Court of tlxe HtxiM OCTOBER TERM, 1886. THE TELEPHONE [JANUARY 24 FEBEUAEY 8, 1887.] 113 AMOS E, DOLBEAR ET AL,, Appellants, ) u. s. c. c. THE AMERICAN BELL TELEPHONE CO, \ Ma88 ' n 667 THE MOLECULAR TELEPHONE CO, ET AL,, Appellants, ) u.s.o.c. THE AMERICAN BELL TELEPHONE CO, ET AL, > j B.D.N.Y. O68 CROSS APPEAL IN $AME CASE. 1002 THE CLAY COMMERCIAL TELEPHONE CO.^ET AL, j u.s.c.c. THE AMERICAN BELL* TELEPHONE CO, ET AL, j KD - Pa - 1164 THE PEOPLE'S TELEPHONE CO, ET AL,, Appellants, ) u.s.c.c. THE AMERICAN BELL* TELEPHONE CO, ET AL, )**** [DBAWBAUGH CASE.] 1165 THE OVERLAND TELEPHONE CO, ET AL,, Appellants, ) u.s.c.c. THE AMERICAN BELL TELEPHONE CO, ET AL, ) S - D ' N Y> ARGUMENT OF E. N. DICKERSON, Esq., FOR THE AMERICAN BELL TELEPHONE COMPANY. Reported by F. M. ADAMS. NEW YOEK: EVENING POST JOB PRINTING OFFICE, COR. BROADWAY AND FULTON Sit (Law Telephone 541.) 1887, o CONTENTS. The composite " Polyform " defense made up of in- congruous and inconsistent elements, and the con- tribution of each defendant to it 1 Dolbear's contribution and character. His attempt to ob- tain money from Bell and his appearance for the Western Union in the Dowd case 2 The Molecular Company's contribution of law and philos- ophy 7 The Overland-and-Drawbaugh combination contribute Drawbaugh's story and the impossible charges of fraud 10 The Clay Company's no- title defense 11 Reis' history and career in Germany 12 Sylvanus P. Thompson's employment to exploit the Reis story 13 Reis' exhibition at Giessen in 1864, and Professor Buff's lecture and publication. Reis' machine could not talk 15 The alliance between the Department of Justice and the infringers 18 The results of their joint enterprise are incompetent in law and worthless in fact. The witnesses from Germany 20 The diploma given by the University of Heidelberg to Professor Bell in 1886, as the inventor of the speak- ing telephone, expresses the sentiment of scientific Germany 20 The Gray defense. Gray's combination with the Western Union in 1877 23 Dolbear joined in the combination but was found to be useless as a " prior inventor " 24 Gray's caveat ; the origin of the idea of the speaking tele- phone in his mind ; and his earliest date of concep- tion 26 ii CONTENTS. The instrument of Gray's caveat will not talk 26 Gray's character. He testified as a witness that Bell was the first inventor of the Magneto telephone, and yet in his sworn application at the Patent Office claimed that invention for himself 27-33 Gray, in private correspondence and public lectures, con- fessed that Bell was, and that he was not, the first inventor of the speaking telephone 28 Bell's Figure 7 will talk, and in the way pointed out in his specification 36 The judgment against the Western Union in the Dowd case 37 Mr. Gifford's affidavit, and the termination of the Dowd suit 39 Bell and Gray at the Patent Office 43 Bell's application, Gray's caveat, the threatened interfer- ence, and the proceedings in the Office 44 Throughout these, Wilber, Examiner, showed himself un- justly hostile to Bell, and unduly favorable to Gray. 47 The Harmonic multiple telegraph of Varley and others. ... 49 Bell introduced the " undulatory " principle into that 50 A further and different modification of the undulatory cur- rent gave him the speaking telephone 51 The obstacles Mr. Bell encountered 51 The fraud alleged a year ago to have been practiced by Bell against Gray was exploded by the New Orleans de- cision 52 Last week the appellants for the first time invented a new charge of fraud utterly inconsistent with the old one 55 The new charge of forgery and fraud 56 Bell's liquid transmitter is a working instrument, and Gray's water transmitter is not. Explanation of the details of the working of these instruments 56 Bell's successful water transmitter of March 10, 1875, and its mode of operation 61 Other features about variable resistance instruments, and about certain advantages of the uudulatory current, which are not in' the Brown specification and are in the Bell patent, are not found or hinted at in the Gray caveat, and therefore could not have been stolen from it 63 When the charge of forgery is compared with the papers CONTENTS. ill PAGE themselves the utmost scope that can be given to it is a charge that Bell defaced his own correct specifi- cation by interlining into it words, every one of which was either unmeaning or injurious 66 The charge of forgery as stated in the appellants' brief 69 The various certified copies of the specification, including the patent itself, and the correspondence between counsel about the erroneous print, and the reprint of it 66-71 Mr. Bell's visit to Washington in February, 1875, and his description of it in his letter to bis parents, on March 5, 1875. He did not obtain underhand knowledge of Gray's harmonic telegraph application, but only learned of Gray's apparatus from public exhibitions and newspaper descriptions of it 78 Mr. Edmunds, senior counsel for the Drawlaugh and Overland Companies, now exonerates Mr. Bell from all complicity with ang wrong, if any was committed ly any one 81 Bell's good faith and honesty proved by his cotemporane- ous publications of that which a dishonest man would have concealed, and by his sending to Gray the published account of his own use of the liquid transmitter 82 The George Brown specifications 84 The relations between Mr. Bell and Mr. Brown 85 The variable resistance plan conceived of and stated by Mr. Bell, May 4, 1875 \ 86 The particular contrivance, known as the liquid transmitter, for working out that plan, invented and put into his American specification in January, 1876 87 Not put into the Brown specifications because it did not seem important enough to induce Mr. Bell to take the trouble to alter them under the circumstances of the case, and in view of the difficulty he already had to get Mr. Brown to do anything. 87 The whole description of the speaking telephone, fig. 7, and of the new principle by which he transmitted speech, is described in identical language in the George Brown specification, and in the American patent. The insertion of the liquid transmitter alternative form was not of itself important, and has not been deemed so by any Court 89 iv CONTENTS. PAGE Bell's honesty and good faith is again proved by the fact that he sought for and found the George Brown specification in 1878, voluntarily offered it, and him- self put it in evidence 95 The written records disprove all charges of interpolation . . 96 The suggestion of forgery has no thinkable foundation. It does not explain and is inconsistent with the facts which the appellants themselves admit 97 Mr. Edmunds' repetition of the story about Mr. Orton proves the fallibility of memory 98 The McDonough defense. It was tried in the Patent , Office, and condemned as a mere reproduction of the Reis musical telephone 100 The Varley harmonic telegraph patent, and the Clay Company's comments on it 103 Explanation of the terms "intermittent current" and " undulatory current," and of the symbols by which they are commonly expressed 104 The Varley harmonic telegraph patent explained 107 The Holcomb defense ; the House-patent defense. . 110 The House-patent defense, admitted by Mr. Lowrey in his printed brief to be absurd, is published in the news- papers, and set up in the Government case, as the only new ground of attack on the Bell patent Ill The Drawbaugh case. Unwarrantable attacks by the appellants on Judge Wal- lace's decision 113 Drawbaugh's autobiography. The facts and testimony about it 113 Drawbaugh's finances ; the truth and the facts about them. 117 Mr. Matthews, the Baltimore American, and his letter to counsel. The truth and the evidence about that. . . 119 The patent itself produced. It proves what the specifica- tion was on March 7, 1876. Explanation of the practice in the Patent Office 121 The " spurious brood " of decisions 124 The just scope of the Bell patent. Galileo's telescope as an illustration 125 The Drawbaugh frauds. The measure of proof required to support a claim so stale and suspicious 130 CONTENTS. V PAGE The Drawbaugh story depends largely upon mere dates, a subject upon which memory is proverbially weak. . . 130 Drawbaugh's methods of debauching dishonest witnesses and deluding honest ones 131 The small value of memory of dates, especially among wit- nesses situated like Drawbaugh's 132 Mechanical speaking telephones at Drawbaugh's shop 133 Drawbaugh a charlatan and impostor 134 His visit to the Centennial. His conduct about it abso- lutely inconsistent with his story 135 The origin of the Drawbaugh claim. Chellis and Moffitt investigated his telephone work in 1878-'9. His only work then pretended, consisted in telephone improvements made in 1878, and they declined to touch these because of the Bell patent, and because he could not antedate it 137 Drawbaugh acquiesced in this, and did not assert the con- trary 138 Origin of the present Drawbaugh enterprise 139 They knew that Drawbaugh could not antedate Bell, but found in 1879 that an ignorant neighbor would swear his instrument back, and on that they started a speculation based on a sale of the story to those who would buy without investigation 142 Their conduct in 1879, and subsequently, proves that such was the character of the Drawbaugh enterprise 143 The frauds they have committed in deluding honest men into swearing to what the conspirators knew to be false the water ram story 145 The Philadelphia tests of 1885 and the Hunnings transmitter fraud 146 Defendants' witness, Captain Moore, their most reliable witness, confirmed by Drawbaugh, kills their case . . . 150 The treatment of Mr. Bell by the great scientific societies of the world contrasted with the attacks made on him by those who assail his honor only because they are greedy of his profits 154 The Bell telephone annex to the Department of Justice 156 Conclusion. UNIVERSITY nyic&m& Ccwrt of tftefEttiM THE BELL TELEPHONE APPEALS. [HEARD JANUARY 24 TO FEBRUARY 8, 1887.] ABGUMENT OF Mr. E. N. DICKERSON FOK THE AMERICAN BELL TELEPHONE COMPANY. FEBRUARY 3, 1887. Mr. Dickerson : May it please the Court : Our learned and respected brother, Mr. Edmunds, towards whom, if he will excuse the liberty I take, I may say that, in conse- quence of something he said in this case, I feel more kindly than I ever have felt before, told your Honors, in his pleasant banter, that our side did not read the scriptures, but that his did. I do not propose to traverse that asser- tion just now, and I ask a suspension of the judgment of the Court until we can produce the proof; but I will admit that his side reads the good book, and that in it they found these words of wisdom: " In the multitude of coun- selors there is safety." I always supposed that to mean safety for the counselors. He also probably found in that same book an account of a very celebrated and just man who was clad in a coat of many colors. Perhaps these various appellants are trying to imitate him. The imita- tion, if that be their purpose, falls short in the circum- stance that the virtue is wanting. I think, however, that I know where the theory of this argument carne from; and that my brother Lowrey will agree with me, because he also knows the same facts, and must perceive its true origin. I think it came from that distinguished man, Thomas A. Edison, otherwise called the " Wizard of Menlo Park." The " Wizard," like his 2 ARGUMENT OF MR. DICKERSON. prototype, Jack Falstaff, whom he resembles very much in many ways for he is a man of infinite jest and humor- was troubled at one time with a disease that Jack Falstaff suffered from, and called " Consumption of the purse." Jack never found the remedy; said he, " Borrowing only lingers and lingers it out; but the disease is incurable." But Edison, being an inventor, found the remedy. He in- vented a trade mark it is a very good one and he called it "Poly form " : brother Lowrey knows all about it. And he first printed that on bottle labels, and then went about to apothecaries and bought all the kinds of drugs he had been told were remedies for rheumatism, and mixed the ingredients all together, and put them into his bottles, and sold them for a dollar a bottle, under the attractive name of " Edison's Polyform," for rheumatism; to be bought in any of the apothecary shops in the country ; and that cured the consumption of Ms purse without any trouble. Now, our learned friends here, in imitation of the " Wizard of Menlo Park," have been mixing a kind of legal te Polyform"; and they have compounded the ele- ments in a cauldron in the presence of the Court. My purpose, just now, is to examine what are the ingredients in this cauldron, and to see whether the " Polyform "is capable of curing the rheumatism which, for some years, has prevented all these infringers from walking abroad and filling their pockets out of our earnings. What, then, are the contributions to this Polyform ? The Dolbear case contributes three ingredients : First Dolbear says that Bell has invented the only way in which it is possible to transmit speech, and he thinks that he ought not to be such a hog as to try to keep it all himself ; but if he is, why then he ought at least to in- vent some other way, and give that to the public, and then they will not be so unhappy about it. That is the first contribution of the Dolbear case. Then Dolbear says : But if Bell is going to be such a hog as to try and keep it all, Dolbear does not in- fringe, because he is using one of the old, well known kinds of receivers for sound, which Bell never used, and which he thinks is not the equivalent of the receiver of the Bell patent. But Bell, as your Honprs now know, DOLBEAR'S CONTRIBUTION AND CHARACTER. 3 never patented his receiver at all; for Bell's patent is not for either the receiver or the transmitter ; it is for a telephone, organized in such a manner as to generate and mould his new kind of currents with which your Honors are now familiar. Then Dolbear contributes a third ingredient to this cauldron; which is, that Reis was the first inventor. But that he does with bated breath. My agreeable friend Maynadier did not press that at all upon the considera- tion of the Court; and the reason why he did not, your Honors now know. When Dolbear tried that plaster in Boston it made his joints stiff er than ever, and he does not care to try it any more. He merely suggests it in this case, and leaves others to be the sponsors for ifcs efficacy. But this Professor has put into this cauldron some other ingredients, which all go towards making this general polyform, and to which I would call your Honors' atten- tion; for we are now trying to analyse the contents of this mess, and to see what it contains, in order to find out what is and what is not, in law, effective for the purposes proposed. What he contributes is to be found on the 494th page of our general brief, and is a letter from him to Professor Bell: " COLLEGE HILL, Mass., February 16th [1877]. " Professor A. G. BELL: "Dear Sir, The other day I visited your room at Exe- ter place, and was kindly shown your invention, the tele- phone, by Mr. Watson. I congratulate you, sir, upon your very great invention, and I hope to see it supplant all forms of existing telegraphs, and that you will be suc- cessful in obtaining the wealth and the honor which is your due. " Yours truly, " A. E. DOLBEAR." But, the Professor changed his mind in the course of that summer, and on Aug. 1st he wrote another letter. "Aug. 1st, 1877. " Hon. GARDINER G. HUBBARD: 44 Sir, Since the conference I had with Prof. Bell, upon our mutual relations to the telephone, which we held in your presence, I have been looking for some 4: ARGUMENT OF MR. DICKERSON. communication from you upon the matter, for I thought that I convinced Prof. Bell that I had invented the speak- ing telephone ab initio, entirely independent of him, and moreover that the special form of it which he now uses, namely, the vibrating inducing plate, in front of a fixed permanent magnet, antedated his invention of the same thing by considerable time." * * * " I, THEREFORE, ASK YOU IF, IN ALL FAIRNESS, YOU WILL NOT CONCEDE TO ME A SHARE IN THE PROFITS OF THIS INVENTION. "At the request of Messrs. Lee & Shepherd, publishers of Boston, I have written a small treatise upon the subject of telephony, and it is now in press, and will probably be issued in about ten days. I have endeavored in this book to give the full credit to Prof. Bell for his invention, and have described with drawings his apparatus, including the device, patented January 30, 1877. All the facts in relation to the claims of Prof. Bell, and also my own, will thus come before the public, and become well known, to purchasers of telephones. "I think it will then be perceived that my rights are equal to those of Professor Bell, and this must diminish the sale under that patent." And then a virtuous streak came over him. " I HOPE THAT THERE IS NOTHING THAT I HAVE SAID THAT WILL LOOK TO YOU LIKE AN IMMORAL ATTEMPT." Why, who could suspect it ? No man could suppose that! Why should he put in that caveat ? Well, in a figurative sense, he was kicked out of doors; and then he turned up at the Western Union Office. At that time, in 1877, the Western Union Company were pre- paring to infringe the Bell Patents, notwithstanding the astonishing fact, according to brother Edmunds, that the President of the Western Union would have nothing to do with it until the fall of 1 878. He turned up at the Gold and Stock Telegraph Company (a subordinate of the Western Union), and in September, 1877, just one month after this moral letter, made a contract with the Gold and Stock, in which he agreed to transfer to them his two inventions, and they agreed to give him one-third of the profits of the telephone to be realized out of the business of telephony (see Contract, Dowd, i, 314). In consequence of this and of Gray's contract, a company was formed December 6, 1877, called the American Speaking DOLBEAR'S CONTRIBUTION AND CHARACTER. 5 Telephone Company, which exists to-day (Dowd, i, 129). Then, relying upon those representations, Dowd, who was simply a telephone operator for this American Speaking Telephone Company, and who was sued by us, put in his answer, and averred and swore to it first, that Professor Dolbear was the inventor of the entire telephone before Bell (Doivd, i, 7); and, secondly, that he was the inventor of the improvements of 1877, before Bell (Dowd, i, 9). And the case went to trial upon those issues. This Professor, however, when he was called upon the stand in the Dowd case, to make good the representations under which that Gold and Stock Company had agreed to give him one-third of the stock of this new company, of course went down at once. He made no pretense that he was the inventor of the Bell Telephone. On the contrary, he told the story truthfully; because this gentleman is in- capable of telling any lie under oath; and he had already written to Bell (May 6, 1877) the true story, which was that the first time he ever thought of making a speaking telephone was when reading Sir William Thomson's re- marks about the success of Bell's Telephone at the Centen- nial. He had read, he said, that very eulogistic account of it, published by Sir William Thomson, who recounted in England his wonderful experience at the Centennial, using this emphatic language (Molecular, ii, 1799): ** Who can but admire the hardihood of invention which devised such very slight means to realize the mathe- matical conception that if electricity is to convey all the delicacies of quality which distinguish articulate speech, the strength of its current must vary continuously, and as nearly as may be in simple proportions to the Velocity of a particle of air engaged in constituting the sound." That was the first Dolbear ever thought of a telephone; and, of course, like an honest man, he would not swear to anything to the contrary. (See his letter to Bell, Dowd, i, 299; brief, 490.) When the Western Union found that this gentleman was too honest to tell anything on the stand that was not the truth, they of course had no further use for him; and he was again figuratively kicked out of that place, having left poor Dowd in the lurch, who had sworn, on those rep- 6 ARGUMENT OF MR. DICKERSON. resentations, that Dolbear was the inventor of these two Bell inventions. And when we brought our action against him here, that streak of integrity which overcame him on that occasion, still pursued him; and he did not even set up in his answer that he ever invented anything about the telephone. He relies upon his newly discovered, what I may call anti-hog principle of patent law that an in- ventor is not to be allowed to keep all that he invents, but must give somebody else a share out of decency. At that time, may it please your Honors, there was a very active market for first inventors. The Western Union Telegraph Company, supposed to have an overflow- ing treasury of large dimensions, had begun to infringe. They would not buy BelPs patent, which they might have done, and had a fair chance to do. They preferred to in- fringe it; because, your Honors, no man know^s whether a title to a patent is good until it has been tried in Court; and it seems foolish to spend money in buying a title that never has been tried. But infringe it, and be sued, and get it tried why then you have got something that you can buy with safety. It is like a judgment for a debt it settles the question without any receipt in full; and the Western Union Company was engaged in trying that ex- periment, and they tried it to their satisfaction. But there was a great demand at that time for first inventors. That demand, may it please the Court, has continued very active ever since. The price of first inventors is going down just now; but for a long time it was quite high; and a good many first inventors got their price. Figuratively speaking, the woods are full of them yet. We have had two or three within the last two months two or three "first inventors" and we expect to have them to order at any time from now till the expiration of this patent. The Western Union had two: they had this gentleman; and another gentleman who has been described to your Honors as a person of singularly pure and simple character, very liable to be deluded and deceived by such an artful and designing man as Professor Bell; and his name was Gray. The Western Union Company set up the Reis defense in that Dowd answer; but being electricians, so to speak THE MOLECULAR CO.'S CONTRIBUTION. 7 that is, being managed by electricians, and therefore know- ing that that was absurd, never called a witness to swear it anticipated. It was put in as a matter of form. No electrician would set up the Reis thing as an anticipation of the Bell patent; but when we get speculators or people like that in Court, why then they will set that up, or any- thing else; but not the Western Union. They set up two first rate defenses, if true, namely: that Dolbear had in- vented both of Bell's patented inventions; and that Gray had invented both. The difficulty with them was that they were not true; but, in point of common sense and in law, they were excellently good defenses. Not so the Reis defense. Now comes the Molecular case, which contributes its share to this Polyf orm. It brings four ingredients, one of which is a matter of fact, and one a matter of law ; one is a mixed matter of law and fact, and another is a matter of moral philosophy; and they are all put in to make up this general result that is hoped will be so effective here. Their first is, that Bourseul and Reis described the in- vention of Bell in circumstantial detail, so that any one can read it out of their descriptions; and it needs, there- fore, no invention to do it after those full explanations have been given to the world. That is the Reis part of it, which my learned brother Lowrey so fully and ably argued.* That is the first contribution. To the law question I cannot do justice without reading it. It is in brother Lowrey 's brief at pages 155-6. He says that the interpretation of Bell's patent ought to be such as to secure Mr. Bell in the exclusive enjoyment of that tin and bladder contrivance on the table, known as fig. 7 of the patent, which he says he takes great pleasure and we know he does in admitting to your Honors was the invention of Professor Bell. He says that no other man ought to share it with him in this world; but that he * The difficulty with this argument is that all the expert witnesses for the de- fendants agree that neither Bourseul nor Reis ever knew or ever described the mode of operation invented by Bell, and therefore that the world never was instructed by them how to make a speaking telephone ; and that the Reid machine is in capable of transmitting speech when operated in the way designed by its inventor, which was " circuit-breaking." (See witnesses cited infra and brief, pp. 230 et seq. 8 THAT THE REIS WAS A SPEAK1XG TELEPHONE ought to be confined strictly to that. Let me read you his exact statement. Says he (Molecular brief, 156): " Such an interpretation secures what Bell invented, and enough of what he DISCOVERED to enable him to work his invention, while not excluding other inventors from access to the universal storehouse." Now that, as a proposition of law, is entirely bright and new. It is not even fly specked. It has never yet been subjected to the criticism of this cruel and heartless world. He presents it with that perspicacity so charac- teristic of my brother Lowrey on all occasions. Let Bell have enough of his own discovery, says he, to work that tin and bladder machine like fig. 7; but let the rest of us get into his storehouse that he made, the key of which he found, and the contents of which we think we can use a great deal v better than he can. That is the law part of this contribution.* Then the moral philosophy part is, that the reason why Reis' invention did not get into public use at all, was, that Reis freely gave it to the world. Well, brother Lowrey, like other self-respecting gentlemen, would not like to take presents from strangers. No gentleman does. A man who would consent to take a present from an entire stranger is well, we should call him a "cad" in social life and brother Lowrey 's high sense of the character of a gentleman makes him revolt at the idea of taking a present from any one unless from some intimate friend. For instance, brother Lowrey would accept a present from me, and I would from him at any time; but from an entire stranger, that is too much ! But, his idea is that while self-respecting men will not accept a present from Reis, they may steal it from Bell, because that is a thing * The Constitution calls for " securing to authors and inventors . . . the exclusive right to their respective writings and DISCOVERIES." By the statute the specification is to describe " his invention or DISCOVERY," and to " explain the principle thereof, and the best mode in which he has contem- plated applying that principle" Having thus treated " invention " and "discov- ery" as co-extensive, and having contrasted them with the mode in which he has contemplated applying it, as something much more restricted, it provides that the patent shall be in the broader terms for the " new invention or DISCOVERY." This subject is in our General Brief, p. 346. AXD THE BELL OXLY A TELEGRAPH. 9 any gentleman-Turpin may do. That belongs to the chivalry of the middle ages. Your true knight won't beg, or accept a gift; but he will take it by force; and that is honorable. And he thinks that is the way to account for the fact that people who would not take Reis' telephone as a gift are ready to steal in order to get Bell's. So iny learned friend puts that bit of moral philosophy into this cauldron, and he does it with great evident sincerity. Then he contributes another, and it has always struck me as a very powerful one a mixed question of law and fact. I keenly felt the force of it when it was first brought out on the stand. I think I never have quite recovered from the effect of it from that time to this; and that is that, after all, Bell never thought he invented a telephone at all that the contrary supposition is an entire mistake that Figure 7 is not a telephone, never was meant by him to be one; that it is in fact a "multiple telegraph," and never was meant to be anything else. And, that your Honors may have no doubt about it, he has had it sworn to by a competent witness; and according to the theory of the Drawbaugh case, that whatever is sworn to by a com- petent witness is true, he thinks he has proved it. I am going to read that testimony. I think it will be refresh- ing, if your Honors will turn to it. Tt is on the 459th page of the Molecular record. This expert for my brother Lowrey (Prof. Brackett) had testified in his direct-examination to a question put to him in the Molecular case, as follows (Molecular, i, 451): " Mr. Bell designed and described Figure 7 as an appa- ratus for the purpose of transmitting at the same time a number of independent sounds to be converted into a num- ber of independent messages, just as he described Figure 6, having a number of transmitters and a number of receiv- ers on the same line. 5 ' On that I was cross-examining him; and I asked him to tell the Court how he thought Mr. Bell " designed " that thing to operate as a multiple telegraph; and he answered (Molecular, i, 459): 61 The meagreness of Prof essor Bell's specification, so far as relates to Figure 7, does not enable me to say how- Professor Bell himself would proceed at the date of said 10 ARGUMENT OF MR. D1CKERSON. specification. Several alternative methods are readily imagined by which this may be done; for instance, one person may apply the contracted conical end to the ex- ternal ear, while one or more persons may simultane- ously, having their ears in the neighborhood of the re- verse side of the membrane, distinctly hear and interpret such continued musical notes as the apparatus there shown was fitted to transmit, and by attending to their continu- ity or interruptions in accordance with the telegraphic code, understand the signals designed to be transmitted." BELL'S PATENTED TELEPHONE, FIG. 7. That was a charming picture. Imagine one with this conical receiver L of fig. 7 at his ear, brother Lowrey and his party all around him, standing with their "ears in the neighborhood," and each one picking out his message, which a crowd of persons at the transmitter are deliver- ing in "musical notes" simultaneouly and in a miscel- laneous way into that other conical instrument A. That is what this witness swore, in his judgment, was what Pro- fessor Bell meant when he wrote this specification, and invented this instrument, figure 7. That always struck me as very persuasive; and that is the Molecular contribu- tion here. Then we come to the Overland- and-Drawbaugh-com- bination- defense. There the scene changes. Your Honors perceive that it is inconsistent with the theory of Draw- baugh to admit that Reis was the inventor of the telephone; because, if he were, the patents that Dan Drawbaugh and Co. are going to have by Act of Congress when this Court decides that he was the American " Faraday" who did it, would be of no value; for the Eeis publi- cations would have destroyed them. And therefore it BELL NOT AN INVENTOR, BUT A FELON. 11 is necessary for them to make a flank movement on the rest of the party, and to say that Reis did not invent the speaking telephone ; that he never had that invention, but only had a musical telephone. But they say that Draw- baugh did invent it. He invented it frequently from 1866 to 1880; and he is liable to invent it a good deal more if he lives. They also assure us that Gray invented it; but he in- vented it after Drawbaugh did, and before Bell. So that there are two stops two valves, so to speak, in the case, either one of which is fatal to Professor Bell; but neither of which is fatal to that prospective glory which is coming out of the Drawbaugh invention when they get their Act of Congress passed. Third The combination also sets up that Bell did not invent it at all; but being a man, as they say, of "trans- cendent abilities," he devoted his talents with great success to a miscellaneous variety of felonies, in consequence of which he came out with a first rate, highly scientific description of a telephone in his pocket, mixed in with a kit of burglars' tools; and upon that he has succeeded in imposing upon the world, and has presented himself as the most successful specimen of crime that ever yet has appeared on this footstool. All of which is due to his ' ' transcendent abilities " as a scientist. And thereupon, they present to us a magnificent tab- leau, as it w r ere on a stage : Drawbaugh and his partners about him, triumphant. Under the floor of the stage, in the cellar, Bell chained, and a felon. Columbia, in her Phrygian cap, waving the American flag in joy that she has destroyed a fair name and a fair fame, once jewels in her diadem ; and the whole ending in the final scene of Drawbaugh and his partners ascending behind the painted clouds on the wings of twenty or thirty millions of Draw- baugh's stock. That is the picture presented by that com- bination. Then we have the next contribution, which is known as the Clay case. That brings in two other ingredients, one of which is the Varley patent; and my learned friend from Philadelphia assured your Honors with perfect sin- cerity, I have no doubt, that Varley had a speaking tele- 12 THE CLAY CO.'S DEFENSE. phone; and not only so, but that we had admitted he had, and had sworn to it ourselves, so there could be no kind of doubt about it which is all news to us. And then he presents another defense, which may be called the Sairy Gamp or Mrs. Harris defense. Your Honors will remember that Betsey Prig said to one of those esteemed females, "I don't believe there ain't no sich person as Mrs. Harris.'' And this defense is that he " don't believe there ain't no sich company as the Bell Telephone Company." I characterize that as the Mrs. Harris or Sairy Gamp defense. That, may it please your Honors, fills the pot, and makes the polyform: " Round about the cauldron go ; In the poisoned entrails throw Toad, that under coldest stone, Days and nights hast thirty-one Sweltered venom sleeping got, Boil thou first i' the charmed pot. Double, double, toil and trouble ; Fire burn ; and cauldron bubble." The " gruel is thick and slab;" and the question is whether it will cure this kind of rheumatism. And that is what I am going to discuss. EEIS IN GERMANY. Before going into the other parts of the case I will take up the fag end of the Eeis defense, which my brother Storrow demolished upon what is contained in the pub- lications. But, there is another part of that defense that is the testimony in pais. We had supposed that the pub- lications abroad were all that in law could constitute a defense. We had supposed that under the statute it would be entirely immaterial whether the Bell invention itself, in its highest degree of perfection, existed in every farm house in Germany, if it were not published or patented in a manner to convey that intelligence to the world. We thought that was the law; but have to admit that we have been instructed by events. The history of the matter is this: There was a gentle- man in England, named Sylvanus Thompson, with a "p' J THE REIS DEFENSE. 13 a professor of that name of whom Du Moncel, the great French scientist, said: " You must not confound him with Sir William Thomson, who is an electrician." Mr. Lowrey: Would you mind mentioning where that is stated? I have not been able to find it. Mr. Dicker son: Well, I will not stop to do that. It is not a part of my argument. Let me get off a little fun now and then. Mr. Browne: Then let us know when you get to the ar- gument. Mr. Lowrey: Yes; let us know when it is argument, and when it is fun. Mr. Dicker son: I will give you any time you wish to get up and talk, if you desire it. (A pause.) Well, this gentleman wrote a book in 1880 called, " Lessons in Electricity" and in it he said that Bell Was " THE INVENTOR OF THE ARTICULATING TELEPHONE;" and he went on and described how and why he was, and how Reis was not. Afterwards he was employed as an expert by the English infringers of that fragment of the Bell patent remaining in England because there is but very little of it left there, in consequence of its not having been patented when it should have been by George Brown and he went to Germany to study up the Eeis defense; and then wrote a book in the interest of the infringers, for the purpose of establishing the fact that Reis, and not Bell, was the inventor of the " articulat- ing telephone." In that book, by way of giving it credit, he says that " Professor Dolbear admits, in unequivocal terms, the whole claim of Reis to the invention of the tele- phone " (p. 41). Professor Dolbear and Professor Thomp- son were working this little game together. Dolbear was the American infringer; and this gentleman was em- ployed by the English infringers ; and they worked the thing together Dolbear furnishing a man by the name of Stetson to aid in procuring the proofs, and the Professor going with him to hunt this German ground over. This book then came out, with Professor Dolbear's "admis- sion" in it that Reis was the inventor of the telephone; and he has been admitting it ever since as hard as he can (see Thompson's deposition, Overland, ii, 1140). In that 14: GERMAN WITNESSES ABOUT REIS. search in Germany the two found seven persons who were willing to say that the telephone of Reis was a talking telephone in 1860-'61, and thereafter, and they wrote let- ters to that effect, which are all published in that book seven persons. I have got their names, but your Honors are not particularly interested in that. Thereupon, when the Overland case came along in this country, the Over- land people conceived the idea that it would be a good thing to prove by these seven persons, or by such others as could be found, that notwithstanding the publications to the contrary, the Reis telephone was really a first-rate talking telephone in Germany in 1860 to '64. So they took out a commission in the Overland case (and it ie be- fore you, and made a part of the evidence here), subject, of course, to objection, and sent that abroad; and they managed to get the depositions of five or six of these Ger- man persons who knew that Reis was the inventor of the telephone. That was all ruled out by his Honor Judge Wallace as incompetent, as we think it obviously is; and that ruling is before your Honors to pass upon here on appeal.* (See it all in our brief, p. 280, et seq.) Then, in that not very satisfactory situation, some further steps were taken, which resulted probably from this : in that book of Thompson's was published a poetical and glowing account, making one's heart bleed in sympathy with the misfortunes of the great public benefactor Reis, in which it was said that the " crowning achievement of Reis' career " was at a certain meeting at Giessen (a town in Germany) where were there assembled all the great scientific men of Germany, Professor Helmholtz among the rest. Professor Helmholtz is the person who made the last of * As illustrative of the peculiar secretiveness of Reis, read the testimony of Ehren, one of the German witnesses (p. 725, Mol.). He swears: "Our principal attention, studies and experiments were devoted to the speaking telephone, and REIS AND I WERE THE ONLY MORTALS WHO HAD KNOWLEDGE OF IT. His first experi- ments in the presence of a few acquaintances, like Albert a> *= . UJ ^^ g l!|^ll| f S o-^.^ I a g-S|1 ^i.ris-u |U!|-J5| 1^1^ Ifs si fl" -3 too o 2 i! 21 O^'^wa.-Sbf) * " 2|SiS|.Ht ^ B- H ^C3 ^g^ S^ s ,a J l! a -< rj II II PnO CURRENT AND " UNDULATORY " CURRENT. electricity ; but the degree of charge varies from instant to instant, and that variation is represented by the rise and fall of the curved line above a certain base, which may represent no strength of current, or may represent a defi- nite strength, as you please. Now measure the height of any of the dotted ordinates between the base line and the curve, and that expresses the strength of current at that instant of time. It is so much at the end of one second, and so much at the end of another; and the sym- bols here represent how strongly the wire is electrically affected at any particular instant of time in that whole period included in the diagram. If I have made that plain I think it will clarify the ideas which your Honors will have to entertain on this subject. Time, not space or distance, is symbolized by the length A, B, in both cases. In the telegraph, or in the Eeis tele- phone current, the alternate horizontal dashes and blanks signify that a current of constant strength is on the entire line for a moment, and then disappears from the line. In the Bell telephone current the undulations signify that a cur- rent is on the entire line constantly, but that its strength varies in unison with the variations of the vibrations of air constituting sound; which is Bell's " great and happy con- ception," as Sir William Thomson defined it at the Cen- tennial (Doivd, i, 495). But there is no such thing in electricity as a flowing current, or an onward movement of matter, any more than there is a current of the luminiferous ether which we assume to be the medium of light. The sun imparts an impulse to the ether. That impulse reaches us in eight minutes about ninety-two millions of miles in eight minutes. The impulse is translated through the ethereal medium at the rate of a hundred and eighty-two thousand miles a second. But there is nothing moves; I mean by that, there is nothing traveling through space, like a bullet from a gun. There is an impulse transferred from molecule to mole- cule all the way through, like a jelly that is shaken, but nothing travels from end to end. We say that it takes many years for the light of Sirius to reach us. If Sirius were obliterated to-day that star would still shine in the 106 ELECTRICAL " CURRENTS" AND " POLARITY." heavens for many years to mortal vision. Why? Because the impulse of light that struck the end of the wire (if I may symbolize it by a wire), has been transmitting itself along this way, and will not reach us for many years. It is un- important whether it is followed by another. It is of no consequence whether it is or not. That star may have dis- appeared from the firmament and have been the lost Pleiad. The transmission of electricity is much like the trans- mission of light through the ethereal medium. Then again, there is no such thing, excepting conven- tionally, as a " to-and-fro current of electricity." We use those terms for convenience; but we know what they mean, and that they do not mean an actual flow of an ac- tual current either way. It is this : the molecules for we must arouse our scientific imagination, and imagine molecules; which of course may not be seen the mole- cules of a magnet, for instance, have what we call polar- ity; that is to say, if we take a piece of magnetized steel and let it swing freely in a horizontal position, one end will point to the north pole, and the other to the south. That is the exhibition of the fact that it is a magnet. Hence we say it has polarity. Now break that piece of steel into a thousand pieces, and each of those pieces has got a north and south pole in it, just as the entire bar has. Each one of those pieces will point to the north and south if left free to swing. So it is in electricity. We may suppose that the molecules in a wire charged with electricity are "polarized." They point, not to the north and south, but they point to the copper end of the battery or to the zinc end ; and we say the opposite ends are "positive and negative," instead of north and south; just like the molecules of the magnet that point to the north pole. Now, you can reverse those molecules and make them point the other way; just as you can reverse a mag- net. By taking the end of the wire circuit which was fastened to the copper plates and suddenly shifting it to the zinc plate and vice versa, all the molecules in the line wire change their polarity; and a compass needle swung at right angles to that line wire and near to it will suddenly shift itself end for end, and its north pole will point to the "REVERSED" AND "TOAND-FRO" CURRENTS. 107 south, or the reverse. This is what is meant by that to- and-fro, or reversed current. Perhaps the molecular ar- rangement in the line wire is reversed. At one instant the molecules point to copper, at the next to zinc ; that is all. That is an illustration of the present conception of science on the subject of electricity; but it is symbolized, and well symbolized, by calling the effect a "current." We have a simple way of ascertaining what kind of current it is, whether it is a copper current or a zinc current. That was discovered by Oersted in 1820. Therefore, we can tell which end is positive and which negative in an electrical conductor, just as we can tell which is north and which is south in a steel bar which is magnetized. We hang the magnet up by a string, horizontally, and it will point north and south, and we thus know which it is. That needle will also detect which is the positive and which the negative end of an electric current by reversing itself, end for end, when the current reverses from positive to nega- tive. That is the whole of that matter, and that is what Mr. Bell means in his patent when he says: "When therefore a permanent magnet is caused to vibrate in front of the pole of an electro -magnet an undu- latory current of electricity is induced in the coils of the electro-magnet, the undulations of which correspond in rapidity of succession to the vibrations of the magnet, in polarity to the direction of its motion) and in intensity to the amplitude of its vibration." With that in your minds, may it please your Honors, a word now about this Varley telegraph. My friend who argued that case is his own witness. No witness has said that Varley anticipates the Bell invention. Varley's machine was the first of the duplexes by vibrating a tuning fork. The Chief Justice : What do you mean by duplex ? Mr. Dicker son : Doubling the signals on a line; using two sets of instruments at once on a single telegraph wire. The Chief Justice : You are speaking of doubling tele- graph messages ? Mr. Dickerson : Yes, sir; Varley's, I think, was the first duplex telegraph that operated by causing rapid undula- tions or waves on the line, as distinguished from a con- 108 THE VARLEY HARMONIC stant battery current, and in conjunction with a battery current. It is too complicated to go into fully, but it is on page 930, Molecular case. It has two Morse circuit-breakers. The general proposition is what I wish to bring to your Honors' minds. Mr. Varley in his patent says that two kinds of currents of electricity can be used. He gives the illustration of a rope which is pulled backward and forward. That will communicate one sort of signal to the other end, by pulling it backward and forward; that sym- bolizes the Morse current. You can also shake that rope, and thus send a series of vibrations, or waves, or undula- tions along it; and that can be done while you are also pulling it back wards and forwards; so that two kinds of signals can be sent over the same rope at once. Now, that is a gross illustration of Varley's instrument, given by himself in his patent. Pull the rope backwards and for- wards for one set of signals; and shake it for another. Keeping that in your Honors' minds, that is the bottom explanation of the Varley machine. Looking at plate 1, you will see two Morse keys marked c and g on the drawing, one of which lets a constant bat- tery current on the line, and one a rapidly broken current, or series of waves, produced by a tuning fork. That fork may be substituted, says the patent, by a " magneto machine rapidly rotating," which machine will send a rapid succession of to-and-fro undulations, or waves, or currents to the line; but it is necessary that this machine should be " controlled by a good governor," so as to send its impulses regularly as the tuning fork does; because the receiver is tuned to a certain pitch, and the impulses must agree in time with it, or the thing will not operate. One of these Morse keys operates his " pull" current, and the other his " shake " current. That is his machine. It is unimportant to your Honors that I should go into it more fully, but that general sketch gives you a conception of it. What is important about it is, in one sense, that it has a Dolbear condenser receiver in it, in principle. Dolbear improved it a little for the purpose of the telephone by substituting Bell's compara- tively stiff metallic plate for the tin-foil plate of Varley; but he gets his sound out of a Varley condenser, which is TELEGRAPH OF 1870. 109 two or more plates of thin metal, into one of which plates a charge of electricity goes from the transmitter, and that one attracts the other and causes it to vibrate in unison with the increase and decrease of electrical charge (see our brief, pp. 407-8). It becomes important in this case merely as showing one of the old forms of receivers substantially such as Mr. Dolbear uses. We have proved and there is where my friend Ker got his opinion from that, if you put the Bell transmitter to the Varley receiver, you have got a Bell talking telephone. We proved that; and my friend Ker infers therefrom that we proved Varley had a talking telephone. The inference is perhaps a little strained, but he did not seem to think so. The Chief Justice: I don't remember what did Mr. Varley have for a transmitter? Mr. Dickerson: The ordinary Morse finger key. He had a finger key to his tuning-fork current. The Chief Justice: It was for telegraphing? Mr. Dickerson: Yes, sir; for duplex Morse telegraphing only. His tuning fork rapidly made and broke the circuit. That current was under the control of a finger key, and when sent to line by the key it operated a tuned receiver which was in unison with it. Mr. Lowrey: And various other things, including a rap- idly rotating magneto machine which would make, not a broken current, but a continuous current. Mr. Dickerson: I am obliged to you for your suggestion. He states that in getting up his machine he can use a rap- idly rotating dynamo machine, in place of the tuning fork circuit -breaker, which is perfectly correct and true, pro- vided you regulate the dynamo by a governor so that it will be perfectly uniform. Now, that makes a to-and-f ro, and in one sense (a proper sense) an undulatory current. Every dynamo machine that ever ran makes an undulatory, to-and-fro current, in its natural condition ; always has from the beginning. Eotate any dynamo machine without a commutator and it sends a plus and minus current to line; an undulatory current, if you prefer that term, and it is a very proper term ; there is no difficulty about the term. That is as old as dynamo machines. Mr. Bell did not invent dynamo 110 THE HOLCOMB DEFENSE. machines, or an undulatory current. His invention was to have a current undulate in unison with air waves. That was his invention; not to make a mere undulatory current, which any dynamo machine will make. One of the difficulties with these street lights that we see about the streets is that the steam engine which runs the dynamo machine will not run steady; it will run irregularly; it is very undulatory, very uncertain, and therefore it will make the light more or less unsteady. The trouble is to make a steam engine dynamo machine run true. It tends to be very undulatory. That is all there is of that little Yarley matter, and of the undulatory current. THE HOLCOMB DEFENSE. THE HOUSE PATENT. Then there is another defense set up here called the Hoi- comb defense. That was set up by my learned friend Low- rey in the Molecular case, but it is, as I find by looking at his brief, abandoned. I use it only for the purpose of bring- ing in another matter which is in my friend's brief on that subject, called the House patent. Mr. Lowrey: Not in my brief. Mr. Dicker son: Yes; in your brief. Mr. Lowrey: Not in mine. Mr. Dicker son: Yes, sir; the House machine is in your brief. Mr. Lowrey: I think not. You are mistaken. Mr. Dicker son: Brother Lowrey says I am mistaken; he says it is not in his brief. Of course I may be mis- taken; and so may my friend. We will see in a moment. Mr. Lowrey: I suppose you mean by brief, the argu- ment. I don't know but what there may be some refer- ence to it there. Mr. Dickerson : I am not saying that you set it up as a defense. I mention it for another purpose. Two years ago, when I argued the Overland case in Phila- delphia, I said to the Court, "If you are going to wait to grant injunctions until the defendants exhaust all the defenses founded upon prior inventors who can be pro- duced, we never can have an injunction. The woods are full of them." And I said, "And there is a Mr. House, who THE HOUSE TELEGRAPH PATENT OF 1868. Ill was the inventor of the Bell telephone sixteen years ago, and can show it in a patent, and he will be set up as an anticipation;" and I further said, "Behind him in the dim distance, like the descendants of Banquo on the witch's screen, you can see them stretching out to the crack of doom." Well, I thought I was a prophet, and it turns out I am. During the last week the New York Herald and other papers have been full of the new discovery that the " House telegraph" is an anticipation of the Bell patent; .and the public is told that this Court's decision is of not the least consequence on earth ; because, however it may decide, the patent is eternally smashed by the House machine, which is a newly discovered fact. I also put the House patent in evidence in the Molecular case long ago, and it is now before you on page 188 of that record. My brother Lo wrey has studied that House patent there. On the 307th page of his brief, as I told your Honors, he says of us and of this famous House patent: u Counsel for complainant are very fond of saying a Morse key and sounder delicately adjusted may be now made to transmit speech." It can be, your Honors; and I say here it is a great deal better telephone than the Eeis. You can talk through a Morse key and sounder. As far as I know you cannot through the Eeis machine. Keis' ingenuity was so good that he made that thing so that it would surely break the circuit, which was his object, and of course it could not talk. You can talk through a Morse key and sounder; but the Eeis telephone is about the only electric telegraph you cannot talk through. A watch chain piled in your hand, with a current of electricity passing through it, and a Bell receiver in circuit, is a good talking tele- phone. Let two nails be driven into a door and a third one laid across them, with a current of electricity passing through them and a Bell receiver in circuit, and if you talk to the door it is a fair talking telephone.* You can * See a picture of this three-nail device on Card VI., lower line, next to Blake transmitter. "With a Bell receiver between the ends marked +, ancl a board or door supporting the nails, the thing will transmit speech when the board is spoken to. 112 THE HOUSE TELEGRAPH PATENT OF 1868. hardly gather up the fragments out of an electrical scrap heap anywhere without having a speaking telephone, now that you know hoiv except always anything Keis made, and that will not talk. It is wonderful how ingenious he was about it. But, says my learned brother, about this House appa- ratus, in his brief : " THE HOUSE TELEGRAPH PATENTS WHICH WERE INTRO- DUCED BY THE COMPLAINANTS THEMSELVES, USED IN THE LIGHT OF OUR MODERN KNOWLEDGE, UNDOUBTEDLY, IF PROP- ERLY ADJUSTED, TRANSMIT SPEECH. CAN IT BE SAID, HOW- EVER, THAT THE HOUSE PATENTS ARE PATENTS FOR TELE- PHONY, OR THAT THE LONG USE OF THE MORSE KEY AND SOUNDER ARE ANTICIPATIONS OF THE MODERN TELEPHONE." Well, I should say it could not be said not properly said. The same kind of talk is equally applicable to the Eeis thing ; that same kind of reason must be applied to it. Mr. Lowery : Oh, no. Mr. Dickerson : But if my learned brother Lowrey will look a little further in a certain other place that he and I know of, which I don't mention here, he will find that that House telegraph is set up as an anticipation of the Bell patent, with his name signed to it as an anticipa- tion. Mr. Lowrey : It must have been when I was very young. I have forgotten it. Mr. Dickerson : No ; it was done in the last thirty or forty days ; but it was done after your brief here was written; that is the point. I would not say " Govern- ment suit" for the world just now, you know, brother Lowrey Mr. Lowrey : That is fair ; I admit it. Mr. Dickerson : Brother Lowrey says it is fair. I am always fair. Brother Lowrey, who is the electrical expert in the Government suit, who is relied upon for that part of it, has set up the House patent in that case as an antic- ipation of the Bell patent. It seems a pity to give away so good a client as the United States by this publication here in this brief. I have no doubt brother Lowrey will go away and strike it out of the Government bill, because THE DRAWBAUGH CASE. 113 he is fair, too. But then that won't leave anything new in that suit. It is the only new thing there is, beyond what is set up in these cases. Mr. Lowrey ; Eeserve your anxiety about that suit until it is reached. Mr. Dickerson: I am not anxious, you know. I am expecting that. I know we have got several years ahead of us in that. You and I will have many a good time on that, if we live. JUDGE WALLACE'S DECISION ON DRAWBAUGH. I am now, may it please your Honors, coming to the Drawbaugh case. If you will be good enough to take up the " Appellant's brief on the Drawbaugh evidence," and turn to page 277: 1 ask your particular attention to this because it assigns the errors of Judge Wallace that your Honors are expected to find and to deal with. I read the bottom paragraph on page 277: "It may be fairly assumed that these two opinions, written by a judge presumbably fair, and intelligent, pre- sent the strongest argument that can be made against the Drawbaugh claim of priority of invention. The other arguments to which we have replied in the earlier parts of this brief, are the arguments of counsel," and so on. * * ****** "Tested by this rule, it is not too much to say that the opinions of Judge Wallace in this case are, to a most extraordinary degree, oblivious of proved facts, illogical and inconsistent; and that, if this was the best that could be said in answer to the Drawbaugh case, it was equivalent to admitting that no fair and logical answer can be made to it. " First. ITS MISSTATEMENTS OF PROVED FACTS ARE SIM- PLY ASTOUNDING. " Take, for example, his assumption that the biography of Daniel Drawbaugh which appeared in Wing's History of Cumberland County, in the spring of 1879, was composed by Daniel Drawbaugh himself. Judge Wallace not only assumes this to be the fact, but basing his reason- ing thereon, he proceeds to find Drawbaugh to be a vain, egotistical, silly person, who ought not to be believed on oath, and whose ' autobiography' ' suggests the charlatan.' The assumption as to the authorship of this document 114 ATTACKS ON JUDGE WALLACE'S DECISION. seems to be the keynote to the whole theory of the learned Judge's decision. 4< When Judge Wallace wrote the scathing denunciation of Drawbaugh for his assumed authorship of the biog- raphy, there lay in the Judge's desk, among the exhibits in the case, the original manuscript of this biography, proved by the appellee's witness, Nesbit, and admitted by the ap- pellee's counsel, in argument, to be in the handwriting of Mr. Hull, the publisher's agent for collecting historical information for his book, and admitted to be the original manuscript of the biography. " OF COURSE THIS FACT DISPOSES OF JUDGE WALLACE'S WHOLE ARRAIGNMENT OF DRAWBAUGH, WHICH IS BASED UPON THE GROSS MISTAKE AS TO THE AUTHORSHIP OF THE ARTICLE IN QUESTION." Now that, may it please your Honors, is very astonish- ing; but it is the best that can be done, I presume. The fact is (about which there is no shadow of doubt or contradiction), that Daniel Drawbaugh contracted with Mr. Scott, the publisher of Wing's History of the County, that he would give Mr. Scott ten dollars if Mr. Scott would publish his biography in it; that he agreed in that contract to furnish the biography himself ; that he got Mr. Hull, who was not Scott's agent for that purpose at all (what he did for Drawbaugh he did as between himself and Draw- baugh) to sketch it out for him, Drawbaugh not being clerical in and of himself; that Mr. Hull wrote the manu- script under Drawbaugh's direction; that Drawbaugh cop- ied it off in his own handwriting perhaps not wishing to lose the glory of the authorship of so elegant a document copied it off in his own handwriting, putting in the date of his birth, and sent it to the publisher, who again in his turn, by the lady who was his daughter and who was doing that literary work, cut it down, and took out some of the grandeur that was in it, as Drawbaugh sent it; and it was published in that shape. That is the testimony. There is not a word in this record to throw doubt on it, or contradict it in any degree. It was sworn to by all the witnesses without contradiction.* Judge Wallace put * All the details and references are in our Drawbaugh brief, p. 222 ; abstract, 373-380; Mr Storrow's oral argument below, p. 115; Mr. Dickerson's argument below, p. 32. DRAWBAUGH'S AUTOBIOGRAPHY. 115 it into his opinion; not as the basis of his judgment, but as illustrating the character of this man, who is an impos- tor and a fraud of the worst kind as a mere illustration of character. And then, after that opinion, Mr. Hill pro- ceeded to take testimony over again to mend his case, and meet that opinion if he could; and he did not open his mouth on this question; he did not call Drawbaugh to say " I did not write that biography." And all that having happened, he comes before this Court in this brief and de- nounces Judge Wallace as making gross misstatements and misrepresentations of the evidence, because why? Because Mr. Hill, on the examination, put into the record out of his own possession ^ which was Drawbaugh's pos- session) the original manuscript of Hull, from which Drawbaugh made his copy. That manuscript had not gone to the printer's or it would not be here, you see. Drawbaugh had kept it himself, so far as it appears; because it came out of his possession. He put that in evi- dence himself, may it please your Honors; and on the basis of that paper, produced by himself, he says Judge Wallace has misrepresented the facts, because Judge Wai-' lace believed the uncontradicted testimony of Mr. Scott, and of Mr. Scott's daughter, that that contract was made with Drawbaugh I have mentioned, and was evidenced by a memorandum fixing its date; because it was a subscrip- tion for ten dollars on condition that he should have his autobiography in the book. The Chief Justice: Does the subscription show the condition? Mr. Dicker son : No, sir. The subscription says $10; but the witness, Mr. Scott, swears that Dan subscribed on con- dition that he was to have his biography in this book; and he was to furnish it himself, and he agreed to furnish it himself. Your Honors see that Drawbaugh, who was suf- fering from that extreme poverty under which he could not get anything but molasses and potatoes to eat, would never have gone and paid $10 for a mere history of the county, unless it contained an account of his life; but that was one of the necessaries of life to him, to see himself in that shape; it was very necessary for him. He would wreck himself, and lose his telephone patents, to 116 DRAWBAUGH'S AUTOBIOGRAPHY. get the ten dollars to pay for that, as a necessary; but if his biography was not put in, of course a mere pauper would never have paid ten dollars for a general history of his township which he knew already. It was peculiarly necessary for Drawbaugh to have it; because Drawbaugh is a man of perhaps the worst memory that your Honors have ever seen or heard of. When you come to read his testimony, you will see he has got the meanest memory with which a human being was ever afflicted; and it was of a great deal of importance to him to have by him a bio- graphy written by himself, so that from time to time he could look at it and see who he was, and what he had done, without which he never could have told the world; and so he would pay that ten dollars for the sake of having q, well authenticated biography of himself that he could consult from time to time and find out what his name was, and other little things that belonged to him.* Mr. Justice Harlan: What witness proves that he wrote it or copied it? Mr. Dickerson : Mr. Scott testifies that Drawbaugh agreed to write it, and that he received it by mail, from Drawbaugh as he understood. Mr. Scott's daughter, Mrs. McDowell, testifies that it was in the handwriting of Drawbaugh when it was brought to her. Mr. Justice Harlan : I think part of that deposition was read at the time Mr. Storrow was arguing, and my recol- lection is she says she thinks it was in Drawbaugh's hand- writing. Mr. Dickerson: She says: "it appears" to be in the same writing as papers admitted to have been written by Drawbaugh. But this was proved in 1882, and they took 300 depositions afterwards, and no man denied it. It was argued to Judge Wallace and a decision made, and then more testimony taken in the Overland case, and Draw- baugh would not go on the witness-stand to deny it. You see this was, as they say, the corner-stone of the opinion, and Mr. Drawbaugh could have come and contradicted it; for the case was open to him, and they put in thirty wit- * See abstract of proofs, pp. 373 to 381, including all the witnesses; also oral argument, p. 31, et seq. DRAWBAUGH'S FINANCES. 117 nesses after the decision. I take it, therefore, that that being a vital and important fact to them, as they say it was ii being proved in that way and not contradicted by Mr. Drawbaugh himself must be taken as proved in a Court of Justice; that is all. Now, that is the foundation of this extraordinary attack upon the judicial character of the Judge who so far offended the Drawbaugh syndicate as to decide that Draw- baugh and his partners were frauds. I go a little further. On page 280 they tell you: " Take, as another example, Judge Wallace's statements as to Drawbaugh's property, which are entirely wrong in very important particulars." Then they give a part of Judge Wallace's opinion, which is exactly right. I don't mean to say that it may not vary a few dollars, one way or the other; but substantially, it is just right. I don't know, however, that it does vary at all. They compile against that opinion a statement from the county records to contradict it. Will your Honors do me the favor to look at page 281 of their brief. There is a column of figures, a book- keeping performance, in which they set out the mountain of debt under which this unfortunate person was laboring during all those unhappy years. I think I don't say too much when I say that your Honors would infer from reading that paper, as I certainly should, that Drawbaugh was indebted in the sum of about fourteen and odd thousand dollars, made up of different items: $310; $1,810; $910; $970; $910; $1,910; $2,000; $2,000; $1,800, and so on. I think your Honors will say that that statement is meant to con- vey to your mind the idea that that is the true state of his account; and whatever those items foot up represents the indebtedness he was under during all those years. Now, I shall surprise your Honors by saying that the whole table does not represent more than about $500. It begins with $310, April, 1868. That was a mortgage on a house he bought for $2,300, which was there when he bought it, and which he afterwards paid off. The next item is $1,810, which includes the first $310. The other fifteen hundred came about in this way: 118 ATTACKS ON JUDGE WALLACE'S OPINION. Drawbaugh's father was an old man who needed the assistance of his sons; and Drawbaugh's brother was a prosperous man of business Henry Drawbaugh, a man of means. He and Dan jointly bought a farm for the old gentleman, Drawbaugh himself contributing one thousand dollars in cash, and his brother contributing, I think, fif- teen hundred dollars in cash, giving also jointly with their father a mortgage, or judgment note to the vendor for $1,500, and which he, according to the custom in Penn- sylvania, filed in Court, and which constituted a judgment lien on the farm on which an execution might be issued on default. It was a very filial act of these two sons to the old man, and they did it; and the old man lived and died there, and the mortgage was paid out of the farm. Neither Daniel Drawbaugh nor Henry paid it or ever expected to, because their father's farm was enough to pay it, with a large margin, and it was paid by the sale of the real estate after the father's death, with a surplus; but until it was paid if stood here in the list as a debt for fifteen hundred dollars (Drawbaugh, Defendants' Exhibits, 269; defts., ii, 869). Then Dan received a note for $1,000 as part payment for his patents sold to the Pump Company, and got it dis- counted, and it was not paid, but was on record as a lien against his property. When he came to be sued Draw- baugh set up for a defense and the defense, as far as I can see, was a perfectly good one; at any rate, it has pre- vailed up to last accounts; the note has never been paid he set up for a defense that the payee could have collected it from the maker, under such circumstances that his neglect released the endorsers. That defense has prevailed up to the close of the testimony in this case, and Draw- baugh never paid the note. That is one part of this indebt- edness. He got the thousand dollars, however, for he dis- counted the note and got the money. It was assets, not debt (Drawbaugh, defts., ii, 871; defts' Exhibits, p. 47). When Dan sold the house to Fettrow some of these judg- ment notes appeared on record which ought not to have been there, and so Fettrow would not pay the purchase money; thereupon Dan told him it was a mistake, and went and cleared off the whole except the $1,000 on account of MR. MATTHEWS' DEPOSITION AND LETTER. lli> the endorsement I have mentioned, and then Fetrow paid the purchase money, less $1,000 and Dan bought another house in Mechanicsville with that money and moved there for a year (Drawbaugh, defts, i, 371). But the $1,500 purchase money note for the farm which he never paid nor expected to pay, and the $1,000 dis- counted note from which he got $1,000, and never paid it to this day, constitute the great part of that account, ap- pearing over and over again as if they were new debts. Dan paid off the $300 purchase money mortgage, which had stood for years, and of course might have stood forever, being secured on a $2,300 property otherwise free, at the very time when, according to his testimony, he was beg- ging in vain around the community for money enough to apply for a patent for the great invention of the nineteenth century! He paid it in July, 1873. And that account, may it please your Honors, is brought before you to sustain the claim that Drawbaugh was a man of extreme poverty, and that he was under all this terrible load of debt, and how on earth could he squeeze fifteen dollars out to file an application for a patent for this great invention? That I think is very rough on the Court. It is very rough, may it please your Honors, to charge a judge with a dishonest statement of the pecuniary accounts of this person upon such a showing as that! Then my learned friends in their brief tell your Honors that Mr. Matthews, that lawyer, and editor, and gentle- man of Baltimore, " wrote a letter which was before the Court, stating that no reliance ivhatever was to be placed upon his recollection of the facts thus cited by the Court ;" and yet after that the Judge gave credit to his statements, when he had retracted them. May it please your Honors, that letter is here; it is in the record; it confirms Mr. Mat- thews' statements. Judge Wallace decided that it did con- firm his statements. It is one of the most scrupulously ac- curate corrections of an entirely immaterial statement of fact. Mr. Matthews' conscience was so tender that he feared that some little trifling statement that he made, utterly unimportant, might possibly affect the case; and just as any conscientious lawyer would do, he wrote, " I 120 MR. MATTHEWS' DEPOSITION AND LETTER. don't know what the force of that statement may be. I said such and such a thing. If it is important I wish to correct it." It was not important. Nobody says it was, or that it had the least relation to the main question. He wrote that letter, and it was put in evidence in this case. It was put in evidence under circumstances that I shall never forget. It was another pistol shot, that killed the man who was looking down the muzzle as quick as a flash; and it was done in this way: Mr. Hill had heard that Mr. Matthews had written some letter, and brother Edmunds, with that delightful suavity and frankness that characterizes him, turned around to brother Storrow, who sat there and said : "I feel it my duty to ask brother Storrow whether he has not received a letter from Mr. Matthews qualifying his testimony." Well, when anybody asks the counsel on our side of this case whether they have done any rascality he need never wait more than about ten seconds for an answer. We have had that question asked us a great many times, and we generally are ready to answer it. We had the answer at my house; we hadn't it in court; we had to go home to get it. We had it in my house and brother Storrow said, " Yes, that gentleman did write us a letter which is in Mr. Dickerson's house in Thirty-fourth street. If you will just be good enough to wait until to-morrow morning we will produce it; " and they waited until to-morrow morning; and brother Edmunds, who had asked the question, and who had looked down into the muzzle of that gun to see whether it was loaded, went away that night, and he was not there when the funeral occurred. It occurred the next morning. The letter was produced and here it is; and your Honors will read it when you come to it. That ended that charge. That bomb-shell exploded. The gentleman who was at the trigger end of that gun wished he had been at the muzzle end. And yet, here the same farce is played again. After having been exploded once, having kicked the man that pulled the trigger into the middle of next week when he pulled it once before, here it is brought up again and put before your Honors as an evidence of the utter reck- lessness with which a Judge like Judge Wallace has dealt with the testimony in this case. You will find the THE PATENT ITSELF PRODUCED. 121 letter and the whole matter at pages 1 to 5 of my oral ar- gument in New York, where Judge Wallace ordered the letter to go into the record. Adjourned to Monday, February 7th, 1887, at 12 M. FEBRUARY 7, 1887. . Mr. Dicker son : May it please your Honors: Since the adjournment of the Court on Friday we have sent to Boston and procured the original patent which I now pre- sent to the Court. The patent itself, dated March 7, 1876, reads: "a description of which invention is contained in the specification, a copy of which is hereunto annexed." The specification which is annexed to this patent is there- fore a copy of the specification as it was in the Patent Office when the patent issued, March 7, 1876. If your Honors will compare this copy with the certified copy brought from Massachusetts, you will find that that part of the Massa- chusetts copy which is in ink agrees word for word with the copy which is st hereunto annexed;" and that therefore whatever interlineations are to be found in that Boston copy must have been put in at some time after this patent was issued. They were not there when this certificate was issued on March 7, 1876. Whoever put them in, whether in Boston or elsewhere, did so, not at the time when it is supposed by the hypothesis of our adversaries they were put in, namely, before the patent issued, but afterwards. Mr. Justice Bradley: Will you allow me to look at that for one moment? Mr. Dicker son: I will give it to you. Mr. Justice Bradley: I was absent a few minutes on Friday when you were on the subject of Mr. Brown's conduct in taking the paper to England, and therefore did not hear if you made any explanation of the difference between that copy and the one in the Patent Office. Mr. Dicker son: Yes, sir; but I will make it again in a moment. Mr. Justice Bradley: I would like to know how it oc- curred? 122 THE PATENT ITSELF PROVES WHAT THE Mr. Dickerson: I will make that explanation in one moment. Now, sirs, the specification which is contained in the Brown papers has thirty-eight different readings, besides the absence of the cable matter which is in the American patent. There are thirty-eight different read- ings, all of which are to be found in the pencil memo- randa on the Boston certificate, supposed to be a copy in that respect issued by the Patent Office, according to the- hypothesis of our adversaries. The Chief Justice: They correspond to the pencil mem- oranda; that is to say, the pencil memoranda correspond with the papers that Brown took. Mr. Dickerson: Yes, sir; the Brown papers correspond precisely with the pencil memoranda as to the interlined matter. The ink-written matter in that Boston certified copy, which your Honors have before you, which we may assume for the purpose of the argument was the certifi- cate, is exactly the same as the patent certificate of the 7th day of March, 1876, which is in your hands this morn- ing, and as the paper now on the files. That explains itself without any further comment. We also have on the table as his Honor Mr. Justice Harlan asked the question one of the bound volumes of certified copies, made according to the statute. Periodi- cally under the statute, the Patent Office issues certifi- cates, and bound volumes, which are to be deposited ac- cording to law in certain places, among other places here. That certificate is the certificate of what the specification of each patent is at that time. We have that here. The Chief Justice: That corresponds exactly with tha Boston manuscript without the pencil memoranda? Mr. Dickerson: Yes, sir; it corresponds exactly with the ink portion of the Boston specification, and with the patent as it was issued. The Boston specification, or the Boston copy you have here, contains in its ink-written part what is in the patent specification exactly; but it is- there in two or three fragments, because the amendments that were formally made, and which came to be written in and included in the patent, are on separate slips in the file wrapper, and so appear in the certificate. Mr. Justice Bradley : In other words, at the date of the SPECIFICATION WAS ON MARCH 7, 1876. 123 issue of the patent, March 7, 1876, these portions which are contended to be introduced, no matter in what way, were in it; they were there on the 7th of March, 1876; when the patent was issued? Mr. Dickerson: Yes, sir. Mr. Justice Bradley : These, what are called inter- polated portions, were in the specification at that time? Mr. Dickerson : Were and were not; that is to say, all that part about the liquid transmitter was in. All the other thirty-eight things were not. Mr. Justice Bradley : I mean the portion that is con- tended on the other side to have been wrongly inter- polated; that portion relating to the variable resistance, and the fourth claim they were in the specification? Mr. Dickerson : Yes, sir; all were there. Mr. Justice Bradley : They were in the specification on the 7th of March when the patent was issued, at any rate? Mr. Dickerson : Yes, sir ; but thirty-eight alterations besides, of one sort or other, out of the Brown specifica- tion were not; their assumed presence in April, 1879, the date of the Boston certificate, is supposed to be corrobora- tive of the fraud hypothesis. The Chief Justice : Then as I understand it, the applica- tion was made for the patent on the 14th of February, and on the 7th of March when the patent was issued, and when the first certificate as to the specification was given, all the disputed matter was in the specification? Mr. Dickerson : Yes, your Honor; and all that is said to have been fraudulently put in by Bell was not; that is, all the thirty-eight alterations which appear interlined in pencil in the Boston exhibit were not. The Chief Justice : All the disputed matter was in the specification? Mr. Dickerson : Yes, sir; all the matter charged to have been taken out of Gray's caveat. The Chief Justice : Thus showing that the alterations, as you argue, and it seems to follow if there were any alterations made in the specification they were made between the 14th of February, when the application was originally filed, and the 7th of March when the patent was issued? 124: THE " SPURIOUS BROOD" OF DECISIONS. Mr. Dickerson : The application, plus the formal amend- ments made by formal letter February 29th, was exactly the patent issued March 7, 1876. If there is anything in the patent which was not in the application of February 14th, it must have been put in between February 14th and March 7th. The pencil interlineations in the Boston paper, those thirty-nine George Brown words, were not on any paper which was on the files of the office on March 7, 1876. They were either made in Washington after March 7th, and certified up by the clerk according to Mr. Hill's hypotheses, or they were made in Boston upon the certificate after it arrived there. It is immaterial to us which. THE " SPURIOUS BROOD " OF DECISIONS. In my argument on Friday I omitted to refer to the dif- ferent decisions which have been rendered in this case from the beginning. Mr. Justice Lowell, in his opinion in the Spencer case, says that Bell " is admitted in this case to be the original and first inventor of any MODE of transmitting speech " electrically. That was admitted to Mr. Justice Lowell by the witnesses of the defendant in that case, and by Professor Morton, who testifies to it over again here. It has been admitted over and over again by the witnesses here. They have all sworn to it. The testimony is that Mr. Bell's "MODE OF TRANSMITTING SPEECH" is entirely new, and is not to be found in any publication whatever. It is also admitted here that Reis' apparatus cannot transmit speech by the " mode" HE pointed out " circuit-breaking " and that if it can be made to speak it is by subjecting it to the Bell " MODE." Professor Morton, who was the witness for the defendants in the Spencer case, and who is one of the chief witnesses of my brother Lowrey in this case, swore that not only did not the Reis publications disclose the " mode' 9 invented by Mr. Bell, but that no man could learn from any of the publications how to practice that "mode"; because he swore that neither Reis nor his friends knew it themselves, and therefore, could afford no inform- ation to the world. That is exactly how the testimony stands. Therefore Judge Lowell said: "It is admitted here that Bell is the original and first inventor of any GALILEO'S TELESCOPE AS AN ILLUSTRATION. 125 MODE of transmitting speech."* Upon that my brother Lowrey, in a learned and extended brief, says: "From those decisions come all that spurious brood of subsequent decisions, which trace their pedigree through an assumed decision to an assumed admission." (Page 88.) This book of decisions upon your Honors' table my brother Lowrey, with the forcible language which he is able to use, charac- terizes as a "spurious brood" of decisions. GALILEO'S TELESCOPE AN ILLUSTRATION. I now call your Honors' attention to an illustration *Henry Morton thus testified : " Cross-Q. 54. Now, in the course of your employment, during those years, by clients adverse to the Bell patent, have you yet discovered any publication or description before 1876 of a MODE OF OPERATION in which vocal or other sounds were to be transmitted telegraphically by causing undulations similar in form to the vibrations of the air accompanying said vocal or other sound to be transmit- ted over the wire. If so, point out to the Court what publication or description you have found which described that MODE of operation? " A. I HAVE FOUND NONE." Then on page 645 he testified : "Cross-Q. 78. So far as you know from the publication, existing in 1876, was the method of operation involved in that Bell telephone (Fig. 7) recognized by the authors of the publications in regard to Reis or any other apparatus then known? " A. It was not. " Cross-Q. 79. When you were examined in chief as a witness in the case of the American Bell Telephone Company against Spencer, you swore as follows : ' Fully realizing all this, however, it seems to me in nowise to influence this conclusion to admit that the Reis telephone did embody the feature of a fluctuating or undu- lating current, corresponding to changes of pressure between the electrodes, pro" duced by the air vibrations constituting the spoken words. For this feature, though it undoubtedly existed in the Reis instrument when used to transmit articu- late speech, was not recgonized by the authors describing it, and would, therefore, have furnished no information which would have enabled the supposed manufacturer to have constructed an operative telephone under the conditions above stated? Do you wish to take back any part of that answer, if so, do it? " A. I do not." See Channing, Molecular, 572, also our Brief, p. 231, et seq. Morton also swore that the Reis was a talking telephone in the hands of Reis ; but he himself had a Reis telephone, and with all his admitted skill and willingness to be convinced, he never could hear a word through it, and so swore in this case, after years of experience (Molecular, 348). He says: " WHEN CONNECTED WITH THE REIS RECEIVERS I HAVE NOT MYSELF BEEN ABLE TO SECURE DISTINCT TRANSMISSION OF WORDS OR SENTENCES. THE TONES OF THE VOICE CAN BE RECOGNIZED SO THAT ONE IS AWARE THAT WHAT HE LISTENS TO IS A HUMAN VOICE ; BUT IN ALL THESE INSTRUMENTS WHICH I HAVE TRIED THE INTENSITY OF THE SOUND HAS NOT BEEN SUFFICIENT TO ENABLE ME TO RECOGNIZE WORDS AND SEN- TENCES." 126 THE JUST SCOPE OF THE BELL PATENT. which contains the whole argument of this case. It is said that Galileo invented the telescope, and I believe he did. It was done by combining two well-known forms of lenses with each other in a certain manner, which he dis- covered out of the arcana of nature, by which the eye ivas enabled to see at unnatural distances^ just as the ear is enabled to hear at unnatural distances by BeWs telephone. His instrument consisted of a transmitter and a receiver; the objective lens, and the eye-piece. The discovery he made was that the vibrations of the luminiferous ether, which is the hypothesis for light, can be so controlled as that those which enter the large aperture of the objective lens can be concentrated in parallel lines upon the small aperture of the human eye, and so upon the retina. Upon that discovery Galileo made his telescope; which was, un- doubtedly, the very worst telescope that was ever made. You can buy for twenty-five cents a very much better one of a street peddler. It consisted of a long pole with two pieces of glass tied, one at each end; but tied there in such a position that, according to that law of God he discovered, they constituted a telescope. Well, sirs, he looked at Venus, and what did he see? He saw a gibbous moon. That glance annihilated the Ptolemian theory of cycle and epicycle that had en- slaved the minds of men for two thousand years; and the name of Copernicus shone out in that pure lustre which will never fade. He looked at Saturn my brother Low- rey has got it all in his brief he looked at Saturn and he saw a sight three balls, like a pawnbroker's sign, strung together. That miserable telescope of his gave him that appearance. But there was the disk, and the multiplicity of worlds at once became manifest. Suppose he had taken out a patent for that telescope, which he might have done, giving a drawing of that pole and those two bits of glass, and slating the law under which they became a telescope, and making this claim: " What I claim is the method of and apparatus for see- ing telescopically, by causing the undulations of light to be converged upon the retina, substantially as described" That is a paraphrase of Mr. Bell's fifth claim. Would not that be a very good patent for the telescope? GALILEO'S TELESCOPE AS AN ILLUSTRATION. 127 At once ingenious men, some mechanics and some scien- tists for it spread like light all over Europe took up that instrument. Some added brass tubes; and one man in par- ticular made himself .famous by improving the transmitter end of the thing very much an Englishman named Dol- land who cured the defect of chromatic and spherical aberration in the transmitter, by doubling the lens with glass of different densities; whereby the thing became capable of much greater magnifying power than it ever could have had with a single piece of glass such as Galileo used for an objective. That made, so far as it goes, the telescope of to-day, aside from mechanical execution. Now go with me, if you please, to Mt. Hamilton in Cali- fornia. There we see the great Lick telescope. If the mechanical execution of that lens turns out to be as per- fect as we have reason to believe it to be, it can never be exceeded in this world; never, unless the human eye gets to be developed upon some different principle. That is the end of telescopes. It has a thirty-six inch object glass, which is as large as it is possible for the human eye to avail itself of. Whether that is a perfect lens or not is a question of workmanship. Assume it to be so, then that telescope has reached the "ultima Thule" of telescopes. Well, sirs, we will take with us, if you please, on that ex- cursion my brother Browne, my brother Lowrey, and my brother Hill, and have them tell us and the world what all that phenomenon means, in the language which they ad- dress to your Honors now in regard to the Bell patent. Brother Browne, with that exquisite delicacy and tact that characterizes him, and, as I would say, " vith a vink of his vicked old eye " after the manner of the late Mr. Pickwick would say that " his client has discovered that Galileo's patent discloses the only method possible for see- ing telescopically;" and that, contrary to the generally re- ceived opinion about Galileo, his method is in strict accord- ance with the law of God, which was created some years before Galileo appropriated it, and which Galileo did not himself create; and that therefore his client's delicate sense of " morality" is such that he thinks that patent ought to be void. Moreover, he says that that Lick telescope is not any infringement of our hypothetical Galileo patent, 128 THE TELEPHONE AND THE TELESCOPE. because it has a double lens objective, which Galileo never made in his life, and never knew how to make. That is his presentation. Well, then comes along my brother Lowrey. He does not permit his client to be quite as mean as Dolbear that is almost too much for him; so he takes the personal re- sponsibility of assuring the world that he is perfectly will- ing to admit that Galileo invented that long pole telescope with a transmitter and receiver on it, and that he and his associates may be relied upon at any time to make that admission in public, if it will do Galileo any good. Nay, he is willing to consent that Galileo may make other long pole telescopes like it, and may avail himself I quote his language of "enough of what he discovered to enable him to work his invention, while not excluding other in- ventors" like Dolland, for instance, who perfected the transmitter " from access to the universal storehouse." Brother Lowrey having thus vindicated his well known liberality and generosity retires. Then we hear from Mr. Hill. He assures us that Ga- lileo was a thief and a perjurer anyhow; and he proves it by saying that he was cast into prison for inventing, among other things, that very telescope; and he tells your Honors there is another fellow, named Bell, going around loose, who is playing just such another trick on the world as Galileo played; and to use his language, " It is time that this wrong should be summarily stopped, and that the penitentiary should open its doors to receive the perpetra- tors of it." That ends the discourse of these gentlemen, as far as I can see, upon the Lick telescope, now mounted in that superb structure upon the heights of Mt. Hamilton, where it will penetrate the infinite abyss, and reveal to us the ut- most secrets of the great universe. Well, I think, may. it please your Honors, if that were addressed to the world at large there would be a laugh. I hope, however, that my brother Peckham, who is to follow me, will explain to your Honors wherein that case differs, even to the minutest detail, from the invention of the far-hearing instrument by Professor Bell; and wherein the principles which should be applied in law, in physics, THE DRAWBAUGH FRAUDS. 129 or in morals, can be discriminated between those two cases. That is all I have to say about the law of this case. THE DRAWBAUGH FRAUDS. We come now to another interesting and charming feature of this case the Drawbaugh matter. The principles of law which govern it are, that in any case where a patent is assailed, particularly by a stale claim made four years after the patent has been bruited all over the world, the assault must be maintained beyond any doubt; and that if there be any doubt created that doubt at once destroys the defense. Or, as the Courts put it, " To create a doubt is to resolve it in favor of the patent." Now I think, may it please your Honors, that no person within the sound of my voice will assume for one moment to say that it has been proved beyond any reasonable doubt that this Mr. Drawbaugh is what his counsel have assured your Honors he is, the American " Faraday"* and the in- ventor of the telephone. I do not think that is proved be- yond any reasonable doubt; and to raise a doubt is to re : solve it in favor of the patent. But may it please your Honors, whatever doubts there may be in this confusion of testimony we are not to be called upon to clear up and resolve. We are not behind the scenes: Drawbaugh is. He can tell us wherein all this con- fusion arise: he knows. We cannot know. We can sug- gest; but whether our suggestion may be true or not, we * In order to exhibit the American Faraday to the best advantage he was questioned by Mr. Hill as to his knowledge of acoustics, the science which under- lies the invention of the telephone, and without a knowledge of which the inven- tion is unthinkable ; and he told all he knew (Abstract, 295 ; Defts, ii, 793). " Q. 80. Do sounds of different pitch contain the same number of vibrations per second or not ? " Ans. No, sir ; they do not ; the higher the sound the more the number of vibrations. " Q. 81. When did you learn this fact ? " Ans. It would be a little hard for me to say when exactly ; it occurs to me it was a great while ago ; I can't put a particular period ; when I was a young roan I used to attend singing school, and the professor used to give the philosophy of sound in that way high sounds increasing the number of vibrations to the second, and he mentioned too, I suppose, the number to the second, but my mind does not retain tht number." 130 THE QUESTION OF DATES. cannot tell we can suggest some facts and reasons that ex- plain the phenomena of this testimony; and they are quite frequent and abundant in the proof itself. In the first place, Drawbaugh, the defendant Mr. Justice Miller: May I interrupt you to inquire whether you have some citations of authority in regard to your leading proposition that anticipation must be proved beyond a reasonable doubt ? Mr. DicJcerson: They are in our brief. You will find all the authorities in our Drawbaugh brief, pp. 99 to 133. The particular case giving the very language is by Judges Strong and McKennan, p. 119. If it were not so, no patent would be of any value. Doubtful defenses enough can be raised; but they cannot overcome the prima fades of the patent granted upon examination. Mr. Justice Miller: The authorities are cited there? Mr. DicJcerson: Oh, yes, your Honor. In the first place, Drawbaugh did all he said he did, and a good deal more that he does not tell us about. He did it all. He made all of those instruments that are be- fore the Court. He made them more or less in the order in which he says he made them. Therefore the question is not as to whether any witness saw those things, but as to the time when he saw them. That is all there is of this question. We do not dispute the fact that at some time or other he made them. Of course he made them at some time for here they are ; he produced them in this case in 1881 . We have shown you that in respect to the time many of these witnesses are grossly mistaken. We cannot reach every witness. A man says he went to Drawbaugh's shop. He says he went there, say, in 1875. " How do you know?" " Why," he says, " I went there to sell a bushel of potatoes, and I know I sold a bushel of potatoes in 1875;" or "I went there to get my spectacles mended, and I know that must have been in 1874," or some other such trash as that. That is the way these honest people and I do not doubt the honesty of many of them come to be witnesses for the defendants in this case. That is the way that they swell the volume of witnesses up to whatever it may be I don't know how many. I have not counted WITNESSES DEBAUCHED BY DRAWBAUGH. 131 them. It takes more arithmetic than I possess. Judge Wallace settled that matter, however, by saying that a million of them would not be of any use; so that I will not count the few that they have got. He made all those things. They were certainly all made between the sum- mer of 1876 and 1881, as we show you in our oral argu- ments below, and in our brief, that they were. (See my oral argument, p. 127 et seq.) You have but to look at this transaction through the true end of the opera glass, and the whole story is brought within those limits. You have but to invert the opera glass, and it is stretched out wherever you please to carry it. That is all there is of it. Whether the picture given by the witness is in long perspective, or is foreshortened, is all there is of the question. I am not going to attack these witnesses generally; but there are several who where debauched by Drawbaugh in the most infamous way. Take for instance the Ditlow family, and the Kahney boys. Their story is all here. I shall not repeat it. They were debauched by Drawbaugh. They proved that, when they were upon the stand; they produced the evidence that they were, and Drawbaugh has never opened his mouth to explain it. For in- stance: Drawbaugh sent one of them out West to hunt up some man who should tell him, the witness, that the witness had told him the story at some anterior date to the date at which the witness himself had first sworn he saw the Drawbaugh telephone; and then upon the faith of that other man's telling him that, he was to come back, and he did in fact come back, and swear that his former testimony was entirely mistaken, and that he had come back better informed by the man he was sent out to find. Well, there was a slight difficulty about it, because that witness had written to my brother Storrow a letter two of them in fact and told him that Drawbaugh was go- ing to put him back on the stand, and in substance asked: "What will you give me not to go?" All that comes out. I shall not spend any time over it. It is a horrible mess, perfectly filthy; but it is all in our argument, and I will not defile my mouth or take the time of the Court 132 WORTHLESSNESS OF MEMORY ABOUT DATES. by going over it now. It is in my oral argument below, pages 43 to 52, and Mr. Storrow's oral argument below, p. 224. Many of these witnesses are honest people enough, who say that they heard all this in 1866 or 1870, or some other time no matter how far back; and it is asked us with great emphasis and with great ability and ingenuity by my very learned brother Dickinson, and by my eminent friend Mr. Edmunds, " How do you get along with that ? Here is a pistol exploded in a man's ear. He may forget the date of the pistol explosion, and generally would; but he could not forget the explosion." We agree the pistol was exploded in all their ears if it was a pistol. To most of them it was not any pistol at all ; because to a countryman the hearing of that thing talk was not at all a marvelous matter, if it did talk. To Sir William Thomson to a man of science it was a miracle; but to a common countryman it was not a very remarkable thing. He had been listening to string telephones. They were well known in that village according to the proof. It was not very remarkable to them that talking machine. It was not like the explosion of a pistol. (See brief, p. 311, Eppler.) But if it had been the biggest explosion in the world there is no reason why one should get a true date associated with it because it was a pistol. For instance, Donati's comet was the most superb phenomenon that has occurred in this century; we all saw it. It filled the heavens with glory from the zenith to the horizon. I will undertake to say that there is not a man within the sound of my voice can tell its year. I am somewhat interested in astronomy, and I cannot. I can go to a record and prove when it was precisely ; but that is not the kind of testimony my learned adversaries think good. They think mere memory is the thing; and that as to records they are not to be re- lied on. The transit of Venus is the most interesting astronomical phenomenon that has occurred, or can occur at any time in the history of the world; and the reason is that it gives us the size of the solar system if we observe it aright. A MECHANICAL TELEPHONE AT DAN'S SHOP. 133 I observed that transit in my own observatory. I made careful preparations for doing it. I looked forward to it with great pleasure. I made the observation, and remem- ber it with much satisfaction. But to-day, if I had to go out and be killed if I could not tell you the year, I could not. I could tell you the law under which it came about; but I could not tell you that year if I was to be hung for not knowing it. I can go to a record and find it out. I can go to such a thing as a business card, as in the Draw- baugh case for instance, or to the Baltimore American, or the newspapers, and all that. But I cannot go to my memory and tell you to-day what year that was. It was the loudest pistol I ever heard explode. As I watched that little spot touch the sun's disk and creep over it, I thought of the happy feelings of Jeremiah Horrocks, who was the first living man that ever saw that phenomenon, when he saw that little spot creep over the sheet of white paper in his room; and his name became famous by it. I thought of the great pleasure he must have enjoyed, for I shared a part of it when I saw that beautiful phenomenon. But I can't tell you to save my life what year it was. It was not more than six years ago, maybe, or seven I am within two or three years of it. Now, may it please your Honors, Dan had in that place of his the Wheatstone talking machine. I am going to bring it to your Honors' minds, for I think it altogether probable your Honors have seen it. The Wheatstone talking machine Sir Charles Wheat- stone's. He had the Sir Charles Wheatstone talking ma- chine. In our abstract of proofs, page 294, he tells us about it: " I have made experiments applied light bars of wood from one door to another; I remember one in particular I passed through one room into the second room by a bar and 1 found there was sound produced or transmitted by the bar, not through the air but by the bar" Then he tells how his daughter and he talked through it. This is a charming experiment. Your Honors are told in the testimony here, in the newspapers of the day, that nothing interested men of science that did not interest 134: DRAWBAUGH'S KNOWLEDGE OF BELL'S FAME DID Drawbaugh. Sir Charles Wheatstone published that thing. It is made much use of by jugglers and by spiritualists who cause guitars to be played in the room where you are by means of a stick of wood on which the guitar rests, the other end of which goes into the cellar where the music is produced; and the vibrations are transmitted through the stick and make the guitar play; or you talk to the other end of that stick and the sound comes out at the guitar, and mysterious voices are heard. It is a common trick of jugglers. Professor Henry had that apparatus at the Smith- sonian Institution; and I have no doubt there are persons within the sound of my voice who heard it. He had one end of it in the cellar of the institution, and he had that stick come up into his parlor, and there he exhibited that thing to persons who were delighted by it. It is a delight to every intelligent person. Dan had that apparatus which he was talking with. We have proved, also, that he had a string telephone there. That is denied; but I think we have proved there was a string telephone there (brief, 311, et seq.) No matter. He proves he had this stick telephone there. Of course the country folks who came in were naturally astonished at the thing. Somebody goes into the cellar, and talks to the end of the stick, and the voice comes up. That was very remarkable to a countryman, and very remarkable to an intelligent man who does not understand physics. That is what he did. Then when he got the real telephone, when he got the Bell telephone, and persons heard that talk, they naturally would associate it with what they had seen years before if they did see those things. I am giv- ing you this as an explanation. It may be utterly untrue. Maybe the whole story is a lie, for all I know; but if it is true at all, that is one explanation. He can tell us. We cannot. We were not there. Now, may it please your Honors, that is an explanation we are giving you as far as we may venture to give you any explanation of these phenomena connected with this testimony. I now come to show you the utter dishonesty and vil- lainy of this story. Judge Wallace who decided this case, has made these defendants very unhappy by deciding that this man Drawbaugh was an imposter and a charlatan, NOT INDUCE HIM TO CLAIM THE INVENTION. 135 and that his associates are no better. They say it is very hard on them; but that is the decision which your Honors have before you, and which you are called upon to re- verse. I propose now to show you that that cannot be reversed; that this man was a charlatan and a dishonest impostor, and that he was surrounded by a gang who used him for the most dishonest purposes. I make that state- ment with all the solemnity and with all the seriousness which a man should feel who makes it to a court. Let me give you the history. Drawbaugh, according to the present testimony, had among other things in his shop, which was forty feet long and about twenty-five feet wide that is the exact measure of it it could be put two or three times inside of this room forty feet by twenty- five and partitioned off into three as your Honors have seen: he had there in 1876, before the Centennial, or before he went to the Centennial, the most perfect collec- tion of telephones that has ever yet been produced in the world, excepting what has been done within the last two or three months or so the most perfect. That is the story you are required to believe. He had the Blake transmitter. He had the Edison car- bon transmitter. Your Honors know those little instru- ments. He had the perfect Bell transmitter and receiver of the patent of 1877 with all its minute details every- thing perfect in his shop, in the summer of 1876; and all in 1875, except the Blake transmitter. He had the Edison carbon instruments in 1875. He had the carbon microphone that has made Professor Hughes famous, and has made Mr. Edison somewhat famous, as having discovered it. He had all those in 1876.* That is his case. Having read * Seeing that it would look reasonable, at any rate, to show some mental process by which the American " Faraday" arrived at the microphone, and the use of carbon in making it, inasmuch as its other inventors had shown their pro- cesses, Mr. Hill exhibited Drawbaugh as follows (Brief, 365 ; Deftx, ii, 804) : " Q. 150. Do you remember how you first obtained knowledge of that fact, that low conductors when under pressure would conduct the current more freely than when not under pressure ; that is to say, did you learn it by reasoning it out, and then testing it, or by accidental discovery, or reading it somewhere, or by hear- ing it from some one, or how ? "A. I don't remember how I came to it; I had been experimenting in that direc- 136 DRAWBAUGH'S VISIT TO THE CENTENNIAL. in the newspapers that Prof. Bell, or some gentleman of that name not then otherwise known than as Mr. Bell, had discovered that marvelous thing, the telephone, and had become famous for it, he went up to the Centennial and spent five days there, going among other things particu- larly to see that telephone. That is his story. He spent five days there. He went with Mr. Leonard, the richest man in his village, who owned two-thirds of the houses there his next-door neighbor and old friend. He stood by and saw that Mr. Bell exalted to the heavens, when he had in his shop that which, would have talked him down from his pedestal in one second, and put himself in his place; because Mr. Bell's thing made only the puling cry of an infant, hardly able to make its voice heard the most miserable, the feeblest thing that ever was made as a telephone, just like old Galileo's telescope, utterly good for nothing; while Drawbaugh had at home Bell's improved instruments of 1876, patented January, 1877, and the Blake transmitter the perfect instrument of to- day and he never opened his mouth. He never said to Mr. Leonard, " Don't you know, sir, my neighbor, that I have had these things in our town right alongside of you for ten years?" Not a word. He went to the Centennial, and then came back to Milltown and laid a little plot to cheat Mr. Shapley, the clockmaker, out of a couple of thousand dollars, by selling to him, as his own invention, the right to patent the Bain electrical clock that he had lion; I don't remember of getting at it by accident either; don't remember of reading it; 1 don't remember of any one telling me of it; I don't suppose any one told me." And when he concluded to use ground-up carbon, which Edison had discovered and published June 1, 1877 (Drawbaugh, complts, iv, 433), he just went to the gas-house in Harrisburg, where he found it "just lying in the yard just picked it up" (Brief, after p. 514). After these exhibitions Drawbaugh was not examined any further, on the theory that he had any antecedent train of reasoning which led him up to his wonderful discoveries. Nor did they attempt to explain by him why he left out of the Blake trans- mitter the weight which should have been in the brass cup making the anvil, and which is necessary for a successful operative machine ; nor why he screwed the diaphragm fast in that machine, and thereby necessarily sprung and warped it, when he had the flexible finger afterwards invented by Blake, for holding the diaphragm in place, for the very purpose of avoiding the injurious effects of screwing it in. On these interesting questions his partner preferred to keep the American "Faraday" silent. ' DRAWBAUGH'S REAL WORK WAS IN 1878. 137 copied out of Tomlinson's Encyclopaedia. For this see our Drawbaugh brief, pp. 202, 203. Well, sirs, in 1878, he formed a partnership between himself and two other persons one being a man named Chellis, who kept a ninety-nine cent store there. That variety of swindle has disappeared since ; but at that time it was like an erysipelas all over the country, your Honors; everybody remembers the ninety-nine cent store, where you could buy anything that any human being wants from the cradle to the grave for that price. The other partner was a crank of a fellow by the name of Moffitt, a dentist there, who used to disappear and turn up in Texas or somewhere, after his family had hunted him all over with detectives. These two men had some money and they wanted to in- vest it. Drawbaugh had an enormous capacity for tak- ing investments. He had obtained a great deal of his neighbors' money in that way twenty or thirty thousand dollars; and he was just the man to give them a chance to invest it in him. He had two things. He had a plan for a molasses spigot, the right to which was in dispute with a Mr. Hauck. And he had, according to their present theory, all this enormous invention right there in the same room, where it had been perfected as every one knew before 1876. But what was he about at that time? According to the publications inspired by him at that very date, 1878, he was " IMPROVING tfre mother invention" That is what he was doing; and like an ignorant crank, as he is, he thought he could improve the " mother invention." He was experimenting to improve it. We have got a draw- ing of one of his notions, preserved on the back of a speci- fication for a patent for clocks which he had Mr. Weaver make for his clock company. He talked to Weaver about it, and made that sketch on the clock specification. His idea was that he could multiply the amplitude of the vibrations of the diaphragm by a lever, so that when the diaphragm moved a thousandth of an inch, the end of the lever would move ten times as far; just like that long thing on the Reis-Legat instrument that long wing to beat the air better. That was his notion. That drawing is preserved 138 CHELLIS AND MOFFITT IN 1878-9 as his notion until this day. (See my Oral Argument be- low, p. 144.) Another one of his ideas was to put two carbon points on the Blake transmitter, and thus double the sound. He had all those notions. So he said to these people, "Now, come in with me and put your money into my improvements on telephones." Well, sirs, they looked at it, and they said to him, "We had rather take the molasses spigot. It looks better to us than that." Why? Because, as they said to him, " Dan, you can't anticipate Bell. What is the good of your spending your time on this kind of stuff ? " They knew something about it. Let me read that to your Honors, because that wipes the floor, to use a slang expression, with this whole case. Here is Mr. Chellis, the ninety-cent gentleman, whose testimony is in our abstract of proofs, page 161. Says Mr. Chellis, in answer to a question by Mr. Hill : " Q. During your early connection with the faucet business did or did not Mr. Drawbaugh urge you to go in with him in the telephone invention f "A. Yes, sir; repeatedly." Now I go to the bottom of the page. " Why did you not? " (says Mr. Hill.) "A. Because I was interested in the faucet and motor business and wished to push them, and I did not think we could do much with the telephone, AS BELL HAD A PATENT, AND I DID NOT KNOW THAT HE COULD ANTEDATE THEM." The Chief Justice : Does he give the date? Mr. Dicker son : Yes, sir; their first connection began in 1878. December, 1878, or soon after, to be accurate. "Q. During any of your early conversations with Mr. Drawbaugh on the subject, did you say anything to him about Bell's patent and claim of priority over all others? " A. Yes, sir; and I advised him to drop it the telephone AS HE COULD NOT ANTEDATE BELL. HE SAID HE DID NOT KNOW ABOUT THAT; THAT HE HAD BEEN WORKING ON IT A GOOD WHILE; THAT WAS HIS WAY OF EXPRESSING HIMSELF, WHEN I WOULD SAY YOU CAN'T ANTEDATE BELL, HE WOULD SAY" Now they quote the language: '"I DON'T KNOW ABOUT THAT; I HAVE BEEN WORKING AT IT A GOOD WHILE.' " FIND THAT DRAWBAUGH CANNOT ANTEDATE BELL. 139" That is what he said to his partners in December, 1878, or early in 1879, when he was asking them to come and help him push his improvements. HE "did not know" about it in 1878. But in 1882 he and everybody knows all about it! Well, sirs, one of these partners was a man named Moffitt. Moffitt afterwards came and swore that in 1874, 1 think it was, he heard that round transmitter (A) your Honors have seen that round instrument of Draw- baugh's which we proved was made in 1877 or so he heard that talk so loud when Drawbaugh was in the cel- lar that he thought Drawbaugh was at his shoulder, and he turned around to see if he was there. Now, sirs, that was said by Dan himself to Moffitt and to Chellis in 1878: " I dorft know about that; I have been working at it a good while." Yet he knew that Bell was first heard of in 1876, with a very feeble instrument; and he now tells you he was eight or ten years ahead of that, with good talk- ing telephones. And there was another man who knew,, and that was his very partner Moffitt, if he is to be now believed. Thereupon they said: " No, Dan; I don't think it is worth while for us to do that. Molasses is our little game;" and they went on with the molasses. That was in the last of 1878 and early in 1879. For aU this matter see our Drawbaugh brief, p. 228 et seq. Well, they got into an expensive Patent Office interfer- ence with this Mr. Hauck over this worthless molasses spigot. They tell you that Hauck is a perjurer and a thief ; in short he is but little better than Professor Bell hardly any; and they got into an interference with him over that molasses spigot. You have heard about that interference. Mr. Hill was the counsel in it, and they beat Hauck; and then they went into the business of making these mo- lasses spigots; when there were in that room all these magnificent inventions beginning twelve years before, and known to all the country side; but not known to Dan, or to his partners, or their counsel then; not even known then to his partner and old friend Moffitt, who now testi- fies all about it. Now let me show you where this business originated. I will follow that same matter on page 161 of our Abstract. This is Chellis replying to Hill: 140 ORIGIN OF THE DRAWBAUGH CLAIM. " Q. What did you ascertain about the employment of his time and energies as you began to get into the faucet business? "A. I found out that while I was working with him, making patterns for the faucet, that he worked very well. I would come home in the afternoon and leave work for him to finish and have ready for the next day, and I generally found it on my return just about as I had left it." That is, Dan was not doing well the molasses things that they hired him to do. " Q. Did you discover that something besides faucets was engaging his mind and attention; if so, what and how- soon did you discover it?" This was in 1879, after they had got through the inter- ference. I read from the bottom of page 161 and the top of page 162 of the Abstract. "A. I was talking to his wife in regard to it, that is, how slow we were getting along. She says, ' Mr. Chellis, Dan works at the telephone as soon as you go away, and most every night he does not get home until twelve or one o'clock;' and she said that she had been talking to him about it and wanted him to lay the telephone aside and work on the patterns, and give the telephone up, and he said that he would go to the poorhouse before he would give up working on it."* THAT WAS IN 1879, AFTER HE HAD FOR THREE YEARS THIS WHOLE THING PERFECTED, AND BEYOND WHICH HE NEVER DID ANYTHING BUT MAKE TWO INSTRUMENTS, which Were mere modifications of the Blake transmitter. Now, sirs, here is a beautiful picture. Here is where the modern Faraday shines out illustrious: "What plan did you adopt, if any, at that time, to get him to work more steadily on the patterns? * Deposition of Henry F. Drawbaugh, defts, i, 419, lets in a flood of light on the question of dates : "Q. 46. Did you ever hear your brother Daniel's wife talk about his spending his time experimenting; if so, how often and during what years? " Ans. I have heard her make mention of it very often DURING THE TEAR '76, AND FROM THAT TIME UP, NOT FROM THAT BACK; she said she wanted him to stop fooling and go off; he had had good offers to superintend for other firms, and then they would try and live better, they had been living so poor for many years on account of his experimenting." THE SPECULATION FIRST THOUGHT OF IN 1879. 141 "Ans. Itoldhim"- says the Ninety-nine cent gentleman, " we were in the shop * Dan, we will hurry up and get through with these patterns and we will look into this telephone, and I will go in with you. 5 This seemed to please him, and he talked telephone all the balance of the day, but did not do much, if any, work." Says Mr. Hill: " Q. Did you mean what you said, or was it only a little strategem to get him to finish the patterns? 1 'A. I WAS JUST USING THAT SO AS TO GET HIM TO FINISH THE PATTERNS, AND DID NOT REALLY HAVE MUCH PURPOSE OF GOING IN WITH HIM." Talking to him like a spoiled child: "Now, Dan, my boy, just do our work, and to-morrow we will give you some taffy." That is the way the modern Faraday was dealt with by this ninety -nine cent sharp; and that is his story of it. Well, sir, what happened then? He went on with the molasses spigot, says Mr. Chellis, so poorly that Chellis got discouraged: but he could not find out from Dan that he had ever done anything before Bell. Dan said, " I don't know." Chellis had talked with Dan's wife, but did not get from her any idea that Drawbaugh could antedate Bell. Presently Chellis says, "I will find out from somebody else ;" and there was a person named Shank, a kind of Dogberry whom he met in Dan's shop ; and Chellis says to Shank, " Shank, if I could only find when Dan began this business I would know when I could stop him." Says Shank, " He began in 1870." " Oho!" says the ninety-nine cent man, "Here is something. What a find!" And thereupon they sent to Washington post-haste for Mr. Hill, who had been their counsel in the inter- ference business; who had been Dan's counsel right through in 1879, and never had heard that he was the first inventor of the telephone. They sent for Mr. Hill to come up there; and they said, "Aha! Now, we have got a man that can anticipate Bell; what a find !" That is where this thing began; and the next year Shank was their first witness. They then put Shank on the stand and he swore it clean 142 THE CONDUCT OF THE PARTIES IN 1879 SHOWS back; and he went around and got his neighbors and friends to help him. That is where it began. Now, what happened when they sent for Mr. Hill in the summer of 1879, and had a solemn conference between him, Mr. Chellis, Mr. Drawbaugh, and Dr. Moffitt about "what are they going to do about it?" Why Mr. Hill said to them, " Gentlemen, now don't spend your money on this business." It would cost them $15. Yes, it would cost them $30; because they would have to make two appli- cations; one for the telephone per se, and one for the superb discovery of the microphone. It would cost them $30 to apply $15 each; so Mr. Hill says, " Don't spend your money on it, gentlemen. No good. Don't do it. You will only get into a mess, and you will have to fight some- body with it, and it will cost you a hundred thousand dol- lars. You better leave it alone." And he went back to Washington (that is their own testimony) and they did nothing. (Abstract, p. 162.) Meanwhile, if your Honors please, the Statute of Limi- tations was running. Although the Statute of Limitations had barred out the telephone as the subject of a broad patent in 1879 for that had been then in use more than two years it had not barred out the microphone, for that was just coming into use had been in use about a year. It was the grand prize, worth more than a million dollars oash, as soon as a check could have been drawn for it, if their story is true, and if they had taken it either to the Western Union Company or to the Bell Company, who were then at swords' points fighting this fight to despera- tion. Mr. Hill knew this as well as anybody else. He was a patent agent, right out of the Patent Office, here in Washington; and that fight was raging all over the country. The Western Union Company had been buying prior inventors; but they had bought one pig in a poke, (Dolbear), and they didn't want any more of that kind; and Mr. Hill says to the partners in substance, u Don't go to the Bell Company and show it to them, because if you do, they will have that sharp Storrow up here; and don't go to the Western Union, because they will have that sharp Browne up here; and they will burst our balloon quick. Don't go to either of them. Don't say a word. UNIVERSITY THAT THEY KNEW IT WAS NOT AN HONEST CLAIM. 143 Don't open your mouths. Sit down and wait." That is what he said. That is the effect of the testimony. Then, sirs, they waited, and did not even apply for a patent; al- though, according to the story, they all believed Draw- baugh to be the first inventor of the microphone and telephone ever since 1868. Then, in the spring of 1880 a partnership was formed be- tween Drawbaugh, Hill, Jacobs, and the Ninety-nine cent man; and that partnership was to own Drawbaugh's story, and sell it for what they could get. That was the partner- ship. The story was all in Drawbaugh's head; because there is no living man who could tell the story; and there is not a man in all that testimony who could have brushed the down off of the wing of a butterfly by his testimony but for Drawbaugh not one. No one of them knows what the thing was at all. No one of them describes it, or could have touched the patent at all. It was safe property, all in Drawbaugh's head; and they made a partnership to sell that out. At that time there was a great demand there was a rising demand for prior inventors, because all infringers keep prior inventors; they have them in stock, and there was a demand for them. They made that partnership in 1880, and then they hunted for a customer; and they found a customer these gentlemen of the Israelite per- suasion who at first wanted to infringe ; and one of them was sent up to Harrisburg to buy this prior in- ventor's story; and what do you think he did? He spent only a few hours up there with Drawbaugh, Chellis, and Jacobs. They had no opinion of counsel to show him; they had no warrantee of title to offer. The owners of the lie had not even applied for patents for these splendid inventions, although $30 would have done it Hill being himself a patent agent and the Statute of Limitations was running against the microphones. They simply offered stolen goods, with all the marks on them then and there; and the customers paid $20,000 cash for the lie, and it was a first-rate investment for them. That $20,000 cash was divided into four equal parts; Dan Drawbaugh got five thousand for the lie; and Hill, and 144: HISTORY OF THE DRAWBAUGH CONSPIRACY IN 1880. Jacobs, and the Ninety-nine cent man got five each for helping him sell it. (Abstract, p. 164, et seq.) That was the business, and that is the way it started. The purchasers at once formed a five- million dollar stock company, and gave a big share of the stock to the partners, in addition to the $20,000; and then for the first time, out of the company money, patents were applied for; and the act of Congress for the relief of Drawbaugh was proposed, to give stock customers a chance for their money. What did they next do ? Why, sirs, they came down to New York and published their programme ; and we moved for an injunction before his Honor Judge Blatchford, because they threatened to infringe. They had all this testimony in a bag in affidavits, including Drawbaugh's, and we challenged them to produce it. We said, " Come up with your defense, and show that you have a defense. You have paid $20,000 for it; show it." And they refused to show it. They said, " We will sub- mit to an injunction rather than show it." What was the reason of that ? Because they were going to retail that $5,000,000 lie out at so much a share the stockbrokers call this kind of stock certificates " chromos" at so much a chromo, by retail; and they had five million dollars worth divided between them. These same four gen- tlemen had their share of this stock of chromos, that they were going to sell at retail, and they didn't want Judge Blatchford to put his foot on Dan's story, because it would spoil the chromo business; therefore they didn't open their mouths to him, but said, " We have got no defense to ex- hibit so far as Dan Drawbaugh is concerned. We simply don't mean to infringe." Their business then was not infringing, or setting up telephone exchanges that cost money it was selling chromos; and that has been continued from that day to this; and that is why this appeal is here, to keep the stock business alive. This great lawsuit has been paid for, cost- ing hundreds of thousands of dollars, out of the sale of chromos, with a profit to the promoters; for this lawsuit is their capital stock. They could not sell their chromos THE WATER RAM FRAUD. 145 at all if their defense had been smashed in the beginning; and to carry on this lawsuit is to furnish the capital stock for their chromo mill; and that has been carried on in magnificent style at No. 2 Wall street, New York, with a suite of costly rooms as big as across this court room; with brass, and glass, and mahogany; and with the names of eminent counsel on the door: all in the same building where a great historic man was being done to a remorseful death by another set of villains on the floor below; and a great historic name was being smirched that they might swindle the gulls out of their dirty dollars. The two cases are exactly parallel. Your Honors will find all this worked out in our Drawbaugh brief, p. 234, and in my ar- gument in the Circuit Court (pp. 5 to 23). THE WATER KAM FRAUD. But when we got into a controversy with them they committed some of the most atrocious frauds. I will tell you one, in skeleton. It became necessary for them to prove, or they thought it did, that a certain "water ram" was set up on a farm in 1875 or 1876. The whole story of the date of Dan's telephone, so far as proved by a very im- portant witness, hung on it. In point of fact, the ram was put in in 1878. An honest enough man, Mr. Draper, who bought the ram from Drawbaugh, being misled as to the date, by a false association with a lease in 1874, not think- ing of another lease to the same party in 1877, came and swore it was put up in 1875; and he thought it was. He afterwards came back and admitted his mistake, and said it was 1878. There* is no doubt about the date now whatever. BUT DAN HIMSELF MADE THAT WATER RAM, SET IT UP HIM- SELF, AND HAD THE BILLS FOR THE MATERIALS IN HIS POCKET WHICH WE GOT OUT OF HIS POCKET. HE KNEW IT WAS 1878; AND HE TOOK CARE NOT TO SWEAR TO IT HIMSELF, ALTHOUGH HE WAS ON THE STAND AFTER THIS ISSUE WAS KNOWN BY HIM. His partner, Hill, knew it was 1878; because there were documents in his hands that proved it was 1878; and, sirs, they put more than thirty witnesses on the stand 146 THE PHILADELPHIA TESTS OF 1885 who swore it was put there in 1875 or 1876, honest men, most of them perfectly honest ; and a dozen of them came back when they found they were mistaken and took it all back. They got more than thirty wit- nesses; and this partnership this Arachne of Arachnes crouching in the center of that web, spinning this net over the consciences of men, got thirty people to swear to what they knew was a lie; and at last, it had to be be abandoned, and it stands abandoned. That is the story. It is all on this record, and told in detail on pages 69 to 86 of my argument in the Court below; brief, pp. 525-531; also abstract, p. 781, et seq. THE RUNNINGS TRANSMITTER FRAUD. Another thing they did, and it was a most interesting story. When Dan undertook to prove that his witnesses told the truth by proving that his B and F could talk, he was cross-examined. Those were, may it please your Honors, very anxious days for us very anxious; for at that time we owned the Runnings transmitter patent. We knew that they could put it into a tumbler; we knew they would do it in a minute if they only knew it; and we stood by with bated breath when that examination of Dan was made, in which he swore finally that his tumbler F had to be held horizontal, and that he used pulverulent material generally plumbago for the best results. He swore to that and we breathed freer; but you may imagine, may it please your Honors, how my brother Storro w and I trembled as we stood along that brink, with all this great property there dependent up6n what they might find out about that Hunnings patent. Then they came to New York, on our call, unexpected by them, to re- peat the trial of their "reproduced" B and F, in a place selected by them; and they tried it by their expert, and by Dan himself, whose machine it was, and who had sworn, and had others swear, that it was a perfect talking telephone, and had been so for many years in its original shape, of which this so-called " reproduction " was said to be a copy; and what did they do? They AND THE RUNNINGS TRANSMITTER FRAUD. 147 got a big stone, weighing a hundred pounds, and put it on a big table, and set that tumbler F on that stone so that it could not be shaken or moved, spoke gently to it, with its mate B in a silent closet, and it could not talk. That destroyed the story, and destroyed the witnesses who had sworn that B and F were a good telephone for years past. When we stood there and saw that, we had along- side of us a man named Frank Smith, who had in our em- ployment been developing this Runnings transmitter, and who might open his mouth in a minute and enlighten them. When that trial was over, without a word of complaint on their part, we felt better. That case was settled. Then Smith turned up in their employment. He left us; it was a great temptation to him, and he left us and went over to them and told them how. Then they came into Court in New York, when the argument was half over, and offered to show Judge Wallace that B and F would talk so loud that they could be heard all around the room ; which of course they could if they used the Runnings transmitter. We were in a very disagreeable situation. If we had said, "Do it," we should have had to stop the argument and put in the proofs, thus losing the term, and going over for months. If we said, "You shall not," we were subjected to the imputation of not being willing to allow a fair and honest trial to be made. That lesson, which his Honor Judge Wallace learned from them that day, has taught him never to see any experiment tried in his Court, that is going to settle a disputed question of fact, without ex- amination and cross-examination of witnesses. Well, sirs, we declined, and we got through safely; because his Honor decided the question by the proofs, not by this offer. Then they went to Philadelphia, and took the Hunnings transmitter there, and employed my friend Mr. George Barker, for the sake of his character, to stand up as a screen between them and us, while they did the fraud. He was perfectly innocent. He did not know what the matter was; and they paid him the price of a profes- sional expert to do what? Why simply to testify to what an office boy could testify; a thing which needed no proof 148 THE PHILADELPHIA TESTS but to exhibit the apparatus; and that was that the Hun- nings transmitter telephone could talk. Anybody could prove it as well as he. Of course it would talk. And there we sat, brother Storrow and I, and saw that show go on. Well, I have not got the most absolute control over my risible faculties, and brother Storrow, figuratively speaking, was putting a plaster over my mouth all the time to keep me still, because we had to look very solemn while that was going on; and they went on and did the show in our presence, with the character of Professor Baker before them, who stood there, an innocent man, not knowing what was being done with him. Then we proved that Smith was their man. I asked Mr. Barker on the stand, "Do you know Mr. F. Smith ?" "Yes, sir; I do." " How do you know him?" " He came here with these things." Of course he did, and he told how to use them; but he disappeared at the trial when we were present. We then called witnesses and proved who Smith was; we put in the Runnings patent; and we proved that their transmitter which they used at Philadelphia would not practically talk if it was set down horizontally; and it will not, although it is better than Dan's; because it has granular powder, which has some little elasticity in it, whereas a heap of fine flour, the moment it is packed down, never comes back. The first loud stroke of the air packs it out of reach of the upper plate, because an almost infinitesimal distance is enough to break the cur- rent. The first loud vibration packs it out of reach, and breaks the current. We proved that it could not be done ; and there they stood by, and heard that testimony when it was so proved, and they never contradicted it; they never pro- duced any one to say that with the Runnings he could talk with the plate horizontal, and with fine flour; they never offered to come back and prove that they could do it. They laid right down before that proof and never stirred. That is all in this record. You can imagine that we were not objecting when they were doing that trick in Philadelphia. Brother Storrow and I submitted with the amiability which belongs to the true Christian while they were doing it. By that perform- AND THE RUNNINGS TRANSMITTER FRAUD. 149 ance they have blackened this case if one can blacken charcoal, or paint a lily white they have blackened this case so black that the resurrection day can never raise it. Now, those are two samples. Mr. Justice Field : Was Smith subsequently examined? Mr. Dickerson : Oh, no, sir. They never called him as a witness. Mr. Justice Field : Did you? Mr. Dickerson : We proved who Smith was. Mr. Justice Field : Was he examined? Mr. Dickerson : No, sir; he was in their employment, so of course we did not call him. We merely proved that he had been in our service; that he had learned this trick of the Hunnings transmitter in our employment and how to do it; and we then put the patent in evidence, and proved the reason why that thing would talk.* Mr. Justice Harlan : Will you state again the difference between the instrument used at the New York experiment and the Philadelphia instrument? Mr. Dickerson : Yes, sir ; the difference is two-fold. First, the material is better the powder in the New York case was pulverulent and largely plumbago. The moment the upper plate beats down on that flour and comes away again from it, it does not follow ; and contact must be maintained in order to talk. Mr. Justice Harlan: The powder in Philadelphia was coarser ? Mr. Dickerson: Yes, sir; coarser, granular, and no plum- bago. Second, and what is still more important in the Hunnings case it was turned up on edge, in place of being horizontal; and being sandy and loose, when it was driven back by the platen as the platen receded the sand fell in behind it, and so kept contact. It is like digging sand, which keeps falling down against the spade; and there- fore, it will keep up this contact, whereas, being horizon- * See our additional brief, pp. 10 to 15, at end of general brief. 150 THE REPRODUCED TUMBLER CONVERTED tal, it will not. Those are the two differences. The gran- ular character of the powder is one important matter.* The Chief Justice: If I recollect right, it was said by Here is the " REPRODUCED" F tried in New York. Mr. Storrow explained the precise operation of the working parts of this in his argument with this glass model. When this thing is horizontal, as used by Draw- baugh, the vibrating upper plate E packs the powder P, and when it vibrates up again, it parts contact from the powder. But when the thing is tip- ped up, as in Hunnings plan, the powder, if dry and hard, keeps in con- tact with both plates D and E by its own weight. The Hunnings patent thus describes the powder : " Carbon, and particularly of oven-made engine coke, crushed very finely, not ground so as to pulverize (not shear or tear) the particles." It also describes the method of using the instrument : " When the instrument is held in the hand at a convenient angle for speaking into it, say inclined from the vertical about twenty-Jive degrees, the weight of the particles generally packs them sufficiently, even if the chamber be not absolutely full, but has a pinch of the material taken out after filling. The handling to which the instrument will be subjected, if used as a hand instrument, will ordinarily keep the filling in good condition ; or, if by accident it becomes too tightly wedged, turning it upside down, or striking it with the palm of the hand, will gen- erally restore it to the proper stale" See our Syracuse brief, p. 10, at end of our Drawbaugh brief. INTO A RUNNINGS TRANSMITTER. 151 Mr. Storrow that in the old machine the two pieces of iron were loose. Mr. Dicker son: Entirely. The plate in Dan's real turn- bier F is cut out by shears. In place of being a circle, fit- ting a cup, it is cut by shears into a polygon, with a big open gash in it besides, entirely incapable of covering up a cup, if any were ever used; and there is no evidence that one was ever there, or that it could have been used with these plates. The stem C would exclude one entirely un- less outside of it, and then the cover would not come near it. Here it is, and a picture of it is on the chart VII. of the Drawbaugh instruments. Broken Tumbler. Plate of F. The Chief Justice: In the Philadelphia machine it was made tight. Mr. Dicker son: Yes, sir; a good fit. You could turn it up and not spill out the powder. The Chief Justice: It would not stop the vibration, but would prevent the powder coming out ? Mr. Dickerson: That is it. That is the way it is. It is all in the Hunnings patent.* And by the way they are * The New York test was to verify or destroy the testimony of the great number of witnesses who swore that B and F the tin can and tumbler had been for years a good talking telephone. The question was not whether with F, in combination with a perfect modern Bell (or Tisdel) receiver, any words could be 152 THE PHILADELPHIA TESTS OF 1885. now talking from New York to Philadelphia talking so loud you can hear much better than you can from down town with the Blake with the Runnings instrument as developed and improved ; and the Bell Company has spent a large sum of money, and three years of time in improving that Runnings transmitter to get it where it is now ; be- cause even that is not a good thing, excepting for a little while. It packs, and you have got to stir it, and make a row with it, and therefore it is not fit to put into the hands of the general public. The problem is to make something that cannot possibly pack. The Bell company has suc- ceeded in doing it. They have got a line between New York and Philadelphia, and that works with the Runnings instrument, with the improvements which have been made by them at great expense during two or three years. 'They have had half a dozen people experimenting with it, and have got it now to that perfection that it talks loud. The difficulty is this : If contact is broken it will not talk; and the trouble is to get a thing that will not break contact how- ever loud you talk to it. The Blake transmitter will break the contact if you talk too loud to it. The thing is to get something that cannot break the contact; and then you can talk loud and use a heavy battery, and thus realize what got through, for Dan didn't have the Bell receiver till D and E were made, which according to the earliest witness was not till 1875, and according to Dan well, he doesn't know when. And, moreover, B and F themselves were not tried, but what Dan said no one else sajing it were reproductions of B and F, and vastly su- perior instruments to them. These were made by Dan to be tried (see our Draw- baugh brief, p. 164 A), and were tried at Eberly's Mills before they were brought to New York, which was very soon after ; and then the expert found out that they wouldn't talk, because, he said, in New York, before the trial began, but after Dan and he had been working at them for two days or move, that " all he expected to get was a sound, and now and then a word" (Complts, ii, 1323). On that New York trial they began with the transmitter on a heavy table, but that being not still enough they got a huge block of stone, and forbade any one to walk on the floor, so anxious were they to keep the tumbler perfectly still while speaking to it. From time to time they stirred up the powder which had got packed and tried it again, but always on the stone, horizontal and still. Of course, this was the highest possible evidence of Dan's knowledge on the subject, and of that of his expert. At Philadelphia that expert did not appear, and Dr. Barker, who knew nothing of the former experiments, as he said, nor of the issue in the case, was selected on account of that fact to be a cover for the fraud. Of course he could not have been used if he had known it ; and it seems that Mr. Benjamin was not willing to be used, who did know of the New York trial, for he assisted at it. CAPT. MOORE AND THE TIN CAN. 153 Mr. Bell wrote in his letter of May 4, 1875, when he saw it all as plainly as we see it now. DEFENDANTS' WITNESS, CAPTAIN MOORE. Now, may it please your Honors, there is another thing Captain Moore's case ; l l shall not spend any time on it; I ask you to read it ; it is all in my oral argument. Cap- tain Moore is an intelligent gentleman an honest man the most important man of any of the defendants' wit- nesses. He was the head of the Axle Company in 18T5, that employed Dan Drawbaugh as their machinist ; and Dan Drawbaugh applied to him to help him with something. What he was talking about was that old electric key of his which occupies so much space on his advertising card ; and he wanted to get it introduced into the fire alarm sys- tem of Harrisburg. That is what he applied for; and in the summer of 1876, or some time along therefor Cap- tain Moore was there from May, 1875, until November, 1876 some time then, Dan Drawbaugh showed him that tin can as the best thing he had. He did not talk with it, but he told Captain Moore it was to be used for a fire alarm, as Captain Moore thinks. They put Captain Moore on the stand to prove that. Captain Moore kills their case as dead as if it never lived ; because when Dan showed that tin can, in working order with the bladder on, and nothing else, to Captain Moore, he had, according to their Drawbaugh's Tin Can B. present theory, all these great inventions developed to their present point of perfection in the shop, where Captain Moore was master, and Dan his employee ; and when Dan asked the Captain to lend him some money, and Captain Moore asked him what he wanted it for, Dan said it was 154: TREATMENT OF MR. BELL BY THE for the purpose of fire alarms, and, as the Captain thinks, Dan showed him the tin can B FOR A FIRE ALARM, and that was all.* At page 115 of my argument it is all told in detail. Now, may it please your Honors, I have given you these samples. I have picked up a fragment here and there. The learned counsel and partner of Dan, on the other side, knows it all. It is all in our brief submitted to you, and he has heard the argument before. He knows it by heart. If he can answer any of these things out of the proofs he will answer them. It is for you to decide what will come of them. TREATMENT OF MR. BELL. May it please your Honors, this story that is brought be- fore you now is the old story ; the world knows it by heart. It is written in the blood of the martyrs shed in this holy cause in every age since the eternal conflict be- tween truth and a lie began. It is inscribed on the marble monuments erected by succeeding generations, in hollow mockery of the embittered lives and melancholy deaths of the world's benefactors of the past. James Watt, of whom Lord Brougham said that he, not Wellington, conquered Napoleon, traveled through this very vale of humiliation and the shadow of death; and in the bitterness of his heart cried out: "They assail my honor that the.y may rob me of my profits." But where are they now ? He sleeps in that magnificent mausoleum where Eng- land gathers her illustrious dead, embalmed in public veneration, and secure of imperishable fame; while long years ago the waters of oblivion had overwhelmed the very names of his traducers with public contempt and im- perishable infamy. But in all the records of the past there is none that ap- proaches Bell's either in glory or in shame since Alex- ander conquered the world at the age of thirty years, and was assassinated out of envy and jealousy that he had done so much. * All the questions were leading ones, proposed in Dan's presence by Capt. Moore, and are therefore Dans own statements. IMPARTIAL WORLD AND BY THE INFRINGERS. 155 Before Professor Bell was thirty years old he had con- quered in the world of science, where no dying groans or widow's tears embitter the victory, but where victor and vanquished alike enjoy its fruits. At the Centennial the adulation from the assembled scientists of the world wafted to his senses the foretaste of enduring fame. At the British Association in England he was the ad- mired of all admirers. At home the learned and the great of each city vied with the others to do him honor. The great Napoleon had founded the Volta prize, to be given by the French government upon the recommenda- tion of the Academy of Sciences to those who should make inventions of " transcendent interest in electricity," it was 50,000 francs and the Grand Cross. The Academy, for the first time it had acted in thirty years, recommended Pro- fessor Bell; and when he went to Paris to receive it, he laid upon their table his photophone, by which he talks through a ray of sunlight as far as it can be preserved by lenses. The Heidelberg University last year, at its five hun- dredth anniversary, within ten miles of Keis' home, gave its diploma to "that distinguished man, Alexander Gr. Bell, who has conferred upon mankind the great and con- stantly increasing benefits of labor saved, by his ingenious discovery of the telephone ;" while at that very hour the United States government had a special agent there beg- ging the Germans in vain to take the honor for Reis, their own countryman, and to filch it from America. But he had done too much for the world; and as Judge Grier eloquently remarked in Goody ear's case, "envy would rob him of the honor and pirates would rob him of the profits of his invention." And while the courts of Great Britain were with "judicial anxiety" striving to save something for the owners of his patent there, because it was a fragment of a " great invention " unfortunately lost to its inventor by a careless publication in England, a conspiracy was hatching at home to rob him of all. The appellants have flourished in their briefs what they call the "Executive Department's" effort against us. The infringers pleaded that so-called Government suit in New 156 THE BELL TELEPHONE ANNEX Orleans as a bar to our action, but the judges made short work of it, saying: " The filing of an information cannot raise a presumption of guilt. No more can the institution of a suit to annul create a presumption of nullity." Prof. Bell has had to meet so formidable an adversary as the Department of Justice, in addition to the vast army of infringers who have attacked him on every side. Calumny has been invoked with its poisoned arrows as the chief weapon of warfare, and the air has been thick with the grossest vituperation for years. The monster Pan, descending from the Arcadian hills with his horrid roar, has joined in the hunt, and drawn after him the incon- stant multitude. Amid this infernal din we have toiled on, not daring to look behind us for fear we should lose our way, until at last we have rolled this huge stone to the top of the hill, where we await your judgment on our labors. But, alas! that judgment, if it pronounce Prof. Bell to be as white as snow, as did the New Orleans judgment, is only the beginning, and our labor will be that of Sysiphus. The roaring demon has succeeded in estab- lishing as a permanency what is now known as the " Bell Telephone Annex" to the Department of Justice, with a chief salaried by the year, and a host of lieutenants, all sworn in as assistant attorneys-general, paid by the day, or by the job, to hunt down this innocent man to death or destruction, if the resources of the treasury of the United States, and the ingenuity of unlimited able counsel can accomplish it.* * This suit of the Solicitor-General against the Bell Telephone Com- pany and Professor Bell originated in an agreement made on the fourth of August, 1875, between the Pan Electric Telephone Company, and the National Improved Telephone Company of Louisiana, a copy of which is as follows (see Congressional Investigating Committee, p. 574.): "Tms AGREEMENT, made and entered into this day, at the City of 1 Washington, in the District of Columbia, by and between the National ' Improved Telephone Company, a body corporate, incorporated under ' the laws of the State of Louisiana, party of the first part, and the Pan ' Electric Telephone Company, a body corporate, incorporated under ' the laws of the State of Tennessee, party of the second part, wrr- " NESSETH: TO THE DEPARTMENT OF JUSTICE. 157 Every defense in these cases is set up to be tried over again in that, with one addition the House patent referred to in brother Lowrey's brief; because the " Annex," under the circumstances, is not satisfied with the decisions so far rendered, which brother Lowre} 7 , the second officer of the annex, characterizes as " a spurious brood." Four weary years were spent in the Drawbaugh case alone, and all must be done again this time with the treasury of the United States to pay for the witnesses and reward the efforts of counsel. Gray's miserable fraud must again be pressed against us with numbers of fresh witnesses. Calumnies which have been hissed out in this presence against Prof. Bell, sparing not even his venerable parents, are multiplied tenfold in a venal press, and the prospect is dreary. Neither brother Storrow nor I have life enough or strength enough to go over all this dreadful work again. Before we submit to that, however, we propose to try the question of jurisdiction to the bitter end; and we don't believe we shall have to repeat all this litigation let Pan roar never so loud. But if we must, then younger and stronger, and we may hope wiser and abler men, must take our places, and, guided by our experience, and avoid- ing our errors, defend our clients as well as they can from these fierce assaults. Meanwhile, Prof. Bell contemplates it all in profound astonishment and horror. Day by day, in the public press, and in the official action, he is charged with the most in- famous crimes. Writhing in agony he comes to his coun- sel for protection. We are compelled to tell him that in "THAT WHEREAS, Each of said parties is the owner, respectively, of " certain valuable telephone inventions and improvements, in respect to " which there are now pending certain suits between the said parties " and the American Bell Telephone Company in the United States " Court at New Orleans, in the State of Louisiana, and at Memphis, in " the State of Tennessee: "AND WHEREAS, The parties hereto, the said National Improved ' ' Telephone Company, propose to commence proceedings in the name " of the United States against the American Bell Telephone Company, " provided they can obtain the assent of the Attorney- General of the " United States to do so: "Now, therefore, it is hereby stipulated and agreed by and between " the parties hereto, that in the further conduct of the suits, now pend- 158 ARGUMENT OF MR. DICKERSON this free and happy country he can have no protection that he may be denounced, as he has been in public news- papers of the highest influence and greatest circulation, as a forger and perjurer, and there is no redress which is not worse than to submit. Mangled and bleeding from some of these fearful accusations, which grow blacker day by day, he has begged us to show him some way in which he can vindicate himself in the eyes of the world, which has honored him so much. I have said to him, * ' Wait take courage, my friend, and live through it till we can reach the Supreme Court, and then you will be vindicated." But he asks, " How can I live so long and keep silent ?" I could only point him to our great example, who in His hour of agony was dumb before His accusers, and opened not His mouth, for His hour had not come. And now I say to the " Annex," that when this dreadful " ing as aforesaid, they will render such mutual aid and assistance as " may be convenient and necessary to protect and secure their common " interests; "And it is further stipulated and agreed, that, should they succeed " in having a suit brought by or in the name of the Government, the " lawyers of each party shall be entered as counsel of record in said ** suit, and every possible assistance shall be given by the contracting " parties to carry it to a successful conclusion; "With this further express agreement and understanding, THAT " THERE SHALL BE NO SETTLEMENT OB COMPBOMISE OF THE SAME BY EITHER " PARTY IN INTEREST WITHOUT A FULL DISCUSSION THEREOF BY THE MEM- " BERS OF BOTH COMPANIES, AND AN AGREEMENT UPON SUCH TERMS OF SET- " TLEMENT OR COMPROMISE AS MAY SEEM JUST AND FAIR TO BOTH. " IN WITNESS WHEREOF, the proper officers of said company hereto " attach their hands and seals this fourth day of August, A. D. 1885. "ISHAM G. HARRIS, " Vice-President Pan E. T. Co., the President being absent. " THE NATIONAL IMPROVED TELEPHONE COMPANY OF LA., " By W. VAN BENTHUYSEN, President." When that contract was made both of those companies were already winder injunctions by the Circuit Court of the United States in Penn- sylvania: The Louisiana Company, by its representative the Pittsburgh Company, which it defended; and the Pan Company by its representa- tive the Rogers Telephone Company, which it had agreed to defend but abandoned. A motion for injunction was, however, pending against the Baltimore licensees of the Pan Electric Company, and was to come up in September, so that there was an urgent necessity to procure the assist- TO THE DEPARTMENT OP JUSTICE. 159 conflict is over; when the whirlwind of time shall have swept away the clouds and the filth with which we are now surrounded; and when the roaring of the beast shall be heard no more; the name of Alexander Graham Bell will again shine forth, written, as it now is, on the roll of im- mortals, where but few appear through the ages, and where we read such names as Pythagoras, Euclid, Archi- medes, Copernicus, Galileo, Volta, Oersted, Arago, Am- pere, Newton, Watt, Faraday, and Henry men who have added new and important truths to the world's knowledge. In future years, when the telephone shall be in every house, as necessary to life as the clothes we wear, and when the name of Bell shall be as "familiar in their mouths as household words," it will be wondered at that he was treated so by this " Annex," which has temporarily the power to use the name and the treasury of this great and ance of the United States for the protection of these two sets of infringers. The Solicitor-General ordered the suit in accordance with the above agreement September 3, 1885, and the bill was filed in Tennessee Sep- tember 9, 1885. It was produced in Baltimore on the 15th of Septem- ber, for the purpose of defeating the injunction motion there pending, but without avail. Afterwards this Tennessee suit was discontinued because the Solicitor-General had not complied with any of the pre- cedents in such cases, but had ordered the suit over night; and a new one was commenced in Ohio upon the same bill after a reference had been taken to the Secretary of the Interior, and a hearing had before him on the question; but as there was no jurisdiction in Ohio over Pro- fessor Bell or the Bell Company that suit was dismissed by the Circuit Court, November 11, 1886. A new suit has now been begun in Massachusetts. It contains noth- ing but the defenses set up in the cases in the Supreme Court, except one patent, the House patent, which Mr. Lowrey, the leading counsel in that case, ridiculed as a defense, in his brief, before the Supreme Court, in this case (seep. 112, ante). As neither Professor Bell, nor the Bell Company, proposed to pay either of those contracting parties "to settle or compromise" the Gov- ernment suit, the wise provision in the contract by which each party protected itself from the other in the division of the expected plunder, was quite superfluous. 160 ARGUMENT OF MR. DICKERSON. generous people to persecute him; just as we now wonder when we contemplate that most pathetic picture in his- tory, in which the banished Caius Marius, the savior of Eome, stands on the Carthagenian shore, gazing intently over the blue waters of the Mediterranean towards that distant land, where his lares and penates are desolate, and crying out in his agony, " 0, Eome, what crime have I committed? " Ah, sirs, the crime he committed is the crime which the benefactors of their race in all ages commit the crime of having deserved so much, that the baser sort at last hate to see them, and to hear them called, " 0, agathos " the just. 14 DAY USE RETURN TO DESK FROM WHICH BORROWED LOAN OEPT. This book is due on the last date stamped below, or on the date to which renewed. Renewed books are subject to immediate recall. : SE^ZBrlC i V I hlr\l 1 Q jy5 F\r"r> rk * RECEIVED TDEC6 '67 -10PM * UQAW JUB,r-i, s. 1 r ..^ V f) onnn . f ;MM = u ZOOO p 5 T rk 01 inn^, R >n General Library (BolnilOUri 5 * Uoiver^^Califoroi.