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legal title to warrant him in restraining the defendants; for the commencement of the title and the infringement appeared to be nearly contemporaneous. The real point of the case is one of great novelty, and one not hitherto known. It is new ; for supposing the plaintiff to show a long user by himself, his father and grandfather, all carrying on the same business in succession, the defence set up, namely, the right of the defendants to use not their own mark, but the mark of another nation. It seems, that if the defendants are using this mark, which is so similar to the plaintiff’s, for the purpose of fraudulently selling their iron as the plaintiff’s iron, then that the plaintiffs might restrain them, but otherwise not. The point is, however, still in litigation, and will shortly have to be decided. The principles to be extracted, after an examination of these cases, appear to be the following: First, that the first producer or vender of any article gains no right of property in that article so as to prevent others from manufacturing, producing, or vending it. Secondly, that although any other person may manufacture, produce, and sell any such article, yet he must not, in any manner, either by using the same or similar marks, wrappers, labels, or devices, or colorable imitations thereof, or otherwise, hold out to the public that he is manufacturing, producing, or selling the identical article, prepared, manufactured, produced, or sold by the other; that is to say, he may not make use of the name or reputation of the other in order to sell his own preparation. Thirdly, the right to use, or restrain others from using, any mark or name of a firm, is in the nature of good-will, and therefore goes to the surviving or continuing partner in such firm, and the personal representative of a deceased partner has an interest in it. Fourthly, that courts of equity in these cases only act as auxiliary to the legal right, and to prevent injury, and give a relief by account, when damages at law would be inadequate to the injury received; and they will not interfere by injunction in the first instance, unless a good legal title is shewn, and even then they never preclude the parties from trying the right at law, if desired.
Fifthly, if the legal title be so doubtful as not to induce the court to grant the injunction, yet it will put the parties in a position to try the legal right at law, notwithstanding the suit.
Sixthly, that before the party is entitled to relief in equity, he must truly represent his title, and the mode in which he became possessed of the article for the vending of which he claims protection; it being a clear rule of courts of equity, not to extend their protection to persons whose case is not founded on truth.
ART. III. — ON THE INFLUENCE OF CHRISTIANITY ON THE ROMAN LAW.
[Translated from Giraud's Introduction to the Elements of Heineccius.]
The establishment of Christianity has been described by Herder, with an epic movement and an elevated philosophy; and Chateaubriand has written some admirable pages on the struggle of the dying polytheism with the triumphant christianity. It does not belong to our modest pen to attempt such a subject; which would also be very remote from the end we have in view, namely, the influence of the christian faith upon the science of the Roman law, to which our present researches will be confined. We cannot even embrace all the parts of this vast plan, which comprehends an examination of the political state of the christian religion, considered principally under the relation of the rights and privileges accorded to the churches from the time of Constantine to that of Justinian; under the relation of the ecclesiastical government and its organization as a hierarchy; under the relation of the power and influence which the emperors preserved over the affairs of religion; and, lastly, under the relation of the civil constitution of the catholic faith, and of the incapacities inflicted upon those forms of worship which differed from the established religion. We might, perhaps, also examine the influence of the religious revolution upon the private condition of the adherents of polytheism; but so wide a circle would be too difficult to run over. We find ourselves obliged to stop at the precise point of the influence of christianity, as the religion of the state, on the theory and application of the ancient Roman civil right; at the same time, however, suggesting to those who would investigate this important matter, not to follow our example, or to shrink from the discussion of the historical questions which we have indicated.
We have spoken of the intimate union of the ancient religion with the law; and we have seen how, in this respect, the place of the religious principle was supplied by philosophy; when, as the former was falling to pieces in every direction, the latter was called upon to serve as a support to the edifice of the popular faith, and even to become a substitute for it. In these different positions, the law, emanating from the social religiosity, must be religious or philosophic; and, when society had ceased to be either polytheistic or stoic, and had become christian, the law must also become christian. But, still, the elements of the combination of the law with christianity were not the same as those of the stoic or latin combination. Christianity had not given birth to the social state in which its activity was exerted; its social work was not really developed until the middle ages. As to the ancient society, it was the daughter of polytheism, and it had attained to the utmost limits of civilization when the doctrine of Christ appeared. The ambition of the new religion was not to construct, but to appropriate to itself the constructions already made. Thus, therefore, considering the question only under the relation of the history of the law, christianity was not obliged, like the pelasgic or latin faith, to institute a civil legislation, at the same time that it organized its religious dogmas; but, on the contrary, it found in full vigor the most complete and the most learned system of laws that had ever existed. So vast and beautiful a conception could not be thrown aside; the existing law was adapted to the wants of the new state of society, and accommodated to the exigencies of the dominant faith; but this work of alteration was not easy. Whatever may be our opinion concerning the true character of the ancient mythology, there will be no disagreement on one point, namely: that the Roman or Greek faith addressed itself more to the imagination than to the soul, and, on the contrary, that the oriental religions were more extatic than poetic. This character of the polytheism of the west contributed undoubtedly to hasten its fall, when an epoch arrived in which society had other wants than those of the imagination; and it was also the same character which gave so great favor to the ideas of the east from the time of the first ages of the imperial period. From this period, we may remark a general tendency of mind towards the oriental dogmas, manifesting itself in the poets, the philosophers, and the jurisconsults. F. Schlegel and Nisard have pointed out this tendency in the literators of the period of the decline; Matter, in his History of Gnosticism, has traced it among the philosophers; we shall also find it in the Roman jurisconsults. But, we must take care not to draw the conclusion from this, that the christian theology was readily adopted by either; on the contrary, the jurisconsults and the philosophers were very hostile to the doc trimes of Christ.
The philosophers and the jurisconsults were divided from each other by a profound antipathy, - a true fanaticism of sect, —notwithstanding the common bond, which seemed calculated to unite them, the oriental tendency; for christianity, the child of the east, through the intervention of the gnostics, had been filled with the cosmological and theosophic speculations, which formed a considerable part of the ancient religions of Asia. The philosophy known by the name of new platonism, (from the element which predominated in it,) had received the tradition of the ideas attributed to Pythagoras, and carried into the west the systems and the ideas of the ancient east, from whence Plato himself had drawn his theories. The Platonicians of this period have played so important a part; their doctrines present so much variety and richness, and are connected with so many of the phenomena of religion and philosophy; their relations with the doctors of the christian church have been so intimate, and the influence of the one upon the other so profound; that the religious history of the first centuries of our era is to be found entire in the history of platonism. The new platonism, however, was very hostile to the growing christianity. It was this philosophy, which, under the emperor Julian, had a momentary hope of conquering Christ and of maintaining the popular belief, by giving new life to the latter, through the more spiritual sense which it lent to it, and by the alliance of contemplation. The animosity of the philosophers was so persevering, that Justinian was under the necessity of banishing them. It was nearly the same with the relations between the jurisconsults of the third period and the christians. The jurisconsults had not adopted the new platonism, but had remained faithful to the portico; and though they occupied themselves much with morals, the speculations of metaphysics had but little attraction for them. Hence we see pla