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H. of R.

Renewal of Patent Right.

MAY, 1812.

sure. In Great Britain the doctrine is perfectly settled. If gentlemen will turn to the famous case of literary property, Millar vs. Taylor, which was argued with great ability, and decided with unusual deliberation, they will be satisfied of the fact.

resentment which his conduct was calculated to excite. When his machine was first erected in Georgia, as I have understood, he refused to sell his patent right upon any terms or for any price. It was determined to monopolize every pound of cotton at an enormous premium, and arrangements were made for that purpose. To that cir- The court were divided on the particular quescumstance, and the opinion which prevailed, that tion pending before them, and gave their opinions the invention was not new, is to be attributed the separately and very much at large. On that occourse of proceeding, now made the subject of casion it was determined that the publication of complaint. The imprudence of Mr. Whitney, or, a literary work did not of itself divest the author perhaps, of his partner, could not fail to have pro- of the exclusive right, nor authorize others to reduced feelings of resentment rather than of libe- publish it for their advantage without his consent. rality towards them. I repeat, however, that the But it was admitted, as a point fully and entirely conduct of Georgia has no connexion with the settled, that the principle did not apply to mepresent question. The United States never gua- chanical inventions; that the disclosure of a merantied to any patentee the receipt of any given chanical invention did divest the inventor of his sum for his invention, nor gave any pledge that exclusive right to such inventions, and that the his exclusive right should in no instance be vio- public became entitled to all the benefits which lated. They have enacted laws for the security could be derived from it. A later decision of the of patentees, provided a remedy for violations of highest courts of the Kingdom on another case, their rights in all cases, and a tribunal before has placed the question of literary property on which that remedy may be sought. To that tri- the same footing with the mechanical inventions. bunal-the Courts of the United States-Mr. The principle of these decisions is, that the disWhitney should be referred for redress. This is closure of an invention amounts to a relinquishnot a time for exciting State jealousies and indi- ment of exclusive use, it is an implied right to vidual resentments among ourselves. Policy, and the public. And if such be the doctrine in Great that conciliatory spirit which ought to guide Britain, under a Government the foundation of our deliberations, unite in prescribing a different which is monopoly and exclusive privileges, it course, and I do trust that prescription will not cannot be otherwise among this people, the fundabe disregarded on the present occasion. mental principle of whose Government is, equalBut, sir, there is still another and more impor-ity of right and exclusion of monopolies. I contant view of this subject, on which alone I prob- tend, then, sir, that if the disclosure of an invention ably might have relied. The patent of Mr. Whit- vests in the public a right to use it without reney expired about four years ago, and an unquali-straint, much more strongly is that right vested fied right to the invention was thereby vested (as after the expiration of a patent. In the one case I shall show) in the people of the United States. the public are invested with a common and equal Under such circumstances, it is my purpose to right by an implied gift, and in the other by conprove the proposed renewal manifestly unconsti- tract. The very condition on which patents are tutional. I presume it will be admitted, that, granted is, that, at the expiration of the term auwithout the provision of the Constitution on the thorized by law, the people shall be entitled to subject, and the law pursuant thereto, no exclu- the free use of the invention; and, to secure this sive rights would belong to inventors. It is true right to the people, such a specification of the the inventor would be entitled to his particular machinery employed is required at the time of machinery, but other persons would not be pro- issuing the patent, as will enable others to underhibited from imitating it, and consequently his stand and imitate it with success. Need I underright to his discovery would not be exclusive. In take to prove that, from the moment Whitney's a state of nature, occupancy gives a right to soil, patent expired, his exclusive right ceased to exist? upon the ground of supposed labor on the part of None will deny the fact. It is necessary to show the occupant in taking possession. The right that the right which was exclusive during the and the occupancy, however, are inseparable. If patent, is now the common right of all? It will the latter be abandoned, the former ceases to be admitted that every man in the United States exist the soil becomes common to all, and may has at this moment as perfect a right to erect gins be appropriated to another's use. The natural on Whitney's plan, as to build a house or make law in regard to inventions is the same. So long any implement of agriculture. The question then as the inventor is alone in the possession of a presents itself, has Congress the power to divest knowledge of his discovery, he is the occupant, the people of that right? I say no, sir; to renew and has an exclusive right. But the moment he a patent after it has expired, is to establish a new discloses that knowledge to the public he aban-principle unauthorized by the Constitution. To sedons his occupancy, and the invention becomes cure a pre-existent right is one thing, but to divest subject to the use of others. This principle is the people of the United States of their right, recognised by the Constitution itself, and fully and vest it in an individual, is quite a different established also in other countries. The express affair. "Congress shall have power to promote delegation of power to secure to inventors the the progress of science and useful arts, by seexclusive right to their discoveries, admits that curing, for limited times, to authors and invenwithout it no such right would exist after disclo-tors, the exclusive right to their respective wri

MAY, 1812.

Renewal of Patent Right.

H. OF R.

have legislated on this subject considered a public disclosure of an invention an abandonment of all claim to the exclusive use; that they understood the object of the Constitution to be the advancement of national improvement; and that when the public are in possession of any important discovery they could not be divested of it. Suppose the inventor of that useful instrument the screw-augur, who was an inhabitant of New England, and who never solicited a patent for it, should now make application. Your law excludes him because his invention is known and in use. And I call on gentlemen to show how the progress of science or useful arts, or individual justice, would be less promoted by granting a patent in that case, than in the present application. Certainly a man is not less entitled to the bounty of Congress who has given to the public the results of his labors, than he who has enjoyed the benefit of a monopoly for fourteen years; nor will it be asserted that the right of the community to an invention is less complete from the expiration of a patent, than from the bare act of disclosing it.

tings and discoveries." What is the import of this provision? An inventor while in the sole possession of the knowledge of his invention has the exclusive right to it, without the intervention of law; but when that knowledge is disclosed to the public, the exclusive right would cease to exist. Therefore, for the purpose of affording a stimulus to ingenuity, and of obtaining disclosures of useful discoveries, Congress is authorized to provide by law for securing that exclusive right for a limited time after disclosure, which previously existed in the inventor, and which enabled him forever to withhold his invention from the public. The disclosure is the great object to be attained; the security of the exclusive right before existing, but which would be lost without such security, by the act of disclosure, is the mean authorized to be employed. Is there no difference between protecting an existing right, and taking away a right from one party for the purpose of vesting it in another party? The States composing the Union are now entitled to the benefit of Whitney's invention, and may make whatever regulations concerning it, within their territorial limits, they But, sir, the bill on your table yields the point. please. Will it be said that because the power It provides that the exclusive right proposed to is delegated to Congress to promote useful inven- be renewed, shall not operate against persons who tions and to obtain their disclosure to the public, have erected machines since the expiration of by holding out the inducement resulting from the late patent. Why this provision? If those the security of a monopoly for a limited time, who have received machines had a right to do so therefore the States may be constitutionally de- (as the bill implies) unquestionably every nation prived of their unquestionable rights? Surely has an equal right; and to admit the one, is an acnot. Hence, I conclude that the power of Con- knowledgment of the other. It will not be congress over this subject has terminated by their tended, I am persuaded, that any principle of law own act, and that to resume it would be an un- or reason deprives a man of such a right, simply beconstitutional encroachment on the rights of the cause he has not had occasion to use it; and surely, respective States. Sir, the power given to Con- in an equitable view, those persons who have engress on the question of patents is similar in ex-joyed the profitable use of a right for four years, tent and in every other view to that which in to which all are equally entitled, cannot have a England is vested in the King. He is empow- stronger claim to its continuance than others who ered to grant patents for new and useful inven- have no participation in its benefits. As well tions for a limited time, but it is held that when might a citizen be deprived of the right of vothat time expires, such inventions belong to the ting at the next election, because he did not vote public. "If a patent be granted in case of a at the last. Mr. B. added, that he had said more new invention, the King cannot grant a second than he intended, and would forbear to trespass patent, for the charter is granted as an encour-longer on the attention of the Committee. agement to invention and industry, and to secure Mr. SEYBERT said he did not know that the the patentee in the profits for a reasonable time; bill for the relief of Mr. Whitney could be acted but when that is expired, the public is to have upon this day; indeed, it was not his intention to the benefit of the discovery."-10 Mad. Rep. make any observations on the subject, until the 110. It is also laid down in Bull N. P. 76, that motion for striking out a portion of the bill was among the general questions of patents, the first made by his friend from Georgia (Mr. BIBB;) he is-" Whether the invention were known and in therefore hoped the House would pardon him for use before the patent." Such is the English law, the desultory and confused remarks which he and the statutes of the United States heretofore should impose upon the patience of the House. passed are founded on the same principle. The He came from a State whose interests were noexisting statutes make it an indispensable condi- wise concerned in this question, and therefore tion to securing an exclusive right, that the in- he stood as an impartial advocate in favor of the vention shall not have been "known or used be- patentee; his feelings could not permit him to fore the appplication;" for a patent itself reads remain quiet on the question; by him the mathus:-"Whereas A. B., a citizen, &c., hath al-chine of Mr. Whitney was viewed as a stupen'leged that he has invented a new and useful im'provement, being [here insert a description of 'the invention] which improvement has not been 'known or used before his application," &c. It is then perfectly clear, that our predecessors who

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dous monument of human invention-great mental exertion alone could produce results like this, and he appealed to the House as to the propriety of granting the prayer of the petition as reported in the bill. It was, he conceived, not a favor,

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MAY, 1812.

be estimated. Mr. S. continued-he could not stop here. Foreign writers prove the absolute necessity of this machine, to bring the particular species of cotton to market, which constitutes ninetenths of that which the United States could furnish. He would, in proof of this declaration, read from Edwards's History of the West Indies, vol. 2, page 264, as follows: "Green seed cotton is of two species; of one of which the wool was so firmly attached to the seed, that no method has hitherto been found of separating them, except by the hand; an operation so tedious and troublesome, that the value of the commodity is not equal to the pains that are requisite in preparing it for market. This sort, therefore, is at present cultivated principally for supplying wick for the lamps that are used in sugar boiling, and for domestic purposes; but the staple being exceedingly good, and its color perfectly white, it would doubtless be a valuable acquisition to the muslin manu

but justice, which the passage of this bill would render to Mr. Whitney. If he was correctly informed, Mr. W. received but a trifling compensation for his labors; that, in the case of the State of Georgia, he expended $20,000 more in prosecuting law-suits, than he had ever been paid in that State. Mr. S. continued-he was informed that in South Carolina Mr. Whitney had met with some persecution; the assembly of that State originally purchased the right to use the machine for the sum of $50,000, which was to be paid by regular annual instalments. In the following year Mr. W. visited South Carolina for the purpose of receiving the second instalment, when, instead thereof, he discovered that a Legislature lately assembled had repealed the law formerly enacted on the subject; and, instead of receiving a second instalment, the Legislature ordered that he should be prosecuted for the recovery of that which he had before received. Mr. W. was saved from prison by the interference of some private gentle-factory, could means be found of detaching it men. [Here Messrs. WILLIAMS and CHEVES rose, easily from the seed." Whilst the mind of Mr. and in conversation explained to the satisfaction Edwards was thus occupied in London, that of Mr. of Mr. S. that the statement made was not accu- Whitney in the United States effected this valurate; that the delay and difficulties caused by the able desideratum. Mr. W's machine was brought proceedings of the Legislature of South Carolina, to perfection in 1792. Mr. S. dreaded the further were owing to well grounded suspicions, at that fatigue of the House, but he could not refrain time, that Mr. W. was not the inventor of the from stating some additional facts. Consult, said cotton gin, and that he had in some respects failed he, your Treasury reports, and there you will find to comply with the conditions prescribed by the that, in the year 1810, there was exported from the law.] This explanation was satisfactory to Mr. United States 93,000,000 lbs. of cotton, of which S., and he observed, had he known in time that 84,000,000 pounds was of the species mentioned he would have taken a part in this debate, he by Edwards. Without the gin of Whitney, or should have considered it his duty to consult his some machine equivalent thereto, not a single friends from South Carolina on this subject. He pound of the 84,000,000 pounds could have been further stated that Mr. W. had informed him sent abroad-thus would the United States have that, in the final adjustment of this affair, the State found themselves deprived of the annual income of South Carolina had rendered him ample jus- of $15,000,000, without taking into view 16,000,000 tice. He regretted the necessity of mentioning pounds of cotton consumed in our country. Can States in debate he would quit this part of the we do too much for this man? Let us render subject, and proceed to communicate those facts him but ordinary justice and pass the bill. Let which had made an impression on his mind in us, said Mr. S. consider the benefits resulting from favor of the bill. He would first quote the au- the application of useful machines in Great Britthority of Judge Johnson in his decision of the ain. Take a view of that of Arkwright. If, said case of Whitney vs. Carter. Here Mr. S. read Mr. S. his memory did not deceive him, in the as follows, from page 128: "With regard to the year 1755 the cotton manufacture of Great Brit'utility of this discovery, the court would deem itain was ranked among the lowest of her domesa waste of time to dwell long upon this topic. Is tic branches, and did not value more than £200,000 'there a man who hears us who has not experien- sterling annually; in 1809, that nation derived 'ced its utility? The whole interior of the South-thirty million pounds sterling from her industry in 'ern States was languishing, and its inhabitants this way. England well knows her interest, and 'emigrating for want of some object to engage their she fosters her arts. Let us in this respect follow 'attention and employ their industry, when the in- her example, by doing justice to the genius of our vention of this machine at once opened views to countrymen. But for the spinning machinery them, which set the whole country in active mo- invented by Arkwright, and the gin of Whitney, 'tion. From childhood to age, it has presented the cotton manufacture might at this time remain us a lucrative employment. Individuals who in a state of comparative obscurity. Very little 'were depressed with poverty, and sunk in idle- will be observed on the constitutionality of the ness, have suddenly risen to wealth and respecta-question. He would apprize his friend from 'bility. Our debts have been paid off; our capi'tals increased, and our lands are trebled in value. 'We cannot express the weight of obligation 'which the country owes to this invention; its 'extent cannot now be seen." These were the sentiments of a gentleman residing in the State of South Carolina; from this their justness may

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Georgia of an error which he had fallen into, in confounding monopolies with patent rights. In the United States they were distinct things, and whilst on the one hand the Constitution of the United States has guarantied to inventors their inventions, in its spirit and letter it is opposed to monopolies. The renewal of a patent,

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said Mr. S., was not unprecedented, it was a common thing in England and France; and, in the United States, the cases of Evans and Whittemore furnished us with examples of the transaction by the Congress of the United States. Mr. S. said he would finish his remarks with the expectation that the House would pass the bill as reported. The Committee rose, and had leave to sit again.

THURSDAY, May 28.

H. OF R.

Pleasants, jr., William Reed, Samuel Ringgold, John Sevier, Adam Seybert, George Smith, John Smith, Philip Stuart, Lewis B. Sturges, George Sullivan, Samuel Taggart, John Taliaferro, Benjamin Tallmadge, Leonard White, Thomas Wilson, Richard Winn, and Robert Wright.

NAYS-David Bard, Josiah Bartlett, Burwell Bassett, William W. Bibb, William Blackledge, Adam Boyd, Robert Brown, Wm. A. Burwell, James Cochran, John Clopton, Lewis Condict, William Crawford, Roger Davis, Joseph Desha, Samuel Dinsmoor, James Fisk, Peterson Goodwyn, Isaiah L. Green, Bol

Mr. MORROW, from the Committee on the Pub-ling Hall, Obed Hall, Aylett Hawes, Jacob Hufty, John lic Lands, to whom was referred the bill from the Senate to authorize the State of Tennessee to issue grants and perfect titles on certain entries and locations of lands therein described," made a report thereon; which was read, and, together with the bill, committed to a Committee of the Whole on Monday next.

Mr. JENNINGS, from the committee appointed yesterday, presented a bill "supplementary to an aet, entitled 'An act for dividing the Indiana Territory into two separate governments;" which was read twice, and ordered to be engrossed, and read the third time to-morrow.

On motion of Mr. SHAW,

Resolved, That the committee to whom was referred the report of the Secretary of the Navy, made to this House on the 26th instant, be directed to inquire whether any, and if any what, alterations are necessary to an act establishing Navy Hospitals, passed the 26th February, 1811, and that they report by bill or otherwise.

The House again resolved itself into a Committee of the Whole on the bill for the relief of Eli Whitney; and, after some time spent therein, the Committee rose, and had leave to sit again. An engrossed bill to amend the laws within the District of Columbia was read the third time, and passed.

An engrossed bill for the more perfect organization of the infantry of the United States was read the third time, and passed.

An engrossed bill authorizing the President of the United States to lease one of the public reservations of ground in the City of Washington was read the third time, and passed.

GENERAL ST. CLAIR.

The House resolved itself into a Committee of the Whole on the bill "for the relief of Arthur St. Clair ;" and, after much and animated debate, the question was taken that the said bill be engrossed and read the third time, and determined in the negative—yeas 48, nays 50, as follows:

YEAS-Stevenson Archer, John Baker, Harmanus Bleecker, James Breckenridge, Elijah Brigham, Epaphroditus Champion, Langdon Cheves, Martin Chittenden, John Davenport, jun., John Dawson, William Ely, James Emott, William Findley, Asa Fitch, Thomas Gholson, Charles Goldsborough, Richard Jackson, jun., Philip B. Key, Lyman Law, Joseph Lewis, jun., Robert Le Roy Livingston, William Lowndes, James Milnor, Jeremiah Morrow, Jonathan O. Moseley, Hugh Nelson, Thomas Newton, Stephen Ormsby, Joseph Pearson, William Piper, Timothy Pitkin, jun., James

M. Hyneman, Richard M. Johnson, William R. King, Abner Lacock, Joseph Lefever, Peter Little, Aaron Lyle, Nathaniel Macon, William McCoy, Arunah Metcalf, Samuel L. Mitchill, Anthony New, Israel Pickens, Benjamin Pond, William M. Richardson, John Rhea, John Roane, Jonathan Roberts, William Rodman, Ebenezer Sage, Ebenezer Seaver, Samuel Shaw, Richard Stanford, William Strong, George M. Troup, Charles Turner, jun., Robert Whitehill, and David R.

Williams.

So the bill was rejected.

FRIDAY, May 29.

Mr. DAWSON presented a petition of the Trustees of the University of Orleans, signed by William C. C. Claiborne, their chancellor, praying a grant of the lot of land lying in the city of New Orleans, on which the Government House is situated. Referred to the Committee on the Public Lands.

Mr. MORROW, from the Committee on the Public Lands, to whom was referred the amendments of the Senate to the bill "to ascertain and establish the western boundary of the tract reserved for satisfying the military bounties allowed to the officers and soldiers of the Virginia line on Continental Establishment," reported their disagreement thereto. Whereupon, the House disagreed to the said amendments.

Mr. LEWIS, from the Committee for the District of Columbia, to whom were referred the amendments of the Senate to the bill "concerning the Levy Court in the county of Washington, in the District of Columbia," reported their disagreement thereto. Whereupon, the House disagreed to the said amendments.

Mr. MORROW, from the Committee on the Public Lands, who were directed to inquire what provision ought to be made respecting lands granted by the British Government of West Florida, not subsequently regranted, made a report, which was read. When Mr. MORROW, from the same committee, presented a bill confirming grants to lands in the Mississippi Territory, derived from the British Government of West Florida; which was read twice, and committed to a Committee of the Whole on Tuesday next.

Mr. MORROW, from the same committee, who were instructed to inquire into the expediency of confirming claims to land in the Mississippi Territory, founded on Spanish warrants of survey, made a report; which was read. When Mr. MORRow, from the same committee, presented a bill

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confirming claims to lands in the Mississippi Territory, founded on warrants of survey granted by the Spanish Government; which was read twice, and committed to a Committee of the Whole on Monday next.

FOREIGN RELATIONS.

Mr. RANDOLPH said that rumors to which he could not shut his ears [of an intended declaration of war on Monday next, with closed doors] and the circumstance which had just passed under the eye of the House [alluding to a motion to adjourn] impelled him to make a last effort to rescue the country from the calamities which, he feared, were impending over it. He had a proposition to submit, the decision of which would affect vitally the best interests of the nation. He conceived himself bound to bring it forward. He did not feel himself a free agent in the transaction. He would endeavor to state, as succinctly as he could, the grounds of his motion, and he humbly asked the attention of every man whose mind was at all open to conviction-of every man devoted to the cause of his country, not only in that House, but in every rank and condition of life, throughout the State.

The motion, which he was about to offer, grew out of certain propositions, which he pledged himself to prove; nay, without an abuse of the term, to demonstrate.

MAY, 1812.

lin and Milan decrees. Indeed, the only cases relied upon by Mr. Monroe to prove the repeal of the French decrees, are those of the Grace Ann Green, and the New Orleans Packet. On the first of these no great stress is laid-because, having been captured by an English cruiser, she was retaken by her own crew, and carried into Marseilles, where, consequently, the captors became French prisoners of war. As well might it be expected that, in case of war between the United States and England, our privateers carrying their prizes into French ports, should be proceeded against under these decrees. It was, therefore, on the case of the New Orleans Packet that the principal reliance was placed, to show the repeal of the obnoxious decrees. But even this case, established, beyond the possibility of doubt, that the Milan decrees of the 23d November, and 17th December, 1807, were in force subsequently to the period of their alleged repeal. This vessel, hearing, at Gibraltar, where she had disposed of a part of her cargo, of the letter of the Duke of Cadore of the 5th of August, 1810, suspended her sales, and the supercargo, after having consulted with Mr. Hackley, the American Consul at Cadiz, determined, on the faith of that insidious letter, to proceed with the remainder of his cargo to Bordeaux. He took the precaution, however, to delay his voyage, so as not to arrive in France before the 1st of November, the day on which the Berlin and Milan decrees were to cease to operate.

Here Mr. RANDOLPH was called to order by Mr. WRIGHT, who said there was no motion be

The SPEAKER overruled Mr. WRIGHT's objection, as the gentleman from Virginia had declared his intention to make a motion, and it had been usual to permit prefatory remarks.

Mr. RANDOLPH said he would proceed in his argument without deviating to the right or to the left, and he would endeavor to suppress every feeling which the question was so well calculated to excite:

"The vessel accordingly arrived in the Garonne on the 14th of November, but did not reach Bordeaux until the 3d of December. On the 5th of this month, the Director of the Customs seized the New Orleans Packet and her cargo, under the Milan decrees of the 23d November and 17th December, 1807, expressly set forth, for having come from an English port, and having been visited by a British vessel of war."

The first of these propositions was, that the Berlin and Milan decrees were not only not repealed, but that our Government had furnished to the House and to the world unequivocal evi-fore the House. dence of the fact. The difficulty in demonstrating this proposition arose rather from his embarrassment in selecting from the vast mass of evidence before him, than in any deficiency of proof; for, if he were to use all the testimony that might be adduced, he feared his discourse would grow to a bulk not inferior to the volume which he held in his hand. He would refer the House to the correspondence, generally, of Mr. Russell, our agent at Paris, accompanying the President's Message of the present session. He referred to the schedule of American vessels taken by French privateers, since the first of November, 1810. [the period of the alleged repeal of the French decrees:] of these, it was worthy of remark, that "the Robinsonova, from Norfolk to London, with tobacco, cotton, and staves; the Mary Ann, from Charleston to London, with cotton and rice ; the General Eaton, from London to Charleston, in ballast; the Neptune, from London to Charleston, also in ballast; the Clio, from London to Philadelphia, with English manufactures; the Zebra, from Boston to Tarragona, (then in possession of the Spaniards) with staves, all coming under the operation of the French decrees, and seized since the 2d November, 1810, had not been restored on the 4th of July last ;" and that the only two vessels named in that schedule, which had been restored, viz: the Two Brothers, from Boston to St. Malo, and the Star, from Salem to Naples, (the one a port in France, the other virtually a French port,) did not come within the scope of the Ber

Thus, this vessel having voluntarily entered a French port, on the faith of the repeal of the decrees, was seized under them:

"These facts (continues Mr. Russell) having been stated to me by the supercargo, or the American Vice Consul at Bordeaux, and the principal one, that of the seizure under the Milan decrees, being established by the proces verbal, put into my hands by one of the consignees of the cargo, I conceived it to be my duty not. to suffer the transaction to pass unnoticed."

This proces verbal is neither more nor less. than a libel in the Admiralty Court, drawn by the law officer of the French Government, agreeably to the law of the Empire. What should we say to a libel of a vessel by the District Attorney

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