States to a prior judgment of any other of them, wherever the patent, the question, and the evidence are the same in both suits, not on the ground of comity alone, but with the practical and salutary object of avoiding repeated litigation and conflicting decrees in the courts of the several districts upon matters which, having been once passed upon by a court of first instance, ought to be referred to a court of appeal for authoritative determination."

It will be seen that patent cases have called out the strongest judicial expressions in favor of uniformity of decision, but in other fields of federal jurisdiction a like policy has been adhered to. A decision in admiralty has already been quoted. In receivership matters involving operations in different states the impropriety of conflicting interpretations of the scope of the receivership has been recognized, and in customs cases uniformity in applying the terms of the Tariff Acts has usually prevailed.

If we could leave the subject of federal comity here, with only the judicial utterances quoted to elucidate the topic, there would be nothing of what Dicey had in mind when he defined comity as caprice; but we must turn to another line of thought upon the subject where caprice is sufficiently manifest. Indeed, Judge Dallas might well claim for uniformity of decision in patent causes a higher sanction than that of comity, for an examination of the whole field of decision reveals comity as rather an uncertain reliance. Comity alone as a controlling principle seems to give too much play to some very human weaknesses, weaknesses which judges share with the rest of mankind. Too many judges, of strong individuality, are unequal to the self-effacement required to make comity a wholly effective principle of federal jurisprudence. Some of them, if not avowedly, yet in practical effect, seem to approach the decisions of courts of no higher commission than their own from the standpoint of the Irish judge who said that "when a decision of one court is cited to another of coördinate authority, the latter has a right to regard it in a critical or even sceptical spirit." 15 When parties before the court are assiduously

15 In re Tottenham's Estate, Ir. 3 Eq. 528 (1869). There are expressions about comity in English decisions, and in the courts of the Empire outside of England, that show much the same tendencies and impulses that we find in our federal courts. The old courts of Westminster Hall, the Common Pleas, King's Bench, and Exchequer

urging it to exercise its independent judgment, this sceptical spirit is easily yielded to; and though the cases in which it has prevailed over other considerations are neither so numerous nor so persuasive as those in which the advantages of a uniform administration of the law have been kept steadily before the eye of the court, they are sufficient in number to make the question of the mutual relations of the coördinate federal courts one of some uncertainty.

For example, we find Judge Knowles, in the District of Montana,16 when it was urged upon him that if one circuit court decides a point all the others should conform, saying flatly that "this is not the rule which prevails in the circuit courts of the United States," and he fortifies this with the Bible. "In the Bible," he says, "there is the command: 'Thou shalt not follow a multitude to do evil.""

Judge Knowles was not sitting in a patent case when he expressed himself in that manner; but even in patent cases, where there is such general agreement the other way, like views have been enunciated. Thus, in the Western District of Missouri,17 Judge Phillips says of a decision in another district on the patent then before him:

"The only consideration to which that decision is entitled, aside from the recognized ability of the judge, rests upon the comity between courts. The broadest application that can possibly be claimed for this principle is that the decision of courts of coördinate jurisdiction upon the same subject-matter of controversy is entitled to high respect as a precedent, when the subsequent case presents substantially the same state of facts. The former case is not conclusive. After giving due weight to all prior adjudications, the question of infringement of a patent is still to be determined in each particular case as it arises on the evidence adduced."

followed each other's decisions as a matter of comity among judges, but the vicechancellors have often shown considerable independence of each other. (See The Vera Cruz, 9 P. D. 96 (1884); Gathercole v. Smith, 44 L. T. 439 (1881).) The Court of Appeal, by Brett, M. R., has said that "a court of law is not justified, according to the comity of our courts, in overruling the decision of another court of coördinate jurisdiction." Palmer v. Johnson, 13 Q. B. D. 351, 355 (1884). In a more recent case, Sir Swinfen Eady, sitting as a judge of first instance in England, held that he was bound by the unanimous judgment of the Court of Session in Scotland construing an Act of Parliament which applied to both England and Scotland. In re Hartland, [1911] 1 Ch. 459, 466.

16 Northern Pac. R. Co. v. Sanders, 47 Fed. 604, 613 (1891).

17 Worswick Mfg. Co. v. City of Kansas, 38 Fed. 239, 241 (1889).

Likewise Judge Archbald, in the District of New Jersey,18 made an elaborate examination of the question of the validity of a patent which had been the subject of extended litigation in the Second Circuit. He acknowledged the decisions in that litigation as of material assistance to him, but held that he was not controlled by them, nor absolved from an independent examination of the questions involved, and claimed for his conclusions, though indeed conforming to those decisions, that they were substantially his

own.

And Judge Kohlsaat, in the Northern District of Illinois,19 after stating that there was no material difference between the papers before him and those before the courts in litigation over the same patent in the Second Circuit, said:

"Complainant seeks to have this court follow the decisions of the courts of the Second Circuit upon the questions of validity and infringement, in accordance with a rule of comity which is said to prevail in some circuits; but the utterances of the Court of Appeals of this circuit have been positive to the effect that each case in this circuit must be decided upon its merits as disclosed by the record therein, and that a ruling or opinion of any other Circuit Court or Court of Appeals upon any question involved should be given only its just and reasonable weight according to the circumstances; and it therefore follows that this court should give weight to the said decisions in the Second Circuit only to the extent that the reasoning therein, as applied to the facts presented by this record, may be persuasive."

The learned judge does not cite the positive utterances of the Court of Appeals for his circuit (the seventh) which guided him in this decision. But it remains for us to consider the attitude of the several Circuit Courts of Appeals towards this matter of comity.

The Circuit Court of Appeals Act of 1891 made an important modification of the federal judicial system. It introduced a new tribunal into each of the nine circuits into which the judicial districts of the country were already grouped,—an appellate tribunal to take over a substantial portion of the jurisdiction of the United States Supreme Court. Much of the jurisdiction of this new court, including patent litigation, was made final, though to the Supreme Court was left a power of intervention by certiorari. It should be

18 Cimiotti Unhairing Co. v. American Fur Refining Co., 120 Fed. 672, 674 (1903). 19 Welsbach Light Co. v. Cosmopolitan, etc. Co., 100 Fed. 648, 649 (1900).

remembered, however, that certiorari from the Supreme Court is always a matter of grace and not of right, and that it is a remedy very sparingly granted.

The entry of nine Circuit Courts of Appeals into the field of federal judicial action has made the question of comity among the federal courts one of increased seriousness. It has, to be sure, reduced the opportunities for confusion by bringing some eighty odd districts, each clothed with powers of independent action, into nine family groups under a local appellate tribunal; and the effect of this is inevitably to produce a degree of cohesion within each group that practically prevents discordant rulings. But, on the other hand, a lack of uniformity of action among nine appellate courts, vested with a large measure of finality of decision, is a more serious matter than diversity among courts of first instance. With the country, as it were, divided for federal judicial purposes into nine independent principalities, the views of the nine appellate courts of their proper attitude towards each other, in other words, their views of comity, take on increased importance.

When we investigate those views we find the same tendencies at work that had been apparent in the lower courts. Some of the Courts of Appeals have seen themselves clearly as parts of a whole, and have recognized the necessity of subordination to the integrity of the system of which they were a part, while others have regarded themselves as clothed with an independent jurisdiction which it would be stultifying to minimize in any degree. The best expression of the first point of view is found in the opinion of Judge Putnam in Beach v. Hobbs.20 This opinion was delivered, indeed, in the Circuit Court, but the Court of Appeals adopted his views when the same case came before it on appeal.21 Judge Putnam handled the subject with a firm grasp, and he must be quoted at some length:

"It is necessary, first of all, that we should determine the effect to be given to the legal proceedings in the Second Circuit. . . . So far as any proposition may be fully presented to the Court of Appeals in any circuit, and determined by it, resulting in a rule which is, and ought to be, of general application, especially when it involves federal questions, a condition of adjudications which would defeat uniformity throughout the United States would clearly disappoint the contemplation of Congress

20 82 Fed. 916, 918, 919 (1897). 21 Hobbs v. Beach, 92 Fed. 146, 147 (1899).

in establishing those tribunals. It certainly was not the expectancy of Congress that the establishment of those courts would destroy the general uniformity of adjudications in the federal tribunals touching general principles of law, and especially touching federal questions, which has heretofore existed; nor was it its purpose to create several centres for the determination of that class of questions, which would take on a local character, as is the fact with reference to the various state tribunals. As was said by the Circuit Court of Appeals for this circuit in Beal v. City of Somerville, 1 C. C. A. 598, 50 Fed. 647, 652, the Circuit Courts of Appeals must maintain themselves as tribunals of final jurisdiction, notwithstanding the possibility that cases disposed of by them may in some form reach the Supreme Court. In view of this fact, a decision of the Circuit Court of Appeals in any circuit, so long as it remains unappealed from, and so long as the Supreme Court has not issued its writ of certiorari to reëxamine it, must be regarded as having more effect than that ordinarily given to even the highest state tribunals, or to any court of merely concurrent jurisdiction, no matter how great its learning. There seems to be no method of maintaining the necessary uniformity of the law with reference to general questions, especially federal questions, unless the mature and solemn judgments of a Circuit Court of Appeals in any circuit are accepted as authoritative declarations of the law, subject only to such criticisms on the score of oversight or evident mistake as would apply to a judgment of the Circuit Court of Appeals in the particular circuit where the litigation then under determination may be pending."

The learned judge then adds as to patent litigation:

"These considerations have a special importance as applied to a solemn and well-considered judgment of any Circuit Court of Appeals with reference to a patent for an invention issued by the United States, when the state of the proofs remains substantially the same, in view of the reluctance of the Supreme Court to issue writs of certiorari in causes of this character involving mainly questions of fact; otherwise such patents, although intended by statute to have effect throughout the whole country, would, for practical purposes, be territorially limited, and would be of effect only in portions thereof, and practically invalid in other portions."

The adoption of Judge Putnam's views on this matter by the Circuit Court of Appeals for the First Circuit settled the attitude of that court, an attitude which it has ever since carefully adhered to.