Wednesday, May 27.
Renewal of Whitney's Patent Right to the Cotton Gin Invention.
The House resolved itself into a Committee of the Whole on the bill "for the relief of Eli Whitney."
Mr. Bibb avowed his opposition to the principle and details of the bill, and moved to strike out as much as provided for renewing Whitney's patent right to the machine for ginning cotton. Mr. B. said, that, although the bill assumed the character of a private act, it involved considerations of great national concernment. If, sir, said he, the committee will take the trouble to consider it attentively, in all its relations, I am persuaded the motion submitted will not have been made in vain. The object of granting patents is clearly defined by the constitution to be the promotion of science and useful arts. The effect of such promotion is obviously the advancement of public improvement and prosperity. All the authority which Congress possesses over this subject, is derived from the following provision: "Congress shall have power to promote the progress of science and useful arts, by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries." Here are two distinct propositions: 1. The delegation of power to promote science and useful arts; 2. And a description of the mean authorized to be employed. The benefit proposed to inventors is evidently not the object in view, but the mean whereby the end may be accomplished; it is the incitement offered to genius and talent, for the purpose of general advantage; it is the price paid by the people of the United States for the disclosure of useful inventions. To legislate, therefore, correctly, on the subject, it is indispensable that this distinction between the mean and the object should be kept constantly in view. So long as patents are granted for the promotion of science and useful arts, the intent and meaning of the constitution are fairly pursued; but whenever they are allowed with any other view, there is a manifest departure from the limit of authority to which Congress is confined. Sir, the framers of the constitution were sensible that monopolies were odious every where, and that they would be particularly so to the people of this country. Hence the limitation imposed, which permits monopolies only in an expressly-defined case, and for a limited time. The constitution declares, that "all powers not delegated to the United States, nor prohibited to the States, are reserved to the States or to the people." It is also the rule of construction, universally admitted, that the enumeration of powers excludes all powers not enumerated. I maintain, then, that the constitution having clearly designated the object for which, and the parties to whom, exclusive rights may be granted, for limited times, Congress is restrained within those precise bounds. If there can be a legitimate departure from them in one case, the restraint becomes wholly nugatory. The doctrine which deprives Congress of the power to establish banking monopolies, equally forbids them in every case, and for every purpose, other than those specified in the clause to which I have adverted.
If, therefore, I establish the position that the proposed renewal of Whitney's patent is neither intended nor calculated to promote science or useful arts, I shall have succeeded in showing that this bill ought to be rejected.
Permit me to inquire, in the first place, how the object of the constitution may be attained? By pursuing the principle which has heretofore governed the Legislature. The statute securing patent rights must be general in its application, holding out inducements to the inventive faculties of all, and prospective in its operation. It must grant monopolies for a limited time to future and not past discoveries. The term during which the exclusive rights shall continue, should be sufficiently long to afford the necessary incitement to the exertions of genius, to promise an adequate reward for the labor of invention. Whether fourteen years, as now fixed by law, be the proper term, is a question on which gentlemen may rationally differ in opinion. It is worthy of remark, however, that under the existing statute, the progress of invention in the useful arts has been more rapid in the United States than in any other country on the globe. Still, if necessary, Congress is competent to extend by a general provision exclusive rights to future inventors for a longer time; but the renewal of a patent for a discovery already made and in use, stands on distinct grounds. In the one case, the progress of science and useful arts (the object for which alone patents are constitutional) would probably be promoted; but in the other, the invention being already made and disclosed, public improvement cannot possibly be advanced by taking away its benefit from the community. Is the object of this bill to promote science or the useful arts? The candor of its advocates will answer the question in the negative. It is to promote the interests of Mr. Whitney at the public expense—to convert the mean prescribed by the constitution into the end. If the renewal of a patent in a special case would furnish an adequate stimulus to the exertions of other ingenious men, it might be urged with some appearance of plausibility; but no man will assert that one or two accidental cases of this sort, out of the many thousand patents which are issued, would have any influence on the expectations of others. It follows, therefore, that the passage of the present bill will be a departure from the intent and meaning of that instrument, which is the fountain of our authority.
Sir, there is another view of this subject in relation to policy, to which I beg leave to ask the attention of the committee. In this widely-extended country, the pursuits of the people are various and diversified. In one section cotton is cultivated, in another hemp, and in a third wheat. Suppose patents are obtained for valuable improvements relative to these articles, either in the instruments of cultivation or of preparation for market. The patentees are entitled by law to exclusive rights for fourteen years. For the improvement concerning the article of cotton only, the patent is extended to twenty-one or twenty-eight years, as now proposed, while exclusive rights to the other inventions are permitted to expire. What is the consequence? The people of one section of the Union are subjected in their pursuits to the privations incident to monopolies, for that term; while those of another section similarly situated are exempted from all restraint at the expiration of the first patent. I appeal to the candor and magnanimity of this assembly to determine whether such a course of proceeding be not manifestly unjust, and utterly incompatible with that equality of rights guarantied to the respective States. The constitution imposes uniformity of taxation for the purpose of avoiding the injustice and oppression towards particular States, which the extension of patent rights, in special cases, is calculated to produce. The fact cannot be disguised, that the operation of this bill will be to levy a tax on the people of Georgia, the Mississippi and Louisiana Territories alone; and if it passes, it will be owing to that circumstance. I know enough of human nature, and have seen much in the course of my acquaintance with legislative proceedings, to satisfy my mind, that if cotton were cultivated in a few large States, this bill would certainly be rejected. Does any man believe that if the large States of Virginia, Pennsylvania, New York, and Massachusetts, were concerned in this thing, as are those portions of the Southern country I have mentioned, the application of Mr. Whitney for a renewal of his monopoly would be successful? No, sir; and I urge this consideration for the purpose of showing the impolicy of extending patents in special cases, inasmuch as it puts it in the power of Congress by such a regulation to give a preference to one section of the Union over another, and because the power will never be exercised in cases affecting a particular and comparatively small portion of the community. Enact a general law on the subject of patents—make what provision you please in relation to future discoveries, and none can complain. Whether improvements shall be made interesting to this, that, or the other section of the nation, will be left to chance; when made, the monopolies will be equal in their duration, and all will be equally exempt from partiality or oppression.
There is another aspect, Mr. Chairman, in which the provisions of the bill now before the committee are manifestly unjust. The Legislatures of Tennessee and the two Carolinas purchased, during the term of Whitney's late patent, the right of using in those States his invention for ginning cotton. The fact will not be denied, that the price paid was proportionate to the extent of time for which the patentee held the exclusive right. Now it is proposed to re-grant to Whitney the monopoly for an additional term of years, so far as relates to my constituents, while the three States I have mentioned are expressly exempted from its operations. It is true, the Legislature of Georgia did not enter into any arrangements with the patentee on the subject, but it will be perceived that all persons who erected machines without permission, during the fourteen years, are left by the bill subject to prosecution. The effect, therefore, will be to impose a restraint relative to the same object on one State for twenty-one or twenty-eight years, while other States are exempted at the expiration of half that term. I know, sir, that unfavorable impressions exist on the minds of many gentlemen concerning the conduct of Georgia in this affair; and I fear they may have much influence on the decision of the question. Whether the Legislature ought or ought not to have followed the example of the legislatures of other States, is a question which belongs exclusively to that body to determine. Your patent law imposed no obligation on the subject, and they had the right to do so or not, as they pleased. Having done nothing which they had not a right to do, and omitted nothing which they had not the right to omit, I cannot consent to any unauthorized control of this House over their proceedings. That Mr. Whitney's invention has been highly important to the Southern country I freely admit, and that he deserves much for his useful labors, none can deny; but, if the conduct of Georgia has not been so liberal towards him as some gentlemen think it ought to have been, an apology may be found in the resentment which his conduct was calculated to excite. When his machine was first erected in Georgia, as I have understood, he refused to sell his patent right upon any terms or for any price. It was determined to monopolize every pound of cotton at an enormous premium, and arrangements were made for that purpose. To that circumstance, and the opinion which prevailed, that the invention was not new, is to be attributed the course of proceeding, now made the subject of complaint. The imprudence of Mr. Whitney, or, perhaps, of his partner, could not fail to have produced feelings of resentment rather than of liberality towards them. I repeat, however, that the conduct of Georgia has no connection with the present question. The United States never guarantied to any patentee the receipt of any given sum for his invention, nor gave any pledge that his exclusive right should in no instance be violated. They have enacted laws for the security of patentees, provided a remedy for violations of their rights in all cases, and a tribunal before which that remedy may be sought. To that tribunal—the courts of the United States—Mr. Whitney should be referred for redress. This is not a time for exciting State jealousies and individual resentments among ourselves. Policy, and that conciliatory spirit which ought to guide our deliberations, unite in prescribing a different course, and I do trust that prescription will not be disregarded on the present occasion.
But, sir, there is still another and more important view of this subject, on which alone I probably might have relied. The patent of Mr. Whitney expired about four years ago, and an unqualified right to the invention was thereby vested (as I shall show) in the people of the United States. Under such circumstances, it is my purpose to prove the proposed renewal manifestly unconstitutional. I presume it will be admitted, that, without the provision of the constitution on the subject, and the law pursuant thereto, no exclusive rights would belong to inventors. It is true the inventor would be entitled to his particular machinery, but other persons would not be prohibited from imitating it, and consequently his right to his discovery would not be exclusive. In a state of nature, occupancy gives a right to soil, upon the ground of supposed labor on the part of the occupant in taking possession. The right and the occupancy, however, are inseparable. If the latter be abandoned, the former ceases to exist—the soil becomes common to all, and may be appropriated to another's use. The natural law in regard to inventions is the same. So long as the inventor is alone in the possession of a knowledge of his discovery, he is the occupant, and has an exclusive right. But the moment he discloses that knowledge to the public he abandons his occupancy, and the invention becomes subject to the use of others. This principle is recognized by the constitution itself, and fully established also in other countries. The express delegation of power to secure to inventors the exclusive right to their discoveries, admits that without it no such right would exist after disclosure. In Great Britain the doctrine is perfectly settled. If gentlemen will turn to the famous case of literary property, Millar vs. Taylor, which was argued with great ability, and decided with unusual deliberation, they will be satisfied of the fact.
The court were divided on the particular question pending before them, and gave their opinions separately and very much at large. On that occasion it was determined that the publication of a literary work did not of itself divest the author of the exclusive right, nor authorize others to republish it for their advantage without his consent. But it was admitted, as a point fully and entirely settled, that the principle did not apply to mechanical inventions; that the disclosure of a mechanical invention did divest the inventor of his exclusive right to such inventions, and that the public became entitled to all the benefits which could be derived from it. A later decision of the highest courts of the Kingdom on another case, has placed the question of literary property on the same footing with the mechanical inventions. The principle of these decisions is, that the disclosure of an invention amounts to a relinquishment of exclusive use, it is an implied right to the public. And if such be the doctrine in Great Britain, under a Government the foundation of which is monopoly and exclusive privileges, it cannot be otherwise among this people, the fundamental principle of whose Government is, equality of right and exclusion of monopolies. I contend, then, sir, that if the disclosure of an invention vests in the public a right to use it without restraint, much more strongly is that right vested after the expiration of a patent. In the one case the public are invested with a common or equal right by an implied gift, and in the other by contract. The very condition on which patents are granted is, that, at the expiration of the term authorized by law, the people shall be entitled to the free use of the invention; and, to secure this right to the people, such a specification of the machinery employed is required at the time of issuing the patent, as will enable others to understand and imitate it with success. Need I undertake to prove that, from the moment Whitney's patent expired, his exclusive right ceased to exist? None will deny the fact. Is it necessary to show that the right which was exclusive during the patent, is now the common right of all? It will be admitted that every man in the United States has at this moment as perfect a right to erect gins on Whitney's plan, as to build a house or make any implement of agriculture. The question then presents itself, has Congress the power to divest the people of that right? I say no, sir; to renew a patent after it has expired, is to establish a new principle unauthorized by the constitution. To secure a pre-existent right is one thing, but to divest the people of the United States of their right, and vest it in an individual, is quite a different affair. "Congress shall have power to promote the progress of science and useful arts, by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries." What is the import of this provision? An inventor while in the sole possession of the knowledge of his invention has the exclusive right to it, without the intervention of law; but when that knowledge is disclosed to the public, the exclusive right would cease to exist. Therefore, for the purpose of affording a stimulus to ingenuity, and of obtaining disclosures of useful discoveries, Congress is authorized to provide by law for securing that exclusive right for a limited time after disclosure, which previously existed in the inventor, and which enabled him forever to withhold his invention from the public. The disclosure is the great object to be attained; the security of the exclusive right before existing, but which would be lost without such security, by the act of disclosure, is the mean authorized to be employed. Is there no difference between protecting an existing right, and taking away a right from one party for the purpose of vesting it in another party? The States composing the Union are now entitled to the benefit of Whitney's invention, and may make whatever regulations concerning it, within their territorial limits, they please. Will it be said that because the power is delegated to Congress to promote useful inventions and to obtain their disclosure to the public, by holding out the inducement resulting from the security of a monopoly for a limited time, therefore the States may be constitutionally deprived of their unquestionable rights? Surely not. Hence, I conclude that the power of Congress over this subject has terminated by their own act, and that to resume it would be an unconstitutional encroachment on the rights of the respective States. Sir, the power given to Congress on the question of patents is similar in extent and in every other view to that which in England is vested in the King. He is empowered to grant patents for new and useful inventions for a limited time, but it is held that when that time expires, such inventions belong to the public. "If a patent be granted in case of a new invention, the King cannot grant a second patent, for the charter is granted as an encouragement to invention and industry, and to secure the patentee in the profits for a reasonable time; but when that is expired, the public is to have the benefit of the discovery."—10 Mad. Rep. 110. It is also laid down in Bull N. P. 76, that among the general questions of patents, the first is—"Whether the invention were known and in use before the patent." Such is the English law, and the statutes of the United States heretofore passed are founded on the same principle. The existing statutes make it an indispensable condition to securing an exclusive right, that the invention shall not have been "known or used before the application;" for a patent itself reads thus: "Whereas A. B., a citizen, &c., hath alleged that he has invented a new and useful improvement, being [here insert a description of the invention] which improvement has not been known or used before his application," &c. It is then perfectly clear, that our predecessors who have legislated on this subject considered a public disclosure of an invention an abandonment of all claim to the exclusive use; that they understood the object of the constitution to be the advancement of national improvement; and that when the public are in possession of any important discovery they could not be divested of it. Suppose the inventor of that useful instrument the screw-auger, who was an inhabitant of New England, and who never solicited a patent for it, should now make application. Your law excludes him because his invention is known and in use. And I call on gentlemen to show how the progress of science or useful arts, or individual justice, would be less promoted by granting a patent in that case, than in the present application. Certainly a man is not less entitled to the bounty of Congress who has given to the public the results of his labors, than he who has enjoyed the benefit of a monopoly for fourteen years; nor will it be asserted that the right of the community to an invention is less complete from the expiration of a patent, than from the bare act of disclosing it.
Mr. Seybert said he did not know that the bill for the relief of Mr. Whitney could be acted upon this day; indeed, it was not his intention to make any observations on the subject, until the motion for striking out a portion of the bill was made by his friend from Georgia, (Mr. Bibb;) he therefore hoped the House would pardon him for the desultory and confused remarks which he should impose upon the patience of the House. He came from a State whose interests were nowise concerned in this question, and therefore he stood as an impartial advocate in favor of the patentee; his feelings could not permit him to remain quiet on the question; by him the machine of Mr. Whitney was viewed as a stupendous monument of human invention—great mental exertion alone could produce results like this, and he appealed to the House as to the propriety of granting the prayer of the petition as reported in the bill. It was, he conceived, not a favor, but justice, which the passage of this bill would render to Mr. Whitney. If he was correctly informed, Mr. W. received but a trifling compensation for his labors; that, in the case of the State of Georgia, he expended $20,000 more in prosecuting law-suits, than he had ever been paid in that State. Mr. S. continued—he was informed that in South Carolina Mr. Whitney had met with some persecution; the assembly of that State originally purchased the right to use the machine for the sum of $50,000, which was to be paid by regular annual instalments. In the following year Mr. W. visited South Carolina for the purpose of receiving the second instalment, when, instead thereof, he discovered that a Legislature lately assembled had repealed the law formerly enacted on the subject; and, instead of receiving a second instalment, the Legislature ordered that he should be prosecuted for the recovery of that which he had before received. Mr. W. was saved from prison by the interference of some private gentlemen. [Here Messrs. Williams and Cheves rose, and in conversation explained to the satisfaction of Mr. S. that the statement made was not accurate; that the delay and difficulties caused by the proceedings of the Legislature of South Carolina, were owing to well-grounded suspicions, at that time, that Mr. W. was not the inventor of the cotton gin, and that he had in some respects failed to comply with the conditions prescribed by the law.] This explanation was satisfactory to Mr. S., and he observed, had he known in time that he would have taken a part in this debate, he should have considered it his duty to consult his friends from South Carolina on this subject. He further stated that Mr. W. had informed him that, in the final adjustment of this affair, the State of South Carolina had rendered him ample justice. He regretted the necessity of mentioning States in debate—he would quit this part of the subject, and proceed to communicate those facts which had made an impression on his mind in favor of the bill. He would first quote the authority of Judge Johnson in his decision of the case of Whitney vs. Carter. Here Mr. S. read as follows, from page [128]: "With regard to the utility of this discovery, the court would deem it a waste of time to dwell long upon this topic. Is there a man who hears us who has not experienced its utility? The whole interior of the Southern States was languishing, and its inhabitants emigrating for want of some object to engage their attention and employ their industry, when the invention of this machine at once opened views to them, which set the whole country in active motion. From childhood to age, it has presented us a lucrative employment. Individuals who were depressed with poverty, and sunk in idleness, have suddenly risen to wealth and respectability. Our debts have been paid off; our capitals increased, and our lands are trebled in value. We cannot express the weight of obligation which the country owes to this invention; its extent cannot now be seen." These were the sentiments of a gentleman residing in the State of South Carolina; from this their justness may be estimated. Mr. S. continued—he could not stop here. Foreign writers prove the absolute necessity of this machine, to bring the particular species of cotton to market, which constitutes nine-tenths of that which the United States could furnish. He would, in proof of this declaration, read from Edwards' History of the West Indies, vol. 2, page 265, as follows: "Green seed cotton is of two species; of one of which the wool was so firmly attached to the seed, that no method has hitherto been found of separating them, except by the hand; an operation so tedious and troublesome, that the value of the commodity is not equal to the pains that are requisite in preparing it for market. This sort, therefore is at present cultivated principally for supplying wick for the lamps that are used in sugar boiling, and for domestic purposes; but the staple being exceedingly good, and its color perfectly white, it would doubtless be a valuable acquisition to the muslin manufactory, could means be found of detaching it easily from the seed." Whilst the mind of Mr. Edwards was thus occupied in London, that of Mr. Whitney in the United States effected this valuable desideratum. Mr. W.'s machine was brought to perfection in 1792. Mr. S. dreaded the further fatigue of the House, but he could not refrain from stating some additional facts. Consult, said he, your Treasury reports, and there you will find that, in the year 1810, there was exported from the United States 93,000,000 pounds of cotton, of which 84,000,000 pounds was of the species mentioned by Edwards. Without the gin of Whitney, or some machine equivalent thereto, not a single pound of the 84,000,000 pounds could have been sent abroad—thus would the United States have found themselves deprived of the annual income of $15,000,000, without taking into view 16,000,000 pounds of cotton consumed in our country. Can we do too much for this man? Let us render him but ordinary justice and pass the bill. Let us, said Mr. S., consider the benefits resulting from the application of useful machines in Great Britain. Take a view of that of Arkwright. If, said Mr. S., his memory did not deceive him, in the year 1755 the cotton manufacture of Great Britain was ranked among the lowest of her domestic branches, and did not value more than £200,000 sterling annually; in 1809, that nation derived thirty millions pounds sterling from her industry in this way. England well knows her interest, and she fosters her arts. Let us in this respect follow her example, by doing justice to the genius of our countrymen. But for the spinning machinery invented by Arkwright, and the gin of Whitney, the cotton manufacture might at this time remain in a state of comparative obscurity. Very little will be observed on the constitutionality of the question. He would apprize his friend from Georgia of an error which he had fallen into, in confounding monopolies with patent rights. In the United States they were distinct things; and whilst on the one hand the Constitution of the United States has guarantied to inventors their inventions, in its spirit and letter it is opposed to monopolies. The renewal of a patent, said Mr. S., was not unprecedented, it was a common thing in England and France; and, in the United States, the cases of Evans and Whittemore furnished us with examples of the transaction by the Congress of the United States. Mr. S. said he would finish his remarks with the expectation that the House would pass the bill as reported.
The committee rose, and had leave to sit again.