These verbal descriptions, applying so exactly to Mr. Evans' elevators, and the drawings exhibited to the eye, flash conviction both on reason and the senses that there is nothing new in these elevators but their being strung together on a strap of leather. If this strap of leather be an invention, entitling the inventor to a patent right, it can only extend to the strap, and the use of the string of buckets must remain free to be connected by chains, ropes, a strap of hempen girthing, or any other substance except leather. But, indeed, Mr. Martin had before used the strap of leather.
The screw of Archimedes is as ancient, at least, as the age of that mathematician, who died more than 2,000 years ago. Diodorus Siculus speaks of it, L. i., p. 21, and L. v., p. 217, of Stevens' edition of 1559, folio; and Vitruvius, xii. The cutting of its spiral worm into sections for conveying flour or grain, seems to have been an invention of Mr. Evans, and to be a fair subject of a patent right. But it cannot take away from others the use of Archimedes' screw with its perpetual spiral, for any purposes of which it is susceptible.
The hopper-boy is an useful machine, and so far as I know, original.
It has been pretended by some, (and in England especially,) that inventors have a natural and exclusive right to their inventions, and not merely for their own lives, but inheritable to their heirs. But while it is a moot question whether the origin of any kind of property is derived from nature at all, it would be singular to admit a natural and even an hereditary right to inventors. It is agreed by those who have seriously considered the subject, that no individual has, of natural right, a separate property in an acre of land, for instance. By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common, is the property for the moment of him who occupies it; but when he relinquishes the occupation, the property goes with it. Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from any body. Accordingly, it is a fact, as far as I am informed, that England was, until we copied her, the only country on earth which ever, by a general law, gave a legal right to the exclusive use of an idea. In some other countries it is sometimes done, in a great case, and by a special and personal act, but, generally speaking, other nations have thought that these monopolies produce more embarrassment than advantage to society; and it may be observed that the nations which refuse monopolies of invention, are as fruitful as England in new and useful devices.
Considering the exclusive right to invention as given not of natural right, but for the benefit of society, I know well the difficulty of drawing a line between the things which are worth to the public the embarrassment of an exclusive patent, and those which are not. As a member of the patent board for several years, while the law authorized a board to grant or refuse patents, I saw with what slow progress a system of general rules could be matured. Some, however, were established by that board. One of these was, that a machine of which we were possessed, might be applied by every man to any use of which it is susceptible, and that this right ought not to be taken from him and given to a monopolist, because the first perhaps had occasion so to apply it. Thus a screw for crushing plaster might be employed for crushing corn-cobs. And a chain-pump for raising water might be used for raising wheat: this being merely a change of application. Another rule was that a change of material should not give title to a patent. As the making a plough-share of cast rather than of wrought iron; a comb of iron instead of horn or of ivory, or the connecting buckets by a band of leather rather than of hemp or iron. A third was that a mere change of form should give no right to a patent, as a high-quartered shoe instead of a low one; a round hat instead of a three-square; or a square bucket instead of a round one. But for this rule, all the changes of fashion in dress would have been under the tax of patentees. These were among the rules which the uniform decisions of the board had already established, and under each of them Mr. Evans' patent would have been refused. First, because it was a mere change of application of the chain-pump from raising water to raise wheat. Secondly, because the using a leathern instead of a hempen band, was a mere change of material; and thirdly, square buckets instead of round, are only a change of form, and the ancient forms, too, appear to have been indifferently square or round. But there were still abundance of cases which could not be brought under rule, until they should have presented themselves under all their aspects; and these investigations occupying more time of the members of the board than they could spare from higher duties, the whole was turned over to the judiciary, to be matured into a system, under which every one might know when his actions were safe and lawful. Instead of refusing a patent in the first instance, as the board was authorized to do, the patent now issues of course, subject to be declared void on such principles as should be established by the courts of law. This business, however, is but little analogous to their course of reading, since we might in vain turn over all the lubberly volumes of the law to find a single ray which would lighten the path of the mechanic or the mathematician. It is more within the information of a board of academical professors, and a previous refusal of patent would better guard our citizens against harassment by law-suits. But England had given it to her judges, and the usual predominancy of her examples carried it to ours.
It happened that I had myself a mill built in the interval between Mr. Evans' first and second patents. I was living in Washington, and left the construction to the mill-wright. I did not even know he had erected elevators, conveyers and hopper-boys, until I learnt it by an application from Mr. Evans' agent for the patent price. Although I had no idea he had a right to it by law, (for no judicial decision had then been given,) yet I did not hesitate to remit to Mr. Evans the old and moderate patent price, which was what he then asked, from a wish to encourage even the useful revival of ancient inventions. But I then expressed my opinion of the law in a letter, either to Mr. Evans or to his agent.
I have thus, Sir, at your request, given you the facts and ideas which occur to me on this subject. I have done it without reserve, although I have not the pleasure of knowing you personally. In thus frankly committing myself to you, I trust you will feel it as a point of honor and candor, to make no use of my letter which might bring disquietude on myself. And particularly, I should be unwilling to be brought into any difference with Mr. Evans, whom, however, I believe too reasonable to take offence at an honest difference of opinion. I esteem him much, and sincerely wish him wealth and honor. I deem him a valuable citizen, of uncommon ingenuity and usefulness. And had I not esteemed still more the establishment of sound principles, I should now have been silent. If any of the matter I have offered can promote that object, I have no objection to its being so used; if it offers nothing new, it will of course not be used at all. I have gone with some minuteness into the mathematical history of the elevator, because it belongs to a branch of science in which, as I have before observed, it is not incumbent on lawyers to be learned; and it is possible, therefore, that some of the proofs I have quoted may have escaped on their former arguments. On the law of the subject I should not have touched, because more familiar to those who have already discussed it; but I wished to state my own view of it merely in justification of myself, my name and approbation being subscribed to the act. With these explanations, accept the assurance of my respect.
TO JOHN WALDO.
Monticello, August 16, 1813.
Sir,—Your favor of March 27th came during my absence on a journey of some length. It covered your "Rudiments of English Grammar," for which I pray you to accept my thanks. This acknowledgment of it has been delayed, until I could have time to give the work such a perusal as the avocations to which I am subject would permit. In the rare and short intervals which these have allotted me, I have gone over with pleasure a considerable part, although not yet the whole of it. But I am entirely unqualified to give that critical opinion of it which you do me the favor to ask. Mine has been a life of business, of that kind which appeals to a man's conscience, as well as his industry, not to let it suffer, and the few moments allowed me from labor have been devoted to more attractive studies, that of grammar having never been a favorite with me. The scanty foundation, laid in at school, has carried me though a life of much hasty writing, more indebted for style to reading and memory, than to rules of grammar. I have been pleased to see that in all cases you appeal to usage, as the arbiter of language; and justly consider that as giving law to grammar, and not grammar to usage. I concur entirely with you in opposition to Purists, who would destroy all strength and beauty of style, by subjecting it to a rigorous compliance with their rules. Fill up all the ellipses and syllepses of Tacitus, Sallust, Livy, &c., and the elegance and force of their sententious brevity are extinguished.