Oliver E. Lyman

“ As each of these thousands of telegraphic and telephonic offices has from one to several hundred wires running from it to some other point, one realizes what a gigantic net-work of wires has been woven over us; and, when we add the testimony of the senses, the stupendousness of the encroachment becomes still more apparent. From roofs of private buildings and from poles in public streets the meshes depend, each pole strung with from to one to one hundred and sixty or even more wires. ”

“ What cases, at first sight possessing novelty, do not actually possess novelty? A study of cases warrants us in accepting, as a first principle, that every change or mere substitution of a mechanical equivalent is not necessarily a patentable novelty; for it may not be substantially unlike some prior thing. We may have, for instance, a machine, comprising, say, three distinct parts. A man, not the inventor, substitutes for each of these parts other equivalents, producing the same results. This is not a patentable invention. ”

“ If, moreover, possessing skill, he undertakes to heal a wound or cure a disease, and through his neglect the party is not cured, or is impaired in health by the treatment, he is also responsible. Behold the two horns of the dilemma which threaten the physician! If he has skill, and neglects to employ it, he is liable in damages; if he has not skill, he is equally liable. ”

“ Another right which a servant-girl has, is a right to the enjoyment of a good character provided she has one and the law presumes she has it until the contrary appear. [8] There is, unfortunately, a tendency on the part of a great many people to speak too freely, too thoughtlessly, and even maliciously, of the characters of others. The more marked the inferiority in social position of the person talked about, the greater the freedom with which the unbridled tongue wags; and just in proportion as the maligned person's station in life is lowlier, the injury done is the more irreparable. ”

“ It is a principle which necessarily makes part of every system of law granting patents for new inventions. Merely to change the form of a machine is the work of a constructor, not of an inventor; such a change can not be deemed an invention. ”

“ If a charter implies that a corporation may always continue to exercise its rights in the same way in which their exercise was at first permissible, and under the regulations then existing and those only, the public would be helpless when, without anybody's fault, circumstances so change that what was once lawful, proper, and unobjectionable, becomes a public nuisance, endangering the public health or the public safety. As circumstances change, regulations affecting the exercise of a franchise may be changed, too. ”

“ And, under any circumstances, if it appears that the child at service has no parent or guardian entitled to her wages, the mistress must pay them to the servant. [48]
Such are some of the rights of those who serve us. It would be a difficult task in the limits of a magazine article to treat of all their rights. Being human beings, and performing their lowly duties by contract only, the law clothes them with rights similar to those possessed by other persons, who are not compelled to undertake what we call menial work. Their property rights, for instance, are as sacred as those of princes. ”

“ In times of early violence, it is the weak that are subjugated and enslaved, and, as civilization advances, it is ever the lowest and most ignorant class of any society that falls into the condition of menial servitude. The feeblest, the least competent, the least provident, naturally sink to the bottom of the social scale, and become the helpers, the dependents, the drudges, and the servile appendages of the classes who have wealth, intelligence, and power. In domestic life these relations become organized with the abject class at the base of the social structure. ”

“ In making a damaging statement to an inquiring person about a domestic, it is perhaps kinder to her to see that no one is present but the one interested in the inquiry. It may also turn out to be the safer course to pursue. It is true that such caution is not absolutely essential for the protection of the communication, but, if an opportunity is sought for making a charge before third persons when it might have been made in private, it affords strong evidence of a malicious intention, and thus deprives it of that immunity which the law allows to such a statement when made honestly ”

“ Both are equally responsible for a failure to exercise proper care, and for negligence in the discharge of the duty imposed upon them. [2] But extraordinary care is no more contracted for than the possession of extraordinary skill. If the physician has employed ordinary skill and care in the management of his case, he is not responsible if success does not crown his efforts. But, on the other hand, if he does not bring to the treatment of a disease the ordinary amount of skill possessed by those in the same profession, it is immaterial how high his standing may be. ”

“ We see the same principle of protection in regard to communications made respecting the solvency of traders, the skill of professional practitioners, the trustworthiness of persons in confidential positions. The welfare of society demands that they be made freely, faithfully, and truly, and to give a servant a good character that is undeserved is a grievous offense. ”

“ In the case of the system under discussion, instinct has taught the layman to call it a public nuisance, which, if so, is theoretically about the same thing as death, inasmuch as, in the eye of the law, that which is a public nuisance has forfeited the right to exist. ”

“ Even in slavery there was a certain community of interest and responsibility on the part of the master, of which we see but little in the surviving forms of domestic servitude. This isolation drives servants to self-defense against the iron hand of control on the part of masters and mistresses, and results in a spirit of antagonism, leading to tacit conspiracy against those whom they regard as their enemies. Obligations sit lightly upon servants, and they habitually study to promote their own interests by unscrupulous arts and all kinds of dishonest practices. ”

“ Now, the right of the public to use the public streets freely and in every part can not well be exercised when poles occupy a portion of the land. If what is called "the fourth dimension of matter" were a reality, a person might be able to pass through the pole without disadvantage to himself or the pole, but "the fourth dimension" is not as yet a demonstrated fact, and without it the space occupied by the poles is withdrawn from the public use. The fact that sufficient space remains for public traffic is immaterial. ”

“ If those ladies who cry for the right of suffrage would shed half of their tears for a settlement of the laws pertaining to married women, they would accomplish results worth striving for. But to return to the doctor. The poor man, at present, had better take care when a married woman comes to employ him for her servant, or he may be "left out in the cold."
Although not bound to furnish medical attendance and medicines, it seems the party hiring is bound to furnish proper food, and to support the servant during her sickness or disability, so long as she remains in his or her employ. ”

“ In a few words, there is patentable novelty when there is a different principle of operation; when there is a different result in kind, or when there is a new combination. It is for one or another of these reasons that a patent is ever granted. There may be other grounds apparently, but a closer investigation will show them to be but another species of the above family, and consequently to be classified with them in their application. ”

“ Social changes, it is to be remembered, especially of the alleviating and elevating kind, are always slow. We are beginning to talk about social evolution, and the new science of sociology which treats of it; but we have to take ages into account before we can realize any positive conception of advance. Much of the barbarism of early society clings tenaciously to the domestic relations, while the modification of human nature and the corresponding mitigation of social imperfections go on but very gradually, tardily, and partially. ”

“ If, however, the communication is made by a person acting honestly and without actual malice, then, even though it be defamatory, the law protects the one making it. Servants bear such a peculiar relation to society that it is deemed necessary, for the common protection and well-being of its members, that honest and proper communications in regard to servants should be freely made, and that those called upon to make such communications should not be hampered by the apprehension of vexatious litigation. The good of the many is not to be sacrificed to save the few from injury. ”

“ When to these undisputed facts we add that such a practical genius as Edison has declared that there is no reason whatever why all wires operating electrical apparatus should not be underground, except expense, which in the eye of the law is no excuse, there is sufficient demonstration of the practicability of the system for the purposes of this article. Unless such evidence can be rebutted, the companies are guilty of erecting, in the exercise of their franchise, unnecessary and therefore unlawful fixtures. ”

“ Every practitioner would be as antiquated as a Galen or Hippocrates, and the sick and diseased would lose all the benefits and improvements which the experience of years and the researches of science furnish. The rule works a hardship. In striving for protection, it causes deprivation. American authorities introduce a modification. If it is shown that physicians or surgeons have applied a different system of treatment and found it to succeed as well as or better than the one prescribed, it is not negligence, so says a New York judge, to resort to the system thus practically tested. ”

“ Servants have well-defined rights in regard to wages. If they perform their part of the contract, they are entitled to a performance on the part of the party of the first part, to wit, the party hiring. Just what the servant has to do has been succinctly stated by Mr. Story: "A servant," says he, "is bound to obey all the just and reasonable commands of his master, to be careful and faithful as to all property committed to his charge, to do with diligence and care his proper and appointed work, and to behave with decency and in a manner consistent with his station as servant. ”

“ For, if the pole system is a nuisance, and the underground way is not; or, if the former permanently obstructs the streets, and the latter does not; or, if the pole system is dangerous to life, limb, and property, and the underground plan is not, or is less so—then, so long as the poles are left standing, and the wires strung, the franchise is not exercised in such manner as to reduce the nuisance to a minimum, and to inflict the least injury upon others, and the corporate acts are unprotected by law. ”

“ Before closing the discussion of the right to wages, mention should be made of an exception to the rule that the servant who performs faithfully her contract without breach is entitled to wages. The exception is that of persons whom the law deems unable to contract. Take the case of a married woman, for example. Where the common law still controls the relation of husband and wife, all wages the wife earns belong absolutely to him, and any promise made to pay her is considered as a promise made to him. ”

“ But, if others have previously taken the risk and been successful in a new line of treatment, it may be followed with impunity, and will shield the practitioner from the charge of malpractice, provided that the cases in which it was tested were substantially the same as those treated of by the writer or by the practical surgeons, and provided the treatment thus resorted to has been successful to such an extent as to leave no doubt as to the propriety and safety of adopting it. If the case is a new one, the patient must trust to the skill and experience of the physician he calls in. ”

“ The slave system could have lasted as long as it did only in a form of society in which the menial class was low, degraded, and without influence. And that the slave system has in turn widely reacted to promote the social debasement of the working-class there can be no doubt. The slave system, of course, grew more and more anomalous as the sense of justice and humanity strengthened among the people i but we must not forget that slavery in this country was not destroyed by the moral reprobation of the community. ”

“ But slow as has been the improvement of this class, and notwithstanding their humble social condition, and although they are too frequently regarded as a lower race of beings, with no rights except to obey, yet they have reached a stage of progress that entitles them to the protection of law, to which they are amenable also like all other people. The servant-girl has a legal status just as much as her mistress, and rights which ought to be held sacred, and, if they were so regarded, one important step toward the amelioration of the relations of lady and servant would be taken. ”

“ Civilization may have been staggered by the "servant-girl problem," but it has not wholly broken down before it. The mistress can no longer kill her perverse domestic with impunity—although she may often think this is a step backward instead of forward. General tendencies have been at work which have put an end to the ancient order in this respect. In the early ages of domestic servitude, one of its incidents was the power of the master over the life of the servant. ”

“ If unlawful, within the meaning of the legislative enactments, no aldermanic sanction can save them; for the stream can not rise higher than its source. Permission by the Common Council, if inconsistent with the law of the State, is wholly void, and, even if this were not the case, it is questionable whether the Common Council of the city has power to consent to the erection of a single pole. The charter gives it power to regulate the use of poles in streets, but the power to regulate a nuisance is not the power to create one. ”

“ Novelty consists in producing a new substance, or an old one in a new way, by new machinery, or a new combination of the parts of an old one, operating in a peculiar, better, cheaper, or quicker method, a new mechanical employment of principles already known. ”

“ If a panacea does not already exist, one suggests itself in legislation. Our State Legislature can relieve us. It has the power to drive the poles and wires from the street, and compel the construction of lines underground. As to wires yet unstrung and poles yet unerected, it may be said this course would be quite proper, but with regard to those already up (assuming that they are legally up) would not such legislation be manifestly unconstitutional, as impairing the obligation of the charter contract which, we will say, authorized their erection? ”