investigation and sent for the Attorney General and asked nim in,
and asked the witness to repeat the statement, and he did repeat the
statement, and he said that the Attorney General turned nis head
and looked out of the window and had no comment to make.

Mr. Lea. Who was that witness ?

Mr. Fauber. Thomas A. Hill, Woolworth Building, New York*
Mr. Frederick W. Barker, president of the Aeronautical Society, is
also a patent attorney, by the way.

I would call the attention of the committee to a very important
pamphlet published by the Aeronautical Society of America, called
the Journal of the Aeronautical Society of America, Volume H,
September, 1917. Appearing on the first page is the following:

Protest of the Aeronautical Society of America against the fonnation under Govern-
ment auspices of an aircraft trust, thestifing of the spirit of invention in Amcfica,
and the squandering of public money.



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AVIATIOH. 445

This pamphlet was written, as I understand, by Mr. Barker, and
Mr. Hill, both patent attorneys, but before they had seen the cross-
license agreement. It was obvious to them, as it is to any patent
attorney, that an a^eement in the nature of a cross-license agree-
ment would not be legal, because the National Advisory Committee
as a body had not the authoiity to pass on these patents; they were
not patent attorneys and judges; they were not a court of jurisdiction
on patents; but yet the cross-Ucense agreement by its nature makes
such patents fundamental in the art whether the patents have any
relation to the product which the Government is usins: or not, so
long as they bear the name of an aerot>lane patent. Furthermore,
the said pamphlet produced a letter from the Assistant Attorney
General, G. Carroll Todd, under date of August 16, 1917. which is
nearlv two months prior to the date of the Attorney GeneraVs opinion
on the cross-license agreement, in which the Assistant Attorney
Greneral says that **No such agreement as you describe has been
sanctioned by this department."

This letter and the pamphlet are proof of the fact that the Depart-
ment of Justice had notice of the nature of the cross-Ucense agree-
ment, and I think this pamphlet ought to be in evidence.

Mr. Lea. Well, of course, it may be that the author of that article
should be a witness here and that he rather than his written state-
ment should state his testimony before the committee. Do you not
think that a^eement is also possibly not lawful for the reason that
it is in restramt of trade ?

Mr. Fauber. Yes, I think that is probably true.

Mr, Lea. What do you think of the featxure of the agreement
which extends its operations for a period of 10 years or more, in
some instances longer, after the war is over ?

Mr. Fauber. I have not pretended to analyze the agreement from
the standpoint of an attorney as much as I have from a practical
standpoint, and the question as to how long the agreement might
run has never concerned me very much, because I have always felt
that the agreement would be invalidated before it had time to expire.

Mr. Lea. Do you not recognize a great difference in the agreement
as a reply to the necessity for quick action in war times and its
application under peace conditions ?

Mr. Fauber. I think it shows the agreement was not intended to
meet the emergencies of war; it was intended as a monopoly agree-
ment.

Mr. Lea. Assuming the agreement was improper, at any rate, so
far as the Government was concerned, they were trying to take
advantage of war conditions ?

Mr. Fauber. That is why I claim it was a treasonable conspiracy.
The men who put that over ought to be tried for whatever that crime
ought to be, if there is a crime, because I beheve they are responsible
for the lives of many men and for a trust which is a menace to the
United States, because here we have had within the past few months
a Government commission headed by Assistant Secretary Crowell,
accompanied by members of the Aircraft Trust, going to Europe to
find out what they can about the aeroplane art.

Mr. Lea. As far as you can, Mr. Fauber, I wish you would give us
what you might call specific evidence of the bad operation of this



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446 WAB JZXFEirDITUSBS.

agreement; the character of the agreement and its interpretation and
legal effects are shown by what we have got in evidence from the
Congressional Record. If you can, I wish you would show specific
facts bearing upon its op^ation.

Mr. Fauber. Bearing that in mind, I wish to introduce my testi-
mony with regard to my conversation with Mr. Curtiss, of the Curt3»
Aeroplane Co., because it is understood that any inventions are an
especial part of a new industry.

Mr. Lea. What is the substance of the conversation you had with
him ? You can refer to your notes there and make your own state-
ment, if you will.

Mr. Fattbeb. The substance of that conversation was that the
Curtiss Aeroplane Co. being infringers of my patent, Mr. Curtiss said
that he beheved that I was entitled to consideration; but he said the
trouble was that if under the cross-license agreement his company
paid me a substantial sum of money it was like making me a present
of so much money, because the cross-license agreement required
them to ^ive their rights under the patents without any remuneration.
Mr. Curtiss said he was not entirely sure about that, however, and he
would consult Mr. Russell, the president of the Manufacturers' Aircraft
Association, who is an officer of the Curtiss Co. and who was in the
adjoining office. Mr. Russell told him that he was correct. That
shows that the agreement operates to prevent inventors or manu-
facturers owning patents from collecting what is due them on their
patents.

Mr. Lea. That was on the assumption that they were using patents
to which you had the real right ?

Mr. Faubeb. Which he admitted; yes.

Mr. Lea. And he refused to pay you for them ?

Mr. Faubeb. That was his reason for not paying us, because under
the cross-license agreement he could not coUect from the members of
the association or reimburse himself for the patents.

Mr. Lea. However, if he violated your patent rights, your remedy
would be a suit against them ?

Mr. Faubeb. Yes; that remedy I have, but in that connection the
inventor has trouble a^ain, because it has developed that the Aircraft
Trust seemed to be able to use Government experts and Government
prestige to their advantage in litigation before the courts. As a case
m point I will refer to the case of Curtiss before Judge Chatfield, of
the United States District Court for the Eastern District of New York.
In this case I found the Curtiss Co. using a Government expert in the
aero-dynamical department of the navv yard at Washington to es-
tablish evidence of a technical nature, which I believe is not according
to the facts, and I have prepared an analysis of that case, which 1
have alreadv submitted to Judge Chatfield before whom the case was
tried, and it this committee cares to go into it I have a copy for their
consideration. That case, as between lawyers and experts, as near
as I am competent to judge, is purely a frame-up. Tnen it goes to
show that an inventor is handicapped in fighting the Aircraft Trust,
because they can use in a United States court experts of the Govern-
ment. Ihey have the privilege of sending their experts abroad with
the Assistant Secretary of War, and they have all the advantages in
the world which an ordinary person or corporation docs not Tiave.
The other side of this case is on record, and if this committee wants



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AVIATION. 447

to consider it all they have to do is to secure the records from Judge
Chatfield and put them in the hands of experts for comparison. If
I am wrong in my opinion, J am wrong.

Mr. Lea. That, oi course, did not involve any contract to whicTi
the United States was a party ?

Mr. Fauber. Absolutely not.

Mr. Lea. It would probably be outside of our jurisdiction.

Mr. Fauber. It was designed to get hold of a patent for strength-
ening the Aircraft Trust.

Mr. Lea. I see your position in reference to it. Now, if you will
look up the next point you have I would like to have you proceed.

Mr. Fauber. I understand from your committee, then, that you
would not care for a cony of my correspondence with the National
Advisory Committee and the Manufacturers' Aircraft Association ?

Mr. Lea. I would be very glad to have you leave that with us,
but not to put it in as evidence and have it printed. We would rather
have your own statement of the facts.

Mr. Fauber. I prefer to leave that elsewhere. That is the only
copy I have, and i am certain that in the Hughes and Thomas files
^ou will find a duplicate of this. If not I shafl be glad to furnish it
if you want it.

Mr. Lea. Well, I think that the one will answer our purpose, but
you see it goes back to that same proposition that we want your
statement in the record, but this might be useful for reference purposes.

Mr. Fauber. Yes; it is useful because it shows the attitude of the
National Advisory Committee in regard to these patents. It ako
shows the attitude of the Manufacturers' Aircraft Association to a cer-
tain extent.

Mr. Lea. If there is anything in that that you have not covered,
suppose you state it now, the substance of it.

Mr. Fauber. I will call attention to Dr. Durand's statement of
October 19, 1917, which is about four months after the date of the
cross-Ucense agreement. Dr. Durahd says:

It now appears that the Government is not at all likely to purchase any patents
whatever, but will, on the contrary, go forward and use such patents as may be desir-
able in the construction of aircraft, leaving the owners of such patents full right of
recovery through the Court of Claims.

I bring in that paragraph of this, as showing the attitude of the
National Advisory Committee soon after having given due considera-
tion to the Wright and Curtiss patents, that they were not ready to
consider the patents of others. This same letter contains Dr. Du-
rand's statement that his committee had considered the Curtiss

Fatents as fundamental in the hydro-aircraft art, which conclusion
must point out was entirely unwarranted and a decision which they
by law not authorized or had not the power to make.

Mr. Le^. In that connection the merit of that contract, if it served
a useful purpose, was in detenninincr the extent of liability and avoid-
ing litigation as to liability of the United States for the use of these
patents, was it not?

Mr. Fauber. It might have been that, to some extent. I do not
know. I think the United States ought to be subject to liabilities
to such inventors as have been damaged.



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448 WAB EXPENDITURES.

Mr. Lea. Your understanding is that if it was to accomplish that
purpose, it did not meet the end which was intended ? Is that true ?

Mr. Fauber. I do not think it did.

Mr. Lea. It only partially covered the uncertainty in that respect.
It did not affect patents of independents. It left that still a matter
of controversy for future determination ?

Mr. Fauber. Yes.

Mr. Lea. Will you go ahead now in your own way?

Mr. Fauber. I understand that your committee is going away soon
and that there will not be much done for several months.

Mr. Lea. We expect to take testimony on many matters. We are
only in the initial stages of this investigation and we wanted to get
as complete a statement from you as we could at this time.

Mr. Fauber. I do not think I have anything more to state now.
If you have any further questions to ask I will be glad to answer
them. Of course, there are a great many thir^ I might talk on, but
we have not the time to cover them, so I do not see that it makes
much difference just where we stop

Mr. Lea. We have obtained the substantial features of your
information about this, have we not ? Of course, I realize there may
be many circumstances or features that tend to throw light on it, but
have we not gotten the basic principles involved here ?

ifr. Fauber. You have some of them certainly. I think, perhaps,
if you would include my papers you would have practically all I
to say, but I can not say from memory whether you have it all
or not.

I want to call attention to a copy of my letter sent to the Presi-
dent of the United States under date of May 11, 1918, and a tele^am
f receding such letter, dated May 7, and I do this because in this letter
have referred to what I believe are groimds for a chaise of collusion
or conspiracy, what should receive a most impartial investigation,
and as this was just prior to the Hughes's Department of Justice
investigation, I sent a copy of this letter also to Judge Hughes.

Mr. Lea. In substance, you call the attention of the President at
at that time to the situation about which you have testified here
to-day ? Is that correct ?

Mr. Fauber. That is what it amounts to, in general substance.

Mr. Lea. You will receive a copy of your testimony and if there
is any specific evidence that you want to call attention to, that you
have omitted to-day, 1 will be glad to have you mention it to me.

(Thereupon at 12.30 o'clock the committee took a recess until 2
o'clock p. m.)

AFrER RECESS.

The subcommittee reconvened at 2 o'clock p. m., pursuant to the
taking of recess.

Mr. Frear. It appearing that one of the members of the subcom-
mittee desires further to cross-examine Gen. Menoher and Gen»
Foulois, the chairman makes the following statement:

The Thomas hearings, which covered about three or four months,
and the taking of testmiony of about 200 witnesses, were conducted
by a Senate committee, Senator Thomas and Senator Reed perform-
ing practically four-fifths of the examination, so far as the record



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AVIATION. 449

shows. The report based on those hearings stated that ''a substan-
tial part" of tne $640,000,000 appropriation then made had been
wasted and that no fighting or bombing aeroplanes had reached the
fighting front at the time of that investigation, and the report was
dated August 22, 1918. None ever reached there from this country
at any date, according to all testimony.

In those Thomas S^ate hearings, no attempt apparently was made
to cross-examine witnesses. In me Hughes investigation, conducted
during the spring months, Mr. Hughes conducted the entire exami-
nation of nearly 300 witnesses, wiui the Attorney General at hand,
and no cross-examination of witnesses or inquiry whatsoever was
made by the Attorney General, who was present in person or by
assistant at all hearings.

This present investigation seeks to ascertain the truth of the find-
ings in the Hughes and Thomas reports, and to determine what
additional matters relating to aircraft are of importance for the Con-
gress to consider. No ruvestigation by congressional committees in
recent years has yet been called to the chairman's attention in which
cross-examination of witnesses before a committee has followed the
general examination of the various witnesses. A difficulty found in
carrying on an investigation at this time, wherein requests have been
had for the separate examination of possibly several hundred witnesses
before the conclusion of hearings raises the question of whether or not
the subcommittee can conduct examinations under present methods
within a reasonable period of time, so as to report to Congress. At

E resent rate of progress it would take many montiis, great Tabor, and
urge expense to pursue present methods.

Any member of the subcommittee has a right to cross-examine upon
any material point if he choses to do so, me same as in a law pro-
ceeding, providiQg the facts are not clearly developed, and that right
will not be gainsaid by any other member of the committee. In the
examination of Gen. !Pa trick, the record shows, as nearly as*can be
ascertained, that the cross-examination occupied a period of between
one and two hours.

In the examination of Dr. Christmas 35 pages of the record are
consumed in the cross-examination conducted oy a member of the
committee. In the examination of Gen. Foulois yesterday consider-
ably over an hour was consumed in cross-examination, and that
cross-examination has not yet been concluded.

The chairman wishes to express at this time his absolute confidence
in the purposes of every member of the committee and his belief that
they are acting within their rights in cross-examining any witness,
although the course is im{)recedented in congressional nearings. On
the other hand, the necessity for securing an end to the hearing com-
pels some other poUcy be pursued, and it is suggested that the chair-
man will conduct separate examinations, at whi^ any member of the
committee may participate, and a reasonable time be allowed for fur-
ther examination of any witness; and any member of the committee
may continue cross-examination as long as he chooses, but with the
understanding that the chairman or any other member of the com-
mittee will undertake to examine witnesses as rapidly as possible, in
order to present the facts, and complete the record with least prac-
ticable delay.



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450 WAB BXPBNDirnBBS.

Participation is invited in all such hearings by any member of our
committee. In any event, nothing will be done to curb examinations,
however extended, excepting that the chairman or other members
of the committee will proceed with new examination of such new
witnesses as may be available without undue delay. At this time
the chairman desires to absolve any other member of the committee
from any intent to purposely interfere with or delay the examination,
but it is purely a question of policy in reaching an end with witnesses.
The investigation, in other words, first conducted by the chairman
under the rule, is to be a hearing to ascertain what witnesses know and
will testify to briefly, for the benefit of tiie committee. This b not a
trial court for the purpose of persuading a jury. Testimony is de-
sired for information of committee on wmch to base a report to Con-
gress. With that end in view and for the purpose of examining the
lai^e number of witnesses that will be called oefore the committee
beiore the end of these hearings, it is suggested that this policy be
pursued hereafter if necessary to do so.

Mr. Lea. I would like to make a statement in response to the sug-
gestion of the chairman. Manifestly his reference to the cross-
examination by another member of the committee referred to mr
own cross-examination. I do not regard that as any personal re-
flection upon myself, but I am not in harmony with the suggestion
of the chairman.

In the first place, I assumed a responsibility in goin^ upon thb
committee, as did the other members, and that responsibility is to
get at the facts in this case. I shall never be in favor of curtailing
the time devoted to this investigation for the mere purpKwe of saving
time. I believe it necessary to exercise the patience and the indus-
try necessary to develop the complete facts in order to have an invi»<*-
tigation and arrive at results that will in the end be most satisfactory.

Cross-examination is universally regarded by all persons familiar
with investigations and court procedure as the ^eatest developer of
truth known to Anglo-Saxon methods of jurisdiction. It is true. I
presume, that in the Hughes investigation Mr. Hughes conducted
practically the whole examination. But I call attention to this dif-
ference in the situation: The Hughes investigation was stricthr a
nonpartisan investigation and as free from political influences as* an
investigation could be. Here we have a oipartisan investigation.
Personally, I am inclined to believe that pernaps Congress made a
mistake in making it a bipartisan investigation. I think an investi-
gation similar to the Hughes investigation would have been a prefer-
able method of developing the facts and the results that would have
been accepted by the country as a correct disclosure. However. I
do not wish to be understood as impeaching in any respect the atti-
tude of my fellow inembers in this committee. Mr. Frear and Mr
Magce have been painstaking; they have been courteous to me; and
Mr. Frear has been tireless m his energies. I am casting no reflec-
tion, but, without any reflection upon their motives, I believe th«*
bipartisan situation that is presented shows the necessity for a justi-
fication of cross-examination.

It is not my purpose to delay the revelation of the truth by this
committee for one minute or for one hour, and I only want to use thi^
right of cross-examination so far as in my judgment is necessary to
properly develop the facts.



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ATIATIOK. 451

Now, I do not like this sTstem of dividing the hearings, because I
think the examination should be conducted when Mr. Frear and my*
self are both present and both have the opportunity of examination.
I should not like to be deprived of that right to be present when Mr.
Frear is taking evidence. I do not say that because of any reflec-
tion whatever upon Mr. Frear, but I believe, in accordance with the
well-known methods of producing evidence and arriving at the facts,
what might be called the two conflicting interests should be present.
I am willing to try to facilitate the work of this committee in every
proper way by limiting cross-examination just as much as I think
18 consistent with my duty and responsibility, and I deplore the idea
of separating the examination of witnesses and depriving members
of the committee of the opportunity of jointly hearing the testimony
of any witness where it is so desired.

My suggestion to Mr. Frear at this time would be that he proceed
by tne method we have followed heretofore, temporarily, and in the
long run he will not find me a lengthy cross-examiner. In fact, all
my record as an attorney in California is to the contrary. I think,
perhaps, he will be satisfied to go ahead if he will just oe patient a
day or two longer.

Mr. Frear. In response let me say that the personal relations of
Mr. Lea and myself have been of the pleasantest character for many
years when we nave been associated on committees together, so there
can not be any possible question about that. He faus to recognize,
however, the difference between an investigation and a trial in court.
The Thomas investigation, which he neglected to speak of, was one
in which a majority party practically conducted the examination
without suggestion of cross-examination. Their findings were di-
rectly in line with the findings that we are investigating to-day. If
there was a disposition to delay this investigation, it could readily
be done by the plan suggested just now by my colleague.

The record as made will be submitted and placed in the hands of
any member of the committee, ajid any witness will be recalled as
often as may be desired for the purpose of reexamination or cross-
examination at any time, but the prospect which confronts us now,
with two generals m the room, both waiting to be cross-examined by
my colleague, Mr. Lea, when the chairman of the committee desires
to bring out additional matters with other witnesses, and when we
are practically at the conclusion of our examination in Washington,
shows the difficulty that will constantly arise xmless some other policy
is pursued. This is emphasized by the fact that Gen. Foulois was
under a cross-examination yesterday of between one and two hours
and it is to be continued.

I may repeat that in all my examination of investigations, never
before have I been confronted- with the fact that cross-examinations
are conducted as in a court of justice. Unquestionably a short exami-
nation ought to be made by every member of the committee, if neces-
sary, to secure what he believes are any additional facts, if they are
not presented in the orig:inal examination, but a cross-examination,
which, with several witnesses, has reached an hour and a half
to two hours in each case, and is at present without end, certainly
calls for other methods in the future, if we desire to get at the truth,
if we desire to reach onenquarter of the witnesses we are asked to hear.
Some means of permitting the chairman, or anyone else connected
147155— l^—vot 1 30



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452 WAB EZPEKDITUBBS.

with the committee, to carry on examinations must be devised, with
the underotanding that cross-examination will be permitted at
another time, at the conclusion of that examination, or by a member
of the committee alone if he so prefers. Whether any member of the