CONTROL of new varieties by the originator has been a prolific source of discussion for a few years. Inventors are protected by patents and authors by copyrights ; should not originators of varieties of plants be similarly protected ? The question seems, at first to admit of but an affirmative answer. But there are differences between plants and books or tools.

The earlier movement designed to protect the originator was in the direction of a patent for new varieties. This movement looked upon varieties as inventions, and for this reason possesses elements of fatal weakness. It is a fact that nearly all new varieties are mere accidents to the "originator," who either picks them up in a chance fence-row or finds them among a miscellaneous batch of seedlings. The "originator" is usually a mere "finder," and he may as well claim a patent for the invention of a white raspberry or double hepatica which he may find in the woods, as upon a new peach found in his hedge-row. When the time comes that men breed plants upon definite laws, and produce new and valuable kinds with the certainty and forethought with which the inventor constructs a new machine, or an author writes a book, plant patents may possibly become practicable.

It is true, however, that the original proprietor of a new variety should be in some manner protected.

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One of the most important steps yet taken in this direction is the proposition to devise a national register of plants. This scheme originated with A. L. Bancroft, of San Francisco, and it has been adopted and advertised, together with a plan of propagation rights, by a joint committee of the California Horticultural and Floral societies. Essentially the same idea has been put into form by the present writer, and lists have been published which may "serve the purpose of the certificates issued for new varieties by the Royal Horticultural Society in England, and by similar organizations in other countries." Mr. Bancroft's plan of registration appears to be too heavy and cumbersome; and the same may be said of the proposed federal law to secure a propagation right to the originator or introducer.

The proposed legislation to protect plantsmen and growers possesses the fault of all attempts yet made to secure protection for the originator - the absolute impossibility of determining what a variety is and if it is entitled to be styled a novelty. There are hundreds of varieties now upon the market upon which no body of judges, even if expert horticulturists, could agree as to their distinctness from older sorts. A character which is regarded as worthy varietal recognition by one man is disregarded by another. In one soil, or under one treatment, a plant may be very different from one of the same stock grown under other conditions. Some contend that, among fruits, a seedling is always a distinct variety, no matter if its characters are identical with those of an older sort. This opinion is vehemently maintained by one of the earlier agitators for plant patents. But even if this position is correct, there are hundreds of instances in which the origin is wholly unknown, and which cannot, therefore, be brought as testimony.

In fact, there are scarcely any two horticulturists who hold the same views regarding the limitations of varieties; and it is a fact that the limits constantly become more obscure the longer one studies varieties, a fact which the horticulturists of the experiment stations are rapidly learning. If this is true of men in the business, what can we expect of others who might be called to judge if varieties are infringements? It is extremely doubtful if Congress could ever be persuaded to pass such a law. To this objection some have replied that there is also great difficulty in determining merits of new machines, but the patent law is not invali-. dated for that fact. But this statement does not satisfy the question. A machine is the same in Maine and California, while a variety may be different on adjacent farms.

It is possible, it seems to me, to secure protection under existing laws if the registration of varieties is once secured. Trade-marks, trade-names, and brands are now protected. The name of a variety, once used in trade or admitted in a national register, becomes a trade-mark, with inviolable rights. This name could not be used to designate other varieties, and so long as the variety could not be admitted to the register under any other name, the originator would be tolerably secure.

This might not prevent the re-naming of the variety by obscure persons, in defiance of the national register, but those who steal varieties heed also to steal the best known name as an advertisement. If this scheme would not entirely overcome risks, it would at least reduce them to a minimum and would result in as thorough protection as could possibly be secured by any special law. An organized effort strong enough to effect a registration of plants would find little difficulty in discovering tricksters. The originator should secure a certificate of registration, and the public would very soon learn to buy only of those who hold one. Sale of the right to use the name or trade mark should be recorded at the office of registration, so that all stock could be traced to its source. This is an imitation of the registration of domestic animals. There is no law to compel one to register an animal, but every breeder knows that it is only through registration that he can advertise, sell and protect blooded stock.

And there is no intelligent purchaser who would think of negotiating for such stock without having obtained the testimony of the herd-book.

To be sure, this plan would not remove the difficulties concerning the limitations of varieties, but it would place the definition of varieties upon the experts in charge of the national register, rather than carry it into court. In fact, it would prevent all litigation, for all varieties admitted to the register would be legitimate, and for all others protection could not be expected.

The solution of the whole matter is exceedingly simple. Let a register of cultivated plants be instituted at the Department of Agriculture. Then let the originator send to the Department a specimen, description and, perhaps, picture of his novelty ; if the variety appears to be a new one, a certificate of registration is issued for it. If the originator chooses to sell his stock to dealers, let the fact be recorded, and a record of transfer be issued to the purchaser. If the originator desires to control the propagation of the variety, he can do so for any length of time by specifications in his contracts with dealers. It is evident that after a variety is put upon the retail trade, it becomes public property, and no statute could further protect it. When a man buys for the purpose of planting, he buys also the privilege of selling the fruit or other commercial portion, and this portion is often the very one used for propagation of the particular variety. No law could prevent the propagation of melons and most other vegetables when the varieties are put upon the market, even were there no "common rights " at issue.

An eastern nurseryman has already secured a copyright upon the name of a new grape. With the aid of a register to record his variety and others, he would be practically secure. In fact, he finds himself secure even now. The register, as we have suggested it, is not a burdensome affair, although objection has been raised to registration for the very reason that it would entail so much expense. A list of American kitchen-garden vegetables, comprising 2,696 entries, is made by a private individual in the "Annals of Horticulture," and the greater part of the work lay in revising the names. And the same volume makes a catalogue of the introductions of 1889, which is certainly very nearly complete, comprising 444 entries. These lists are the first attempts yet made toward a registration of plants. If the fuller register is ever made by the Department of Agriculture, descriptions will have to be added, but one clerk could perform all the labor required after existing varieties were entered.

All this needs no memorial to Congress, no great machinery, no new law. It is in every way feasible and practicable, and no doubt a mere petition to the Secretary of Agriculture by the leading horticultural organizations would effect its execution. On the other hand, it is probable that Congress would never pass the laws proposed. If they should exist, they could never be enforced, and they would be so cumbersome, circuitous and tedious as to fall of their own weight; and it should be borne in mind that all special protection is likely to increase prices to such an extent as to greatly lessen its sale or to impose unnecessary burdens upon the planter. L. H. Bailey.

A mere relator of matters of fact is fit only for an evidence in a court of justice.

- SHENSTONE.

The Editor's Outlook.