Birdmen

by Lawrence Goldstone

  Judge Hazel himself was a questionable character. A high functionary in the political machine of United States senator Thomas Collier Platt and characterized in the newspapers as a “political henchman,” Hazel had been named to the bench at Platt’s behest by Ohio’s own William McKinley. The federal judiciary’s Western District of New York had been established by Congress on May 12, 1900, and Hazel, who openly sought the appointment, was tapped for the post five days later. Hazel had helped secure McKinley’s election four years earlier and was energetically engaged in a similar pursuit at the time of his nomination.

  The appointment was greeted with derision. The New York Bar Association “by an overwhelming vote” had declared him unfit for the bench, after an exhaustive search of judicial records that “could not find any reported law case in the argument of which Mr. Hazel took any part,” nor had he ever “at any time appeared in any Federal court on any question and had never taken part as a lawyer in any matter involving admiralty, patent, revenue, or bankruptcy law.” Even worse, he was found to have lied under oath concerning a $5,000 commission he’d received for brokering the sale of an overpriced yacht to the federal government after the outbreak of the Spanish-American War. The bar association, confirming the obvious, concluded that his nomination was simply “a reward for political service.”6 Hazel himself admitted that “he had not paid much attention to the law … he has been busy organizing victories for the Republican Party.”7

  Unconcerned with such niceties, Platt rammed Hazel’s confirmation through the Senate in executive session (so that no vote would be recorded), and he was sworn in on June 9, 1900.

  Not infrequently, a judge will be thrust in the middle of a great controversy ill-equipped to grasp the nuances but where his ruling would nonetheless become a vital part of jurisprudence. So it was with John R. Hazel, when the man who had never been part of a patent infringement case in his life sat on an action that would help determine the future of one of the most important technological innovations in human history.

  The automobile.

  In 1878, George Selden, a patent attorney, part-time inventor, and son of a prominent Republican judge in Rochester, New York, had succeeded in designing a one-cylinder internal combustion “road engine.” Although Selden’s construct was based on an earlier, inferior design, he filed for a patent that covered not only his creation, but any gasoline-powered internal combustion engine used on what would later be defined as an automobile. Selden was fully aware that his patent had no immediate application and so, without ever attempting to build an automobile himself, he repeatedly filed amendments to his application or took the full two-year allotment to reply to examiners’ inquiries, all to keep the process in limbo so that his patent would not expire before he could put it to use.

  Finally, in 1895, with automobile technology yielding practical results, Selden completed the process and was granted a patent. Four years later, the year after the Westinghouse case, still with no intention of ever building an automobile or even the engine specified in his patent, he sold a percentage of the rights to a consortium that called itself the Electric Vehicle Company, which proceeded to file infringement actions against every independent automobile manufacturer in sight. One of the suits, against the Winton Motor Carriage Company et al., was eventually heard in Buffalo by newly seated district court judge John R. Hazel. The defendants asserted that Selden did not, in fact, have a “patentable invention,” since by the time he finally allowed his application to go through, motorcars were being built in both Europe and the United States with an engine based on different design principles than Selden’s, which would prevent Selden from securing pioneer status.

  Hazel dismissed the defendants’ claims and, despite grounds that many experts in the field thought dubious at best, upheld Selden’s application of his patent to every internal combustion engine then in use. In the wake of the decision, most automobile manufacturers capitulated, thinking it cheaper to obtain licenses than fight the ruling.8 A group of them banded together as the Association of Licensed Automobile Manufacturers and paid a license fee on each vehicle sold—and George Selden became a wealthy man almost overnight. Selden even formed his own automobile company, but again did not attempt to produce an automobile.

  Some independents, however, refused to knuckle under. One of them was Henry Ford, at the time a small operator with a vision of affordable mass-produced machines. Where most of the others tried to keep a low profile, Ford openly flaunted Hazel’s ruling. He went so far as to take out advertisements promising to reimburse anyone who purchased a Ford product if the higher court’s decision went against him, for which he was widely hailed as a David standing up to Goliath.

  In 1906, Selden filed suit and in September 1909, just two weeks after Glenn Curtiss raced to victory at Reims, a federal circuit court in New York ruled against Ford and confirmed that legally George Selden was the true inventor of the automobile. The judge wrote that Selden’s patents “are so fundamental as to cover … every modern car driven by petroleum vapor as yet commercially successful.”9

  The Selden circuit court decision broadened the pioneer principle and almost certainly had direct impact on the terms under which the Wright Company was formed. Clinton Peterkin was simply too clever not to see the implications of a highly charged patent ruling handed down less than a mile from where he worked, and men such as J. P. Morgan and Cornelius Vanderbilt would well have understood the vast potential multiples to their investment engendered by a ruling of such sweep.

  Though the automobile fight was nowhere near over, Judge Hazel, political henchman though he may have been, seemed vindicated by the circuit court. And the ruling caused no public outrage. Theodore Roosevelt’s trust-busting notwithstanding, the mood of the day was hardly antimonopoly. The vast fortunes amassed by the very people who had invested in the Wright Company were widely seen not as the fruits of greed, but rather as engines of economic growth. Hazel’s decision, therefore, to grant a preliminary injunction to the Wright Company was neither surprising nor unpopular, except among the Wrights’ competitors.

  The very day Hazel issued his order in Buffalo but before it was published, Wright Company lawyers met Louis Paulhan as he stepped off the gangplank of the Bretagne in New York City. During the Hudson–Fulton meet, the Wrights had asked for an injunction to prevent Farman or Blériot planes from being brought into the country. The issue was unresolved—Blériot and Farman, who was by then designing, had sold planes to American enthusiasts, each of whom was fighting the Wright action—but Wright lawyers served Paulhan with a subpoena ordering him to appear in court on February 1 on the same suit. Paulhan had shipped two Farmans and two Blériots, which had arrived in advance. The subpoena would not prevent Paulhan from flying but would make him liable for royalties if the Wrights gained their order. The marshal didn’t speak French and Paulhan spoke no English, so at first the aviator thought he was being arrested.

  If Paulhan was annoyed at the misunderstanding, the following day he would be furious. Armed with Hazel’s newly issued injunction, Wright lawyers served Paulhan with another order, this one on January 14 to show cause on why he should not be restrained from making any flights in the United States. Paulhan, prototypically French, pulled himself up to his full five feet four, gave a dismissive wave, and stalked off, announcing that his American lawyers would handle everything. He then boarded a special Pullman car with Mme. Paulhan, Edmund Cleary, aviators Didier Masson and Eduard Miscarol, eight mechanics, and Escapade, his poodle, and headed for Los Angeles. Curtiss had left days before and so could not be served until he arrived on the west coast.

  Suddenly, the Los Angeles air meet, and the sizable sums invested by the city’s most prominent citizens, were very much at risk. Judge Hazel’s order seemed preemptory and absolute.

  There was near panic among the organizers but they had no choice but to push on and hope that some resolution could be found. Dick Ferris made certain that Los Angeles newspapers continued to
report on the preparations and the arriving aviators as if Hazel’s order did not exist, and the public bought in. Thousands upon thousands made plans to attend and the air meet was big news in the entire western half of the nation. Meanwhile, Wright Company lawyers issued a statement that Curtiss and Paulhan would be in contempt of court if they flew.

  The Wright Company’s legal attack might have been good business but it was abysmal public relations.10 It was one thing to try to prevent thieves from profiting from their crimes, if that was in fact what was going on, but it was quite another to cause enormous financial hardship to citizens of a city who had acted totally in good faith, to say nothing of depriving potentially hundreds of thousands of Americans of the chance to see an airplane for the first time. That the Wrights themselves had refused to fly in Los Angeles, as they had refused to fly in St. Louis, made them look all the more venal.

  Outrage stretched across the Atlantic. In France, Wilbur Wright was transformed overnight from hero and adopted son to scoundrel. “Aviators here characterize it as unsportsmanlike,” The New York Times reported, using a word with damning implications.11 Louis Blériot was quoted as saying, “It is regrettable that at the beginning of a science toward the development of which all the world should bend its efforts, inventors should put forth such unjustifiable pretenses in an endeavor to monopolize an idea, and instead of giving loyal aid to their collaborators to seek to trammel them as much as possible.”

  Henri Farman, who had just won the 1909 Coupe Michelin with a flight of 144 miles, echoed Blériot’s criticism, and also gave a hint of how French aviators intended to fight the Wrights in French courts. “The device for warping the wings of an aeroplane was used by Lilienthal in his gliding flights, by Herring and Chanute in America, and by [Clement] Ader in France before the Wright patents were obtained. The only exclusive feature the Wrights can claim is the simultaneous control of the torsion and rear rudder by the same level, and this is not possessed by our machine.”12 Blériot’s and Farman’s comments were met with almost universal acclaim in aviation circles.*3

  The French captured the public fancy in America as well. On January 7, when his train was passing through El Paso, Louis Paulhan endeared himself across the United States when he declared, “I am going to Los Angeles to fly.”

  The pressure finally got to the Wrights. The next day, January 8, after “a conference of attorneys,” Judge Hazel agreed to lift his injunction. Curtiss and Paulhan needed only to deposit $10,000 bonds with the court as security for the Wrights against future damages.13 The deposits were made and the meet was on.

  Wilbur also felt the need to make a public statement. Even then, he could not help but be inflammatory. Wilbur made it clear “that there would be no letup on the part of the Wright Company in prosecuting these actions,” and added, “We made the art of flying and all the people in it have us to thank for it.” Then he said, incredibly, “We spent every cent we had accumulated by years of savings, and we worked day and night for years amid the laughter of the world.”14 That Wilbur believed this fantasy, one he echoed often, is certain. But never in their years at Kitty Hawk or Huffman Prairie had they approached financial ruin and the world could hardly have laughed at experiments conducted in secret. Worse, while perhaps Octave Chanute had overstated his role in the Wrights’ experiments, for Wilbur to imply that he and his brother had worked without support was simply so false as to be insulting—as Chanute would soon point out, precipitating a rift that would endure until Chanute’s death. Wilbur then denied that either he and Orville or “the men of vast wealth” who invested in them had any interest in forming a trust, an assertion that flew in the face of their own previous statements. Although neither Wilbur nor Orville had ever spoken of their monopolistic aims to the press, they had expressed such sentiments widely both to friends such as Chanute and to associates in the affiliates with whom they had contracted overseas. That Wilbur would allow himself such ridiculous overstatement is testament to his indignation at having to back down in the face of adverse public opinion.

  To further fuel his anger, the Los Angeles air meet was an immense success.

  Although only some sixteen of the promised forty airplanes and airships were actually present and a number of those fell firmly into the crackpot category, including a five-winged monstrosity cobbled together by a science teacher at Los Angeles Polytechnic High School and an ornithopter constructed by a different teacher from the same school, the genuine aircraft that were present awed the quarter million spectators.*4 Lincoln Beachey’s older brother Hillery arrived with a “Gill-Dosch,” supposedly an exact replica of a Curtiss, but had difficulty rising off the ground.

  On opening day, Curtiss made the maiden flight and thus became the first man to fly an airplane on the west coast. But the crowd belonged to Paulhan. Making a surprise appearance on day one, Paulhan made three flights, the last of which stretched for almost thirty miles. He gave “a remarkable exhibition of control over his machine, gracefully making sharp turns, dipping almost to the ground, and scattering a group of frightened officers and skimming over the grandstand only a few feet above the heads of the spectators.” After a perfect landing, “Paulhan was cheered madly. Men shouted themselves hoarse while women applauded and waved handkerchiefs. Paulhan danced gaily into his tent.”15

  The next day and for the remainder of the meet, Paulhan and the Curtiss aviators dazzled spectators with feats most would have thought impossible. “Here, on historic ground,” Aeronautics trumpeted, “world’s records were broken and cross-country flights were undertaken that demonstrated beyond the question of a doubt the practicability of the aeroplane.”16 Among the many highlights: Curtiss flew fifty-five miles per hour with Jerome Fanciulli; Paulhan took up the army observer, Lieutenant Paul Beck, and dropped sandbags as simulated bombs; Paulhan, Curtiss, Hamilton, and Willard took off and flew together in an informal squadron; the three Curtiss aviators went aloft and chased one another around the field, dipping and diving over the grandstand; Paulhan succeeded in recapturing the altitude record by ascending to 4,164 feet; Paulhan made a cross-country flight, amazing the spectators by heading off to the Santa Anita race track and then returning, a distance of forty-five miles for which he won $10,000; he made a twenty-mile flight over the Pacific with Mme. Paulhan in the passenger seat; Mme. Paulhan ascended in a balloon; and Paulhan took Dick Ferris, Mrs. Ferris, and William Randolph Hearst up as passengers.

  On the final day, Curtiss and Paulhan staged a duel. Paulhan was flying for the endurance prize, Curtiss for speed. Paulhan started first in a Blériot, and Curtiss, in the smaller Rheims Racer, took off after him. By the third lap Curtiss had overtaken the Frenchman, the two airplanes coming over the grandstand “with the speed of express trains.” Curtiss easily won the speed prize, and also for quick starts, maneuverability, and perfect landings, but Paulhan won for altitude, endurance, and cross-country flying. In the end, Paulhan walked off with $19,000 in prize money, the Curtiss team more than $10,000. After the planes had landed, the meet ended with a parade featuring a wizened Oregon Trail veteran named Ezra Meeker in an ox-drawn prairie schooner, followed by “cowboys, burros, carriages, automobiles, balloons, dirigibles, and finally the various aeroplanes.”17

  Curtiss had one more show to perform. He told reporters that he was prepared to demonstrate that his airplanes did not rely on the same three-axis combination the Wrights had patented and he would prove it. He sent Hamilton aloft with the tail frozen and Hamilton, according to newspapers, “flew successfully … with the vertical rudder tied, demonstrating that the use of such a thing in the Curtiss machine was not necessary to its flight in order to produce an equal balance. It was pointed out … that even though there may be some similarity in the vertical rudders of the Curtiss and the Wright machines, Curtiss can successfully maintain perfect equilibrium, even though the vertical rudder be eliminated.”18 Lieutenant Beck, the army’s representative and Selfridge’s successor, later testified that the Curtiss system and tha
t of the Wrights differed both technically and functionally and that therefore Curtiss airplanes did not, in his opinion, fall under the Wright patent.

  With the closing of the meet, exhibition requests poured in. The next day Paulhan departed for a tour that would take him first to San Francisco and then east with stops all through the southern half of the United States; Hamilton would take the Rheims Racer to San Diego and up the California coast; Willard would head to Oregon and Curtiss back to Hammondsport.

  Beachey and Knabenshue had performed brilliantly in their exhibitions as well. They soared together and showed incredible control of the giant gas bags. Beachey won the dirigible race and Knabenshue finished second. The spectators were appropriately appreciative and the press appropriately fawning. But to Knabenshue and especially to Beachey, the realization that airships would soon be an outmoded technology was distinct.

  * * *

  *1 Cook’s claim to have reached the pole in April 1908 has never been either definitively verified or disproved. The following April, Robert Peary claimed to have reached the pole and that Cook was a fraud. Cook was also embroiled in a controversy over a possibly spurious claim to have been the first man to summit Mount McKinley. Peary and his supporters orchestrated a campaign to have Cook discredited, often bringing celebrities to support the Peary cause—Wilbur and Orville Wright, for example, attended a dinner in his honor. Eventually, Cook was declared a fake and Peary was given credit for the achievement. Years later, research demonstrated that Peary’s claim was likely bogus as well.