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The history of the cases litigated under the present commerce act shows that its efficacy has been to a great degree destroyed by the weapon of delay, almost the most formidable weapon in the hands of those whose purpose it is to violate the law. Let me most earnestly say that these recommendations are not made in any spirit of hostility to the railroads.
In 1838, the question of title will again come up, and most probably, in the present amicable state of our relations with Great Britain, will be again postponed. Every year, however, the litigated claim is growing in importance. There is no pride so jealous and irritable as the pride of territory.
This court can give no opinion to any department of the government, nor can it decide upon or influence any subject that has not come before it as a regularly litigated case in law. Though especially founded by the Constitution, it has no peculiar power under the Constitution, and stands in no peculiar relation either to that or to acts of Congress.
In Homer we get a glimpse of a theory of his time, to wit, that each separate decision given by the magistrate in any litigated controversy was furnished to him by Zeus specially for that case. The Greek word for such a decision was themis, and it was supposed that somewhere in the Pantheon was a corresponding deity whose special function was to furnish the appropriate themis for each case.
Here a patent having once been sustained, say, in Boston, may have to be litigated all over again in New York, and again in Philadelphia, and so on for all the Federal circuits.
And I am to remark, that, since this document, so delivered in, has never been litigated or controverted in the truth of it, from that day to this, by Mr. Hastings, so, if there was no more testimony, here is enough, upon this business.
Unluckily, however, for Jos.'s case, one of his clever letters, written during the negotiation, turned up, and was put in evidence, in which he pressed Captain Lake with the fact, that he, the purchaser, was actually in possession of information to the effect that Mark was dead, and that he was, therefore, buying under a liability of having his title litigated, with a doubtful result, the moment he should enter into possession.
When this man proved recreant and sold the group, now numbering seventeen souls, and the purchasers undertook possession, the case was litigated as a suit for freedom. Decision was rendered for the plaintiff, after appeal to the state supreme court, on the ground of prescriptive right.
He never became a finished advocate and speaker, but his enterprise and integrity secured him a large business, most of which was litigated in the counties of the Western Reserve. Not long after Mr. Allen commenced practice in Ohio he married Miss Ann Maria Perkins of Warren, Trumbull county, an auspicious connection which was soon terminated by her death.
In other words, as he always believed himself to have been imposed upon, he litigated almost every bill that was presented to him, with the result that three times out of five judgment was given against him. He had himself studied for the bar and had a natural fondness for technicalities; and he was quite ready to pay handsomely any one he believed to be zealously guarding his interests.
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