensation is utter:ly abandoned, that it stands purely on the ·fiction of a trust, and that the profits recovered may be ten, even a · hundJ.'ed fold more thai\ a just compensation, and yet they would have 

to be allowed under the rule. His amendment, therefore, not only 

adopts all the abuses which have grown up in,the course of time under 

this system of patent laws, but it even makes them worse for it fixes 

them by statute. 

The Senator from Illinois argueS as if no remedy were left to a patentee in case of a mere user infringing the patent. Why, sir, there 

is a full remedy left, an adequate remedy left to recover entire com· pensatiou in damages. . · · ~r. CONKLING. 'Vbere is that in the bill f 

Mr. DAVIS, of Illinois. I put the user upon a tliffereJ?.t footing. 

Mr. CHRISTIANCY. I am hardly in a condition of health to con- tinue this discussion, but I have undertaken to show heretofore, and 

I think I have shown, that there should be a distincti~u in fa•or1of 

the mere user of a. patented article, which he purchases only for his own use of a manufacturer really and practically in good faith. There 

is every reason why he should account for nothing more than a just 

compensation for the injury; but adopt this amendment of the Senator from Illinois, and every purchaser of a mowing-machine, every 

purchaser of a patented plow, every purchaser of any farming ia.tplement, although he purchases in good faith, will be responsible not 

only for the real damages bot for all the profits it can be shown he 

has made. .:Mr. CONKLING. 1\-fr. President, it is not the habit of the Senator 

from Michigan to make assertions touching matters of law without 

having some reason, commonly I think a. good one, for whatever he 

says. That Senator has told the Senate now that the user-and by 

that he means one who knowingly Uses the patent of anotber--

:Mr. CHRISTIANCY. That was not the case I put, but the bill 

would cover it in both cases. :Mr. CONKLING. What was not the case the Senator put ? 

:Mr. CHRISTIANCY. I stated the case of a man purchasing, for 

instance, a mowing-machine, or a plow or any other farming implement, whtch he generally does, as we all know, practically, in entire 

gooQ. faith without any knowledge that be is infringing a patent. 

Mr. CONKLING. I remember, ?tfr. President, that once when a very celebrated lawyer in our State was opening a case before Chancellor Walworth the chancellor P,Ut :ip. as quickly as the Senator doe 

now, and said he supposed it wa.s such a case. "No," :Mr. Reyn9lds 

said; and when the chancellor had supposed several cases, finally 

Mr. Reynolds said: "Your Honor cannot guess what it is if you should 

guess an hour." So it is possible that the Senator from Michigan can- not guess what I am going to say before I have said it, if he were to 

guess again. The particular thing that he has guessed now is not 

the thing which I was going to say. Let me proceed now, if I can, to bring that to the mind of the honorable Senator. I am not talking about an i»nocent person who buys a. rat-trap for use in hi 

Jritchen and who is afterward notified by somebody that the mau who sold that rat-trap violated his patent. I want to take, for instmc- tion from the Senator, the case of a man who takes a patented invention, not the product of it, and uses that patented invention in hi 

business, whether it is an air-brake on a railway or a. spark-arre ter 

for a locomotive, or any other thing the Senator shall please. He 

manufactures it, not for sale, but for use, and using it he saves very 

largely in his business, but he does not sell, and in that sense he does 

not make profit. I understood the Senator from ~Iichigan to affirm 

that under this bill now commended to us, should it become a statute, 

the patentee in the case supposed can recover full compensation for 

such an act. Does he say so f 

Mr. CHRISTIANCY. If the Senator from New York will allow me to state what I meant by that, I will explain. 

Mr. CONKLING. Fir t, if my honorable friend will forgive ble, I 

• 

• 

• 
1879. CONGRESSIONAL RECORD-SENATE. 523' 

want to aacertain from him if I am right in supposing that he so said. 

·That is the first step. 

Mr: CHRISTIANCY. Will the Senator repeat it again f 

Mr. CONKLING. I will, though by the time I have repeated it 

:again I am afraid'! shall not understanditmyself. [Laughter.] 

I understand the honorable Senator to affirm that if a person en- ;gaged in manufactures, f9r example, appropriates the patented invention of another and uses it in his business, not manufacturing it for 

.sale, but manufacturing it for his own use and convenience, and by 

this use saves and I will say saves largely, the patentee whose rights .are thua violated can on. that state of facts recover full compensation. 

i believe I borrow his words, and I ask him if he did not so state~ 

Mr. CHRlSTIANCY. I did, undoubtedly. · Mr. CONKLING. Now, will the Senator be kina enough to take 

the bill and point to me the provision under which be makes that 

.answer, and then I shn.ll be glad to know what he means by it. But 

fu-st I want him to instruct me that I may understand what provision 

..Jf the bill he is talking about. 

Mr. CHRISTIANCY. I will state to the Senator, without even looking at the bill, that that case is provided for in this way : the ~omplainant, the patentee, it is declared, shall recover a license fee 

such as shall be established by the whole evidence in the case, and 

that license fee is of course to be found according to the amount of 

injury which has been sustained: That is what amounts to a fair 

compensation in the case of a patent which in its nature is one which can only be made profitable by being used by others. There is another 

class of patents, to which I have heretofore alluded, where it would 

be manifestly for the interest of the inventor to retain the monopoly 

-cf the patent himself and prevent others from manufacturing the 

.article, where profits should be given. . Now, I wish to state right here, to save the Senatortheopportunity 

of replying to what I have not said, that if he had paid attention as closely to my argumept as I have to his, he would have seen that I 

have alre~y said, in a speech which I delivered here some time ago, 

that aa to willful infringers, whoover they are, I have no objection to 

the rule of profits. I admit that the bill here presented does not provide for that case, and I should like it better if it did. 

Mr. CONKLING. Mr. President, tho Senator from Michigan has 

given me now a translation of what he said, and I think a translation 

of a translation. He began by affirming that the bill provided that 

such a party as I have supposedmightrecover.fullcompensatiou. If 

I mistake not, those were his words. As a lawyer, he knows what 

those words mean; they are terms of art-" full compensation." And now he explains that there is a provision in the bill under which he 

thinks evidence may be given about savings, not in order to measure the damages, not in order to tell the jnry what "full compensation" 

is, but to aid the court in determining a license fee. 

Mr. CHRISTIANCY, (in his seat.) The value of the improvement; 

what the patentee ought to be allowed for it. 

Mr. CONKLING. l\ly friend, even speaking quietly in his seat, will 

not say to me, he will not say in the presence of lawyers, and, therefore, he will not say were he alone, that that is full compensation or compensation at all, within the meaning of the law or within the 

meaning of equity. It is·not so. On the contrary, the distinction 

is as broad as any legal distinction can be. I have, (to suppose a case,) trespassed upon my friend's land; I have broken his close; I 

have cut down his timber and committed waste; and he sues me in 

trespass, and he is entitled to recover full compensation. Now, suppose a statute should provide that evidence might be given to determine how much I should pay him annually for a right of way across his premises, and then some man were to get up and say "that provision is for the measure of damages, and it provides full compensation for this trespass I" Every lawyer listening to him would presume 

that.he 'las in jest, or that he was strangely mystified. So the Sen-, ator from Michigan will take no offense at me saying that it seems to me that if his assertion rests upon this provision, which I want to say a word about, in regard to the license fee, it falL.-; very far short indeed 

of a warrant for asserting that under this act a patentee so treated can recover full compensation·. But I call the attention of the Senator to the real 'meaning, as it seems to me, of this paragraph, beginning on line 36: . 

No account of savings shall in any case be allowed ;-

That is very plain, stopping thereand no evidence or account of the defendant's profits shan in any case be admitted, except as to actnal profits resulting from making for sale or selling the thing pat-' en ted, or the product thereof as aforesaid. 

Mr. President, consider for one moment the repugnance, the contradiction of that provision. Here is a distinction established by statute 

law. What is the distinction ! It is that in the case of one set of 

parties a certain thing shall not be permitted, but they shall be deprived of that altogether, and in the case of another class it shall be 

allowed fully. That would seem to imply that here was one class 

meritorious and deserving as contrasted w_ith the other. Is that true T 

Let us look a moment: 

No evi,\ence or account of t}le defendant's profits shall in any case be admitted, except as to actual profits resulting from making for sale or ~elling the thing patented, o.r. the product thereof as aforesaid. 

There is a provision for full compensation, in the language of the 

Senator, against whom ~ Against all individuals, great and small 

alike who, manufacturing for sale, make a profit, who using the invention to produce articles or materials of any sort for sate make a profit. They are subjected to the rigors of an account, in the technical sense, and evidence of the account. Who are excluded t We 

know not from this bill, but from other information of which we cannot fail to take notice we do know who the excluded parnes are, 

namely the strong, the rich,., the powerful, the owners of .aggregated 

capital, the great mill-owners, the rail way corporations of the country . They cannot be visited; whyf Because they are not manufacturing 

for sale, they are not selling the patented invention, they are not 

selling the product of it; but they are using it to nourish and con- duct and make profitable the vast enterpris~ which they carry on; 

and therefore a provision deemed not too rigorous for the small and 

feeble individual is said to be inadmissible for them. 

Mr. President, I say such a provision as that is repugnant, it is 

inconsistent, it is arbitrary; it is worse because, making a distinction 

between classes, it does not distinguish .between classes who stand 

in parity with each other, nor in favor of a class more meritorious 

than another, but it distinguishes in favor of the powerful, in favor 

of those who do not need defense, who are able to keep themselves 

with their own sword, and against those who are comparatively help- · less, defenseless, weak. And therMore if the honorable Senator from 

Michigan were right in saying that this provision is for full.compen- · sation and just compensation, why not apply it to all f Why not apply 

it as well to the blacksmith who uses in shoeing the horses that come to his shop a wrought nail turned down by a patented machine, or a nail which he himself produces by n. patented processt Why not 

exempt him and the wagon-maker and the small dealer and manufacturer, even though he may make a profit on what he sells, and does 

of course in orde.r to live f Why not protect him by the same shield 

which is thrown over the ~eat variety of strong and powerful parties upon whom this section is to operate f :Mr. CHRISTIANCY. In the case put, the blacksmith would be pro- . tected against accounting for profits. 

Mr. CONKLING. You mean in respect of his horse-shoeing. How 

would he be protected ~ 

Mr. CHRISTIANCY. Because he is not a m~nufaetnrer; he does 

not make it for sale. · l-Ir. CONKLING. There the honorable Senator begs the question. 

Perhaps he is and perhaps he is not. 

Mr. CHRISTIANCY. I took the case yon put. 

Mr. CONKLING. I beg your pardon, yon do not take the case I put. 

I stated it in the alt~rnative. I say he uses nails covered by a patent, or perhaps he buys those nails manufactured, or perhaps he makes them 

himself. Here is a little machine which makes wood screws, and 

there is a long history connected with wood screws. Some man buys one of those patented machines, and he makes his wood Acrews himself and uses them in his business, and the articles i.Iito which the 

wood screws go are sold; that is, tho screws themselves are sold. That man is liable to all the rigors and inquisition of an account within the 

broadest meaning of that term. 

Mr. CHRISTIANCY. By this bill 'f 

Mr. CONKLING. Yes, sir; by this bill: 

No account of savin~ shall in any case be allowed ; and no evidence or account of the defendant's profits shall in any case be admitted, except as to 8.ctual profits resulting from making for sale or selling the thing patented, or the product thereof aa aforesaid. . 

Therefore by this bill I answer yes; and side by side with this little 

smith's shop or this little tinker's establishment, which is thus to be 

visited, stands some colossal- mill on every loom and mule and ma- chine in which there are half a dozen of these same machines pirated, 

and under this bill no account can be taken. 

Mr. CHRISTIANCY. If they make the product of tbe machine, 

certainlv there can. Mr. CONKLING. Not unless they make an actual profit in that 

regard. 

Mr: BOOTH. Not unless they make nn actual profit in each case. There is a perfect parity between the cases. Mr. CONKLING. Except in this, where the great disparity appears : a blacksmith who is engagecl in making nails for sale, in point of 

fact does make a profit on those nails if he sells them, not inevitably and invariably, but practically, nine hundred and ninety-nine 

times in a thousand, whereas a railway company which is using n.ll manner of patented inventions and making the things itself may or may not be making money, especially in these times, on all its passenger business and all its freight busine&s and its cons tructiou account 

and rolling-stockaccountand all its other accounts carried in. I have 

heard the honorable Senator from California. [Mr. BooTH] in some of 

his most felicit.ous moments, giving sketches and more than vague 

ideaa of the possibilities of railway accounts; and when you' come to 

confine it to people who are making an actual pmtit, and making an aetual profit in a particular way in a vastly complicated business, it 

is a very different thing from applying it, as this bill does, to all the 

minute and small interests of a man engaged in doing a single thing on which he must be making a. profit if he makes any profit at all, 

because that is the only one thing that reaclies the case. Now, Mr. President, I do not believe it will do to refuse to amend 

this second section and as the only e:x:cuse for refusing amendment 

to assert that the patentee whose property is pirated by one who only 

makes a. saving is put by the bill upon a par with the same patentee 
524 CONGRESSIONAL RECORD-SENATE. JANUARY 17,.. 

whose invention is infringed by somebody else differently engaged in 

respect of whom you· say "profits" rather than "savings." I do not 

believe the ingenuity of man can either explain or torture this sec- tion to mean any such thing as that. There is a broad distinction 

made here; and the argument which sustains this· section as it is 

proves too much. If the argument is good to show that ther:e should 

be no aeconnt taken in the case of savings, that argument will show 

that there should be no account taken in the case of profits; and if it 

does not show that, it does not show anything. · Mr. CHRISTIANCY. I am not aware that the amendment offered 

by the Senator from Illinois raises at all the distinction between sav- ings and profits. Thatis a question about which I was not speaking 

and have not been speaking to-day, although I have spoken about it 

heretofore. But I wish the dttention of the Senator from New York 

at the present moment to one case which he puts, that is the case of the bla{!.ksmith who makes use of a patented machine and makes 

horse-nails himself and then uses them in his business and sells his 

work. He says, if I understand him correctly, that the blacksmith 

would not be liable to account under this bill--

Mr. CONKLING. I have not said that. 

Mr. CHRISTIANCY. I so understood the Senator. 

:Mr. CONKLING. I said exactly t}le other thing. .Mr. CHRISTIANCY. I am glad to understand that. · Mr. CONKLING. I said that some blacksmith at a cross-roads who 

in his business is using a patent and not selling the thing he makes 

from the patent but selling the product that comes out of that and 

his labor would be liable to an account and to all the inquisition as it was called of an account, and although a great establishment right 

next-door to him might be doing the same thing fifty-fold, unless you 

show that they were making a profit on the whole over and above 

all losses in any branch of their business they would not be liable at 

all. · lir. CHRISTIANCY. The measure of profits is not what we are now talking about, but the question of whether profits shall be substituted in the place of mere damages. That is the point and the 

only point raised by the amendment offered by the Senator from Illinois. I shall answer the Senator's argument just so far as it relates 

to that and nothing else. 

I will again advert to the fact that there are certain classes of patents where it is clearly for the interest of the patentee not to allow 

the use of his invention by others. That class I am not now discussing. But the Senator from New York says that adequate compensation 

is not given in cases where parties manufacture for their own use a patented article and do not sell it. I replied to that that adequate 

compensation is given under the provisiuns of this bill by way of 

giving a license fee. Now there are two classes of cases in which a 

license fee is given by this bin. Firs~ where the patentee has already 

sold tights or given licenses in a sumcient number of cases to :fi.--r a license fee, it says that which shall be adopted as the amount of damages. That is adopting the estimation of the patentee himself as to 

the amount of the injury. ~Ir. WAD LEIGH. My f-riend from .Michigan will pardon me for 

saying that that is the law now. Mr. CHRISTIANCY. That is the law now; I have already so stated 

heretofore. It is the law p.ow thAt where the patent is of that class 

of patents where the patentee must look for his profits to the use of 

his invention by others, if he has already given licenses in a sufficient 

number of cases to establish the value of a license fee, that is the 

amount of his recovery, and that is an adequate recovery, and that 

is full compensation according to his own estimate in that class of cases. Now, t_here is another-class of cases provided for by this bill, 

where a sufficient number of sales of licenses have not been made to 

establish a proper license fee. There it provides that it shall be 

established from all the evidence in the case, and as applied to any 

patents where the patentee mnst get his profit by the u~e of his invention by others it is perfectly just and equitable, and is a fair and 

jast compensation; but as to anotlwr class of cases where it is to the 

interest of the patentee that it should not be used by any other per- sons but himself, then it would not be; and, as I have already indicated, I should like this bill much better if it provided for that class 

of cases and ~ave profits. I think, therefore, that the bill as it now stands, with tne exception of that single class of cases, is right in 

principle and gives just aml adequate compensation. 

ThePRESlDINGOFFICER, (Mr.ROLLIXSin the chair.) Theques- . tion is on the amendment of the Senator from Illinois, [Mr. DAVIS.] 

The amendinent was rejected. 

Mr. DAVIS, of Illinois. Now let the other amendments be read in 

order. · The PRESIDING OFFICER. The next amendment of the Senator 

from Illinois will be read. 

The SECRETARY. It is moved to strike out, in section 2, lines 36, 

37, 38, 39, and 40, to the word'' aforesaid," inclusive, and' in lieu thereof 

to insert: 

In taking an account of profits for the use of an invention secured by a patent where the patentee or his assignee shall elect to demand profits, the whole, or such 

portion of the actual profit or savi.Ji.g derived from such use shall be allowed to the 

patentee or his assignee, as the conrt may deem juse in order to secure a fair com- pensation for such use, having regard to what would be a fair royalty therefor in 

view of the skill exhibited in making such invention, and the value tliereof to the 

:Parties using the same, and to all the circumstances of the case; and. the master, m taking and stating such a-ccount, after stating the amount of profit or saving actually ma~e by S'lch use, shall give and state what portion there<Jf would, in hiS 

judgment, be such fair compensation as aforesaid, to be subject, however to the 

modificat'.on and judgment of the court. But when & patentee or his assi~ shaJ}' e~ect to demand an account o~ profits against any person, for an infrin~ement o£· his patent, he shall not be entitled to recover damages for the same infrmgemeDt. 

The question. being put, there were on a division-ayes 6, noes 23; no q~orum votmg. . .Mr. DAVIS, of lllinois. I give it up. . The PRESIDING OFFICER. The amendment is withdrawn. 

Mr. DAVIS, of lllinois. No; I do not withdraw the amendment. 

I want it to remain. I do not want, in the present ~roper of the 

Senate, to do anything discourteous; but I want the amendment to 

be voted upon. I do not want to withdraw it because I believe it is. right. 

The PRESIDING OFFICER. There was no quorum voting. 

Several SENATORS. Yeas and nays. 

lli. DAVIS, of Illinois. I do not care about the yeas and nays. I 

think there is a quorum here if everybody will get up. Let there b&- a recount 

The PRESIDING OFFICER. The Chair will again submit the 

question to the Senate. 

The amendment was rejected; there being on another division-ayes, 10, noes 29. 

The PRESIDING OFFICER. There is one more amendment of 

the Senator from Illinois, which will be read. 

Mr. DAVIS, of lllinois. I have no further amendment to the second. 

section. . The PRESIDING OFFICER. This is to the third section. 

Mr. DAVIS, of illinois. But there may be some other amendments. to the second section; but if none be ofl"ered, I move now to add to 

the third section : 

Provided, however, Where an appeal is allowed from an interlocutory decree· estab).ishin~ the va_lidity. of a patent or its infringement, the. complainant may be 

permitted, m the discretion of the court, to go on and take his :wconnt, subject tofhl:f~~~ of costs and counsel fees, if the decree is reversed, and on giv~ng security 

I put it in the imperative originally, "shall be permitted." At the 

suggestion of the Senator from Massachusetts, I have altered it to 

"may .be permitted in the discretion of the court." After a decree is 

rendered in the circuit court, and the case is appeale<'Lto the Supreme 

Court, it is there for three years. During that time, as the law now stands, there is nothing done at all. It is advisable I think that thecomplainant, at his own peril, should be permitted to go on and take 

his account. . · The PRESIDING OFFICER. The Senator from Illinois propoBOS 

to amend the third ~ection by an amendment which will be reau. The SECRETARY. It is moved to add to the third section of the bill 

the following words : 

ro!Jid~d, h.owevtn:, :wtere an appeal.is !illo~ed from an interlocutory decree. estab).ishing the va)_idity_ of a patent or 1~s infringe~ent, th~ complainant may be permitted, m the discretion of the court, to go on and take. his :wcount, subject tG 

r:~:o~~ of costs and co~l fees, if the decree is reversed, and on giving security· 

The amendment was agreed to. 

Mr. HOAR. I move an amendment to section 7, which was intended 

by the committee to be in the bill originally but was accidentally 

omitted. I have shown it to all the members of the committee and 

have the assent of all the members of the committee who are here· to o:ffedt. 

The SECRET AnY. It is proposed to amend section 7 by adding thereto· the following : 

And whenever a patent has been issued to two or more persons jointly, describing or repres!.'nting matter which was of the invention of only one of them, and 

for which the inventor thereof might lawfully have taken a. separate patent t,o. 

himself, said invention may be secnred to the first inventor thereof by reissue of 

the patent so jointly issued, upon proceedings ha~ as in other cases of reissue, and. 

with the consent in writing of the as.signees, if any, of such original patent. 

•)Ir. CONKLING. I should like to inquire whether' this pt'ovision 

is to be retroactive, and if retroactive there may be something in the 

amendment which answers my questions what is to become of tho88' 

who have vested rights ~ 

Mr. HOAR. Mr. President, the vested rights are all thoroughly 

saved, because i.t is only to be by consent of all parties in interest. 

l\Ir. CONKLING. Perhaps the Senator himself if he can do s0 will 

read the amendment. I have not yet been able to hear it jnst as it is 

meant to be. ~fr. HOAR. The original section provides thal where a patent baa 

been issued to one person for an invention actually made by him 

jointly with another, or a patent has been issued to several persons 

for an invention made by only one, a reissue may correct that error. In other words, the same principle which now is applied in the existing patent law of correctin~ mistakes in the descriptions of the invention by a reissue is applieo. to the correction of mistakes in the description of the owner. That is, where a patent has been issued by 

mistake jointly where it belongs to mae, or issued by mistake severally 

where it belongs to two or more, the reissue may correct the error. That is the original section. Now the amendment is this: 

And whenever a patent has been. issued to two or more persons jointly, uesmibing or representing matter which was of the invention of only one of them, and for 

which the invent{)r thereof might lawfully have taken a separate patent to him- self, said invention may be secured to the first inv~ntor thereof by reissne of the 

patent so jointly issued, upon proceedings ha~ as in other cases of reissue, and 

with the consent in writing of the assignees, if any, of uch original patent. 

That is the whole of it. 
. 

"1879. CONGRESSIONAL RECORD-SENATE. 525 

Mr. CONKLING. The Senator from MaBBachusetts may be :r;ight 

dn saying that the latter words he reads cover the case of vested.rights. 

Without his assertion I should not be able to say that they do provide ·<for- aBSignees; but certainly assignees are not the only persons who .may intervene; and I take it the Senator does not mean by a statute 

which shall speak backward to change the rigbts of an.y person whose ~lights have become fixed. And in this same connection I call the 

.a.ttention of the Senator from Massachusetts, who seems to be regarding this seventh section, to which his amendment as printed applies, 

to line 4, _which seems to be a very inapt line to effectuate his meaning: 

Or a patent bas been issued to several persons for an invention made by only -one or more of them. · 

SRrely that is not what the committee means. Mr. WAD LEIGH. Whenever it is in ordei: I propose to ask the 

-coasent of the Senate to amend what is evidently a verbal inaccu- -racy, and it should be amended as the Senator from New York sug-

_:gests. · Mr. CONKLING. What is the amendment, if the Senator pleases f 

Mr. WAD LEIGH. To insert after the word "person," in the sec- ~nd line of the seventh section, the words "as sole inventor;" to insert 

after the word "persons," in the third line, the words "as joint inventors;" and to insert after the word" invention," in the fourth line, 

the word" not;" and after the word "by," in the fourth line, the words ~'all of said persons jointly;" so that the section as amended will read: 

Whenever a patent has been issued to one person as ole inventor for an inven-

-tion actually made by him jointly with another or others, or a patent has been 

issued to several persons as joint inventors for an invention not made by all of said 

persons jointly, &c. · 

There can be no objection whatever to that verbal corr-ection. 

Mr. HOAR. It seems to me we are passing away from the first point 

which is made by the Senator from New York, and perhaps it would 

be more convenient to him and the Senate to deal with that and settle 

it in the first place. 

Mr. CONKLING. I did not mean to divert attention from the. point at 

which the Senator from Massachusetts was aiming; but as a remark has 

-been made about this, I wish to say that if the four amendments, for 

there are fou.r of them, indicated by the Senator from New Hampshire were introduced, it might be that the difficulty I suggested, save in one respect, would be cured. The criticism that occurred to me upon 

the language, (and I commend it to the Senator from New Hamp~:~hire,) 

is that the premises stated are not those from which any ·error might 

be infened at all in such an issue as is suppo ed; and yet his proposed 

.amendments aSbume thateT"ery such case as the section describes would 

be the case of error. I do not so understand it. 

Mr. HOAR. Mr. President, the case provided for by this amendment which I have moved is a case .where the original patent would 

be void without a reissue, and therefore where, strictly &peaking, 

there can be no rights under it to preserve; but at the same time the 

section undertakes to provide that where there is an assignee in 

writing of the origin:al incon-ect or void patent, who, of course, is an assignee ofthe party who gains the reissue, he ought tohavehis own making good of the patent to him inure to the benefit of his assignee; 

and in that point of view the criticism made by the Senator from 

.New York is a just one, and should be yielded to, that to merely de-

-scri'be the assignee does not cover all parties in interest, and the language !'hould be extended by using these words, "with the consent, 

in writing, •of the assignees, if any, of such original patents, such re- issue to inure to the benefit of all parties lawfully claiming under the 

original patent as if their cl~im bad arisen nuder the patent so reis- -sued," or s0me phrase of that sort. 

Mr. CONKLING. That is the idea I bad. 

Mr. HOAR. · I will put-that in writing, and move it. 

Mr. EDMUNDS. While the Senator is putting that in writing, I 

wish to suggest that this is an interesting and important point in this 

-bill, and according to something tha.t I said yesterday, I move that 

-the Senate proceed to the consideration of executive business. 

Mr. HOAR. Will the Senatorfiom Vermontallowthis amendment 

to get in before he makes the motion' 

Mr. EDMUNDS. It may get in and be printed. . Mr. HOAR. Why not take the vote on it t Nobody objects to it. 

Mr. EDMUNDS. Because we cannot tell in a moment what may -be the full effect of it. I want to look at it myself. I move that the 

Senate proceed to the consideratio~ of executive business. 

The question being put, there were on a division-ayes 9, noes 17; .no quorum voting. 

Mr. 'VADLEIGH. Let us have a call of the Senate.· · The PRESIDING OFFICER. Are the yeas and nays demanded Y 

Mr. EDMUNDS. I do not demand anything ; there does not seem to be a quorum here. 

The PRESIDING OFFICER. The Secretary will call the roll. 

The Secretary called the roll, and forty-seven Senators answered 

:to their names. · The PRESIDING QFFICER. Forty-seven Senators havd aDSwered 

to their names. There is a quorum present. The question now recurs <On the motion of the Senator from Vermont. · Mr. EDMUm)S. :Mr. President, I understand that nobody has yet 

moved to adjourn over until Monday; an important amendment of 

the Senator from Massachusetts is not in print, and I appeal to the 

Senator from New Hampshire to let this matter go over until to-morrow, when we shall have a sitting to finish the bill, with the under- .sta.nding that it shall be finished. · 

Mr. WADLEIGH. The amendment of the Senator from Massachusetts is one that nobody can object to, and it is to a section that there 

is no objection to on the part of any one, as I understand. I trUBt 

the Senate will go on with this bill. It haa been long before the Senate, and it seems to me from what I know of it that we can soon finish it. 

The PRESIDING OFFICER . . Does the Senator from Vermont 

withdraw his motion' 

Mr. EDMUl\""DS. That is the pending motion. I have moved that 

the Senate proceed to the consideration of executive busiues . The PRESIDING OFFICER. The question is on the motion of 

the Senator from Vermont. • The question being put, there were on a division-ayes 15, noes 18 ; no quorum voting. 

Mr. EDMUNDS. Now, I nsk the Chair to count the Senate to save time; and I hope my friend from New Hampshh·e, who is certain to 

have his bill disposed of. to-morrow, will assent to this thing. I think 

there is a quorum in the Chamber. 

The PRESIDING OFFICE'R. The Chair will count the Senate. 

Mr. EATON. I move that when the Senate a<ljourns to-day it be 

to meet on Monday next. 

The PRESIDING OFFICER. There is not a. quorum present. The 

motion is not in order. The Secretary will call the roll. 

The Secretary proceeded to call the roll, a.nd forty-four Senators 

answerecl to their names. The PR_ESIDING OFFICER. Forty-four Senators have answered 

to their names. A quorum is present. The question recurs em the 

motion of the Senator from Vermont that the Senate prolieed to the 

consideration of executive business. 

Mr. EATON. Will the Senator give way for me to make a motion 

that when the Senate adjourns to-day it a-djourn to meet on Monday next' · • 

The PRESIDING OFFICER. Does the Senator from Vermont 

withdraw his motion f 

Mr. CONKLING. He does not have to withdraw it. 

The PRESIDING OFFICER. Th~ question is on the motion of the 

Senator from Connecticut, that when the Senate adjourns to-day it be 

to meet on Monday next. 

Mr. ANTHONY. I hope, if we do not finish this patent bill, we shall not adjourn over, but shall sit to-morrow. 

Mr. KERNAN .. I hope we shall adjourn over. If we cannot finish 

the bill to-day, we shall not be able to do so to-morrow, aml there is no use of coming here to-monow. 

Mr. ilTTHONY. I fear we shall never finish it. • The PRESIDING OFFICER. The question is on the motion of the 

Senator from Connecticut, [1\Ir. EATO:N.] . The motion was agreed to. 

The PRESIDING OFFICER. The onestion recurs on the motion 

of the Senator from Vermont, [Mr. EDMID.-ns,] that the_ Senate proceed to the consideration of executive business. 

The motion was not agreed to. 

The PRESIDING OFFICER. The question recurs on the amendment of the Senator from Massachusetts [Mr. HOAR] to the seventh 

section of the bill . Mr. WAD LEIGH. I hope the amendment will be adopted. 

The amendment WM agreed to. 

Mr. DAVIS, of Illinois. Mr. Presiden.t, I offer an amendment to 

the fifth section--

Mr. CONKLING. Before that amendment is read, will the Senator 

let me inquire what amendment it was which the Senate adopted a moment ago Y • 

The PRESIDING OFFICER. The amendment of the Senator from 

Massachusetts, [Mr. HoAR.] 

Mr. CONKLING. The amendment of the Senator from Massachusetts as offered at first, or as afterward modified f 

The PRESIDING OFFICER. As modified by him. 

Mr. CO:I\TKLING. May we hear it read f It never has been read as modified. · 

Mr. HOAR. I hope no advantage will be taken of declaring that 

vote in the confusion. 

Mr. CONKLING. I do not know that I shall have any objection to 

it; but I want to know for information what we have adopted. 

The PRESIDING OFFICER. The amendment will be read as adopted. .. . The SECRETARY. · The amendment was to add to section 7: 

And whenever a patent has been issued to two or more persons jointly, describinoorrepresentingmatter which was of the inTention of only one of them, and for which 

the inventor thereof might lawfully have taken a. separate J?atent to himself, said 

invention may be secureu to the first inventor thereof by r6Jssoe of the pP.tent so jointlv issued, upon proceedings had as in other cases of reissue, and with t.he con- sent in writing of the assignees, if any, of such original patent; such reissue to inure to the benefit of all persons· claiming under the originN. patent as if their 

claims had arisen under the patent so reissued. 

Mr. EDMUNDS. Now, :Mr. President, I should be glad to have the 

Senator from Massachusetts tell us what is the necessity for this provision in view of the exjsting law f 

Mr. HOAR. I underst:tnd that the existing law does not permit t.he 

reissue of a patent whlch has been issued to two personB in the name of one, or the reverse. That is the necessity for it. Does the Senator from Vermont understand ot.herwiseY 

Mr. ED~IDND~. I do not understand anything about it. I only 

want to understand precisely wh:1t ~his thing means. 

• 
. . 

526 CONGRESSIONAL RECORD-SENATE. JANUARY 17,. 

Mr. HOAR. I understand the patent· law at present to permit in case of a defective claim, a defective statement of the invention by reason of claiming more than the party is the original inventor of, or by reason of claiming less than the party is the original inventor 

of to be amended by a reissue which may give the party a good mo- no'poly to the time when the original patent would have expired; 

but there is no provision in the existing patent law for the case where 

the defect is in the allegation of invention, that is, where the invention is the invention of one and is described wrongly as .the invention 

of two or where the invention is the invention of two jointly and is 

described wron!rinlly as the invention of one. The section as originally drawn c~es one of these evils, apd this amendment is intended 

to cure the other. • Mr. EDMUNDS. Yes; but does my honorable friend from :Massachuoetts understand that it would invalidate a patent issued in the 

way he describes because it turned out that the invention was an invention of two instead of oue 'i 

Mr. HOAR. Yes, sir, I do. . J..{r. EDMUNDS. Then under this ~rovisiop., supposing that to be 

the law, which I of course am entirely ignorant about, and certainly 

would not put my opinion against my honorable friend from Massachusetts--

Mr. HOAR. I beg the Senator not to ptlt too much reliance upon 

mine. 

Mr. EDMUNDS. I do not mean to put too much. 

Mr. HOAR. This amendment was drawn, I :will say, by one of the 

most distinguished patent lawyers in the country to cure this evil, 

and I have no doubt he knows all about it. 

:Mr. EDMUNDS. I can see force in the case as the Senator from ::\i~sachusetts states it, but I am afraid, I have a suspicion, for I 

want to state it very mildly, that under this provision you might get a patenton the books issued for an inv~ntio~o~ one ma:n wbohadnot 

got his patent, nor undertaken to get 1t, w1thm the t1me, (one that 

had gone into public use; and therefore one in respect of which he 

had lost and justly lost all his rights,) and under this form of reissue 

in the name of ~nother man you will have covered that and scooped 

into this monopoly a provision of security that ought not to exist. 

Mr. HOAR. How is that possible' If the Senator from Vermont 

will pardon me, let me ask what must have happened to have this 

clause apply Y The Senator from Vermont and somebody with whom 

he compares notes and acts ininventions jointly, invent an improvement. A patent is taken out on the application .of one of them as his work, his invention, and thereupon it runs some time. He undertakes to establish it in court by a suit, and the defense is set up, or at any rate he goes to a lawyer and finds that· it could be successfully 

defended against on the groun<4 that he was not the original and sole 

inventor, in the language of the patent law, but that he and some- body else invented it, or the reverse, whichever the case might be. 

Thereupon he goes to the office, and having had all the time a patent 

declaring him to be the original and sole inventor he ·says, "Mr. AB 

should be associated with me and I want a patent to run for the rest 

of the time that is unexpired," stating it correctly. Can that possibly 

be the instrument of any fraud, or can it enable the Senator from 

Vermont to secure to himself something which the public have been 

using without claim or pretense of ownership on his part for a series 

of years! . Mr. EDMUNDS. The fundamental theory of the patent law has 

always been just a-s the specific letter of the Constitution is, that a patent is to secure to the discoverer-! believe that is the word of the 

Constitution-the exclusive right to what he has discovered; and it 

has always been an essential point, as I understand it, with great 

respect to my honorable friend, in the fundamental justice of the 

patent law, that the patent should be granted to th~ man who made 

the discovery and not to anybody else. Now, then, if you undertake 

by this first step in legislation of this character to say that a patent 

which has been issued to one man may one year or two years or ten 

years afterward be -reissued to another, whether that other man is 

to have it independently or jointly with the patentee, then I say you 

do open the door to great danger of fraud and of injustice to the 

public. · The bill is not altogether satisfactory to my mind as it st.1.nds, but 

if it were to have any one feature of danger that is greater than 

:mother, of litigation and trouble and abuse, I am very much afraid 

it would be this provision. 

Mr. HOAR. Will the .Senator allow me to ask him a question t 

Mr. EDMUNDS. No; if the Senator will pardon me, I will go on. Mr. HOAR. I thought the Senator would like to hear the point I 

wished to present to him. 

Mr. EDMUNDS. Probably I should; only I must say now what I 

have to say, or I shall forget it. The difficulty under which I aiQ. 

laboring at this moment is the circumstance that the amendment of 

the Senator from Massachusetts is in manuscript, modified or changed 

once or twice, and merely hearing it read at the desk, very likely I see difficulties tha.t do not exist. Perhaps the difficulties do exist. 

The suitable thing in an important matter of this kind is to have it 

where the eye can run over it and reftect upon it a. moment or two. 

Perhaps I am entirely wrong; but I wan~ to put in a caveat, as they 

say in the patent law, so that if we turn the world upside down by 

all sorts of lawsuits and squabbles people have got into through this 

lmsiness, it will not be through any fault of mine. 

- Mr. HOAR. ·I should like to make an inquiry of the Senator from 

Vefmont, if he will permit me. · :Mr. EDMUNDS. With pleasure. 

:Mr. HOAR. I inquire whether he understands that the purpose of· my amendment is to permit au issue to anybody not the true inventor r· 1\Ir. EDMUNDS. I do not understand that that is the purpose of it. 

Mr. HOAR. And does th~ Senator mean by his suO'gestion to intimate an opinion that the present policy of the patent law, the ancient 

poli<;ly of the patent law, permitting a reissue in ca-se of defective 

description, is an unwise or dangerous one; because this amendment 

and the section which is to be amended design to extend the provision 

which permits a reissue to cure a mistake in the description of the 

invention, also to cure a mistake in the ownership of the invention,. and to make a true allegation where the patent was void because the 

allegation was false' 

Mr. EDMUNDS. The answer to that is tbat a mistake in owner- ship is a mistake that has no right to have occurred. It is impos-· sible that any honest man one time in ten millions can have supposed 

himself to be the inventor of a particular thing unless he was, unless. 

there had been a prior invention of somebody with whom he had no- connection and about whom he knew nothing ; and if so his patent 

of course would go for nothing. Therefore this provision is to cure up, in favor of an inventor whose invention has gone into public use and who ha-s not obtained a patent, his rights and monopolies by 

issuing a patent that will cure bis invention as well as that of his. 

friend and neighbor or partner, or whoever he may be. 

As I say, so that my friend from Massachusetts will not ·misunderstand me, I am speaking of this thing off-hand. I only heard the 

amendment read at the desk; and I cannot tell with any certainty 

satisfactorily to my own mind whether the amendment on a caneful 

scrutiny and study would be right or wrong. I only want to say that we are dealing with important interests in a very sudden way: by 

making a provision of this kind. 

The PRESIDING OF:I!..,ICER. There has been some modification of 

the amendment, and the Chair will have it read before putting the 

question to the Senate. 

Mr. CONKLING. If the Senate is to vote upon the amendment, or- whether so or not, I venture to make one, po ibly two suggestions. 

As a mode of making my suggestion I read the latter words in man- uscript of the amendment: 

Such reissue to inure to the benefit of all persons clai..n:zinj!' under the original 

patent as if their claim had arisen unuer the patent so reissued . 

1 think there are two classes of cases which this amendment forgets ~ 

I feel quite sure there is one class. I will state that of which I have· the most doubt first. A man claiming under a patent in some form. as it was originally, received his rights, whatever they were, ten years 

ago. The time when he received them may be of the essence of thoserights. This provides that his rights, after this act takes effect and. 

after a reissue has occurred, shall be as if they obtained under that 

reissued patent. I am inclined to think that a good many cases which 

with a little reflection might be stated would be ignored by a provision of that kind. 

But I come now to the second cla-ss of cases, of which I feel more· sure.. The Sena.tor from Massachusetts says that a patent issued to one man for an invention conceived by two would be void. I will 

take such a case. A patent was issued ten years ago. Attempts ha.vebeen made in the courts to enforce it. Issues are-pending to test thevalidity of the patent. This bill becomes a statute. A reissue takes. 

place, and now, if I understand these words, as the tree has fallen so- must it lie, and everybody's rights concerned must be as if they had 

inured under the reissued patent. In other words, if I apprehend it,. 

the defense, the chief defense, perhaps the solitary defense, set up by men who have already ):>ecome liable for costs and ·counsel fees and so on, rests upon a fact which nuder this amendment would cease·t() 

be. Is not that so ' 

Mr. HOAR. The Senator from New York will pardon me. His ar- gument applies to the existing law in regard to all reissues. 'Jllie 

point he is now making, if I understand him, is not confined to "the 

extension of the law by this amendment," but lJ.pplies to the whole 

reissue _[lolicy. That point, which is a good one we suppose, is largely 

covered by the sixth section : 

No machine or other article made prior to the surrender of a. patent., and the issue 

thereupon of a new patent, whiflh, or the use of which, did not infringe such sur- rendered patent, shnJ.l be held to be an infringement of any oti the clrums of th!.' new patent not existing when such machine or other article was made. .All rights of action accruing to a patentee, his executors, administrators, or assigns, for profits 

and damages on account of any infrin~ement of a patent, prior w i..ts surrender for a. reissue, shall remain unaffected by such surrender, :>.nd no suit shall be barredl t>J:' 

abated by such surrender. 

Mr. CONKLING. The words'' prior to the currender," if the Senatmr 

will pa.rdon me, are not in the print which I have, and which is tho 

latest print of the bill. . Mr. HOAR. There ma.y be a later prini tha.n the eopy I have.. 1 run reading the sixth section. 

Mr. CONKLING. What line' 

Mr. HOAR. What I read begins at ti£., first of the section : 

No machine or other article made prior tothesurrem1erof a patent, and theiSsn& 

thereupon of n. new patent, which. or the use of which, did not infringe such sur- rendered patent, shall be'held to be :m infringemElnt of :my of the claims of the new patent not existing when such machine or other 'lrticle wns mo.lle .. 

1\Ir. CONKLING. That is here; but the Senator read it the first 
1879. CONGRESSIONAL RE_CORD-. SEN~t\.TE. 527 

time ''all rights of action accruing to a patentee, &c., prior to the 

surrender." That is not in my bill. 

Mr. HOAR. It is. on t.he ninth .line. I belie-ve the two sections are 

identical in the print I read from and the other print. 

Mr. CONKLING. It is possible that I misheard the Senator or he 

misread. I understood him to read: , 

All rights of action accruing to a patentee prior to the surrender. 

~h. HOAR. I read the language of the bill, as follows : 

All rights of action accruing to a patent~ * *. * for profits and ~ages on account of any infringement of a patent pnor to 1ts sw:render for a reiSsue, shall remain unaffected by such surrender. 

I so read, and it is so in this copy of the bill. • Mr. CONKLING. The Senator does not apprehend me, or I him. I 

understood him to read: 

All ri.!!;hts of action accruing to a patentee prior to the surrender. 

The bill that I have reads: 

All ri~thts of action accruing to a patentee, his executors, administrators, or as- signs, for profits and damages on account of any infringement of a patent, prior to 

its surrender for a reissue. 

The difference between the two things is very marked. It is not 

typographical at all, but it i,s very substantial. 

Mr. HOAR. I will send to the Senator from New York the two 

copies of the bill which I now have. If 4e h;ts a third print I do not 

know what it is. · Mr. CONKLING. I read mine as it is. I do not know whether it 

is a third or second print. [Examining the bills.] Mine resembles one of the copies the Senator sends and does not resemble the other. 

Mr. HOAR. The Senator is mistaken; the two copies are identical. 

Mr. CON:KLING. They are not identical as to the paging and lines 

certainly. 

Mr. HbAR. No, they are not identical as to the paging. 

Mr. CONKLING. Or the lines. 

l\fr. HOAR. Or the lines ; but the sections are identical in language, 

without any question. 

Mr. CONKLING. That may be. I do not think that the honorable 

Senator from Massachusetts apprehends the point I stated altogether, 

and if he'does not I assume that it is my fault. The suggestion I 

ing or representing matter which was of the invention of only one of them, and: 

for which the inventor thereof might lawfully have taken a separate patent to him-· self, said invention may be secured to the first inventor thereof by reissue of thepatent so jointly issued, upon proceedings had as in other cases of reissue, and 

with the cons~nt in writing of the assignees, if any, of such original patent ; such 

reissue to inure to the benefit of all persons claiming under the original patent as. 

if their claim ha<l arisen under the patent so reissued, except as provided in the- sixth section. 

The question being put on the amendment, there were on a division-ayes 9, noes 14 ; no quorum voting. 

l\Ir. CHRISTIANCY. I move that the Senate do now adjonrn. 

The motion was not agreed to. 

The PRESIDING OFFICER. The question recurs on the amendment of the Senator from Massachusetts, [Mr. HoAR.] 

~fr. ED~fUNDS. Not until we J~et a quorum. 

Mr. WADLEIGH. I move a calJ of the Senate. 

The PRESIDING OFFICER. The question is on the amendment 

of the Senator from Massachusetts to amend the seventh section of· the bill, on which no quorum voted. The Secretary will call the rolL 

The Secretary called the roll and forty-six Senators answered to· 

their names. The PRESIDING OFFICER. A quorum is present. 

The question being again put upon the amendment, a division was called for ; and the ayes were 21--

Mr. WAD LEIGH. I ask for tbe yea<J and nays. 

The yeas and nays were o~ered; and being taken, resuited-yeas. 

34, nays 8; as follows : YEAS-34. 

Allison, Eaton, Lamar, Rollins, Barnum · Fe~, McMillan, Saunders, Beck, ' G<lr on, · Maxey, Spencer, Booth, Harris, Mit(lhell, Voorhees, Bruce, Hereford, Morgan, Wadlei~h. 

Burnside, Hoar, Morrill, Windom, Christiancy, . Ingalls, Plumb, Withers. 

Cockrell, Johnston, Randolph, Dawes, Kellogg, Ransom, 

~AYS-8. 

Conkling. Edmunds, McDonald, Saulsbury, Davis of Ulinois, :McCreery, Matthews, Whyte. 

ABSENT-34. 

seek to make is that under this amendment the rights of all parties Anthony, Coke, Hill, 

will become triable aa if the original patent had been like the reissued Armstrong, ConOTer, Howe, 

Paddock, 

Patterson,. 

Sargent, 

Sharon, 

Teller, 

Thurman, Wallace. 

patent, and as if the date of that patent had been as of the reissued Bailey, Davis of W.Va., Jones of Florida, 

dat-e, so that a man who is defending upon the prior patent may be til~~ ~~=: "Jr:;:~~ Nevada, 

entirely cast and overthrown in his defense by this section. If it Butler, Eustis, Kirkwood, 

bas that effect, I do not think the Senator from Massachusetts means · Cameron of Pa., Garland, McPherson, tlm t. Cameron of Wis., Grover, Merrimon, 

Mr. HOAR. I underst..'tnd that the sixth section makes a general Chaffee, HrunJ.in. Oglesby, 

provision on that subject, coverj.ng all reissues. So the amendment was agreed to. 

Mr. CONKLING. Does it make a general provision in a case of this .Mr. DAVIS, of lllinois. Mr. President, I do not like to trouble thesort! Here is a suit in equity which has been pending for five Senate when it"is weary, and from the tempermanifested in relation 

years, and there are a great many such, and one chief ground of to this bill I can see the fate of my amendment; bu't \conceive it to 

defect is vice in the issue of -the original patent. The Senator's be my duty to present it. It is an amendment to tlie fifth section,. 

amendment declares that the patent may be reissued, and when reis- which I a-sk the Secretary to read. 

sued, that the rights of all persons claiming under the griginal patent The PRESIDING OFFICER. The amendment will be reported. 

shall be as if they claimed under the reissued patent. Does not that The SECRETARY. It is proposed to add at the end of section 5 theretroact and deprive the party defending of the defense· wlich he following proviso: 

sets up f Provided, That it shall not be lawful to grant any reissue of any patent for any Mr. HOAR. It is easier, Mr. President, to meet the objection taken in-rention, except the invention which was embraced in the origin..'\! patent. 

by the Senator from New York, which is based on a misunderstanding 1\Ir. DA VIS1 of Illinois. Mr. President, the Senator from New Ramp- of the operation of the bill, by providing language which shall re- shire, in his speech the other day, enumerated the particulars in which move doubt, if there is any doubt of the meaning. It is very clear, the new section relating to reissues is an improvement on the old. 

of course, that it would not be just thaC a reissue should affect the The substance of it all is that in granting a reissue the Commissioner 

rights of persons who are contesting with the owner of the original is to be confined to "the papers filetl in the office before the original 

patent in any particular. · · patent issued":-' ' without resort to the model,"-and it is implied that 

Mr. CONKLING. At that point I ask the Senator, if he will allow the reissuo may be granted for all that might have been patented on me, to read t.he latter words of the amendment and give us his opin- the iirst application upon the said ori!rinal papers, for the court is 

ion whether they are not open to the criticism I state. directed to inquire whether it is for anything except "the same invenMr. HOAR. The language of my amendment is that such reissue tion, shown, contained, or substantially indicated in the specification 

shall "inure to the benefit of all persons claiming under the original or drawings of the original application and its amendments, and 

patent as if their claim had arisen under the patent so reissued." But which the patentee would have been entitled to include as a part oi 

I do not think that would be construed to repeal an .express section his invention on the patent originally granted." 

which stillstands in the la.w, that in aU cases of reissues a machine The first part, confining the Commissioner to the original papers, is 

shall not be held to be an infringement of the new patent if· it was right; although, if the reissue is to be confined to the same invention 

not an infringement of the old. The two would stand together. as that described in the original patent, I can see no harm in refer~ing 

Mr. CONKLING. If the Senator will pardon me, what becomes to the model. 

of the costs, for example in pending cases, under that theory now But the effect of the whole section taken together is to allow the 

of construing the sixth and seventh sections' Commissioner to go outside of the invention secured or indicated by 

Mr. HOAR~ Pending cases would be decided both as to damages the origin3!l patent and to put into the reissue anything suggested by 

and costs and in judgment, in all respects as if the reissue had not the original application and papers. This will be productive of great 

taken place. evil. 

:Mr. CONKLING. I should not w::tnt to defend a man on that When an application is made for a patent -generally a struggle com- theory. mences·between the applicant and the Patent Office. The applicant 

The PRESIDING OFFICER. The question is on the amendment 'wishes his patent to cover everything ; the office wishes to restrict it 

of the Senator from Massa-chusetts [Mr. HoAR] as modified. within reasonable bounds, so as not to cover any other patent or any-

:Mr. HOAR. I will modify the amendment. further by adding the thing that has been known or used before. 

words "except as prov·ided in the sixth section." After much negotiation, contention, and argument the office finally 

The PRESIDING OFFICER. The Senator from 1.Iassachusetts decides what it will allow and the patentee acquiesces. If he does 

modifies the amendment. As modified it will be reported by the Sec- not acquiesce, he has the right to appeal. Say he does not appeal, but 

retary. . acquiesces, ir. it ns>t evident that what he did not then get allowed to 

The SECRETARY. It' is proposed to amend section 7 by adding him was decided to be not hts f He now waits for eight or ten years thereto the following: until there is another Commissioner or examiner and un1-il the facts 

And whenever a patent baa been issued to two or more persons jointly, describ known to them are forgotten, and then goes to the Patent Office for-

• 
,. 

.528 CONGRESSIONAL RECORD-SENATE . JANUARY 17, 

.a reissue. The present officials knowing nothing of what ·has transpired except what correspondence may be on file, grants all he wants, 

for it is all covered by his original papers. Thus he gets the original 

decision of the Commissioner reversed without an appeal; or rather, 

.his new applicati'ln (for reissue) serves him as an appeal from the 

first decision. In this way some of the most unjust reissues have been 

granted. 

Again, after a patent has been issaed the public are free to occupy 

the ground not covered by it, and confiding in the action of the Patent 

Office which has confined the patentee to a certain invention, de-

..scribed or indicated, in his patent, capital is often expended to aL'U'ge 

amount for the purpose of using that which is not patented. If are- issue can reverse all this, great injustice is done throughout the com- munity. Whereas, if the patentee, desiring to claim some invention 

indicated in his first papers and not being part of the invention which was patented, is obliged to make a new original application, he is then .subj~cted to all the rules and defenses which his delay and the public ose create. The public thus has some protection. 

To obviate these difficulties, the courts have decided, under the 

present law, which only authorizes a reissue for "the same invention," 

.that a reissue can only be granted for the same inv6ntion which is 

patented, or attempted to be patented, in the original patent, and 

not for a different thing, although mentione~ or alluded to in the 

-original. papers. If he wants to patent such different thing, he must 

make a new and original application, and be subject to all the defenses 

that time and public use may have created in the mean time. 

Thls was clearly illustrated in a late case (the nitro-glycerine and ~ant powde.r case) decided at the present term of the Supreme Court, m which Mr. Justice Bradley wrote the opinion. 

There a German by the name of Noble applied for a patent for ·several things, among others, first, for a process of exploding nitroglycerine by detonation in contact with it while in a confined state; ~econd, for a new compound of nitro-glycerine with gunpowder and 

..()tber substances. A :patent wa.q issued to him for the process only. 

He afterward surrendered this patent (after some years) and got a a-eissue for both inventions. The court held that reissue to be void, 

not being authorized by the statute. Even as the law now stands ,great abuses are brought about by reissues; but if the discretion of 1he ·Commissioner is enlarged, so as to empower him to grant reissues for 

invention not included in the original patent, the way would be open 

for much greater abuses still. This feature of the proposed new sec- tion, which while it seems to restrict the Commissioner's power actually enl:irges it, seems to me very objectionable. The section ought 

at least to have a proviso confinin~ the power to grant reissues within 

the same bounds that now exist. ~omething like the following would answer the purpose : 

Provided, That it shall not be lawful tQ grant any reissue of any patent for any ·inventioD, except the in'"ention which was embraced in the <1riginal patent. 

In the ar&,~rilent of the nitro-glycerine case the counsel of the pat- ·entee contendeil earnestly, under the law as it now stands, for the 

Commissioner's powet· to grant a reissue for anything des.cribed in 

the original application. The ·court decided that he had no such •power, for that would be to take up the case anew, and grant what 

has been refused by the former CommissionE."r or waived by the pat- -entee. The privilege of having a reissue is intended to correct mistakes or inadvertences, not to revise ·the action of the former Com- . niissioner or the former action of the same Commissioner. To allow 

this to be done would, as I have remarked, introduce great evils, 

which none but a person practically acquainted with the subject ·(:an adequately appreciate. The section, in my judgment, has the 

effect to open this door to abuses. It seems to impose restraints, but 

it actually enlarges the powers of the Commissioner. 

It does this by implication. It says that the reissue shall not con- tain anything that was not described or indicated in the original 

application or amendments 01· correspondence, which by a negative 

pregnant means that it may contain anything that was described or suggested in the original papers. This ought not to be allowed. The .reissue ought to be confined to the same invention which was included 

in the original patent. Whoever wishes to protect the public against 

.the flagrant abuses of the patent law should, I think, contend ear- nestly for this principle. 

1\1r. W .ADLEIGH. May I ask the Senator from illinois wherein 

the present bill enlarges the old law 'f 

:Mr. DAVIS, of Illinois. I have just stated it. 

Mr. W .AD LEIGH. In what part of a particular section 'f 

Mr. DAVIS, of lllinois. As I have just stated, the bill provides 

that the reissue shall not contain anything that was not described or indicated in the original application, or amendments, or correspond-

-ence, which. by a. negative pregnant means that it may contain anything that was described or suggested in the original papers. I have 

said it does it by implication. If you are willing that the reissue 

.shall be confined to the original patent, my amendment does no harm, 

and it does great good. • Mr. WADLEIGH. Mr. Pt·esitlent, I regret to be again obliged to 

-discuss this bill. The fifth section of the bill is precisely the same .a.s section 4916 of the Revised Statutes except so far a.s it provides 

what evidence may be receivecl by the CommissiQner upon a reissue. 

The provision in section 4916 as to such evide11ce is as follows: 

Bnt no new matter shall be introduced into the specification, nor 'in case of a .machine-patent shall the model or drawings be amended, except each by the other; :but when ther~ is neithermodelnordrawing, amendments maybe made upon proof 

satisfactory to the Comlliissionel' that such new matter or amendment was a part 

of the original invention, and was omitted from the specification by inad'"ertence, accident, or mistake, as aforesaid. 

The similar provision in the bill is as follows : 

But no new matter shall be introduced into the specification not shown, con- tained, or snbstantially,indicated in the specification or drawings of the ori~inat 

ap:plication or i.ts amendments, and which the pat~ntee would have been entitled to mclnde as a part of hia invention in the :patent originally grant~d. Bnt no re- issue shall be allowed, unless applied for within seven years from the date of the 

original patent, or within four years from· the date of the passage of this act. 

All the change that this bill makes in the law is to guard against 

the frauds that have been perpetrated by a,llowing parties to obtain 

reissues upon ex parte affidavits and an examination of models. 

Mr. DAVIS, of Illinois. But it is not that point I ~bject to at all. 

If you are in favor of confining the reissue to the original invention as patented and described, why object to the amendment 1 It cannot 

do any harm. I simply waut to confine it to that. I do not say this 

may not be an improvement l"':Pon the old law. I am not speaking 

about that. I am simply saying that I believe, as.it is, yon can go 

back and patent anything that was contained in the original papers 

by a reissue; that is all . 

Mr. WAD LEIGH. The euator from Illinois will not deny that the 

bill is an improvement on the law as it iww stands, under which enor- mous frauds have been committed. 

Let us look ·at the effect of the amendm.ent of the Senator from Illinois. An inventor presents his claim to the officials of the Patent 

Office. Now, he cannot take a patent as he claims it; his claim must 

be clothed in the language that the officials choose. 'fhe description 

which they give of the invention may be o defective as not to give 

him a valid patent. Under the amendment of my friend the Senator 

from illinois I fear he would be prevented from correcting such mis· 

take through a reissue, and would lose his rights without any fault 

of his own. 

Under this bill no injury can happen to the public on account of a reissue, because the sixth section provides that no right of action shall accrue on account of what has been done prior to the reissue, unles 

there has been an infringement of the patent originally granted. I 

think it would be wron~ to make a patentee liable to loM his rights 

and be ruined by the miStake of an official in the Patent Office when 

the papers filed by him, which are open to the world, correctly describe his. invention. Therefore I hope the amendment of the Senator from Illinois will not be adopted on that account. 

One word more. Under the law as it now stands the Supreme Court, in the case The Giant Powder Company t:s. The California Powder 

Works, decided this point. I read from the syllabus of the deci ion: 

A reissued patent must be for the same invention as that which formed the snh· 

ject of the original patent; or for part thereof whea divisional reissues are granted. It must not contain anything substantially new or different. • 

The provision in the present law upon which that decision rosts i 

precisely the same as the provision in this bill, and that opinion applies to this bill as well as to the present law. This bill restricts 

rather than enlar~es the power of the Commissioner to grant reisl:!ue . Mr. CONKLINu. Mr. President, before we vote on this amendment, I should like to understand by the aid of the Senator from Ne"· 

Hampshire one point at lea.st. I observe that in section 4916 of the 

Rense<l Statutes, which this section amends, stand these words: 

But no new matter shall be ~troduced into the specification, nor in ca. e of a machine patent shall the model or drawings be amended, 4UCept each by the other . 

I ask the Senator and all Senators to turn now to the equivalent 

words, a.s fat as they are .equivalent, proposed in the fifth section: 

But no new matter shall be introduced into the specification not shown, con- tained, or substantially indica tell in the specification or drawings of the original 

application or its amendments. 

If I understand this aright no man now can amplify his patent by a reis ue beyond this possibility: 

No new matter shall be introduced into the specification, nor in case of a ma _chine patent shall the model or drawings be amended, except each by the other. 

That is sufficiently definite to have enabled the court in the nitroglycerine case referred to by the Senator from Illinois to hold that 

the party who made originally two claims, as they are called, and 

had one decided against him and received a patent for the other: could not in a new patent cover both those claims. That is what tbt 

court held. So the court has held in other cases. That was ane oi 

the great struggles in ~he India-rubber case. Under this proposed 

section see what a party may do. He may obtain a reissued paten t 

for. anything which was shown by his original application and speci· 

fication, anything which was contained in the original specification, and for something I think very much more, to wit, for anything" substantially indicated." 

Mr. EDMUNDS. ''Indicated!" Is that tho word f 

Mr. CONKLING. Certainly, "substantially indicated;" and the 

Senator from Vermont very naturally calls attention to that word, upon which, in one 1poment, I am going to dwell . . ''Or snbsta.ntially 

indicated." "Indicated" where Indicated either in the specifica- tion or in the drawings of the original application or in any of it 

amendments. What does'' indicated" mean It means "denoted,'' 

does it not . It does not necessarily mean "described," "fully specified 

and clearly presented,' but anything indicated; and, industriously 

enough, the draughtsman of this section has used the prefix:" substantially." So that, it i not necessary that it should even be indicated in any liternl or full sense, but" substantially indicated," which 
1879. CONGRBSSION.A:L RECORD-SENATE. 529· 

as it seems to me weuld be the synonymous term with" it is substantially denoted," "it is pointed oat," "it is ad-verted to." I confess 

frankly that my attention had not been called to those words until I 

heard the Senator from Illinois point them out, and, I think it will 

be manifest· on reading, as I have done, with some care, section 4916, 

and readin~ this language, and assuming that this is the part of the 

section which describes the evidence on which the Commissioner may 

act, and so the chairman of the committee tells us, that this does 

bring in new. and wider elements of jndgment than the present law. 

As I understand the decisions of the courts, they are in many instanoos that a patent may not issue for the very things which were substantially indicated. which were more than substantially indicatell, which were exactly indicated; a.s, for example, in the case referred to by the Senator from IDinois, a claimant oomes and says, 

"I have a process by which ~ can explode. dynamite _and gnnpow~er 

mixed together, and I can do It by detonation. That IS my first clarm. 

I claim, second, a new process, a new compound. I clatm a patent 

for a method of commingling nitro-glycerine with certain other substances, so as to give greater explosive force or greater economy or ad vantage of some kind in the use of this new compound." The Commissioner says, "Claim No. 1 is allowed; I issue a patent for that." 

Manifestly claim No.2 was substantially indicated, and yet the courts 

say that a reissued patent embracing also claim No.2 is void, void at 

all events pro hac vice, or, more accurately speaking, void pro · tanto, 

void as to the new claim, although it was substantially and clearly 

indicated. Here comes a secti,on which by way of express authority, as I understand it, enables the Commissioner of. Patents to take up 

this very case and gr~t a reissued patent, not o~y for cia~ No.1, 

but for claim No.2, and not only so but for anything else whtch was substantially indicated either in the specification or in the dra'\Vings, 

if the invention was mechanical, or in either of the a.mendments found 

in the Patent Office and filed to the specification. . Mr. WADLEIGH. 'Vill the Senator from New York allow me to 

ask him if he :has ever read the case of Seymour vs. Osborne, in 11 

Wallace, where the court expounded this ! 

Mr. CONKLING. If my friend will let me see the head-note I will 

tell him if I have ever read it. 

Mr. EDMUNDS . . Yes, everybody knows about Seymour t•s. Osborne, 

I think. . Mr. CONKLING, (examining 11 Wallace's Reports.) Yes, sir; I 

have read this case; but I do not know the particular point in this 

very copious sy llab.ns to which the Senator from New Hampshire calls 

my attention. 

Mr. WADLEIGH. Befare the Senator closes I will call his attention to it. 

Mr .. ,CONKLING. Will the Senator be kind enough to direct my 

attention now to the point of the case he refers to f . Mr. WADLEIGH: Yes, I will. I propose to state it, and then the 

Senator can proceed if he desires,· if the Senator will now give me 

the floor. 

Mr. CO~"'KLING. Certainly, I will give the Senator the floor. I 

will be very glad to have him give me any information I am seeking. 

Mr. WADLEIGH. The position taken by the Senator from Illinois 

and by the Senator from New York is that the present bill so changes 

the law as to enlarge the rights of the patentee in respect to reissues. 

It is true that in the case to which my friend the Senator from New 

York refers, (Giant Powder Company vs. The California Powder 

Works,) the court decided that under the law as it now stands a patent could not be reissued containing an invention not contained in 

the ori~inal patent; but t.h~t the reissued patent mt;~st be for t~e san;te 

invention. But that decision rests upon the proviSion contamed m the present law and also in- the bill-that the Commissioner may 

"cause a new patent for the same invention" to be issued. · It is under 

that clause, which is precisely the same in this bill as in the present 

law, that the court· in that case decided that the reissued patent must 

cQntain the same invention and no other than that contained in the 

original patent. ~ to the evidence which the Commiss!oner shall 

receive upon the relSSue of a patent, ~he Supreme Court, m t.he case of Seymour t·s. Osborne, decided that precisely the same evidence that 

this bill provides for shall be adlnitted. 

I rea.d from the opinion of the court, page 544, 11 Wallace: 

4. That the reissued letters-patent are void and of no effect becalli!e they were not ltl'anted for the same invention as that embQdied in the or~al letters-patent nor for any invention made by the patentees before theoriginalletters-patent were 

granted. . .. Reissued letters-patent must, by the express words of the section authonzmg the same, be for the same invention, and consequently where it appears on a com pari· son of the two instruments, as matter of law, that the reissued fatent is not for 

the same invention as that embraced and secured in the origina patent, the reis· sued patent is invalid, M that state of facts shows that the Commissioner, in !l;raDt· 

ing the new patent, exceeded his jurisdiction. Power is unquestionably conferred 

upon the Commissioner to allow the specification to be amended if the patent is in· 

operative or in-valid, and in that event to issue the patent in proper form ; and he 

may, doubtless, under that authority, allow the patentee to redescribe his invention 

and to include in the description and claims of the patent not. only. w~t was well 

described before, but whatever else was suggested or sllStantially mdlcatedThe very words of the billin the specifications or drawin$s which properly belonged to the invention as actually made and perfected. mterpolations of new features, ingredients, or de· 

vices, which were neither described, suggested, nor indicated. in the original patent, or Patent-Office model, are not allowed, as it is clear that the Commissioner 

has no jurisdiction to ~ant a reissue unless it be for the same invention as that em. bodied in the original letters-patent, which necessarily excludes the right on such an application to open the case to new parol testimony:md a new hearing as to·the 

TII~3! 

nature and extent of the imprevement, except in certain special cases, as proviiletl 

in a recent enactment not applicable to the case before the court. 

This bill repeals that" recent enactment" to which the court refers. 

Corrections may be made in the description, specification, or claim where the 

patentee has claimed as new more than he had a right to claim, or where the de. 

scription, specification, or claim is defective or insufficient, _but he cannot under 

such an application make material additions to the invention which were not de- •scribed, su~gested , nor substantially indicated in the original pacifications, draw; 

ings, or Patent-Office model. . 

We have adopted in this bill the precise language used by the court 

in Seymour vs. Osborne to describe the power of the Commissioner 

under the existing statute. We limit that power, however, by forbidding any use of models or affidavits as evidence to show what the 

real invention was, and under this bill the Commissioner can reissue a. patent only "for the invention described, suggested, or substantially 

indicated" in the application or drawings. 

Mr. EDMUNDS. Mr. President, if the Senator from New York 

whose affair this is, will pardon me, I wish to call the attention of my 

friend from New Hampshire to a difference that he does not appear 

to have observed in his statement. The statement of the Supreme 

Court is a negation, and it does not therefore follow that on the other 

hand if in a description there was something denoted or indicated, the man was entitled to a reissue for that. That would depend on a thousand circumstances. 

Mr. WAD LEIGH. Senators have heard the extracts I read from 

the opinion in 11 Wallace, and if they will carefnlly examine the bill 

before the Senate they will see that it does not change the existing 

law except to limit the power of the Commissioner by forbidding the use of models or any evidence except that of the written application 

and drawings. In that opinion the court say that in a reissued patent the patentee "may include in the description and claims of the 

patent not only what was well described but whatever else was described or substantially indicated." • · Mr. CONKLING. Mr. President, if I understand the Senator from 

New Hampshire aright, he says that the section of the statute as it 

stands now consists of two members, first a provision which lays 

down the existence and marks the boundaries within which new patents may be issued, and second a definition, if I may so say, of the 

evidence on which that reissue may be adjudged. Does thE:\ Senator so say'f 

Mr. WADLEIGH. I beg the Senator's pardon, but I was interrupted. Will he repeat his question and I will try to answer itT . Mr. CONKLING. Mr. President, i5 occurs to me that a good many 

of us are interrupted during the consideration of this patent hill in 

times whea if we were not interrupted it is just possible we might 

understand it better. However--

Mr. WADLEIGH. But the Senator from New York has a way of 

cross-examining Senators for which they may not be entirely prepared. I will try to answer his question. 

Mr. CONKLING. If the Senator will say that, I wUl forbear to 

cross-examine him or to examine him at all. 

:Mr. WAD LEIGH. I do not ask the Senator to forbear because I 

will try to answer to the best of my ability. . Mr. CONKLING. I was endeavoring to understand the Senator 

from New Hampshire1 who thinks he has rea.d a decision of the Supreme Court vindicatrng this section. It he hl\8 he has contributed a very valuable piece of evidence. I und~rstood him to say that the 

section of the Revised Statutes now in existence consists of two mem- bers; first, it lays down the rnle, or prescribes the instances within 

which reissues may take place, and, second, it indicates• the evidence on which the Commissioner may act. Am I right so far, if the Senator will not deem it a cross-examination-! I do not comprehend 

whether the Senator authorizes me so to understand or not. 

Mr. WADLEIGH. I nodded, and I supposed that signified assent 

in all civilized countries. · 

Mr. CONKLING. Undoubtedly the Senate should take notice 

whenever the Senator from New Hampshire nods; but as I asked 

him a question, and as he is of age and abundantly able to speak for 

himself, I thought it very likely he would tell me whether I was right or not. 

Mr. WAD LEIGH. I will say that in my judgment the Senator 

from New York has correctly.stated. . 

Mr. CONKLING. Well, assuming, then, that that is the present 

state of the statute, I wau t the Senator from New Hampshire to inform 

the Senate, if he will, why he.has amplified the statute in respect of 

the evidence the Commissioner may receive. He has certainly done 

that according to his own statement, because he has interpolated or imported into the section all that he says the Supreme Court declares 

the Commissioner may act upon. Now, if he wants to restrict it why 

does he mnltiply the evidence on which the Commissioner may act t 

Certainly he does not do it to narrow the effect of the section. 

Mr. WAD LEIGH. Well, I will-answer that under the old law the 

Commissioner had the right upon a reissue not only to refer to the 

specification or drawings and the application or its amendments but 

also to the model, and in addition to that he had the right to receive 

ex 1>arte affidavits, and that under the clause whioh is "upon proof 

satisfactory to the Commissioner," and tbat led to fraud in reissues. 

Mr. CONKLING. But if my friend will pardon me, he has read the 

part of the tiection to which I do not refer and has omitted these 

words to which I want pointedly to refer : 

But no new matter shall be introduced into the specification. 

.. . 
·530 CONGRESSIONAL RECORD-SENATE. JANUARY 17, 

I stop there. " But no new matter shall be introduced into the 

specification." That is tolerably 'plain-spoken. We all know what 

tha.t is. 

Nor in ease of a machine patent shall the model or drawings be amended, except each by the other. 

If they are variant they may be compared and correcte~, but nothing shaH be added to them and no new matter shall be mtroduced. 

Now, what does the Senator propose here in the place of that f He 

proposes to say : 

But no new matter shall be in trod aced into the specification not shown, con- tailled, or substantially indicated in th~ specification or drawings of the ori¢.nal 

application or its amendment:B, and which the patentee would have boon entitled to include as a part of his invention in the patent originally granted. 

Can any lawyer or layman listen to those words and suppose that 

they do not amplify these words : "but no new matter shall be introduced," no matter what f And yet the Senator tells us, as I understand him, that dealing with a section the first part of which prescribes 

the.case in which the Commissioner may act and the second part of 

which points out the evidence and all of it on which he may act, he 

is going to narrow the administration of that section by multiplying 

the kinds of evidence and bringing in new elements on which he may 

act'! 

I understand the Supreme Court to have said that tmder this sec- tion of the Revised Statutes, as it stands now, narrower as I think 

than the proposed provision, certain things cannot be done, and I 

understand the court in referrin~ to what may be done to say that as to that there must be a substantial indication of the meaning of the 

party; and now the Senator proposes, as I understand it, .to so change 

this section that, not only as to that one specific thing which may be 

under the present statutes within the power of the Commissioner, but as to any other thing which may be substantially indicated, he may 

propose to reissue a patent or to issue a new patent, and I think the 

SeBator from Illinois asks with great force the Senator from New 

Hampshire why it is, if his purpose be as he indicates, that he objects 

to an amendment in three or four lines which says so. The amendment says as the Supreme Court has said thatthereshall be no patent 

reissued for an invention not covered .by the first patent. If the Senator from New Hampshire means the same thing why does he not 

adopt the amendment! It can do no harm; it is simplyforal.mndant 

caution. It merely puts in the letter of the statute what he says is 

to be it8 spirit now. Mr. DAVIS, of Illinois. I tb.iltk the Senator from New York misunderstood the Senator from New Hampshire. I do not think the 

-senator from New Hampshire will say that this section, if passed 

without my amendment, does not authorize the Commissioner of Patents to reissue for anything that was contained in the original application and papers. . Mr. CONKLING. He does say so. He says that it only authorizes 

the Commissioner to do that which the Supreme Court in the Seymour case in 11 Wallace said he could do. 

Mr. DAVIS, of illinois. Is the Senator from New Hampshire iu 

favor of my construction T That is the point. 

Mr. WAD LEIGH. I am in favor of the decision in Seymour 1:8. 

Osborne, in 11 Wallace, which has never been overruled nor criticised 

in any way by anybody till now; and that is this: 

Power is unquestionably conferred upon the Commissioner to allow the specifi- cation to be amended if the patent is inoperative or invalid, and in that event to issue the patent in pro~r form; and he may doubtless, under that anthority, allow 

the patentee to iedescnbe his invention and to include in the description and claims 

of tlie patent not only what was well described before, but whatever else was sug- gested or substantially indicated in the specification or drawings which properly belonged to the invention as actually made and perfected. 

This bill does not go beyond that one hail-'s breadth, and I ask the 

Senator from Illinois if it does. 

Mr. DAVIS, of lllinois. I think where two patents are applied for, one for a process and one for a combination, this bill, under its provisions as to evidence, authorizes a reissue for both. 

Mr. WADLEIGH. I ask the Senator from illinois whether or not 

this bill goes beyond what I have read from the decision of the Supreme Court t 

Mr. DAVIS, of Illinois. That is ·not the question. This section is 

very astutely drawn, and what earthly-objection is there to inserting 

the few words I propose1 that a reissue shall cover nothing more than was covered by the orig~nal patent 'f If the object of the committee 

is to confine it to that, what objection is there to this t A statute 

has to be construed by a court; the minds of men do not agree about 

these things. An appellate tribunal may differ from us about the. 

particular construction of a patent. I am for the interest of the great 

public in this matter, that no man who ha~ obtained a patent, resting 

satisfied with it without taking an appeal, having waived all objection to the decision of the Patent Commissioner, shall after eight or ten 

years come forward and by referring to the original papers on file get 

a reissue for more than his patent originally embraced. 

I want the Senator to say distinctly whether that ought not to be 

done f . If so, do not these words make the section plainer Y What 

is the use of looking to see whether there is a discrepancy between 

the decisions of the Supreme Court on that subject! If the Giant 

Powder case is the last one be it so; but I do not know whether in 

Mym.our t·8. Osborne the court would have decided as they have done 

in the case of the Giant Powder Company. Time makes men a great 

deal wiser, and it was a great many years ago that·seymour n . Osborne was decided. Now, why not incorporate here the simple wordsof my amendment 1 

· Mr. WADLEIGH. The Senator from illinois made au accusation 

against this bill which the Senator from New York indorsed, that it. 

enlarged the operation of the present law. The decision in Seymour vs. Osborne shows that under the old la,w the Commissioner bad precisely the power this bill gives him. The Senator from illinois asks 

why I object to his amendment. Because, sir, I fear that if it is 

adopted honest patentees who have defectively but substantially described their inventions or wha have accepted erroneous descriptions 

from the officials in the Patent Office will lose their rights. 1 fear 

that his amendment will be so construed as to prevent the Commissioner from reissuing .a patent for the invention described, or substantially indicat-ed in the original application and drawings of the 

patentee, because some official of the Government may havo made a mistake. 

Under this bill no new matter can be introduced upon a reissue, tosho'Y what the invention was. New matter is something uot "described, suggested, nor substantially indicated" in the papers originally filed by the patentee. What is thus described, suggested, or substantially indicated may now be introduced and that rule laid 

down by the court in Seymour '1:8. Osborne is left unchanged by this 

bill. 

Mr. DAVIS, of Illinois. Mr. President, 1 should ha>e no sort of 

objection to this bill under the recent decision of the Supreme Court 

if it was an exact transcript of the old law. Reissues now are granted 

for inadvertence or mistake; and it is very plain that this amendment 

proposed has no reference to that at all. It hits at the root of the 

evil. It says that there shall be n? reissue except for ~h~ thin~ patented. There may have been a miStake of the CoDliD1SSwner m the. 

claims set forth in the ~pacification. He may hM·e inadvertently 

done something in relation to that patent which he should not have 

done; but when he has granted a patent for a process he is not t;o. 

turn round and grant a patent for a compound although it was originally applied for. I say under this section that you may get a patent for a compound although the process was the only thing patentable. 

Mr. WAD LEIGH. The decision to which the Senator from Illinois 

refers is put expressly on the ground that the patent must be reissued 

"for the sam.e invention."· Now, this bill provides that such reissue 

must be "for the same iuvention" exactly as does the present law. 

Mr. DAVIS, of Illinois. But my amendment says it shall be for 

the same invention. 

Mr. W ADLEI.GH. The amendment of the Senator from Illinois goes 

further. It may be so eonstrued as to prevent a patentee from obtaining a reissue on account of a defective des::~ription of his invention in 

his letters-patent, where such defective descrip~ion results from the 

mistake of some official, and where the patentee correctly described 

his invention in his application and drawings. 

l\Ir. CONKLING. The same invention 1 

Mr. W ADL.EIGH. The same invention. If the amendment does 

not have that effec_t it seems to me to have none, because the provision contained in the present law and in the bill under consideration-that the reissue must be "for t}le same invention "-has been so construed in Seymour 'VB. Osborne and in Giant Powder Company 1:8. California Powder Works as to prevent the reissue for another 

invention than that already patented, which i8 all my friend the Senator from Dlinois professes to desire. 

Mr. DAVIS, of Illinois. I introduced the amendment in the interest of the publi<t and common justice. 

The PRESIDING OFFICER. The question is ou the amendment 

of the Senator from Illinois. 

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

The yeas and nays were ordered; and being taken, resulted-yeas 

24, nays 11 ; a.s follows : 

Allison, 

Anthony, Barnum, Beck, Bruce, 

Burnside, 

Christiancy, Davis of W.Va., Hoar, 

YE.AS-~4. 

('.A)Ckrell, 

Conklin a, 

Davis of'Illinoi. , Dawes, 

In_galls, 

Kellogg, 

McCreery, 

McMillan, 

Ferry, 

Hill, 

Kernan, 

McDonald, 

Randolph, 

Matthews, 

::U:axey, 

NAYS-ll. 

Rollins, 

Voorhees, 

Wailleigh, 

.AJ3SE:YT -41. 

Arm trong, Dennis, Howe, - Bailey, Dorsey, ,Johnston. Bayard, Eaton, Jenes of Florida, 

Blaine, Edmunds, Jones of :Yevada, Booth, Eustis, Kirkwood, 

Bntler, Guland. Lamar, 

Cameron of Pa., Gordon, McPhercon, Cameron of Wis., Gro>er, Mcrrimon, 

Chaffee, Hamlin, Mor..,.an 

Coke, Harris, Oglesuy, Conover, Hereford, ratterson, 

Miwhell, 

Morrill 

Paddock, 

Plumb, 

Windom, Withers. 

Walla~e. · Whyte. 

Ransom, Sargent, 

Saulsbury, 

Saunden, Sharon, 

Spencer, 

Teller, 

Thurman. 

Tho VICE-PRESIDENT. No quorum bas .-oted. 

Mr. ALLISON. Unless the Senator from New Hampshire ~pecially 

desireS to close this bill to-night, I move that the Senate adjourn. 

lli. WALLACE. I hope the Senator will withdraw that motion. 

All'. ALLISOY. I withdraw it, certainly. 
1879. CONGRESSIONAL RECORD-· HOUSE. 531 

:Mr. WALLACE. The Senator from Delaware [Mr. BAYARD] and myself have agreed to withdraw from the committee of investigation en Federal elections South and ask that the Chair fill our places, 

ewing to the absence of the Senator from Delaware and my inability 

to Attend to the duty. 

The VICE-PRESIDENT. The Senator from Pennsylvania asks that 

himself and the Senator from Delaware may withdraw from the investigating committee on the subject of elections. Is there objection 'f 

Mr. CONKLING. I wish to make no objection in response to the 

remark of the Chair; but if I can do so without its being in the nature 

of an objection, I will say that the rules of the Senate declare that 

without a quorum no business whatever shall be done, except to adjourn or have a call of the Senate. What the effect mi~ht be of the 

request being ~anted under such circumstances, the ~:Senator must · consider for himself; but unless it is very pressing, I think he had 

better wait until a quorum is present if he wants to be excused. 

Mr. President, unless the Senator wishes to continue the matter 

now, I will submit a motion that the Senate adjourn. 

Mr. VOORHEES. Mr. President, I ask for a call of the Senate. 

The VICE-PRESIDENT. The Secretary will call the roll of the 

Senate. · Mr. CONKLING. Pending that call, I move that the Senate do now adjourn. 

The VICE-PRESIDE.NT. Pending the call the Senator from New · York moves that the Senate do now adjourn. 

The motion was not agreed to; there being on a division-ayes 12, 

noes 28. 

The VICE-PRESIDENT. The Secretary will call the roll of the 

Senate. 

The Secretary called the roll, and forty-three Senators answered to 

their names. The VICE-PRESIDENT. A quorum is presen.t. 

EXERCISE OF ELECTIVE 1! RA...~ HISE COIDIITTEE: 

¥r. WALLACE. I now renew my motion. 

The VICE-PRESIDENT. The Senator from Pennsylvania renews his request that he and the SeBatorfrom Delaware [Mr. BAYARD] be excused from further service upon the committee to investigate matters connected with southern elections. 

Mr. WALLACE. I may state to the Senate that the reason for this 

is that the gentlemen who represent the minority of the Senate now at New Orleans are about starting for the North, and the remainder . of the committee are charged with the duty of going to Charleston. 

The Senator from Delaware is absent on important duty, and it is 

impossible for myself to go. We are therefore compelled to decline 

service, and to ask the Senate to appoint other members representing 

the minority. 

The VICE-PRESIDENT. Will the Senate agree to the request of 

the Senator from Pennsyl'vania ~ 

l\Ir. HOAR. I hope that will lie over untill\Ionday until the Senate 

isfnll. ["No!" "No!"] · Mr. WALLACE. The committee will be at Charleston on :Monday 

and the minority will not be represented. 

The VICE-PRESIDENT. Is objection made to action to-day ' 

llr. HOAR. I only made the suggestion. 

Mr. W ALLA.CE. I hope the Senator from Massachusetts will not 

object because the committee will be at Charleston on Monday and 

will be there with the majority of the Senate represented and no representation of the minority at all. 

Mr. HOAR. Of course the Senator knows that I would not wish to 

make an objection on that ground; but the Senator from Minnesota 

[Mr. McMILLAN] and myself who are members of the committee, un- derstanding that the Senator from Pennsylvania and the Senator from 

Delaware were not ~oing to Charleston, bad ourselves determined not 

to go to-day. Now, if those gentiemen withdraw and some new gentremen of the democratic side should go, it might result in the minority being represented and the majority not being represented. That 

is all I wish to guard against. I am sure no gentleman on the oth~r 

side would seek to bring about such a result. · Mr. WALLACE. We bad no intention to do anything of the kind. ~Ir. HOAR. That was my only reason for objecting; but now, un- derstanding with the Senator from Pennsylvania that some arrangement will be made that the parties on both sides will be represente(l, 

I withth·aw my objection. 

The VICE-PRESIDENT. The Chair then bears no objection; and 

he ~ppoints to fill the places of th~ Senators retiring the Senator from 

lnd1ana [Mr. McDONALD] and the Senator from New Jersey, [Mr. 

RANDOLPH.] 

PETITIONS Al\""1> :\:IE?.10RIALS. 

Mr. McMILLAN presented a petition of citizens of Stillwater, Minnesota, praying the paSGage of the bill (H. R. No. 4234) granting arrears of pensions: which was ordered to lie on the table. 

Mr. WITHERS presented the petition of R. A. Young & Brother, 

citi7.ens of Petersburgh, Virginia, praying compensation f01; certain 

toba-cco alleged to have been seized and appropriated by United States 

military!orcea at Petersburghduringthelate w:ar; which was referred 

t.o the Committee on Claims. . He also presented the petition of Pich--rell & Brooks, citizens of 

Virginia, praying compensation for certain tobacco alleged to have 

been seized and appropri~~d by U~ited States military forces during 

the late war; which was referred to the Committee ori Claims. 

He also presented the petition of J. Cheeves, surv.iwing partner of 

Cheeves & Osborne, of Virginia, prayinl> compensation for tobacco 

alleged to have been taken and appropnated by United States military forces during the late war; which was referred to the Committee on Claims. 

EULOGIES ON THE LATE REPRESE..."'TATIVE LEONARD. 

Mr. ANTHONY, from the Committee on Printing, to whom was referred tho fo1lowing resolution, reported it without amendment, 

and it was considered by unanimous consent, and agreed to: 

Resolvea by th.e Home of Representatiues, (the Senate concurring,) That 8,000 copies of the eulogies delivered in the House of Representatives and to be delivered in the 

Senate upon the late J. E. Leonard, late member of this House from the fifth dis- trict of Louisiana, be printed ; 6,000 for the use of the Honse, and 2,000 for the use of the Senate. · 

BILLS INTRODCCED. 

Mr. WINDOM asked, and by unanimous·consent obtained, leave to 

introduce a bill (S. No.l643) to establish a land district in Watertown, 

in the Territory of Dakota; which was read twice by its title, and 

referred to the Committee on Public Lands. 

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

introduce a joint resolution (S. R. No. 48) providing for the payment 

of 50 per cent. of the amounts required by law to be withheld from 

certain railroad companies for transportation service rendered for the 

Government; which was read twice by its title, and 1·eferred to the 

Committee on Railroads. 

Al\IE NDME~T TO POS'f·ROUTE BILL. 

Mr. WITHERS submitted an amendment intended to be proposed 

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

named; which, with the accompanying petition, was referred· to the 

Committee on the Post-Office and Post-Roads. 

PRDITING OF A BILL. 

On motion of Mr. PAD DOCK, it was 

Ordered, That the bill (H. P... No. 3.'i47) to regulate interstate commerce and to prohibit unjust discliminations by common <!arriers, be reprinted for the use of the 

Senate. · 

ADJOUR...~MENT. 

Mr. ALLISON. I move that the Senate adjourn. 

Mr. ANTHONY. Will the Senator change that to a motion for an executive session ¥ , Mr. ALLISON. I will if the Senator desires it. I move that the 

Senate proceed to the consideration of executive business. 

The motion was not agreed to. 

Mr. THURMAN. I move that the Senate adjourn. 

The motion was agreed to. . The VICE-PRESIDENT, (at four o'clock·and twenty-five minutes 

p.m.) The Senate stands adjourned to Monday next at twelve o'clock noon. 

HOUSE OF REPRESENTATIVES. 

FRIDAY, Jan/ttary 17, 1879. 

The House met at twelve o'clock m. Prayer by Rev. W. V. TUDoR, 

of the Methodist Episcopal Church South, Saint Louis, Missouri. 

SOPPRESSIQ.X OF POLYGAMY. . 

~Ir. 'VILSON, by unanimous consent, presented n. memorial of Mrs. 

Laura J. Tarr and 120 other ladies, of WeUsburgh,West Virginia, asking Congress to enact the necessary legislation to make effective the 

anti-polygamy law of 1862; which was referred to the Committee on the Judiciary, and ordered to be printed in the REOORD. 

The memorial is as follows : 

To U1.e honorable ~.e e-~lizte a na HotMe of Representatives of the United. States ilt Oong ress assembled : 

We, the undersigned, women of Wellsburgb. West Virginia, pray your honorable 

body to enact sucli legislatiou· as will make effective t~e anti-polygamy law of 186~. 

Mrs. W. H. McKelvy, Stella Moore. Mrs. L.A. Gnmes, ¥rs. J. S. Hall, Ook1e 

Wheeler, Mrs. L M. Charnock, Ida Barth, J. Rieid, M. A. Canuicbel, Mrs. A. 

Forbes, Nancy Amick, Mrs. Hodgen, Mrs. N. Van Seck.le, Mrs. Lena Walter, Mrs. A. Mackey, Mrs. S. Jacobs, Mrs. M. J. Lazear, Nancy Frank, Mrs . .E . .Apple- g~te, N. B. Waddle, A. -B. H:tlley, Annie Lazear, Mrs. Laura J. Tarr1 Sallie Moore, .Mary E. Hall, Fanie Potts, Etb.li.Dda Waugh, Mrs. Mackey, Mrs. Siillie Bowman, 

Miss Jennie Bowman, Mrs. Mary Hug~, Miss ~aret Huggins, Mrs. :M. J. Dodd, Mrs. Margaret Gelsthorpe, Came Gelsthorpe, .l!.'Dlllla Gillsthorpe Rinnie Quest, Mollie Jones, Maggie B. Waugh, Miss Carrie Harris, Mrs. Elizabeth Apple- :rate, Al;mie C. Beall, Mrs. J. S. Beall, "Mrs. M. 3". Beall, Mrs. Virginia. Harrey, 1iliss 

Rebeca. Lewis, Mrs. Rebeca Nelson, Mrs. Sarah E. Nicholl, Mrs. Mary A. Nicholl, Mrs. Sarah Dei.,.hton, Mrs. Jackson Jones, Mrs. Susan Lloyd, Mrs. Jane Hauey, Mrs. :M.'lcy Niciiolls, M.rs. Ellen Nicholls, Mis!.! Nancy Fisher, Mrs. Ella Lloyd, Mrs. Laura Grimes, Miss Sarah Langhead, Mrs. Catharine Ralston, Mrs. Mary Liston, Mrs. Hanah Timmons, Mrs. Luna Caldwell, Mrs. Susan Ward, Mrs Marthe Taylor, Mrs. Laura McClelland, MJ:s. Annie Taylor, Mrs.' Lizzie Linton, Mrs. 

Alphereta Parish, Miss Emma J. Taylor, Miss Sallie Taylor, Mrs. Eliza.beth 

Chester, Mrs. Sarah Waldron. Miss Addie Roberts, Mrs. Annie Roberts. N . .M:. 

Clendoo.en, llis. F. C .. Glass, l\Irs. Jennie Antills, Mrs. Mary Pl\rke, 1t1iss Nannie 

McHenry, Mrs. Nancy Moren, Mrs. Clara 0. White, Miss Joanna Pooh~, Mrs. Terressa Poole, Miss E. J. Gaston, Mrs. I. P. Klein, Mrs. Belle.Ex:ley, Mrs. M. C. 

Richar(ls, Mrs. D. Latemor e, Mrs. H. "\V. Crotchers, Mrs. Sam.J.,Ja.-cobs, Miss-Abby Styers, Miss Lizzie Styers, Miss J ennie Cregg, :Miss Mary ~ati.mer, Mrs. John 

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