The New York Herald Newspaper, May 15, 1852, Page 6

Mr. Webster's Speech on the Great India | pro Rubbia Case. GOODYEAR vs. DAY. IN THE CIRCUIT COURT OF THE UNITED STATES— DISTRICT OF NEW JERSEY—MARCH TERM, 1852. Mr. Cutting having concluded his argument, the Hon. Daniel Webster addressed the Court as fol- ows :— : If I should detain the Court by the part which I have to perform in this discussion for any great length of time, I hope the Court will believe that what I have to say is long only because | have not had time to make it short. ’ There are many topics in this eause calling for particular observation. 1 will discuss them with all practical brevity. T shall not attempt to follow my learned friend, who made his address yesterday, step by step, in his very thorough detail of the matter in controversy, in all its aspects and in all its bea This is a patent cause of considerable interest; one which will be found at last to involve no great difliculty in, principle, but which does involve a great amount of property, and does largely affeet the interests and pursuits of a great number of individuals. T am happy that 1am able to say, that the discussions in this court have been iucted en- tirely in that spirit, and with that decorum, which should ever be exhibited by able and intelligent members of the bar when they are considering ques- tions of great importance. If, indeed, there has sometimes come up from this record an evil odor, that perfumery found its way upon the record before it came into this court. It in provided in the constitution of the United States, that Congress shall have power to promote the pene of science and the useful arts, by seeur- ing for a limited time, to authors and inventors, the exclusive right to their respective’ writings and dis- coveries. The law acknowledges the existence of the right of an invent to his invention as pro- perty, and the consti on is remarkably exact in the langu in which speaks of this important subject. » constitution does not attempt to give nvention, or to an author » such thing. original, pre- the invention, ors the en- ed before 1 an inventor a right to b aright to his literary productions But the constituti existing, inherent 1 and authorizes Congr j of that rig th i @s a natu can asser What a man much his own is said that, by th to inher 1 recognises a rthan that whicha man ‘ any other kind of } . nt, study, and what he obtains by his 1 Jaw, the son hasno right father, or to take it by ullaw gives man aright to quisitions, as in the ¢ 3 quadruped, a bird, or a fish, by h . P like ae In all th pereor by the ori is an eff more , Tights acquired ackstone, thus re gards this bis own inv The right no monop A mo- cient law, yy on eonferred on one of the King’s on of all the rest. Such a out aman’s right to his own lifferent tter. It is no more that than to possess was agrant of the right to buy, sell, some particular trade subjecta, to the exel monepoly is unjust; invention is very 2 monopoly for him to pe his own homestead But t is one remarkable d nee in the two cases, wh this: that property in a man’s own invention presents the only case where he to pay for the exclusive enjoyment of his own. For by law the permission so to enjoy tho invention for a certain number of years is granted, on the con- dition that, at the expiration of the patent, the in- vention shall belong to the public. ot so with houses; not so with lands; nothing id for them except the usual amount of taxation; but for the right to use his own, which the natural law gives him, the inventor, as we have jast seen, pays an enormous price. Yet there is a clamor out of doors calewlated to debauch the publie mind. But a better feeling begins to prevail. A more intelligent estimate of this species of property be- ins to spring up. Yet I am sorry to say that there have been men—th I} are some men in the community—wh d not do an immoral action, who would not, for their lives, **pi n their neighbor's title-deed, and who yet make no scruple of endeavoring, by every meaus in their power, to “pick a flaw” in his y . That feeling is unjust, illegal, and unsocial. Now, may it please your he cause is founded on two pater the gov- ernment, to Charles Gox Ar, O , and the othor in 1849, for a pro of manutacturing India rubber. It appears from the Charles Goodyear, in the year is made ors, this patent field of operations in the manufacture of India rub- ber : A ; He turned his attention to this subject, not as que! extraordinary substance wa elit to society, to s er there any way, given among men skilled in the arts, by which this article co d of its stickiness: its tendency to harden in t r and soften in the heat; for it is well known that the arti tured up to the ye were exposed to you could not sepa came in contact; and if exy became hard andrig some experience in this matt New York sent x and a hat of the very well with then set it out in the cold Isurmounted it with t passing by supposed th ble of render: 1 neiples of natural | | a) the Furmer oi M Charles Good, delphia. Wh began. In the ¢ York; in the su Haven; in the spring of 18 in the fall of 1837, he vis factory at Roxl In the summer or full c he weit to Woburn, where Hayward periments with sulpbur. Here Gov the Sulphur Patent, and hired Hayw sist him in bis ope nd work He went on with his experiments at I bury, in S40, | evertheless, at Wot 3 | In the fall of 1810, he v | 1841, be removed to Spri were still going on at Wob « ment 4 Apr his ex vention 2 Goodyear 1 so fa to warn t —u him—receiving t friends Here i 1 xe Barowix. § Dee t Apr emen:—I have v and see me at my lodg’ communicate with my on India rubber factor tail to call on receipt of this, as count of my family. My f my affaire in re this hotel, whieh I feel come her will prol ably “ai fter wil, is to ps, a good w resting place ide of th rave, Your's truly, ODYEAR He tis as good 4 s he may expect | this side the grave; hi ends will come and see him on the subj lia rubber manu- | facture; and then he & mily and of his wife. He had but tw mily and his discovery. In all his di d in all his trials, ¢ was Willing to participate in his euffering endure everything, and hope everything; ing to be poor; she was willir when he went to 7 him everythin was nece May it y the earth that cain con ment wife-—no cre love is 80 indomitable ase your honors, ther is nothing upon rithfal ready to Dg suffer and to i the most depressing cir- cumstances, woman's weakness becomes mighty power ; her timidity becow fearless courage ; all bor shrinking and sinking y s away, and be spirit acquires the firmness of marble—adamantine firmness—when circumstances her to put forth all her energies under affections. Mr. Goodyear survived all this, and Iam sure that be would go through the same suffering ten times ogain for the same consolation. He carried on his experiments perseveringly and with success, and ob- tained a patent in 1544, for his great invention. With your hougrs’ permission, before I proceed to piration of her | experiments, to see how a combination of the | miously and po | of untiring experiment | ca sider th pent, il pay ome rept to the a 'y nt some respect to ar ar gonag counsel on the other side, I shall re- eve your honors of a of regret, and even distress, inflicted upon you by the powerful sympa- thy exerted by Mr. Choate, my friend and counsel on the other side tn this case, ie the unhappy con- dition, the melancholy and depressed circumstances into which Mr. Day bes been brought by his un- fortunate and miserable connection with Mr. Good- year. Z There is no man who gives more impression to common sayings than my brother Choate—no one who exceeds him in power of expression, or who draws pictures like him. Mr. Choate in the pace speech he uttered so affectingly, described Day as a deluded victim to whom Goodyear had promised to afford protection, but gave such protection a3 the vulture gives the lamb, covering and devouring. Then he alleged that Goodyear wished to revive Day a little, felt his pulse to see if some trembling motion of lite could not be discovered, that he might submit the victim to the pangs of another death, and once more gloat over his sufferings. De- scending from this region of faney, he said that Rondveen had sold Day a license; and wrestin, fi him all its benefits, had injured him as man as if he had burned his factory to the ground. He said that Day had squandered his fortune for the privilege of making shirred goods, under Good- years’ patents, and received nothing in return. Now, all these touching observations would, I think, be very effective but for one thing. Tho counsel have not thought it worth while to offer a particle of evidence to sustain these assertions; not one particle. ‘These observations are, I admit, very clonipeat, very pathetic, very beautiful, but forone drawback. lam reminded of a maxim of the French rhetori- cians, which I wish was better known and more re- carded, that nothing is beautiful that is not true. ve the Truth is the cynosure of eloquence, and pathos is of but little value further than it is analogous to real- ity, for there is no beauty where there is no trath. Now may it please your honors, for the exposition in length and br by the failure of Mr. Goodyear to fulfill his cove- nant, I call your attention to the testimony of Mr. Day's bookkeeper, Mr. Rollo. Mr. Rollo swears Day ) yards a day of shirred goods, and erage every day, since the witness went to work for him in 1847; that the cost of the pro- duction is less than $2.a yard, and that the goods are sold at two cents a cord, or two cents for each strand running lengthwise slong the cloth. Then, if his own bookkeeper is to be believed, he is selling out of this license priviloge, $180 worth of guods a day, or $39,420 a year, which is all gain, less 900 cost of production. The balance net profit, and that net profit is $17,520 ayear. it isno beggurly account of empty boxes nor empty purses He is making, moreover. a g: and profit upon the manufacture of every ot ticle that he is cntitled to make under the h he holds from Goodyear. Now, there is not one word in contradiction of this, not a syllable. The evidence is taken from and his own employees, undisputedand What, th becomes of his com- is lamentations istress, ubout the non- T and | performance of the contract ? I need not contend, may it please your honor: is too clear a proposition to requi ument, t if all this were not so, Horace H. Day to break his own independent covenant ; to infringe on Goodyear’s to take the law into hisown hands, to set up the standard—I will not say of his »wh judgment—hut of his own and repudiate his own cont volous and un- | founded grounds that were ever of for a man’s defence or support, on the record of any court of justice. And now, do not your honors feel aI from the burden you bore on your min¢ Mr. Choate addre iyou about the sufferings of Mr. Day 2" If my statements have given your honors any relief, 1 have performed a duty of benevolence. Tho sulphur patent was obtained in 1839. Its specification or claim is in these words. (Leads the ittle relieved Is r since specific: ) The patent of 1839 is for sulphur and rubber alone. Now, on the existing state of facts displayed upon this record, does it appear that the combination of sulphur and rubber alone was patentable as a com- pound. here can be ne doubt about that. Sup- pose, then, sulphur was known as one of the ingredi- ents of a compound, rubber as another, white lead as another, and litharge and lampblack as others. Suppose they were all used more or less. Now, I take it that when there are so many substances sometimes used, and sometimes not used, in forming u combination for a particular purpose, it is compe- tent to select two of the substances and reject the rest, taking a patent fora combination of the two alone. That is clear, because the inventor may have discovered that the former combination in the art was rendered useless by the presence of some superfious ingredients; and this invention may be the result of diverging so far from common practice and common use, to leave out one or more ingredi- ents, and go fora patentable combination of two, and two onl, But it is suid that Hayward’s invention was dedi cated to the public. That isa very common defence whenever it occurs in the process of manufacture: that a particular improvement takes time, and ex- periment, and thought to perfect it. Hayward was as pooras oiher inventors. He was pursuing a eourse of experiments. He had used sulphur before he got his patent. But he had used it or noe such purpose as that which he ultimately contemplated. He had kept up its use a secret as wellaa he ooell-But Hayward never made any use of sulphur, contemplated, for the general purposes for which he made his invention and took out his patent; but he did use it, upon some little light cloth for aprons, and when they were sold at the factories, and went into the families of New EB i, they had a smell of sulphur. He commu- his secret to nobody, unless by the mere fact lling the goods, if that could amount to a com- ation, He went on to see what would be the orating the nees of rubber and and th ng them into a antiv mun effect nee whatever in this nc nd of sulphur and rubi that others used it with his knowledge, before hi applied for a patent, for the great ultim use or purpose for which he intended it. w Ihave said, all the while going through a y iful se puld be useful, and so ults. ‘There is no evider made by the compounding of su! to produce be ¢ that heeversold vurand before he applied tor this patent. r me, We have reached that point where the great question of the us. We weet it. We are bound to me that g ion is, the truth or la year to the i I ng India rubber. Did he ma such an invention ? Is he who sits here bet known now, and to be known forever, \ history of art remains, the individual uced fo the | discussion up before tit, And of the ng to live stricken as Mr. Goodyear, be- ven inspired with the sa given my att ation thr 1. But quite #0 cause I have pm bitio of this m ure I thought that so far as ew of but one th ge in the v ee what would und, and four ed it » degree of heat was be of opinion, that it igher, the whole sub- would be still hi y that i hin 4 t opin ming a prior?, and founding his conclu upon a general knowledge of the effect of he But Mr. Good: s the result found out that, although the application of heat produced a melting effect upon this compound, rendering it more and more plastic aud soft as degree of heat mented, yet when that heat, going on, had to acertain much higher d et Wa reverse of what it had been, 2 composition commenced to vul in fact, to make metallic the hink th * extraordina y substance and T know of no operation in nature exactly like it. But that which is in some degree analogous to it, is what chemists all the anomalous ex ion of water. All know that the general effect of heat upon natural sut tanc to make them expand; and the gene effect of cold upon natural substances, is to them contract. Just the reverse is it with water. Vhon ¥ s into ice, the ice becomes lighter than an of water. It is specifically li rt It swims on the water. It hag heen suppe id_ perhaps not erroneously—that the depart in this instance, from the ordinary ‘ayree of nature, is an effect dependent upon a final e. And that is, that when the water fr should make it a natural bridge to prot waters beneath, and let men and animals pase over the bridge. Because everybody soes that if the general law of nature operated in this case, and water by becoming frozen into ice became more com- yaot and solid than the water, it would sink to tho bottom, and there, especially in cvld climates, s of | | them » th of this suffering of Mr. Day, | would prevent the flow of the stream, and obstruct, au pa} ap ond te ih Therefore, such @ reverse pro- cess has # good deal of resemblance, or is analogous to this vulcanising process. Water freexes into ice at thirty-two degrees. You may make it much colder; and if you expose it to a much lowor tempo- rature, the cold ceases to ex; and to con- tract; and you may freeze ice, 90 that it will sink in water, Aud it has been ay the formation of anchor ice, which (id to the bottom, is produced by this increase of cold. And, now, is Charles Goodyear the discoveror of this invention of vulcanized rubber? Is ho the first man upon whore mind the idoa ever flashed, or to whose intelligence the fact ever was disclosed, that by carrying heat to a certain height it would coaso to render plastic the India rubber, and begin to harden and metalize it 1. Is there a man in the world who found out that fact before Charlos Goodyear? Who is he? Where ishe? On what continent does he live? Who has heard ofhim ? What books treat of him? What*man among all the men on earth has scen him, known him, or named him? Yet it is certain that this discovery has been made. It is certain that it exists. It is certain that it is now a matter of common knowledge all over the civilized world. It is certain that ten or twelve years ago it was not knowledge. It is certain that this curious result has grown into knowledge by somebody's dis- covery and invention. And who is that somebody ? ‘The question was put to my learned opponent, bymy leaned associate. If Charles Goodyear did not make this discovery, who did make it? Who did make it? Why, if our learned opponent had said ho should endeavor to prove that some one other than Mr. Goodyear had made this discovery, that would have been very fair. I think tho learned gentleman was very wise in not doing so. For I have thought often, in the course of my practice in law, that it was not very advisable to raiso a spirit that one could not conveniently lay again. Now, who made this discovery? We want to know the name and the habitation, and the location of the man upon the face of this globe, who invented vul- canixed rubber, if it be not he who now sits before us. Well, there are birds which fly in the air, seldom iting, but often hovering. Now, I think this is | a question not to be hovered over, not to be brooded over, and not to bo dealt with as an infinitesimal quantity of small things. It is a case calling for a manly admission and # manly defonce. I ask again, if there is anybody else than Goodyear, who made this invention, who is he? Is the discovery so plain that it might have come about by accident? It is likely to work important changes in tho arts every- where. It introduces quite a now material into the manufacture of the arts, that material being nothing less than elastic metal. It is hard like metal, and s clastic as pure original gum elastic. Why, that s great and momentous a piencmenoa occuring tomen in the progréss of their knowledge, as it would be for a man to show that iron and gold could yanain iron and gold, and yet become elastic like India rubber, Jt would be just such another | | result. Now, this fact cannot be deni it cannot Le secreted; it cannot be kept out of sight; some- body Las made this invention. That is certain. Who | vention but one—not a man. is h expre Mr. Hancock has been referred to. ly acknowledges Goodyear to be the first in- ventor. 1 that there isnot inthe world a human being that stand up and say that it is his inven- tion, except the man who is sitting at that table. There was a time, I admit, when there was a dis- agreement between Goodyear and Hayward, and Mr. Hayward was foolish enough to set up some pretences of his own, but was soon ashamed of it, and his chief merit is that he had the manliness to disclaim it. 1 say, therefore, at this hour in which I have the honor to be speaking to this court, that there is not a man on the footstool who pretends this is his in- Well, is that not —everybody knows ‘ybody ‘connected in But he enough ? The inyentien exi: 1 understands it, and ev | formor times with the manufacture of India rubber, | human being disputes it. } aright to th bas been astonished at it. There have been many respectable witnesses in this case, and the best and most intelligent of them say, after having been en- gaged in attempts in this manufacture for years and years, losimg theirtime and _ fortunes, the never heard or imagined any such thing as the vul- canization of rubber until Charles Goodyear’s in- vention was made. Now, may it please your honors, I know but one man in the world who denies the originality of this invention. Noone out of this court house denies it. I know but one within the court who denies it, and I shall say, with great submission, that there is not a manin the world who should feel more bound not to deny the originality of this invention. It is Horace H. Day, the defendant in this case. He de- ny it! Hedeny it! Yet, there is his bond. Ecce signum ! Terms of contumely and complaint, however loudly uttered, and Iam bound to add, however solemnly sworn to, upon the face of his answer, do net tear the seal from his bond, any more than the merchant of Venice tears the seal from the bond which he had given to the Venetian Jew. There it stands. Day’s name is there, the seal is there, and there it will remain until he and all of us are called into another state of existence. I say, therefore, that he is the last man in the world, who should stand up and say invention, and I deny odyear’s invention. It is true, I have acknow- it under my hand and seal. It is true, that derived v great advantages under it. It se under it to make shirred d to pay, out of every to this inventor. It true, I nm three cents a yard, and I now make three do! a yard from this great inven- tion. I put y treasures thousands and thousands of dollars; by the use of the license under this patent, and I have not paid him the first cent, which I premised. I repudiate the contract.” Repudiation is w term which has beef in bad odor for some time past-—it is not likely to be in better. Look at the conclusive testimony of Professor Silliman. In October, 1859, the Professor, who is oneof the mi nd practical philoso- phers in th ; ed by Charles Good- year, who showed him a piece of vulcanized rubber. ’yolescor Silliman proves that Goody ing experiments in 1839, and that “h showed the Professor specimet i he bad from time to time ady On the lath of October, 1 received th Professor 8 foods, and 1 promi yard, three cents agreed to pay I Niman: ieee, October 14, seen experiments made, and also perform: elt. with the india rubber prepared by Mr. ean state that it does not meit, but it does not stiffen hy cold. in the cold, even when laid be- B. SILLIMAN Now, upon the known fact that such ay jon was made, and that there is no ut but € ar for this discovery, upon th ength of the patent, and the judgment of the Patent Office—upon the acknow- ledgement of the defendant, under his hand and seal, Iam satisfied that your honors will be of the nion that Goodyei right to this invention is proved. But that is not all ible, is stronger. and especially t ch we live, ever alive ovcrics to the arts. They dustrious as bees, looking out Charles ns it cxkes of ice. reas ingenious and Opportunity This dis covery broke upon the extent ; it was partial might be carried. Everybody gazing atit, and longing to bave a hand in it, and what did they dot Why, thous: and thousands of indus- trious people now employed in it, under the license of Mr. and Mr. Goodyear at day stands por ion aud quiet enjoyme seoured to him by this patent, y from any man on earth ept the defendant, Horace H. Day. He } disprove the validity of the discovery. Not another Is not that conclusive ? J)oes it not show the strong current of public judg- ment? Doesit not show t trong judgment of po- pular justice, that Mr. Goodyearisregaried, and has the right to be rega , us the true inventor of this invaluable result ? May it please your honors, there is one man whose evidence is relied on in this case a good deal, and whos¢ testimony is thought to be important, but who does not claim for himself the vulcanizing process. He does not profess, although he claims to have mado a most extraordinary discovery, that he ever brought it to any useful result. Anil after displaying this elaborate testimony, the result is, that the witness never discovered anything in the slightest degree available; that he gave up bis pursuit after some years, and then turned mesmerizer, and this perzon is Richard Coiling. Mr. Webster here reviewed the testimony of Richard Collins at some length, when he was inter- rupted dge Grier. Judge Gricrx—Mr Webstor, you need not trouble yourself with the testimony of Richard Collins. Mr. Webeter—I am very much obliged to your honor, for! wish to abbreviate my lubors in this vell ag those of your honor. Itseems to be r honor’s opinion that_[ may let Mr. Collins go, \1 propose to send Mr, Elisha Pratt and Mr. Stod- d to bear him company on his way. I shall not say any move about them, I propose now, may it please your honors, to say afew words upon the objections which have been cn in the answer and in the argument to the re- ‘ucd patent of 1849. The law of 1836 contains this provision in the 13th section, quite familiar, of rse, to the court The real question is, whether the re-issued patent is for the thing originally invented. Now, when the defendant undertakes to sustain that burden, he undertakes to prove that this re-issued patent is not in conformity to the original invention, and ho doesthat, in the first place, by showing, ashe thinks, that the patent of 1 does not describe the same thing os that of 1849. That this is a proposition with to the application of new | sed all his endeavors to | anon-sequitur. There is no inference to bo drawn from that. The patent of 1844 does not describe the same thing as that of 1819. Why? Itis be- cause the patent of 1844 did not properly describe the invention, and the law authorizes this re-issuing of a patent, precisely that it may furnish another and a better description of the invention. If one | can hold upsets two papers, and say 1844 says | this, and 1849 says that, what of that? Itis be- cause 1844 does not express what 1849 doos express, | and that 1849 has been obliged to talk, and to pene and to show the real character and extent of the invention; that ia the very object of the pro- | vision, It was to state with more accuracy aud correctness of description, what 1844 has not stated with accuracy and correctness ot description. So that your honors see, it all comes back to this. 1a that of 1849 a true description of the invention? If it be, there is an end to the inquiry. have spoken of the description; I now speak of the specification or claim. It is alleged that tho patent of 1844 does not stecify or claim such an in- vention as 1849 claims. This onlg proves, and all it does prove is, that the patentee had. a right to sur- render and take out a patent with a new specifica- tion, and a new claim in 1849, provided that ifi- cation or that claim, thus contained in the ro-issued patent of 1849, coereagens with tho original inven- ‘ion. 1 think we might rest here—as on aclear pri- ma facie case, met by no opposing evidence what- ever. Now, ia it proved by anybody? Or has any serious attempts been made to show, by evidence, that the re-issued patent of 1849 does not truly de- scribe the invention? I know what my learned ofriend has said about steam heat, and I will offer a few observations by way of reply to this suggestion of his, presently. jut I say, so far as ean find upon ‘the record, that there ia no evidence to rebut tho strong Peopnaa psi and prima facte proof deducible from the issue of the patent itself under tho judical authority of the Commissioner to show that the patent of does not conform to theinvention. But we may well 50 further, and we may prove, and can prove; and | think, with sub- mission to the court, we have proved, by the corres- pondence between the plaintiff and Dr. Jones, his agent, that he directed his agent to insert in his original patent the claim for sulphur and heat, just as that specification or claim stands in the amended orre-issued patent, and that the failure to insert that specification and that claim in tho original patent was, therefore, most obviously the conse- quences of inadvertance or mistake. Now, this is an important point, provided that there were any evidence to counteract the presump- tive or prima facie evidence of the patent itself. This is a point to be considered. The counsel whom T now follow saw the force of this ; a gentleman of his professional capacity could not fail to see what must be the result of proof now given, tending to show that the invention as described by the inven- tor at the time, was in oxact conformity to the claim and specification in tho re-issued patent, and that its omission in the patent of 1344 was occa- sioned by inadvertence or mistake; because he saw that that would bring the claim for the re-issued patent, precisely within the words of the law. There is on this record a correspondence, back as early as sometime in 1839, between the plaintiff in this case and his agent, Dr. Jones, of Washington ; and there is aletter from the plaintiff to Dr. Jones, the force of which is exceedingly great, if it be a lawful paper in the cause. It is dated Springfield, December 18, 1843 :— 3. P. Jones h:--If it is not too late. will you please add to cation as follows :—Thet I claim as my im- provement heating India rubber, whether manufactured or not in an oven or close room. with sulphur or sul- phorous gas. I prefer this to be included in the Yours respectful CHARLES GOODYEAR. evious letter addressed on the 23d by Charles Goodyear, to Dr. Docror Tr atent, * * * * ity. There was December, T will read from it:— “The improvements that I now wish to secure here and abrozd. are as follows—and you will be able to tell me how far I may embrace the different claims under one he: “I now use sulphur, my own invention, opposed by all concerned, after which 300 heat, also my own—formerly teaspoonful to the lb.” “N, B,—The within are the most essential points, unless the heat is applied. or unkesa the goods are exposed for two days. to @ clear sun, and unless they have the very large proportion of sulphur, they are comparatively of no valuc; these are seerets not yet known. except to my friends. but there ie now no time to belost—will write again ina day or two,” 1am truly youra. & CHARLES GGODYEAR. Where, then, are these letters, written in 1839 and 1843, genuine letters, and actually written ag they purport to have been, at the time between the par- ties, or are they forgeries and spurious, and falsel; foisted into this court, in order to qualify Good- year’s original invention, so as to obtain a re-issue of the patent in 1849, confurmably, not to that which was his original invention, but to something which he wished to make that original invention appear to be, by the inertion of false papers ? Now, commentarie y my learned op- ponents hich these letters app gnature purporting to be the sig- r, nature of Mr. Goodyear attached thereto. They say the lett not proved; the handwriting is not proved ; that there are suspicions about it; and until they are proved as muniments of his title, and matters considered when his invention was first patented, they do not of course produce the effect expected from them, or any effect whatever. If they are false papers, they are good for nothing, of course. Now, how are they proved? Why, in the common way. Mr. Brown, a professional gentleman of standing, who is acquainted with the handwrit- ing of both Charles Goodyear and Thomas P. Jones, has corresponded with both of them, and knows their handwriting. He says that although this let- ter of Mr. Goodyear does not appear to be in his common or ordinary handwriting, yet he believes it is in his own handwriting. 1 don’t know that any man would have the hardihood to swear that a par- ticular letter was absolutely in the handwriting of any man. ‘The proposition on the part of our learned oppo- nents, is, that sometime afterwards, perhaps at about the time when he was plying for the re- issued patent, in order to make his origipal inven- | tion appear to be broadef than it was in truth, Goodyear set about to perpetrate a forgery and a crime, and he found a way some how or other, to | get_on the records, a fals forged letter. Well, to do that, he has a letter prepared which he means shall be considered, as in his own hand-writing, and yet he gets somebody elve to forge it! That isa very ingenious way for a man to cut his own throat. He means that this letter, when produced, shall appear to have been written by himself, at the time when it purports to have been written, and yet he gets somebody else, who writes a different hand, to write it for him. leave that. sary to prove as ag issue of thie ame How do we din that? How does it stand upon his own conduct? How does it stand upon | his own acts ? In the first place he covenanted that Mr. Goodyear might obtain a re-issued patent in such manner and form as he saw fit. But is this necessary? Is it neces- st Mr. Day, the legality of the patent? 1846, the defendant does stipulate that Goodyear may, whenever he sees proper, surrender this sulphur patent of 1889,and the vulcanizing patent of ISt, and take them out anew. What does he now say to them: for it would seem certainly to conclude the defence against urging anything in ‘opposition to the validity of this re-issued patent. He meeis it by saying that he never heard that Goodyear claimed as his invention the appftation of heat to the curing of rubber, but only to cure his particular compound; that it was not in his imagi- nation when he signed these covenants, or when he agrecd that a w patent might be issued, thi | Goodyear claimed anything but thé appl heut to the curing of his compound, called the * tr ple compound.” ow, if by that he means to say that he never cod that Goodyear claimed to eure rubber yur and beat own covenant directly con- flietswith the assertion. The covenaut called the ad article is in these words : Trimpry —The said Lory agrees to and with the & vid Goodyear protects the said Pay in the right to menufaciure and o, the ald Day. will not manufacture an r, oF euch as is compoun ad or its oxides, or any ry to complete a h hy the aid ulphur, except f of expo- mee in the manu ‘ture of thie ar- h said Day, by said prior articl ure. Why does he now undertake to say that it never entered into his head that the thing was claimed by Goodyear, which very thing he on this covenant of 1846, stipulates he will not use? Does he mean that | he entered into that covenant and bound himself to Goodyear, not to use a thing which was open to himself and all the world to use? For that is the position in which Day places hi by this pas- sage in his answer, compared with his covenant. Is there any escape fiom that ? uinly not Now, it is vain and idle to it the covenants in these obligations were dition of Day's being protected in his lice That is not the dag The point is, that this covenant contradicts nis answer, It contradicts bis answer directly, by | showing that he expressly discriminates between | yuleanizing rubber by th f three ingredients, and vuleanizing it by the combination of sulphur rubber alone. He ex stipulates that he will not use rubber val a combination of sulphur and rubber « Well, new, how can he | say, in the face nnd eyes and teeth of his own obli- | gation, that all he thought Mr. Goodyear claimed was the vuleanizing by his ‘triple compound?” Why did he stipulate, then, that he would not violate the “double compound,’—the compound of sulphur and rubber alonet je did understand, therefore—ho must have un- derstood—it is idig to deny it, thatGoodyear clauned ! I. Day hereby covenants her articles ed of rubber of » when mixed that it did not appear, = the original mnt, of steam, or em! ficial heat. Your honors will find upon that record, that he did undorstand the use of steam, and that he jiseditin yariousways. He tried vulcqnizing rubber and sulphur in steam boilers. But it is contended that sulphur and rubber will not vuleanize in ereheer: the contrary is proved by his experiments. We have offered to prove it in the presence of the Court; and we again offer to prove it by experiment before tho Court. Our learned friend thought that such experiments might bo so conducted as to produce wrong results, nd declined our proposition. We do not complain of this; but wo offered to subject our proceedings to his particular acumen; and in such matters ho is But, in these covenants of Octoberand November, | id Charles Goodyear, That | d shirred or corru- is authorized | generally, I have no doubt, as wide awake as whon called to the subtlest points of law. But suppose rubber and sulphur alone eannot be vulcanized in dry atmospheric heat. What then)? That is not the question. It is whother they can bo vulcanized by artificial hoat. ‘Wo claim the vulcanization of rubber and sulphur by artificial heat, however peodl . llook to the time when the ships that traverse the ocean will have India rubber sails, when the sheathing of ships will have this metallic vegetable production, and be composed of I see, or think I see, thousands of other uses to which this extraor dinary product is to be applied, and if I understand tho matter, Mr. Goodyear’s interest during the du- ration of his patent, extends and covers all thoso uses, 60 that to my apprehension, that which ho has already parted with, is dust, and the dust of the ba- lance, in proportion to the other uses now beginning ny s developed, to which this product may be ap- plied. E But now, may it pleaso your honors, I come to a part of the case which I approach with the greatest reluctance, and with some degree of pain. would avoid it if I could consistently with my professional duties; and in discharging it, 1 mean to deal with no epithets. I mean to use the softest words to express the ideas which I find it my duty to present. I take up the defendant’s answer—the defendant's answer to this bill. May it please your honors, this answor is a sworn answer. Horace H. Day has made solemn oath that this answer, so far as respects his own acts, is true, and so far us it respects the acts of othors, he believes it to be true. That is nothing less than w very solemn proceeding. Now, I suppose that there is no proceeding in which a man is more bound by law and morals to be perfectly accurate, and perfectly true in his oath, than when he appends his oath to an answer in Chancery.. And the reason is, that the law allows him the gent privilege of defeating the whole suit if he can, solely by his own answer under oath. And your honors know that hundreds and hundreds of complaints and bills in equity are defeated every year upon the strength of the defendant's swearing in his own case, because the law allows him to swear in his own case, and the law makes his answer conclusive in his own favor, unless it cun be contra- dicted by two witnesses, or by one witness and other circumstances equivalent to a second witness. Day, in his answer, has seen fit to assert that Goodyear had failed in business, and thereupon, without any previous knowledge of rubber, com- menced making experiments therewith. Mr. Goodyear did fail. They pavers rea that he was oppressed by a pretty heayy load of debt. He did? take advantage of the bankrupt law of the Uni- ted States, and as he made a fair disclosure of all his effects, and conducted himeelf in exact confor- mity with tho requirements of the law, he was dis- charged from his debts, and they amounted to over $30,000. The first thing he did, when he begun to realize anything out of this invention, was to pay those debts, principal and interest. I should have been glad not to have seon upon this record, an un- necessary averment, that he was aman who had failed in business, and threw himself from the des- perate circumstances in which he was placed, into this rubber business. I believe that the man who sits at this table, Charles Goodyear, is to go down to posterity in the history of the arts in ‘Bis country, in that great class of inventors, at the head of which stands Robert Fulton, a renowned relative of my learned friend, Mr. Cutting; in which class stand the names of Whitney, and of Morris, and, in which class will stand, ‘non post longo intervallo,” the humble name of Charles Goodyear, Now, here is another averment:— He says that this patent of 1849, was obtained with fraxdulent intent for an invention more exten- sive than what he had in fact invented, and that Goodyear, well knowing that the imputed error did not arise from mistake, fraudulently in- tending to get a new patent, did therefore apply for, and procure from the Commissioner of Patents, two new patents—one for an invention different from, and more extensive than, his original claim ordoscription, and the other of the sume date re- ferred to. Now, here are his own words of covenant:— Appitionsn. Anticie.—The said Day farther agrees, anything in the foregoing articles to the contrary not- withstanding—that ssid Goodyear may. when he deems it right and proper to surrender the patents bearing date the twenty-fourth day of February. one thousand eight hundred and thirty-nine, and the fifteenth day of June, one thourand eight hundred and forty-four, of either of them, do soand take them out anew; such new patent or patents, in such ease to be subject to all the clauses and conditions in the preceding articles applicable to the said patents as now existing. Mr. Day has sworn it was and was not valid, and if he swears both ways, Mr. Goodyear might, so far as he respected Mr. Day’s opinion, believe that, as to the sufficiency of the first specification, there was some doubt. But now Iam coming to a passage much more grave and serious. On the 32d page of this answer, are words of great import—great and serious im- ort:— ; “And this defendant, farth jor to said Goodyear’s appli n for the patent re- ved to in said Dill, as dated the fifteenth day of June, 1 d and forty-four, and also more than two h application, this defendant used and 1 use and operation in his business in the Jersey, the thing, invention, or discovery, substantial, useful and material part thereof, which is claimed by said Goodyear in the Letters patent, which is anne said bill, and dated the fth day of December. eigh hundred and 1. and he will imsist that he has aright to con- e the use of the same if he should so elect, and that patent is null and void.”* ow, this isa direet swearing that before Good- year’s application for the patent referred to in his Will, that is the patent of 1844, and more than two years before such application, he, Horace H. Day, used everything new and material claimed by Good- year in his patent of I849. Is that so? Is that so? if he had sworn that before the issuing of these patents, or either of them, he had used the sume invention, it probably would have been true, but if it had, it would have had no effect, and it would | not have invalidated the patent. But here he does, upen his solemn oath, before Almighty God, swear | that more than two years before Goodyear made his | applieution for the original patent of IS44, he (Day) | knew and used every improvement in Goodyear’s | pretended invention. “Let us understind this dis- | tinetly. Goodyear’s application for the patent was | in January, 144, so going back two years from | i844, carries us back to January, 1842. Day swears, | therefore, that as early as January, 1842, hie knew | und practised and used everything material and use- | ful contained in Goodyear’s patent. | | This is awfal! Upon the evidence of this case it | Because reference to the evi- in the fall of om, and in- # through the ering, says, that isa moet fearful and tremendous answer. shall show your honors, | | dence, that tong after Ja | that year, b; i | means a from Good- year’s ¢1 nem hoy | Sear ma compound, and how he ap, | heat. | T shall show that it was his strenuous effort through all the laiter part of the year 1842, to find that t of} en! Inquisition made upon f nds; and by going himself to linger j ter around Goodyear’s premises, and abso- | lutely ashing even there, to be show the operations. | That through the whole latter part of the year 1842, | he was doing that, and obtaining that information, y part and particle of which he swears he was | fully apprised of, and had carried his knowledge into on in his own establishmeut, as carly Isf2. And J shall produce to your ow letters, to a person who had been in Goodyear's employ, to come and explain to him Good: “x process and mode of proceeding, and to | explain his compound, and bis mode of applying | heat. Tshall show you that he was entirely ignor- | ant of the whole of this matter until long after | January, li appears on thisrecord, that long after January, | 1842, 1 did not knoweven whether the strands for shirred goods were spun or cut with a knife. 1 shall chow fhat he did not know ono single thing about the invention ; that he was as ignorant asthe most ignorant man in the wtrld, on that subj during the whole latter part of the year 1812, | withetanding he has put upon this paper his sol onth that he knew everything about it, and b | ollin full operation in January, 1842. If I fail in | that, then T shall fail in an u taking which | seems tome to be very easily accomplished; and hat I shall first read is a letter trom Horace H, to Horace Cutler, dated New Brunswick, Dec. 1842, addressed to Horace Cutler, in Springtield, Massachusetts :— honors, EXHIBIT B, New Bronswiex, Dee, 8, 1842, Dear Sir:-—Your favor of 20th November came to hand this morning, and would have been answered “by first return mail,’ a4 requested, had not my timo been #0 im- peratively ocoupied as to prevent my giving It a careful Perussl, Jn answer, L will say, the winter season is just il Fy Hi 2 u 7 hoes read: and I can buy, possibly, I wish to know if you can cut the thread rubber 3 z 3 any E box, for Goodyear uses for suspenders? He says it is spun. Ta haste, remarking you better viat-us at once Tam your ob't HORACE H, DAY. 8 —I expect in New York moat 0 and will look for you about Wednenday ; tar radioed matter of your letter in confidence. as ‘you wish. and, if you please, consider this also confidential, H Now I read from Horaoe Cutler’ 9.—Ques, When was your first acq with defendant, Horace H. Day, and how did you first #0 be- come acquainted ? Ans. In the month of December, 1842, at his store, 46 Maiden Lane, New York. _Brevious to my meeting him, 1 aad received a letter from ucsting me berger e New York. ks selaiauiia’ . Ques. Preduce that letter, and annex a of same to your ition, nT ie Ans, ‘This is the letter ; true copy is annexed, mark- od B. 14.—Ques, State the substance of what was said by Day ‘our first interview. to you. und by you to Day. at brought him the buffato Ans He asked me if T ba shoes. as requested. and asked me what other samples of gocds had brought, if any, that wore made by Goes He wished me toxhow them, which I did, ‘They were ¥am- ples of shirred suspenders and elastice, think) He asked me if I knew how Goodycar made the threads used in those goods shown to him, and the manner in which were made. Itold him Idid. He thon inquired of me how much wages per month he should puy me, to go over to New Brunswick. to work for him in his factory, and teach him practically Goodyear’s method of compoun and heating Tudia rubber, and Goodyear’s method shirring gocds. 1 told hin T would go to bs factory to work, for thirty dollars per montlt, He said he would give it an! cmploy me. Day requested me to keep it secret as towhat I was going to do ; further requested me to say, it any of his hands, or persons, inquired of me what place J wax from. to say T was from Massachusetts, and not to name the town, " recollect nothing else, 15,—Ques, When was thisinterview? Ans. It was on or about the 17th Dec. 1842. Mr. Webster here remarked that this was 11 months after January, when he sald he knew all about i. 16.—Whether or not you went into Day’s employ, and Tor not you had another interview with him; if yea, when and where, and what was said at that infer. view? Ans. I did go into hia employ; I had another interviow with him; the next interview was at his factory, in Now Brunswick, about a week after the first interview: after 1 had been in his employ about a week or more, I told Mr Day that 1 could not stay with him, and that I should immediately return home; he raid to me he wished I would stay. as he was very desirous T should teach him what knowledge I possessed of Goodyear’s invention or plan for making the heated gun: he asked me why [ would not stay. I told him I didnot like the place, and that he never would have patience enough with me in carrying out Goodycar’s operations in the manufacture and heating of guia, He then inquired of me if E would not stay with him to texch him Goodyear’s plan of com. pounding and heating the India rubber gum; what T would take. or how much money he should pay me to tell him this secret of Goodyear,” I chink Utold him. after some reflection, that I would tell him for seventy-fivo dellars, He replied he could not give that. He said if 1 did not tell bim, he could find cut some othor way. I then arked him what he would give, He said, if the gum, prepared under Goodyenr’s process, could be cured in the way that I had stated, by heating, that be would glve mo fifty dollars. pay my board while there im his employ; also, he said he would pay my expenses on and back from Springfield, He asked me if Lcould convince him that India rubber, compounded after Goodyear’s plan, could be heated without melting. and become dry and clastic Ttold him Teould, Chad some samples of greon gum, which was inade with Goodyear’s compound. ‘These pieces were made at Goodyear’t factory, I told him if he would show me a suitable place, T would show him that it would heat and becoma dry end without melting, He proposed to me to zo to his boiler room, where hi boilers were set forcarrying his steam engine. We both erto that room, After going in, Mr. Day door; I then took a piece of green rubber, compounded under Goodyear’s plan, and attached it to & stick. and then commenced the heating process over the couls that were drawn out from under the boiler. 1 con- tinued to heat it there; it being very hot, Mr, Day auld, “it is so hot, Cutler, let me toast a while;” he had toasted a while, he scomed very much pleased with the operation, and says, “it will do it, won't it?” Says, “I um satisfied, and will pay you the money mentioned.”” He requested me to go back to hia finishing room, and there describe to him how Goodyear’s shirred goods were made. with India rubber thread. I did ge back, and there, upon a bench, explained to him the manner the shirred goods were made. He wished me then. to describe the compound Goodyear used in making India rubber compound that would heat; also state to him Goodyear's mode or way of mixing or compounding the same. , 1 did explain to him the compound which was used by Goodyear. I told him they used sulphur and whito lead He secmed very ignorant of the compound, and asked me if it was white lead, such as was used by painters in painting. I told him it was, He asked me then if it was sulpbur or brimstone, I told him it was sulphur. He wished me to state the quantity of pounda of each that was used; I think I told him five pounds of sulphur to twenty-five pounds of India rubber, and eight pounds oflead. “* * * * ® He said to me then be wished I would go to the office and make such memorandums, or minutes, of my knowledge in this process of Goodyear's compounding or heating as T possessed. T told him before doing this that I would toll him frankly that Charles Goodyear had told me that he had secured ® caveat for heuting India rubber gum compounded with sulphur. and for the use of sulphur he had an assignment ofthe patent issued to Nathaniel Hayward; that if he commenced the operation of manufacturing India rubber gum or goods under Goodyear's Inventions. he mast take the responsibility; he replied, “never mind that, I will manage that thing.”” : I then gave him a written memorandum of Goodyear’s way of compounding and heating India rubber gum, to my best knowledge at that time, He then said he had not the money that he could pay me then. but could give me his note on demand, and would pay it ina week or two. I told him T would take it. He gave me his note for $66 and some cents, including fifty doilars for the information given, and for expenses on to New Jersey and back to Springfield, I Mr. Webster remarked — Ithink, displays the black flag pretty dis- i He has managed it—we see what has been his management thus far; and what more we may see of it, it yf well become him to consider. atk Webster here read the evidence to correborate utler. Through the whole months of December, 1812, and January, 1843, he was exploring sources from which he could learn a secret—a secret which he swears he possessed, in all its particulars, eleven months before. Well, what does he mean? What is it he says in that letter, which he (Day) wrote and asked Cutler to return to him—and it was re- turned to him, as Cutler swears. Now, we have eulled upon Mr. Day to produce that letter, and he does not produce it.” We wish to see it, and he will not let us see it. We wish it to be taken from his folio, and pla on the files of this Court. Ho wilknot permit it. Long ago, may it please your honors, sitting as a student, outside the bar, I heard that eminent man, Theophilus Parsons, in a case of this d, with a terseness and strength *yhich, your honors know, belonged to everything he said and wrote, say to thejury:— “Gentlemen, I tell youas a matter of sense, and justice, and law, that every- thing shall be taken most strongly against him who can show and won’tshow.” ‘That is true. Now, I have concluded the evidence which I pro- pose to submit to the Court to contradiot the state- ment in the answer, which I read at the commenco- ment of my observations. I submit it to the most candid, and most charitable, and most indulgent judgment of this Court. And I invoke the pro- nunefation of that most candid, most charitable, and most indulgent consideration of this Court, upon the question whether that ayerment in this rect, positive, material, in the highest degree not entirely overthrown by numerous witnesses, and some of them Day’s “own—over- thrown, too, by his own correspondence, not to ba denied, and by his own course of conduct for months and months, wholly unexplained, and wholly incapable of any explanation. 1 would leave : Il that, but { have a passage or | twomore. In Harlow’s testimony, plaintift’s proof, old page, 501, a conversation ogcurs between Mr. | daylow and a man by the name of Armsirong. <Q. 18.—Did YOU ever real a conversation between Samuel T, Armsiténg, aud Hornce H, Day, respecting ny improvement of Mr. Goodyeas, hy India rubber?, amd if yea, what wasit, where, and when? 4 A.—1 did hear conversation between Mr. Arthstrong and Mr. Day, in Roxbury; the particular words that were used Tcannot remember, but the substances of them wae, that Mr. Day said he he had heard that Mr. Goodyear had made some new improvements in heating India’ rubber, but that it would turn out like all the rest of his improve- ments--that is, worthless. Mr. Armstrong replied, he guessed Mr, Goodyear would get tired of building castles in the air after awhile. There were many other things said at the time. but nothing ele respecting heating rub- ber, This conversation took place at the Roxbury India rubber factory. atthe timethe company soll out thelr effects, which war—I am not certain whether in the fall of 1840 or 1841. It is my impression ity was in the fall of 140.7 And in this connection, I wih to present another not unimportant part of the evidence in this cause. It is the testimony of Jacob G. Jackson, page 999, in plaintifi’s old proofs, question 54, _Ge—Have you ever heard Day sny any thing about Goodyear's suits against him, of what he would do HE Goodyear prevailed in them? AI have heard him say it would not stop him if Goodyear did beat him, which he did not think would be one chancein a million. He said that he could put his factories into the hands of his friends, and they could run them,”? ; ‘This is in exact symphony with what he told Cut- ler, when Cutler said to him, ‘you may expose yourself to be sued.” ** Twill see to that.”” Thold this up as unlawful in the United States Court, and in any Court in the world. 1 should be glad to know what persons among all the respec- table and decent part of mankind, would unite as confederates; nay, may it Ervemed your honors, T we legal ge, who would conspire with Horace H. Day, to defeat this judgment, and the process of (Otnere fs criminal sid tok ‘ere fs a criminal side to this Court. Connec' with this tribuual there isa Grand: Jury, who can indict for crimo, and among the rest for couspiracy