turn it again, and therefore there must be some way to liberate it, which is the second combination. These are the two leading combinations that he sets out in his specification; then there is a third, in regard to the nipples and partitions; the fourth and fifth are subordi

nate matters.

The first inquiry, after seeing what his combinations are, is whether there were any arms, preceding his, which involve and unite these different improvements which he sets out he had made, and were the same in principle. A great deal has been said here about methods in the specifications. The patent is not for a method, merely, but for a machine operating in that method, or mode, or form, which the patent covers. Now, was there a former fire-arm which contained this first combination in substance, and the second in substance, and the third? or, was there one which contained any one of them? If there was a machine which contained one of them, it would precede him on that one, but only on it. If there is any one of the five which did not exist before him in that form, he is entitled en to recover on that. You are now prepared to take up the different fire-arms which, it is said, existed before, and were similar in substance to the plaintiff's.

The only gun, according to my minutes, which is contended to have been of an earlier date than Colt's invention, provided he made it in 1831, as he contends he did, is what is called the French or Coolidge gun, about which you have had a good deal of testimony, - some from the person who manufactured it and sold it pretty extensively, and was interested in the use of it. That was patented abroad about 1818, and published in 1825, so that it is early enough in date: and the only question is, whether the combination and the machinery used there to effect the object was the same in substance or principle with that in Mr. Colt's. It is contended, on the one hand, that it was similar, and experts have been put on the stand to prove it, some of whom speak of a spring in it for revolving the chambers, as different from the common spring which is used in fire-arms, being acted upon, and making a movement by that action, and by the inherent power of the spring; in other words, it was a coil spring, wound up by the hand. On the part of the plaintiff, experts say that this kind of a spring, and the mode of operating it, was different in substance from the mode of operating in Colt's, by drawing up the hammer, and in that way causing the chamber to revolve without any coil spring. On that subject I am requested to charge you whether in point of law that coil spring is the same with the common spring which is often put into fire-arms. I must confess my inability to do it, unless you first find the fact for me, and that fact I submit to you. Whether it is the same in substance or principle, depends on whether it is the same kind of an instrument or not, and whether it acts in the same way in substance, and produces the same result in substance. If it does, you may consider it, in law, the same in principle. But, on the contrary, although called a spring, if it operates on a principle different from springs usually employed, if the results are not the same, if it does not act in the same manner, if it is to be wound up by hand in order to make it continue to operate, I should tell you it is not the same in point of law. Things may go by the same name, and not be the same in substance or principle. We talk about the main-spring of a watch, but it is a very different thing from some springs; yet it is a spring. Whether it is like others in substance or not, is a question for the jury to determine, and not the Court; it is a question of fact.

But I would recommend you to look at this question, as to the similarity of the French or Coolidge gun, in another view. Was that gun or rifle made so that it could operate as Colt's does? is the hand used no more in it than in Colt's? In Colt's the hand is used to draw the hammer and cock the piece, and for nothing else, so that you can go on revolving it ad infinitum; of course, some one must use the hand to reload. Did the Coolidge gun operate in that way? Must you, or must you not, in that gun, use the hand to wind up the spring, as well as to draw back the hammer, before you can turn the cylinder? Must you not use the hand there again, and wind up the spring?

But there is another consideration connected with this which possesses some importance, and that is, whether it was different or not, - did it succeed like this of Colt's? If it was the same in substance,

if it was the same in principle, - would it not have succeeded as well, and did it succeed as well? On that you must go to the testimony of Mr. Collier. He said, that after making a small number, compared with the whole, he became satisfied, as all others who used the arm did, that this spring was inefficient and unnecessary in his gun, and that it was flung aside entirely, and the barrels have ever since been turned by the hand at every discharge. These are considerations to be weighed in connection with the opinion of experts. If you believe that that spring was the same in substance as Colt's, - that it operated as well as Colt's, that it was not flung aside, and still continues to operate, if you believe it could be used originally with no more employment of the hand in connection with it than in Colt's, you are at liberty, and ought, probably, to come to the conclusion, that it contained in substance all that is in Colt's. But, if you do not believe you these things, if you believe the reverse was true, then this should not be considered as taking away from Mr. Colt his merits as the original inventor.

I say this is the only gun which is pressed upon you earlier than 1831, the supposed date of Colt's invention. As to that date, however, there seems to be some conflict, to a certain extent. As I stated, in your hearing, in the progress of the case, while the testimony was putting in, the date of the invention is the date of the discovery of the principle involved, and the attempt to embody that in some machine, not the date of the perfecting of the instrument. It was on that account that I did not consider it pertinent to go into the testimony as to the progress of the perfecting of the machine. If the invention was made, - if it was set forth in a machine which would and did discharge a fire, that is all which is necessary to constitute the invention. But the party cannot get a patent until he perfects it in some sense of the word, that is, until he goes on and makes improvements to render it practical and useful, for it is one element of a machine, necessary to sustain a patent, that it is useful. It is a very different thing to sustain a patent, when it is attacked by another patent, from what it is to show the invention compared with a prior invention; that invention is the discovery of the main principle of the machine, and embodying it in wood or iron, or of whatever it is to be composed, and making it act. Perhaps I go quite too far in requiring all these things; but such is the state of society, and such is the pirating principle which governs many, that it is necessary. I have tried a case here in which, when a party was perfecting a machine, another man stole into the workshop, examined the principle, got the dimensions, and pirated the principle before the inventor had an opportunity to perfect the machine in any sense of the word. He could not get out his patent until he got his machine made, and so that it would work; but he could protect himself against a pirate who encroached upon him.

In order to settle the point of invention here, before you go any further, you have the testimony not only of Mr. Chase, but some halfa-dozen who saw this invention, and saw two specimens in iron or steel, as early as 1831. Those specimens and drawings are produced, and the witness (Mr. Chase) swears that they have been in his possession ever since, until a few months ago. To contradict that, I do not remember any testimony. There are some circumstances which ought to be weighed, as far as they should be, against this positive proof, coming from a variety of sources. One is, that although Mr. Colt considered his machine then perfected so as to entitle him to a patent for it, and he started for Washington with drawings and models, he did not get it patented until 1836; and that this delay is a circumstance which would go to raise some probability that he had not made his invention perfect. If there was no positive testimony that he had made it, this would be entitled to some consideration; as it is, you must give it such weight as it deserves. For, in addition to this, the plaintiff produces the testimony of Mr. Elliot, that in 1832 Mr. Colt went to Washington with his fire-arm, and with drawings, for the purpose of taking out a patent. In 1831 the transaction took place at Hartford, and the invention in 1832 had made such progress as that he thought he was entitled to take out his patent; and Mr. Elliot then thought it a beautiful machine, and that it would be useful, and recommended the delay, in one sense of the word showing that the circumstance about the delay is not entitled to the weight it usually might be. Mr. Elliot recommended the delay, and that he should go to Europe and take out a patent abroad, because fire-arms are unfortunately needed all the world over, and needed more in Europe than here, although we use them pretty freely sometimes; and also that he should file a caveat here, setting out, substantially, his claims, and warning the Patent Office against issuing a patent to anybody else for a like thing; that caveat, they say, was burned in the Patent Office in 1836.

If you believe that the plaintiff's invention was made in 1831 or '32, all the others, except the French gun, seem to be of a subsequent date. The Smith gun, which is the one pressed most strongly as to date, was not finished, according to the mass of the testimony, until 1833, - some considered that it was in 1834,- but it was not finished, so as to be an operative piece, until 1833; and if so, it is wholly immaterial to go into any consideration as to how near it resembles the plaintiffs, for if it was of subsequent date, it does not impair or impeach his. Mr. Colburn admits that his gun was not made until 1833; his patent is dated '33. It had a double trigger. But, if it was not until 1833, there is no use of going over these various considerations, travelling to Michigan, to Auburn and back again, and seeing all these processes and contrivances alleged to have been resorted to, to color and rust up and fit the gun for the trial, and the explanation which has been made why this was done, and that no fraud was contemplated, and no improper agency was exerted about it; all these are of no consequence, if it was as late as 1833, and Colt's was invented in 1831 or '32.

You see why the point of invention is so important, and not patenting; because, if Colt's was invented in 1831 or '32, and was known to several persons in Hartford, although he attempted to keep it as quiet as he could, he was probably pirated upon by these persons, rather than they pirated upon by him, especially if Colburn was at Hartford. The importance of showing these other improvements and machines, similar to Colt's, before, is, that if they existed before, he may have copied them; but if all which were similar in principle existed after, he did not copy from them, but they were likely to have copied from him. But it often happens that they do not copy at all; that they are a sort of independent original inventors; yet such is the law that the date of the invention becomes very material, because it is the earliest in date that is then to succeed.

The Ohio gun was as late as 1834 or '35; and if you believe it was several years after Colt's, it is not important to go into the differences.

I do not propose to say anything more on this subject, except to have you put to your brethren, Mr. Foreman, when you return to your room, after reviewing the evidence, this general consideration: Did any of these guns succeed as the plaintiff's did? If they did, it raises a strong presumption, in addition to any testimony, that they were similar. As I said about the French gun, did they operate as Colt's did? as successfully? did they continue to operate? If they were the same in principle, another question occurs in connection with that fact, and which you will consider and give it its due weight, and no more: whether you have heard on the stand, in the progress of this case, or anywhere else, of the power and effectiveness of Smith's rifles in the world; have they crossed the Atlantic, or penetrated the wilds of America? Coolidge's guns, used now without anything to turn them but the hand, - do you hear and read of them as circulated through both hemispheres? The Ohio gun, - the Colburn gun,

have they succeeded? are they known? do the experts, the men of science here, speak of them as displaying something new, beautiful, and successful? That is to be considered.

On the other hand, it is true, things may fail for a time, and not eventually not entirely; the parties may not choose to patent them, even if they contain something valuable. But what is the presumption? If these great improvements were made before Colt made them, what became of them? why did they disappear any more than his, if they were the same in principle and in substance? That is to be considered and weighed with the other testimony, and that importance given it which seems rational under all the circumstances of the

case.

I hasten to another consideration connected with this subject - as to the extension, in the procurement of which, the defendants aver that there was some moral fraud, and that it should, therefore, vitiate a recovery here by the plaintiff. As you heard in the course of the trial, the commissioner, in acting on this subject, acts under a law of Congress; and it is his business to conform to the law; it is his business not to make the extension until he is satisfied that the party has not been sufficiently rewarded: and when he is so satisfied, it is his duty to grant the extension making it in conformity to the law. It is not the case of a suit between A and B. It is a proceeding pending between a patentee and the government; but, with abundant caution, the government says, in its law, that when this application is made, the commissioner shall give notice to the world, that they may come in and show why it should not be extended. In this case, notice was given, and a certain time fixed for the purpose. Nobody appeared. Probably some opposition was expected, from the adjourning of it; the adjournment may have been made for the purpose of receiving other testimony, the testimony not having been prepared until it was ascertained whether there would be opposition testimony as to expenditures and receipts, to see how the balance stood. Notice of the day had been given in Court; anybody disposed to make opposition could do so; no one chooses to go: I do not know that the commissioner does wrong, after that, whenever he has evidence that the party was not remunerated, in making an extension. It ought to be made seasonably, that the party may know whether he is to have seven years more; and I do not know that anybody has a right to complain, if he does not choose to go there and make opposition, at the time mentioned. But, whether he did right or wrong, the extension is legal; it is valid as regards the original patentee, and nobody has a right to complain,