yet the property of such a person was to be condemned without inquiring whether he was or was not, in his intentions or acts, loyal or disloyal. The same rule was applied to the property of foreigners domiciled in such places.1

§ 296. As this law is in the interest of commerce, it may safely be assumed that the word "domiciled" will receive a favorable rather than a restricted stringent interpretation. It is a remedial and beneficial statute; and the words of such a statute are to be construed largely and beneficially, so as to suppress the mischief and advance the remedy.2 Especially should this be the case in view of the fact that in the United States, as in England, and a few other countries, the courts are as open to the non-resident alien friend as to the resident citizen, i.e., so far as regards common-law rights and remedies. It is only when one seeks to avail himself of the provisions of this particular statute that he is held to set forth domicile, and even then, it is probable that the courts would not require proof of any thing more than forensic domicile. Yet, at all events, the subject is worthy of attentive consideration.

§ 297. "Any Corporation." What do these words mean? Do they embrace literally any and every corporation, sole and aggregate, ecclesiastical, municipal, manufacturing, and commercial? corporations formed for scientific, educational, and a score of other purposes ? Counsel have asserted that all kinds of corporations, however unconnected with commerce, are included. If not in trade, why have a trade-mark? If a nontrading corporation cannot have a trade-mark at common law, how can it possibly have one by virtue of this act of Congress. This statute does not create trade-marks, for no power to do so exists under the Constitution; and it would be an absurdity to attempt to create a symbol of commerce, which, being the emblem of its owner, each man must adopt for himself.

1 The Prize Cases, Black's Rep. ii. p. 635; Amy Warwick, Sprague's Decisions, ii.; and Law Reporter, xxiv. pp. 335, 494.

2 Dwarris, p. 632; Sedg. on Stat. and Const. Law.

The right to use a certain mark for goods does not depend upon statutory enactments, but has its foundation in the immutable law of nature. Congress had only authority to regulate commerce, and it did not attempt to transcend its powers. It could not change the natures of things. We are referred to the common law for the rules which govern those natures; and it has repeatedly been declared that statutes which alter common-law remedies, or effect common-law rights, must be strictly complied with. Witness the maxim: Nihil quod est contra rationem est licitum, for reason is the life of the law. And such statutes are to be construed sensibly, and with a view to the object aimed at by the legislature. An ancient and settled system ought not to be overturned, except by clear, unambiguous, and peremptory language.1

§ 298. This statute does not make valid any act on the part of a corporation which would not be valid without it, and does not in the slightest degree add breadth to the provisions of its charter; therefore, it is a corollary that an ecclesiastical, educational, eleemosynary, or other non-mercantile corporation, is not contemplated by this act. In one case, the applicant set forth that it was engaged in the "manufacture and distribution of pamphlets, circulars, and other publications," and that the proposed trade-mark was to be printed thereon, "and upon the notices which advertise the same and the business of the company to the public." It did not appear, nor could it be inferred, that the articles upon which the mark was intended to be applied were to be sold. Therefore they were not merchandise within the meaning of the statute. The application was rejected.2 In another case, where a picture of a safe and a watch-dog was filed for registration by an insurance company, it met a similar fate. This picture was not intended to be sold as a work of art, for then it might have come under the copyright law, and been entered in the office of the Librarian of

-

1 Sedg., Stat. and Const. Law, p. 318.

2 The Mercantile Loan and Warehouse Co. App. 683.

Congress; nor was it to be affixed to merchandise to be sold,

for an insurance company does not traffic; but it was to be printed upon policies, renewals, bill-heads, &c., by way of ornament. The purpose of registering a mark under such circumstances is inconceivable. What beneficial end could it possibly serve? It could not be turned into a technical trademark until it should actually be affixed to merchandise; and this artificial person, a company formed to insure against loss by fire, had no power in law to affix it to merchandise. The sole object of registering a trade-mark is to obtain protection against infringement by a rival trader; and that protection could only be obtained through judicial process. How could such a corporation come into court as a trader? In this case, the Special Examiner having charge of the subject declined to receive it, for want of jurisdiction, and the fee was returned to the applicant.1

§ 299. If the Office had permitted registration in such cases, what absurd consequences might have flowed therefrom! Other corporations of a similar or analogous nature would perhaps have demanded the certificate which to them might have seemed like the wand of an enchanter. A corporation sole is recognized as existing in the United States. Such is a minister of a parish seized of a freehold, as persona ecclesiæ, the same as in England; and the right once established cannot be divested even by an act of the State legislature.2 In Massachusetts, a minister seized of parsonage-lands, is a sole corporation for that purpose. Such a corporation sole cannot alienate, but has survivorship. Now, if any and every corporation is intended to be embraced by this statute, why not let in such a minister of a parish, not in his individual capacity as John Styles, but as rector? The proposition is too devoid of sense to warrant another word, and would be dropped but for one

3

1 The Safeguard Fire Ins. Co. of the City of New York.

2 Angell & Ames on Corporations, § 27, citing decisions of Story, J.

3 Brunswick. Dunning, 7 Mass. 447; Weston v. Hunt, 2 Mass. 501; Jansen v. Ostrander, 1 Cow. 670.

fact, an appeal has been taken in just such a case, and is still pending.

or

$300. Common sense and good faith are the leading stars of all genuine interpretation. We do not take language literally, but look at the reason which underlies it. The command Thou shalt not kill - does not prohibit killing in a just war, in defence of one's person. When the minister in the pulpit tells us to sing three verses of a certain hymn, we do not take him literally, for his words do not mean exactly what they say. A hymn is in poetical form, and in poetry each line is a verse. Therefore we at once perceive that the careless speaker means that we shall sing three stanzas, as otherwise the sense would be incomplete and be turned into sheer nonsense. Dr. Lieber has given an illustration of the necessity of consulting the rules of reason in applying language. He takes the word horse, which means many different things. In Webster's Dictionary we find that it may mean: 1. A hoofed quadruped of the genus Equus; 2. The male of the genus; 3. Mounted soldiery; 4. A frame with legs for supporting something; 5. A mass of earthy matter in mining; 6. In nautical affairs, a foot-rope extending from the middle of a yard to its extremity, also a rope for hoisting a yard, or extending a sail on it. We always should take a word with its peculiar signification in the art, science, sect, &c., according to what is termed usus loquendi. When Congress used the word "corporation," in the same paragraph it was also said "who are entitled to the exclusive use of any lawful trade-mark," &c. The corporation must show that the law of its creation gave it authority to make such contracts as it seeks to enforce;2 and the act of registration under this statute is a contract between the United States on the one side, and the proprietor of the trade-mark on the other, whereby protection is promised upon certain conditions precedent and subsequent.

1 Legal and Political Hermeneutics, p. 100.

2 Angell & Ames on Corporations, § 161.

§ 301. Treaty, or Convention. This phraseology was conceived in a liberal spirit, looking to the encouragement of reciprocity. The Office has given to these words a very liberal construction; and, in all cases when the full scope and intent of a treaty of commerce is somewhat dubious, it presumes in favor of the applicant. Thus where a British subject, resident in his own country, applied for registration, it was held that the English act of Parliament, entitled "The Merchandise Marks Act of 1862," was equivalent to a convention. Indeed, the right of an alien friend to protection in the English courts did not depend upon the passage of that statute, for in many instances previous thereto, the said courts had recognized and enforced the doctrine. In Pisano v. Lawson,2 it was shown that at law as well as in equity, an alien friend, not at any time a resident in England, might maintain a personal action for an injury done within the realm. It was held by Woodbury, J., in the United States Circuit Court for the District of Massachusetts, in 1846,3 that British subjects had the same privileges in our judicial tribunals as our own citizens. The third article of our treaty of 1794, with England, gives the people of both powers the authority "freely to carry on trade and commerce with each other." "So," said that learned judge, "we are under treaty obligations to Great Britain and most other European powers, to admit their merchandise on favorable terms, and to allow their merchants to trade here as those of favored nations. But it would be a mockery of such provisions and engagements, if we prevented them from selling their goods after arriving here (Ch. J. Marshall, in Brown v. State of Maryland, 12 Wheat. 447), unless noxious to health or morals; or if we made onerous discriminations against them, or prevented their receiving the proceeds of their goods, or abstained from yielding protection against injuries to them, or to their

1 Collins Company v. Brown, 3 K. & J. 423; Collins Company v. Cohen, id. 428; 5 W. R. 676.

26 Bing. N. C. 90.

3 Taylor v. Carpenter, 2 Wood. & M. 1.