Read the book: «Abridgement of the Debates of Congress, from 1789 to 1856 (4 of 16 vol.)», page 112

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.

Thursday, June 11

Amy Dardin

The House then resolved itself into a Committee of the Whole on the report of the Committee of Claims on the petition of Amy Dardin, that it is reasonable, and ought to be granted. After some debate, the committee rose, and reported their agreement to the report; which was, after debate, concurred in by the House. For the report 64; against it 42.

Monday, June 22

Additional Duties

An engrossed bill for imposing additional duties upon all goods, wares, and merchandise, imported from any foreign port or place, was read the third time, and recommitted to a Committee of the Whole to-day.

The House accordingly resolved itself into a Committee of the Whole on the bill; and, after some time spent therein, the Committee rose and reported the bill to the House without amendment.

Mr. Bigelow. – Mr. Speaker, it is well known that I have been uniformly opposed to the measures which have drained the Treasury of its money – more particularly to those measures of the present session, which have rendered necessary such large appropriations, and laid the foundation for an expense which no man can calculate. But, sir, as those appropriations have been made; as expenses have been and must be incurred; the means of payment must be provided. Sir, I hold it to be a sound political principle – a principle from which this Government never ought to depart – that the creation of public debt ought to be accompanied with the means of its extinguishment. This principle was strongly recommended in the administration of Washington, by the then Secretary of the Treasury, in a report to Congress on the subject of finance. He stated it to be the true secret for rendering public credit immortal, and expressed a fervent hope that the Government of the United States would always adhere to it. The arguments in favor of this principle are plain and obvious. The public credit must be supported, or the Government will lose the confidence of the people. The public credit must be supported, or you put at hazard the best interests of the country; you hazard, indeed, the very existence of the Government. In popular Governments there is always a reluctance to laying burdens upon the people. If, then, while creating a public debt, we neglect to provide the means of payment, what will be the consequence? Will it be less difficult or unpopular to do this after the debt has accumulated to an enormous amount? No, sir. Depend upon it, the longer you delay to provide the means for discharging the public debt, the greater will be the risk and difficulty of doing it. What will be the consequence of such neglect? Sir, the country will be deluged with Treasury notes; these notes will depreciate, like the old continental money – the whole history of which every one, acquainted with the history of the Revolution, knows to be a history of public and private frauds. Sir, the floodgates of corruption will be opened upon us. Already, sir, tigers and sharks are feasting, in anticipation, on their prey.

Impressed, as I am, with the importance of the principle, that the creation of public debt ought to be accompanied with the means of its extinguishment, I confess it was with no little astonishment I learnt, that doubling the duties on imported articles was the only means to be provided; that, after the House had solemnly resolved upon a system of taxation, embracing various subjects, and intended, as was stated, to equalize upon the people of the different States, as far as possible, the burden of taxation, that only one of those has been selected, and that one the most unjust, the most unequal, and the most mischievous of the whole. These remarks are not made, Mr. Speaker, from an apprehension that doubling the duties on imported articles will not effectually open the eyes of the people. Sir, it will be the most unpopular tax you can impose. The people of this country – particularly the eastern sections of it, upon whom this tax will bear peculiarly hard – are too enlightened not to know, to see, and to feel, the operation which an additional duty of 100 per cent. upon imported articles will have upon them. They are too enlightened not to know that this will be but the beginning of sorrow. Neither, sir, are they so ignorant as not to know that the five millions of dollars which it is calculated to raise by doubling the duties, will not discharge a loan of eleven millions, and Treasury notes to the amount of five millions more; much less that it will defray the expenses of the war. Yes, sir, they will at once see, that, sooner or later, other taxes must and will be resorted to. The true policy, then, of the United States is, in the outset, to lay the foundation of a sure and certain revenue, and not to depend, in a state of war, upon a revenue to be derived from a source so uncertain as that of commerce. My objection is not that revenue ought not to be raised, but to the present mode.

I have stated, sir, that this is an unjust measure. Let us for a moment look at its operation. There is, probably, at a moderate calculation, seventy millions' worth of imported goods now in the United States, which have paid only the present rate of duties. Taking the calculation of the Secretary of the Treasury as correct, that thirty-five millions of imported goods yield a revenue, at the present rate of duties, of five millions, the seventy millions now in the United States have paid duties to the amount of ten millions.

What then will be the consequence of passing this bill? The owners of the imported goods now in the United States are men who understand their own interest. The moment, therefore, you pass this bill, and impose double duties upon goods to be imported, the owners of goods now on hand will increase the price as much at least as the amount of the present rate of duties. The purchasers of these goods, therefore, will have to pay to the owners ten millions of dollars more than the present value. You will of course lay a tax of ten millions of dollars upon the purchasers and consumers of these goods, without benefiting the Treasury a single cent.

Does this, sir, comport with the principles of justice? Is it right to take from one part of the community ten millions of dollars and put it into the hands of another part? In opposing this measure, I am not advocating the interest of the merchant, but of the farmer, the tradesman, and mechanic. I am not willing that the people whom I represent, in addition to the taxes they must pay to carry on the war, should also pay such an enormous tax to the merchant.

Mr. Mitchill expressed his sentiments as being favorable to an augmentation of the duties on imports; though he was quite unprepared to give his assent to such increase in the terms proposed by the bill.

It is therein proposed, sir, to double the existing customs. I think this is not the best way of accomplishing the object intended. The bill is brought before us for the avowed purpose of raising money. The mode proposed is, by an addition of one hundred per cent. on the sums levied upon imported merchandise. Now, although I am friendly to a revision of our tariff, and to such an amendment of it as will materially increase the receipts at the Treasury, I am very far from believing the method now proposed for that purpose is the one we ought to adopt.

I object to the plan, because it takes for granted that the rate of duties now extant in our statutes is precisely what it ought to be. This I humbly conceive is not the fact. A brief recital of our commercial system inwards, will show it. The impost, until the adoption of the constitution of 1787, belonged to the respective States. When the Government went into operation in 1789, it took the direction and the profits of the custom-houses. One of the earliest acts of the legislators, which, on that occasion, assembled at New York, was to fix the sums which each denomination or parcel of foreign merchandise should pay on being admitted into our country. This was done, in the first instance, with all the skill which the patriotism and intelligence of the members of the first Congress permitted. From session to session, and from time to time, it was altered and improved. The last memorable amendment, was, if I recollect right, in the year 1804. Then, a variety of articles which had paid an ad valorem duty were specifically enumerated and charged with duties conformably. At that time our tariff was admirably calculated to answer its several purposes. Much thought and profound knowledge had been bestowed, to mature it, and render it as complete as possible. It was at that time peculiarly and happily calculated for the good of the nation.

But eight years have elapsed since that table of duties was arranged. During that term, prodigious changes have taken place in the commercial world. The principal part of the European Continent, from the Baltic to the Mediterranean, and from the Atlantic to the Adriatic, have bowed to the sovereignty of the Emperor of the French. He has published his modern and enormous tariff, and caused it to be enforced throughout his extensive dominions. Tobacco, cotton, and other great articles of American produce, have been subjected to excessive and almost prohibitory imposts.

Memorable alterations have been made, during the aforesaid period, in the insular tariff – I mean of the British dominions. Their regulations, as relate to lumber and the heavy materials of our growth, as well as to the exportation of their own manufactures, have been materially tightened and straightened. Their charges for convoy, port accommodations, light-houses, and quarantine, are exceedingly heavy. It is high time they should be examined, and thoroughly understood.

A great change has also taken place in the colonial system. France has lost Martinique, Guadaloupe, and the Isle of Bourbon. Neither the East nor the West Indies contain any provinces owing allegiance to the Corsican Emperor. All the rum, sugar, coffee, and molasses of those productive regions, were now English – and with the English nation we were now at war. In like manner, the Batavian colonies had been forced to submit to the Mistress of the Seas; and Guiana, the Cape of Good Hope, Batavia, the Spice Islands, and all the other foreign possessions of the Dutch, had yielded to her conquering power. All their productions were now Anglican; and we could only obtain them from or through an enemy.

Our own country had been transformed, during the last eight years, into a situation exceedingly different from what it had ever been before. It has taken many strides towards independence. The soil has been more profoundly explored, and found to contain innumerable and invaluable productions, which the mineralogist examines with pride, and the economist turns to profit. The forest and the fields have been proved to rear more indigenous plants, and to be capable of maturing more exotic ones, than any observer had supposed. And the arts, trades, and manufactures, which have arisen among us, have progressed with a thriftiness of which I can cite you no example.

Mr. M. then took a survey of the three great purposes intended to be furthered by the duties on imported merchandise. The first of these was the collection of money for the Treasury; the second, was the countervailing of other nations, by accommodating our duty to theirs; and the third was to protect our infant and growing manufactures. He contended that the mode proposed by the bill now before the House was very imperfect in all these relations. It was unskilfully devised. It did not contain those evidences of care and sagacity that ought to beam in every feature. He was not willing to legislate in this way – by a hop, step, and a jump. He wished the tariff to be varied in such a manner as to suit the actual state of things, and the existing condition of society and business. With such vast changes in the commercial and manufacturing departments, both at home and abroad, who could reconcile himself to a regulation, now antiquated, and differing almost toto cælo, from the real desideratum.

Double duties on articles where great value was united to small bulk, as in watches of gold and silver, and in precious stones, pearls and jewelry of all kinds, might be an inducement to smuggling. Already we know the temptation was too great to be resisted under the present duties, and if they were augmented to the amount proposed, what evasions might not be feared?

Mr. Bleecker. – Mr. Speaker: I was happy to observe on Saturday that the vote of the majority was not so uniform on this bill as usual. This circumstance very much fortifies the arguments urged against it on this side of the House, and proves that the opposition cannot be referred merely to the spirit of party. Indeed, sir, the objections to the increase of duty contemplated by this bill are so palpable and obvious to my mind, that I still hope it will not finally pass. It will be unequal and unfair in its operation in many respects. It will give a vast advantage to the merchants who now have goods on hand over those whose goods are not yet in the country, and which will be imported after the passage of this bill. The additional duty will by the former be added to the price of the goods, and thus an enormous profit will be given them. But this is comparatively a minor consideration. It is to be regretted, sir, that we have not a fair, just, and equal system of internal taxation, judiciously devised, with a wise reference to the feelings and temper of the people. But, in all our late plans and schemes, we appear to go on without any reference at all to the temper and feelings of the people. A revenue derived altogether from duties on imports must always be unequal in its operation on different parts of the country, and different classes of the community. There will be districts of the country – there will be whole States – in which manufactures will be carried on to a great extent; while other parts of the country, and other States, have few or no manufactures. In this respect there will be a serious inequality between manufacturing and nonmanufacturing States. Again, sir, it is said that the duty will be paid by the consumer. But it is not invariably true that the consumer pays the duty. The whole of it is sometimes paid by the consumer; it is sometimes divided between the importer and consumer, and not unfrequently falls altogether on the importer. This depends on a variety of circumstances – principally the state of the market. When the market is overstocked, a great portion of it must fall on the merchant. There must often be in this country a state of things which renders it difficult or impossible to add the amount of the duty to the price of the commodity. What the state of things, and what the market will be during the war, for which this revenue is to be provided, it is difficult to foresee; for what sort of a war we are to have, no one can tell. It will perhaps be another anomaly furnished by American politics. I believe, however, by the way, that gentlemen, who expect much of "the pride, pomp, and circumstance of glorious war," will be much disappointed.