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H. of R.

Renewal of Patent Right.

MAY, 1812.

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resentment which his conduct was calculated to sure. Io Great Britain the doctrine is perfectly excite. When his machine was first erected in settled. If gentlemen will turn to the famous Georgia, as I bave understood, he refused to sell case of literary property, Millar vs. Taylor, which his patent right upon any terms or for any price. was argued with great ability, and decided with It was determined to monopolize every pound of unusual deliberation, they will be satisfied of the cotton at an enormous premium, and arrange- fact. ments were made for that purpose. To that cir- The court were divided on the particular ques. cumstance, and the opinion which prevailed, that tion pending before them, and gave their opinions the invention was not new, is to be attributed the separately and very much at large. On that occourse of proceeding, now made the subject of casion it was determined that the publication of complaint. The imprudence of Mr. Whitney, or, a literary work did not of itself divest the author perhaps, of his partner, could not fail to have pro- of the exclusive right, nor authorize others to reduced feelings of resentment rather than of libe-publish it for their advantage without his consent. rality towards them. I repeai, however, that the But it was admitted, as a point fully and entirely conduct of Georgia has no connexion with the settled, that the principle did not apply to mepresent question. The United States never gua- chanical inventions; that the disclosure of a merantied to any patentee the receipt of any given chanical invention did divest the inventor of his sum for his invention, nor gave any pledge that exclusive right to such inventions, and that the his exclusive right should in no instance be vio- public became entitled to all the benefits which lated. They have enacted laws for the security could be derived from it. A later decision of the of patentees, provided a remedy for violations of highest courts of the Kingdom on another case, their rights in all cases, and a tribunal before has placed the question of literary property on which that remedy may be sought. To that tri- the same fooring with the mechanical inventions. bunal-The Courts of the United States—Mr. The principle of these decisions is, that the disWhitney should be referred for redress. This is closure of an invention amounts to a relinquishnot a time for exciting Siate jealousies and indi- ment of exclusive use, it is an implied right to vidual resentments among ourselves. Policy, and the public. And if such be the doctrine in Great that conciliatory spirit which ought to guide Britain, under a Government the foundation of our deliberations, unite in prescribing a different which is monopoly and exclusive privileges, it course, and I do trust that prescription will not cannot be otherwise among this people, the fundabe disregarded on the present occasion.

mental principle of whose Government is, equalBut, sir, there is still another and more impor-lity of right and exclusion of monopolies. I contant view of this subject, on which alone I prob. tend, then, sir, that if the disclosure of an invention ably might have relied. The patent of Mr. Whit- vests in the public a right to use it without reney expired about four years ago, and an unquali- straint, much more strongly is that right vested fied right to the invention was thereby vested (as after the expiration of a patent. In the one case I shall show) in the people of the United States. ihe public are invested with a common and equal Under such circumstances, it is my purpose to right by an implied gift, and in the other by conprove the proposed renewal manifesily unconstie The very condition on which patents are iutional. I presume it will be admitted, that, granted is, that, at the expiration of the term auwithout ihe provision of the Constitution on the thorized by law, the people shall be entitled to subject, and ibe law pursuant thereto, no exclu- the free use of the invention; and, to secure this sive rights would belong to inventors. It is true right to the people, such a specification of the the inventor would be entitled to his particular machinery employed is required at the time of machinery, but other persons would not be pro- issuing the paient, as will enable others to underhibited from imitating it, and consequently his stand and imitate it with success. Need I underright to his discovery would not be exclusive. In take to prove that, from the moment Whitney's a state of nature, occupancy gives a right to soil, patent expired, his exclusive right ceased to exist ? upon the ground of supposed labor on the part of None will deny the fact. It is necessary to show the occupant in taking possession. The right that the right which was exclusive during the and the occupancy, however, are inseparable. If patent, is now the common right of all ? li will the latter be abandoned, the former ceases to be admitted that every man in the United States exist—the soil becomes common to all, and may has at this moment as perfect a right to. erect gins be appropriated to another's use. The natural on Whitney's plan, as to build a house or make law in regard to inventions is the same. So long any implement of agriculture. The question then as the inventor is alone in the possession of a presents itself, has Congress the power to divest knowledge of his discovery, he is the occupant, ihe people of that right? I say no, sir; to renew and has an exclusive right. But the moment he a patent after it has expired, is to establish a new discloses that knowledge to the public he aban- principle unauthorized by the Constitution. To sedons his occupancy, and the invention becomes cure a pre-existent right is one thing, but to divest subject to the use of others. This principle is the people of the United States of their right, recognised by the Constitution itself, and fully and vest it in an individual, is quite a different established also in other countries. The express affair. “Congress shall have power to promote delegation of power to secure to inventors the the progress of science and useful arts, by seexclusive right to their discoveries, admits that curing, for limited times, to authors and invenwithout it no such right would exist after disclo- tors, the exclusive right to their respective wri

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MAY, 1812.
Renewal of Patent Right.

H. OF R. tings and discoveries.” What is the import of have legislated on this subject considered a pubthis provision ? An inventor while in the sole lic disclosure of an invention an abandonment possession of the knowledge of his invention has of all claim to the exclusive use; that they unthe exclusive right to it, without the interven- derstood the object of the Constitution to be the tion of law; but when that knowledge is dis- advancement of national improvement; and that closed to the public, the exclusive right would when the public are in possession of any importcease to exist. Therefore, for the purpose of ant discovery they could not be divested of it. affording a stimulus to ingenuity, and of obtain- Suppose the inventor of that useful instrument ing disclosures of useful discoveries, Congress is the screw-augur, who was an inhabitant of New authorized to provide by law for securing that England, and who never solicited a patent for it, exclasive right for a limited time after disclosure, should now make application. Your law exo which previously existed in the inventor, and cludes him because his invention is known and which enabled him forever to withhold his in- in use. And I call on gentlemen to show how vention from the public. The disclosure is the the progress of science or useful arts, or indivi. great object to be attained; the security of the dual justice, would be less promoted by granting exclusive right before existing, but which would a patent in that case, than in the present applicabe lost without such security, by the act of dis- tion. Certainly a man is not less entitled to the closure, is the mean authorized to be employed. bounty of Congress who has given to the public Is there no difference between protecting an ex- the results of his labors, than he who has enjoyed isting right, and taking away a right from one the benefit of a monopoly for fourteen years ; party for the purpose of vesting it in another nor will it be asserted that the right of the comparty? The States composing the Union are munity to an invention is less complete from the bow entitled to the benefit of Whitney's inven- expiration of a patent, than from the bare act of tion, and may make whatever regulations con- disclosing it. cerning it, within their territorial limits, they But, sir, the bill on your table yields the point. please. Will it be said that because the power It provides that the exclusive right proposed to is delegated to Congress to promote useful inven be renewed, shall not operate against persons who tions and to obtain their disclosure to the public, have erected machines since the expiration of by holding out the inducement resulting from the late patent. Why this provision? If those the security of a monopoly for a limited time, who have received machines had a right to do so therefore the States may be constitutionally de- (as the bill implies) unquestionably every nation prived of their unquestionable rights ? Surely has an equal right; and to admit the one, is an acnot. Hence, I conclude that the power of Con- knowledgment of the other. It will not be congress over this subject has terminated by their tended, I am persuaded, that any principle of law own act, and that to resume it would be an un- or reason deprives a man of such a right, simply beconstitutional encroachment on the rights of the cause he has not had occasion to use it; and surely, respective States. Sir, the power given to Con- in an equitable view, those persons who have engress on the question of patents is similar in ex- joyed the profitable use of a right for four years, tent and in every other view to that which in to which all are equally entitled, cannot bare a England is vested in the King. He is empow. stronger claim to its continuance than others who ered to grant patents for new and useful inven- have no participation in its benefits. As well tions for a limited time, but it is held that when I might a citizen be deprived of the right of voibat time expires, such inventions belong to the ting at the next election, because he did not vote public. “If a patent be granted in case of a at the last. Mr. B. added, that he had said more new invention, the King cannot grant a second than he intended, and would forbear to trespass patent, for the charter is granted as an encour- longer on the attention of the Committee. .agement to invention and industry, and to secure Mr. SEYBERT said he did not know that the

the patentee in the profits for a reasonable time; bill for the relief of Mr. Whitney could be acted but when that is expired, the public is to have upon this day; indeed, it was not his intention to 'the benefit of the discovery."-10 Mad. Rep. make any observations on the subject, until the 110. It is also laid down in Bull N. P. 76, that motion for striking out a portion of the bill was among the general questions of patents, the first made by his friend from Georgia (Mr. BiBB;) he is–- Whether the invention were known and in therefore hoped the House would pardon him for use before the patent.” Such is the English law, the desultory and confused remarks which he and the statutes of the United States heretofore should impose upon the patience of the House. passed are founded on the same principle. The He came from a State whose interests were noexisting statutes make it an indispensable condi-wise concerned in this question, and therefore tion to securing an exclusive right, that the in-he stood as an impartial advocate in favor of the vention shall not have been "known or used be patentee; his feelings could not permit him to fore the appplication;" for a patent itself reads remain quiet on the question; by him the mathus:--- Whereas A. B., a citizen, &c., hath al- chine of Mr. Whitney was viewed as a stupen• leged that he has invented a new and useful im- dous monument of human invention-great menprovement, being [here insert a description of tal exertion alone could produce resulis like this, the invention] which improvement has not been and he appealed to the House as to the propriety · koown or used before his application," &c. It of granting the prayer of the petition as reported is then perfectly clear, that our predecessors who lin the bill. It was, he conceived, not a favor,

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H. of R.

Renewal of Patent Right.

MAY, 1812.

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but justice, which the passage of this bill would be estimated. Mr. S. continued-he could not render to Mr. Whitney. If he was correctly in- stop here. Foreign writers prove the absolute formed, Mr. W. received but a trifling compensa- necessity of this machine, to bring the particular tion for his labors; that, in the case of the State of species of cotton to market, which constitutes nineGeorgia, he expended $20,000 more in prosecuting tenths of that which the United States could surlaw-suits, than he had ever been paid in that nish. He would, in proof of this declaration, read State. Mr. S. continued-he was informed that from Edwards's History of the West Indies, vol. 2, in South Carolina Mr. Whitney had met with page 264, as follows: " Green seed cotton is of some persecution ; the assembly of that State two species; of one of which the wool was so originally purchased the right to use the machine firmly attached to the seed, that no method has for the sum of $50,000, which was to be paid by hitherto been found of separating them, except by regular annual instalments. In the following year the hand; an operation so tedious and troubleMr. W. visited South Carolina for the purpose of some, that the value of the commodity is not equal receiving the second instalment, when, instead to the pains that are requisite in preparing it for thereof, he discovered that a Legislature lately as- ' market. This sort, therefore, is at present cultisembled had repealed the law formerly enacted on vated principally for supplying wick for the the subject; and, instead of receiving a second in- lamps that are used in sugar boiling, and for dostalment, the Legislature ordered that he should 'mestic purposes ; but the staple being exceedingly be prosecuted for the recovery of that which he good, and its color perfectly white, it would doubthad before received. Mr. W. was saved from less be a valuable acquisition to the muslin mapuprison by the interference of some private gentle-l factory, could means be found of detaching it men. [Here Messrs. Williams and Cheves rose, easily from the seed.” Whilst the mind of Mr. and in conversation explained to the satisfaction Edwards was thus occupied in London, that of Mr. of Mr. S. that the statement made was not accu- Whitney in the United States effected this valurate; that the delay and difficulties caused by the able desideratum. Mr. W's machine was brought proceedings of the Legislature of South Carolina, to perfection in 1792. Mr. S. dreaded the further were owing to well grounded suspicions, at thai fatigue of the House, but he could not refrain time, that Mr. W. was not the inventor of the from staring some additional facts. Consult, said cotton gin, and that he had in some respects failed he, your Treasury reports, and there you will find to comply with the conditions prescribed by the that, in the year 1810, there was exported from the law.] This explanation was satisfactory to Mr. United States 93,000,000 lbs. of cotton, of which S., and he observed, had he known in time that 84,000,000 pounds was of the species mentioned he would have taken a part in this debate, he by Edwards. Without the gin of Whitney, or should have considered it his duty to consult his some machine equivalent thereto, not a single friends from South Carolina on this subject. He pound of the 84,000,000 pounds could have been further stated that Mr. W. had informed him sent abroad-thus would the United States have that, in the final adjustment of this affair, the State found themselves deprived of the annual income of South Carolina had rendered him ample jus- of $15,000,000, without taking into view 16,000,000 tice. He regretted the necessity of mentioning pounds of cution consumed in our country. Can States in de bate-he would quit this part of the we do too much for this man? Let us render subject, and proceed to communicate those facts him but ordinary justice and pass the bill. Let which had made an impression on his mind in us, said Mr. S. consider the benefits resulting from favor of the bill. He would first quote the au- the application of useful machines in Great Britthority of Judge Johnson in his decision of the ain. Take a view of that of Arkwright. If, said case of Whitney vs. Carter. Here Mr. S. read Mr. S. his memory did not deceive him, in the as follows, from page 128: “With regard to the year 1755 the cortón manufacture of Great Brit

utility of this discovery, the court would deem it ain was ranked among the lowest of her domes'a waste of time to dwell long upon this topic. Is tic branches, and did not value more than £200,000 there a man who hears us who has not experien- sterling annually; in 1809, that nation derived ced its utility? The whole interior of the South- thirty million pounds sterling from her industry in ern States was languishing, and its inhabitants this way. England well knows her interest, and emigrating for want of some object to engage their she fosters her arts. Let us in this respect follow attention and employ their industry, when the in- her example, by doing justice to the genius of our ' vention of this machine at once opened views to countrymen. But for the spinning machinery them, which set the whole country in active mo- invented by Arkwright, and the gin of Whitney, tion. From childhood to age, it has presented the cotton manufacture might at this time remain us a lucrative employment. Individuals who in a state of comparative obscurity. Very little were depressed with poverty, and sunk in idle- will be observed on the constitutionality of the ness, have suddenly risen to wealth and respecta- question. He would apprize his friend from bility. Our debts have been paid off; our capi- Georgia of an error which he had fallen into, in tals increased, and our lands are trebled in value. confounding monopolies with patent rights. In • We cannot express the weight of obligation the United States they were distinci things, which the country owes to this invention; its and whilst on the one hand the Constitution of

extent cannot now be seen." These were the the United States has guarantied to inventors sentiments of a gentleman residing in the State their inventions, in its spirit and letter it is op. of South Carolina; from this their justness may 'posed to monopolies. The renewal of a patent,

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May, 1812

General St. Clair.

H. of R.

said Mr. S., was not unprecedented, it was a com- Pleasants, jr., William Reed, Samuel Ringgold, John mon thing in England and France; and, in the Sevier, Adam Seybert, George Smith, John Smith, United States, the cases of Evans and Whittemore Philip Stuart, Lewis B. Sturges, George Sullivan, Sam. furnished us with examples of the transaction by yel Taggart, John Taliaferro, Benjamin Tallmadge, the Congress of the United States. Mr. S. said Leonard White, Thomas Wilson, Richard Winn, and he would finish his remarks with the expectation

Robert Wright. that the House would pass the bill as reported.

Nars-David Bard, Josiah Bartlett, Burwell BasThe Committee rose, and had leave to sit sett, William W. Bibb, William Blackledge, Adam again.

Boyd, Robert Brown, Wm. A. Burwell, James Cochran, John Clopton, Lewis Condict, William Craw.

ford, Roger Davis, Joseph Desha, Samuel Dinsmoor, THURSDAY, May 28.

James Fisk, Peterson Goodwyn, Isaiah L. Green, BolMr. MORROW, from the Committee on the Publing Hall, Obed Hall, Aylett Hawes, Jacob Hufty, John Jic Lands, to whom was referred the bill from the M. Hyneman, Richard M. Johnson, William R. King, Senate is to authorize the State of Tennessee to Abner Lacock, Joseph Lefever, Peter Little, Aaron issue grants and perfect titles on certain entries Lyle, Nathaniel Macon, William McCoy, Arunah Metand locations of lands therein described," made a

calf, Samuel L. Mitchill, Anthony New, Israel Pickreport thereon; which was read, and, together Rhea, John Roane, Jonathan Roberts, William Rod

ens, Benjamin Pond, William M. Richardson, John with the bill, committed to a Committee of the

man, Ebenezer Sage, Ebenezer Seaver, Samuel Shaw, Wbole on Monday next.

Richard Stanford, William Strong, George M. Troup, Mr. Jennings, from the committee appointed Charles Turner, jun., Robert Whitehill, and David R. yesterday, presented a bill "supplementary to an Williams. aet, entitled 'An act for dividing the Indiana

So the bill was rejected. Territory into two separate governments;" which was read twice, and ordered to be engrossed, and read the third time to-morrow.

FRIDAY, May 29. On motion of Mr. Shaw,

Mr. Dawson presented a petition of the Trus. Resolved, That the committee to whom was

tees of the University of Orleans, signed by Wilreferred the report of the Secretary of the Navy, liam C. C. Claiborne, their chancellor, praying a made to this House on the 26th instant, be directo grant of the lot of land lying in the city of New ed to inquire whether any, and if any, what, alter- Orleans, on which the Government House is sitations are necessary to an act establishing Navy uated.-Referred to the Committee on the Public Hospitals, passed the 26th February, 1811, and Lands. that they report by bill or otherwise.

Mr. Morrow, from the Committee on the PubThe House again resolved itself into a Com- lic Lands, to whom was referred the amendments mittee of the Whole on the bill for the relief of of the Senate to the bill "10 ascertain and estab. Eli Whitney; and, after some time spent therein, lish the western boundary of the tract reserved the Committee rose, and had leave to sit again.

for satisfying the military bounties allowed to the An engrossed bill to amend the laws within the officers and soldiers of the Virginia line on ConDistrict of Columbia was read the third time, and tinental Establishment,” reported their disagree. passed. An engrossed bill for the more perfect organi- to the said amendments.

ment thereto. Whereupon, the House disagreed zation of the infantry of the United States was

Mr. Lewis, from the Committee for the District read the third time, and passed.

of Columbia, to whom were referred the amendAo engrossed bill authorizing the President of ments of the Senate to the bill "concerning the the United States to lease one of the public res- Levy Court in the county of Washington, in the ervations of ground in the City of Washington District of Columbia,” reported their disagreewas read the third time, and passed.

ment thereto. Whereupon, the House disagreed GENERAL ST. CLAIR.

to the said amendments. The House resolved itself into a Committee of

Mr. Morrow, from the Committee on the Pub. the Whole on the bill " for the relief of Arthur lic Lands, who were directed to inquire what proSt. Clair ;" and, after much and animated debate, vision ought to be made respecting lands granted the question was taken that the said bill be en- | by the British Government of West Florida, not grossed and read the third time, and determined subsequently regranted, made a report, which in the negative-yeas 48. Days 50, as follows:

was read. When Mr. MORROW, from the same YEAs-Stevenson Archer, John Baker, Harmanus lands in the Mississippi Territory, derived from

committee, presented a bill confirming grants to Bleecker, James Breckenridge, Elijah Brigham, Epa- I the British Government of West Florida ; which phroditus Champion, Langdon Cheves, Martin Chittenden, John Davenport, jun., John Dawson, William

was read twice, and committed to a Committee Ely, James Emott, William Findley, Asa Fitch, Tho- of the Whole on Tuesday next. mas Gholson, Charles Goldsborough, Richard Jackson, Mr. Morrow, from the same committee, who jun., Philip B. Key, Lyman Law, Joseph Lewis, jun., were instructed to inquire into the expediency of Robert Le Roy Livingston, William Lowndes, James confirming claims to land in the Mississippi TerMilnor, Jeremiah Morrow, Jonathan 0. Moseley, Hugh ritory, founded on Spanish warrants of survey, Nelson, Thomas Newton, Stephen Ormsby, Joseph made a report; which was read. When Mr. MorPearson, William Piper, Timothy Pitkin, jun., James ROW, from the same committee, presented a bill

H. OF R.

Foreign Relations.

May, 1812.

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confirming claims to lands in the Mississippi Ter- lin and Milan decrees. Indeed, the only cases ritory, founded on warrants of survey granted by relied upon by Mr. Monroe to prove the repeal of the Spanish Government; which was read twice, the French decrees, are those of the Grace Ann and committed to a Committee of the Whole on Green, and the New Orleans Packet. On the Monday next.

first of these no great stress is laid-because, bavFOREIGN RELATIONS.

ing been captured by an English cruiser, she was

retaken by her own crew, and carried into MarMr. Randolph said that rumors to which he seilles, where, consequently, the captors became could not shut his ears (of an intended declara- French prisoners of war. As well might it be tion of war on Monday next, with closed doors] expected that, in case of war between the United and the circumstance which had just passed un- States and England, our privateers carrying their der the eye of the House [alluding to a motion to prizes into French ports, should be proceeded adjourn] impelled him to make a last effort to against under these decrees. It was, therefore, rescue the country from the calamities which, he on the case of the New Orleans Packet that the feared, were impending over it. He had a prop- principal reliance was placed, to show the repeal osition to submit, the decision of which would of the obnoxious decrees. But even this case, affect vitally the best interests of the nation. He established, beyond the possibility of doubt, that conceived himself bound to bring it forward. He the Milan decrees of the 230 November, and 17th did not feel himself a free ageni in the transac- December, 1807, were in force subsequently to the tion. He would endeavor to state, as succinctly period of iheir alleged repeal. This vessel, hearas he could, the grounds of his motion, and he ing, at Gibraltar, where she had disposed of a part humbly asked the attention of every man whose of her cargo, of the letter of the Duke of Cadore of mind was at all open to conviction-of every the 5th of August, 1810, suspended her sales, and man devoted to the cause of his country, not only the supercargo, after baving consulted with Mr. in that House, but in every rank and condition of Hackley, the American Consul at Cadiz, deterlife, throughout the State.

mined, on the faith of that insidious letter, to proThe motion, which he was about to offer, grew ceed with the remainder of his cargo to Bordeaux. out of certain propositions, which he pledged He took the precaution, however, to delay his himself to prove; nay, without an abuse of the voyage, so as not to arrive in France before the term, to demonstrate.

1st of November, the day on which the Berlin and The first of these propositions was, that the Milan decrees were to cease to operate. Berlin and Milan decrees were not only not re- Here Mr. RANDOLPH was called to order by pealed, but that our Government had furnished Mr. Wright, who said there was no motion beto the House and to the world unequivocal evi-fore the House. dence of the fact. The difficulty in demonstrat- The SPEAKER overruled Mr. Wright's objecing this proposition arose rather from his embar- tion, as the gentleman from Virginia had declared rassment in selecting from the vast mass of evi- his intention to make a motion, and it had been dence before him, than in any deficiency of proof; usual to permit prefatory remarks. for, if he were to use all the testimony that might Mr. RANDOLPH said he would proceed in his be adduced, he feared his discourse would grow argument without deviating to the right or to the to a bulk not inferior to the volume which he left, and he would endeavor to suppress every held in his hand. He would refer the House to feeling which the question was so well calculated the correspondence, generally, of Mr. Russell, our to excite : agent at Paris, accompanying the President's “ The vessel accordingly arrived in the Garonne on Message of the present session. He referred to the 14th of November, but did not reach Bordeaux the schedule of American vessels taken by French until the 3d of December. On the 5th of this month, privateers, since the first of November, 1810. [the the Director of the Customs seized the New Orleans period of the alleged repeal of the French decrees :] Packet and her cargo, under the Milan decrees of the of these, it was worthy of remark, that "the Ro- 230 November and 17th December, 1807, expressly set binsonova, from Norfolk to London, with tobacco, forth, tor having come from an English port, and have cotton, and staves; the Mary Ann, from Charles- ing been visited by a British vessel of war." ton to London, with cotton and rice ; the General Thus, this vessel having voluntarily entered a Eaton, from London to Charleston, in ballast; French port, on the faith of the repeal of the dethe Neptune, from London to Charleston, also in crees, was seized under them: ballast; the Clio, from London to Philadelphia, “ These facts (continues Mr. Russell) having been with English manufactures; the Zebra, from stated to me by the supercargo, or the American Vice Boston to Tarragona, (then in possession of the Consul at Bordeaux, and the principal one, that of the Spaniards) with staves, all coming under the seizure under the Milan decrees, being established by operation of the French decrees, and seized since the proces verbal, put into my hands by one of the conthe 20 November, 1810, had not been restored on signees of the cargo, I conceived it to be my duty not the 4th of July last;" and that the only two ves

to suffer the transaction to pass unnoticed.” sels named in that schedule, which had been re- This proces verbal is neither more nor less stored, viz: the Two Brothers, fr Boston to St. than a libel in the Admiralty Court, drawn by Malo, and the Star, from Salem to Naples, (the the law officer of the French Government, agreeone a port in France, the other virtually a French ably to the law of the Empire. What should we port,) did not come within the scope of the Ber-say to a libel of a vessel by the District Attorney

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