Page:Harvard Law Review Volume 10.djvu/298

272 272 HARVARD LAW REVIEW, statute was completed in Cincinnati, and that no subsequent any manner constituted a punishable offence. Though the acts done subsequently to the unlawful marking may in themselves be far more deceitful and harmful than the mere marking, they do not fall within the operation of the statute, which as a penal statute must always be strictly construed, and be confined in its operation to acts which come plainly and literally within the meaning of the language employed.^ The damages which may be assessed and imposed as a penalty for any one offence are according to the statute " not less than one hundred dollars." When the courts of the United States were first called upon to construe the statute, the expression '* not less than one hundred dollars " led to the instruction to a jury that they were to find damages in not less than one hundred dollars for each offence, and as much more as they chose to assess.^ But, for the reason that the terms of the statute did not provide for any maximum limit of penalty, the courts soon departed from this liberal treatment of the statute, and held that no more than one hundred dollars should be assessed as the penalty for any one offence. In Stimpson v. Pond^ the matter was regarded as a question of doubt, although the court (Curtis, J.) was decidedly of opinion that the statute did not authorize the infliction of a penalty greater than one hundred dollars for each offence. Whether the weight of the mere opinion of so distinguished a judge, or the obvious perils of leaving so serious a matter as the estimation of the amount of a penalty to a jury, has influenced the courts does not appear; but all cases after Stimpson v. Pond have apparently proceeded upon the assumption that Mr. Justice Curtis's opinion was a sound one, and that the proper rule of construction of the statute in this respect is to restrict the penalty to the only precise sum named in the statute. This amount, if multiplied by a large number, representing suc- cessive fraudulent markings of unpatented articles, or markings without the authority of the true patentee, enables an informer to lay his damages or penalties in a very liberal sum. Doubtless the statute has appealed to some informers as an open road to great and sudden wealth ; for in recent years, when manu*- factured articles are produced by thousands by a single manu- 1 Pentlarge v. Kirby, 19 Fed. Rep. 501 ; Hotchkiss v. Cupples Co., 53 Fed. Rep. 1018. 2 Nichols V. Newell, i Fisher, 747. 3 j Curtis C. C. 502.
 * uttering " of the marks in another district than that of Ohio in