Art. XI.-COMMERCE, AND THE MISSIONARY ENTERPRISE.

SEVEN or eight years since, a few friends of the missionary enterprise in Scotland, connected with the Scotch establishment, formed the purpose of attempting the infusion of a fresh spirit into the exertions of the Christian Church at large, for the speedier evangelization of the world, by uniting a "friendly competition" of talent and piety in the production of a work less ephemeral than the sermons, tracts and pamphlets, which during the last fifty years have appeared on the subject of missions to the heathen. With this view they offered a prize of two hundred guineas for the best, and another prize of fifty for the second best essay, "on the duty, privilege and encouragement of Christians to send the Gospel to the unenlightened nations of the earth." The competition was confined within the United Kingdom, (not a remarkably liberal course for the advocates of universal evangelization) and the first prize was awarded to John Harris, D. D. This essay has passed through numerous editions in England and Scotland, and now (in 1847) we have the fifth American edition, publish. ed by Gould, Kendall & Lincoln, of Boston, a handsome duodecimo, of nearly four hundred pages, under the title of "The Great Commission; or, The Christian Church Constituted and Charged to Convey the Gospel to the World." The author of the essay maintains, that commerce is under no small obligations to missionary influence, and that the shipping of the commercial world derives as much advantage from Christian missions as its commerce. We should have been glad if the writer had treated more fully of the bearings of modern missions on commerce. There is reason to fear that they have thus far done more for commerce than that Christianity which must, in the fulness of time, baptize trade with a larger measure of its spirit and principles. We give below all that our author says on "the reflex benefits of Christian missions" on commerce :

"In vain were all the attempts of the colonial government to establish a commercial intercourse with the Caffre tribes, until the Christian missionary had gained a footing amongst them. But not only does he now form a connecting link in the chain of civilization between the colonies and the Caffres and other tribes-by the introduction of the plough, he is likely to be the means of turning the attention of the aborigines from pastoral to agricultural pursuits; in consequence of which their cattle will no longer prove a source of irritation and conflict with the frontier colonists, and a much narrower compass of land will be sufficient for their comfortable support.

"New Zealand is unquestionably the key to India, on the one hand, as the Cape of Good Hope is on the other. And if, as events increasingly indicate, a wise policy should require our government to enter into a friendly treaty with that country, the measure would be greatly facilitated, if not entirely owing, to the favorable predisposition created in our behalf by missionary influence.

"Up to a very recent period the South Sea Islands were, in a commercial point of view, a complete blank; but now they are made to contribute to our wants, and to take off our manufactures, to a considerable extent. Sugar is cultivated, and taken in native-built vessels to the colony of New South Wales; and more arrow-root has been brought from thence to England in one year, than had been imported for nearly twenty previous years. Between two and three hundred thousand of the natives are now wearing European clothing, and using European implements and articles, who a few years ago knew nothing of our manufactures. "The shipping of our country, too, derives as much advantage from Christian missions as its commerce. This will appear, if it be recollected that intercourse between Europeans and the untaught islanders of the Pacific is always dangerous,

and has often proved fatal. The adventurous Magellan fell at the Ladrone Islands; Captain Cook was barbarously murdered at the Sandwich group; the ship Venus was taken at Tahiti; M. de Langle and his companions were killed at the Samoas; the Port au Prince was seized at Lefuga; and the crew of the Boyd were massacred at New Zealand. And now, at all these islands, with the exception of the Ladrones, there are missionary stations, where between two and three hundred vessels annually resort; the crews of which look forward with delight to the hour when the anchor shall be dropped in the tranquil lagoon, and they shall find a generous welcome and a temporary home. Here, at the smallest possible expense, the captains can obtain a supply of fresh meat and provisions, refit their vessels, and recruit their crews.

"Formerly, also, when a wreck occurred, the natives hastened to plunder and murder, or reserved those who escaped from the sea for sacrifices. Witness the unhappy sufferers of the Charles Eaton, and the still more recent massacre of Captain Fraser and his crew on the coast of New Holland. But now, wherever Christianity has been introduced, the occurrence of a wreck is the signal for the exercise of the kindest feelings towards the sufferers themselves, and of the greatest zeal for the protection of their property. The Falcon, the Sir Charles Price, and several other vessels, have been cast away at or near such stations; and not only have the captains and others attested that " not a nail was lost," and that all the attention was given to their personal comfort which kindness could bestow, but thousands of pounds have been transmitted to England and America as the proceeds arising from the sale of property saved on such occasions by native activity and zeal. Thus many a Christian missionary is, in effect, a British consul of the most unexpensive and efficient kind; and his congregation a society for the protection of British lives and property; while the missionary enterprise itself, by finding new havens at the antipodes for our fleets, opening new channels for our commerce, and every where multiplying the friends of our country, is eminently conducive to the prosperity of its temporal interests."

MERCANTILE LAW CASES.

THE LAW OF PATENTS-CASES OF INJUNCTIONS.

WE give below an important opinion of the United States Circuit Court, relating to the Law of Patents, delivered by Mr. Justice WOODBURY, and politely furnished by that gentleman at our request, for publication in this department of the Merchants' Magazine.*

In the United States Circuit Court, Massachusetts District, May Term, 1846. W. W. Woodworth vs. J. Hall, et al.; W. W. Woodworth vs. J. Stone.

In these cases, injunctions were granted, May Term, 1845, and at May Term, 1846, a motion was made, in the first-named case, to dissolve the injunction. An opinion was given at the same term, stating the facts, and retaining the injunction as to one of the defendants, but dissolving it as to the other, for reasons applicable to the merits.

Among the objections which were then urged against the validity of the patent on which the claim of the plaintiff was founded, were these:-Because it was signed by H. Sylvester, as acting Commissioner, rather than by Ed. Burke, Esq., the Commissioner; and because the patent had been altered at the PatentOffice since it originally issued.

For further particulars in relation to these objections, and the detailed facts on which they rested, reference can be had to the opinion and case, as drawn up. At an adjourned session of the same term, held at Boston, in September, 1846, the motion to dissolve the injunction was renewed as to the first case, and a like

A true copy of the opinion of the Court, delivered by Mr. Justice Woodbury, Sept. 21st, 1816. JAS. B. ROBB, Clerk.

motion made as to the second case, both of which are now to be disposed of. They were founded on the same grounds, accompanied by new evidence, offered under the first objection, to show that Mr. Sylvester, at the time of signing this patent, was not acting under any appointment made by the President, by virtue of the eighth section of the act of Congress passed May 8th, 1792; but, being then chief clerk in the Patent-Office, claimed to be authorized to sign it in the necessary absence of the Commissioner, under the power conferred by the second section of the act of 4th of July, 1836, recognizing the Patent-Office.

In respect to the second objection-the alteration of the patent-it was further proved that a mistake, as to the time it was intended to run when renewed, occurred in the patent itself, as well as the record and copy of it; the proof, at the first hearing, extending only to the copy. Thus it was issued for fourteen years, but was meant to be for twenty-eight, and was afterwards altered to twenty-eight. In answer to this, it was now shown that the Secretary of State subsequently expressed in writing his assent and sanction to the correction of the mistake, though he was not consulted at the time it took place.

The present motion was argued by Giles in support of it, and B. R. Curtis against it.

WOODBURY, J.-It is not necessary to go into many of the facts and principles considered in the former motion on this subject, and then disposed of;-but the new and material facts since obtained are to be examined, so far as they may weigh upon the objections, and affect the principles before settled.

The first inquiry now is, whether the chief clerk in the Patent-Office, not in truth having been specially appointed to be acting Commissioner by the President, in the absence of the Commissioner himself, could legally sign this patent, under the general provision in the second section of the patent law of A. D. 1836. The words of that section, as bearing on this question, are-" The chief clerk, in all cases, during the necessary absence of the Commissioner, or when the said principal office shall become vacant, shall have the charge and custody of the seal, and of the records, books, papers, machines, models, and all other things belonging to the said office, and shall perform the duties of Commissioner during such vacancy."

It is contended by the defendant that this clause empowers the chief clerk to act as Commissioner only when his office is technically, entirely, or de jure vacant; and not when he is merely absent from sickness, or other necessary cause, constituting a de facto vacancy, only, or a want of the Commissioner present to discharge the duties, arising from some such cause. It is certain that the words here used, looking no farther, appear to countenance the more narrow and limited view of the word "vacancy;" but if we look to the object of the clause-to other sections of this and the succeeding patent act-to the cotemporaneous construction placed upon it-to the long acquiescence under that construction, and the great public as well as private interests which have grown up in conformity to it within the last ten years, a broader meaning to the term seems fortified by the whole spirit of the act, and by the analogies of the case.

It is proved as a fact that the chief clerk, since July, 1836, has been accustomed to perform, under this section, all the duties of Commissioner during his necessary absence, and without any new special authority being obtained from the President, under the law of 1792. It has been uniform in the office to consider the word "vacancy" here as meant to cover an actual, or de facto vacancy, by a necessary absence from the city; and the act has been construed so as to include as a vacancy, for this purpose and object, the want of the Commissioner at the seat of government to discharge his official duties, arising from any necessary cause, rather than the want of him, merely, in consequence of his death or resignation.

It is conceded, also, that many patents during that period have been signed, and records certified, by the chief clerk, as acting Commissioner, under the second section of the patent law, and which must become invalid if this one be so pronounced, for that cause.

It is further apparent, from the fourth section of the same law, that, unless this

broad construction be correct, the chief clerk is not empowered to certify copies of the original records and papers, in the necessary absence of the Commissioner, however urgent may be the necessity for them, in the protection of public or private rights. But, by a subsequent act, passed March 3d, 1837, section 2, the chief clerk is clearly and expressly empowered, in the absence of the Commissioner, to give copies of former records supplied where formerly burned. And here it would follow, if necessary absence in the first law is not covered by the term "vacancy," he is not authorized to give copies of original records in the absence of the Commissioner, though he may of records burnt, and supplied again afterwards. This would be a distinction most groundless, and hardly presumable to have been intended. It would likewise follow, that, in the absence of the Commissioner, the chief clerk was to have charge of the seal and records, but could not use them for some of the most common and necessary and urgent business connected with them.

Furthermore, he is placed under oath, and also under bonds, so as to secure the community when he does act; and is, indeed, more safe for the public than a temporary Commissioner selected by the President, as such a one may be under no bonds, whatever ;-yet, though under this security, a construction is urged that he has not been trusted by Congress to act in the very cases where a person is trusted by them to act, without security, if selected by the President. And this is the reasoning, too, though he is selected to be chief clerk, rendering him eligible to perform these duties, virtually by the President, in all cases, and often

by his express wish. Nor is it any stretch of confidence, extraordinary or unne

cessary, for Congress to confer on a clerk, by an act, such a power as the signing of a patent. It is done clearly and expressly, and is conceded to be properly done when the Commissioner dies or resigns, and a technical vacancy exists; and in case of his absence it is done, not for personal favor, but for public convenience: so that persons are not to be delayed in getting patents till a successor be appointed, and arrive, perhaps, from some remote place. So it is conceded to have been done for more than half a century, by a clear grant to the President from Congress, by the eighth section of the act of 8th May, 1792. The danger from the broad construction here, is then no greater than from other powers, admitted already to exist in other ways, in relation to this same subject. But to guard against long absences, without a regular and more responsible head to a Department or Bureau, it is wisely provided, by the act of 13th February, 1793, that the temporary appointment by the President shall not continue over six months at one time, because a regular successor could in that time be procured, and the sanction of the Senate should be asked for filling the office during a longer time; and by the section now under consideration it is contemplated that the temporary head of the Bureau shall act only during the "absence" of the Commissioner which is necessary," or a vacancy happening in any way; both of which are, of course, likely in all cases not to last longer than six months, in an age when such offices are so much sought after as in this.

Again, in respect to the meaning of the word "vacancy," as used in like cases, it is obvious that the act of 13th February, 1793, looked to it as covering absence and sickness, as well as death or resignation of the regular incumbent, because it speaks of a "vacancy" when referring to the former act, and a temporary appointment for only six months under it, and when that previous act authorized such appointment as much in case of absence and sickness as of death. All of them, then, seem to be covered by the reference, as each constituting a 66 vacancy"-de facto, to be sure, in case of absence and sickness, but still referred to under the generic term of a "vacancy."

There is another circumstance of some importance, not yet noticed, bearing on his question. It is well known to all who have been familiar with the Departments and Bureaus at Washington, that the delay and inconvenience to the public in obtaining temporary appointments from the President, if absent far froin the seat of government, as he sometimes is, when the head of a Department or Burean, by sickness or accident, is obliged to be absent from his office, has led sometimes to complaints of a suspension or delay of business of an important charac

ter; and it has been contemplated, either by a general law, or as the Department and Bureaus become from time to time re-organized, to provide that the chief clerks in each should temporarily exercise the duties of the heads thereof, while they were necessarily absent. It is obvious that the public would often be much benefited by such a provision, in cases like the President's being away, so that he could not at once make a temporary appointment; and it is equally obvious that the public can never suffer by such an appointment, by operation of law, more than it does now, when made by the President, if not away; nor would such a general provision be either novel or dangerous, considering that in the case of most ministerial offices under the government, such as collectors of the customs and marshals, their deputies, appointed by themselves, can now act for them in their absence, and do constantly perform most important duties at such times.

Hence, when the Land-Office was re-organized, 4th July, 1836, the same day the bill passed re-organizing the Patent-Office, containing the provisions now under consideration, clauses were inserted in both bills with a view to confer such a power or appointment on the chief clerks in both Bureaus. The clause in respect to the Patent-Office I have already quoted, and have been examining its spirit, and other analogies, in order to see if the broad one covering the present case is not the proper construction of its language and intent. The other clause, in respect to the Land-Office, is on the same subject; but, by a different arrangement of the sentence, is too clear to admit of any different construction from that I have applied to the Patent-Office. In the last, the language is—" And in case of vacancy in the office of the Commissioner of the General Land-Office, or of the absence or sickness of the Commissioner, the duties of said office shall devolve upon, and be performed, ad interim, by the Clerk of the Public Lands." This Clerk of the Public Lands was the chief clerk in the office.

Undoubtedly the object to be attained was alike in both; the inconvenience to be remedied was the same; the risks similar; and it was probably only by inadvertence that less precise language was employed in the patent act than in the act as to the Land-Office.

It is a sound rule, in the construction of statutes generally, that "everything which is within the intent of the makers of the act, although it be not within the letter, is as much within the act as if it were within the letter and intent also." 4 Paige, ch. 252, in Walker vs. Devereux, cites 1 Plawd. 366 Dwarris on Stats., 691. It is conceded, however, that the intent must be ascertained by the words that are used, coupled with the mischief to be remedied. But it is a mistake to argue that because ministerial officers can do only what they are specially empowered, [7 Mass. R., 281-3,] they cannot do what, on a fair and liberal, and useful construction of the words used by Congress, they are specially empowered to do. The intent of an act of Congress, as to such offices, is to be gathered from the whole spirit, no less than the letter of the act, as much as it is in other

cases.

In both of the provisions we have just been considering, the intention of Congress seeming to have been the same, the action of the chief clerks, or heads of their respective Bureaus, in their absence, is not an action without pretence of justification by any express act of Congress, without countenance of any law, and a mere usurpation, as it would be, if done under an idea that they can so act, and transcend limited powers by mere construction, as being clerks, and their superiors absent; or as being more convenient, at times, to the public.

But they equally rely here, and for ten years have relied, on explicit and special provisions by Congress to authorize their action in both cases; both provisions being made at the same time, and with a like view, though one uses language not susceptible of a modified or different construction, while the other does not; but language which, at the same time, will fairly bear a construction in conformity with the spirit of the law, and similar to that which must confessedly be put on the other act.

Beside this reasoning and these analogies on the present question, the conclusions which I have formed in favor of the validity of these letters patent, under this objection, are strengthened by some other considerations.