After having said that the property of invention is in every respect

similar to property in the soil, M. le Hardy de Beaulieu places,

nevertheless, boundaries to the extent and duration of the first. He

says: “It is not meant precisely that property in an invention ought

to extend over the globe, nor that its duration should have no limit in

time; all property, in fact, is bounded by the cost of preservation,

maintenance, and working, which it requires, already, long before the

limit of space or time when the produce of the property no longer covers

the expense, the proprietor does not require to defend it against

seizure, and from that time it becomes public property.”

It follows that property of invention is not identical with property in

land or other material objects. A diamond which belongs to me in any

corner of the globe, the cotton stuffs which I have sent to Bombay or

Saïgor, are still my property until I have voluntarily ceded them. My

descendants, or those of some rightful owner, will cultivate in four or

five hundred years or more the field which I may now possess. There is no

limit of time nor of space for real property; it remains for ever.

V.

The whole history of humanity protests against this assertion of M.

le Hardy de Beaulieu, that inventions “being realisable only on the

condition of a just remuneration, sufficient for the exceptional work

which they require, and of a compensation in proportion to the risks they

cause, property in them, which alone can assure this remuneration and

this compensation, is necessary.” Let us remark, first, that by a just

and sufficient remuneration he probably means a special, exceptional, and

exclusive one.

We will now ask it to be observed that man’s most indispensable and

useful tools were invented, and were everywhere in daily use, many years

or centuries before there was any question of property of invention. We

shall only cite the hammer, the file, the saw, the screw, the pincers,

the plough, spades, needles, &c.

Did any of the inventors of these tools take out a Patent? Did he who

first put a shoe on a horse claim a property in the idea?

All the great inventions, with the exception of a few of the most modern,

and for which it was not possible to take a Patent, date from the

earliest times. Who, then, invented the art of smelting the ores of iron,

copper, lead, and tin? of making malleable iron and steel? When did man

first invent the manufacture of glass, of pottery, porcelain, paper, ink,

boats, and carriages?

Railways existed in a rudimentary state in the coal mines of

Northumberland and Durham long before Patents were dreamed of. Printing

and gunpowder appeared in the world without the guarantee of Patents;

so also with the tanning of hides, the spinning of thread, weaving,

dyeing, printing, &c. The electric telegraph is the result of a series of

studies, and of the social capital of knowledge which these studies, and

others foreign to the object as it were, have formed. Patents or rewards

which have since been granted only concern modifications, more or less

ingenious, of the original principle.

For what are inventors now doing? Without seeking in any way to detract

from the merit of their labours, we may boldly assert that they modify in

a profitable and economical way the older processes; instead of welding

iron, they roll it; instead of the cold, they use the hot blast, in

smelting.

To the tanning of hides they add currying, shamming, graining, polishing,

&c. Are these services which cannot be sufficiently rewarded in the

free working of the idea? Are they services which exceed by a hundred

cubits those rendered by great manufacturers, large capitalists, intrepid

seamen, or profound thinkers? And if, carrying out the argument of M. le

Hardy de Beaulieu, we should say, credit being necessary to the progress

of the community, and being realisable only on condition of a just and

ample remuneration for the exceptional labour which it requires, and of

a recompense proportionate with the risks incurred, the community ought

to grant to the bankers exceptional rewards, or assure to them a special

and perpetual privilege,—should we not be going on the premisses of the

learned Belgian Professor?

No doubt that branch of credit, the issue of notes, is at present allowed

in many countries to the great privileged banks; but may not the same

arguments apply to discount, the receiving of deposits, quite as well as

to the issue of notes?

VI.

To admit, with M. le Hardy de Beaulieu, “that the rights of inventors

are useful even to non-inventors,” we must allow that the progress of

invention would be stopped if the privileges guaranteed by Patents

were withdrawn. Now, we have already said that all human history up to

a very recent period demonstrates the weakness of the assertion. Man

has invented from the time he began to think and compare, and he will

continue to invent while he exists on this planet. Invention is nothing

else than thought.

If, as M. le Hardy de Beaulieu says—but which we doubt—there be no

fear that property in invention allows the inventor to exact for his

services a higher price than they are worth, neither need it be feared

that the absence of this right of property would hinder the inventor

from obtaining by his discovery all the profit which he has a right to

expect from it. This fear would only be justified in the event of his

being deprived by law of the right of using his own discovery. Now, this

right remains intact; only it is not exclusive. If the inventor saves

labour or outlay, the inventor will profit by this saving, like his

neighbours; he will profit by it before his neighbours; he will profit by

it exclusively so long as he can keep his secret, and while his opponents

are establishing rival works on the same principle.

M. le Hardy de Beaulieu tells us that the inventor can never take

advantage of his property to hold an unjust and injurious monopoly.

We will quote one example of a thousand from M. Louis Reybaud’s excellent

work on wool. Speaking of the wool-carding machines, the learned

Academician thus writes: “There may be cited twenty names engaged

in these discoveries, incomplete as a whole, almost all fortunate

in some detail. What is incomplete is laid aside, what is fortunate

is so much gain; the new comers discriminate and choose. After a

period of twenty years there are only three processes in use—those of

Leister, Hellsmann, and Hubner; of analogous merit, and each having its

partisans. Will they strive one with another? No, they compromised. M.

Holden gets the assignment, and also acquires, either by purchase or

by judicial decisions, the rights of Donisthorpe, Noble, and Croft.

Messrs. Schlumberger and Co., the assignees of Heilman, retain only

the manufacture of certain machines. We may imagine the wealth of a

business established on so many purchases and decisions. M. Holden has

added inventions of his own, and _he may be considered the master of

wool-carding until his Patents expire_. Nothing is more interesting

than the answers he gave on this subject before the Commission on the

Commercial Treaties. On his own avowal he is proprietor of 45 Patents,

28 taken by himself, and 17 purchased from others. In these 45 are good,

middling, and bad. He works them all _in obedience to the law_ and _to

guard against lapses_. In the bad, as well as the good, there is an idea

to defend and a chance of upsetting; he fears that in abandoning them

they might be used against him; _for one machine in constant use there

are forty-four which make a pretence of working; he does not hide it—it

is his interest to hinder, as much as to work_.

What would it be if, as it is demanded, property in invention, put on the

same footing with property in the land, were perpetual? By the present

system it may be the interest of one man to fetter improvement, and,

having acquired the mastery of it, to mortally wound it wherever it

appears! Is this not already too much the case?

Must we, then, repeat what reason and experience teach us, that unjust

exactions cannot be made under a system of open competition, but always

spring up under the shelter of privilege?

VII.

The eminent Professor of the “Musée de l’Industrie Belge” makes a just

and well-founded criticism on the diverse laws of different countries

relating to Patents. Usually law-makers do not appear so perplexed, nor

contradict themselves so frankly; this is because, when we forget what

is right, when we leave principles to make a legal caprice, we sail over

unknown seas, where no lighthouse guides us, nor compass shows us the

right direction.

He attributes to the defective state of these laws “the almost unanimous

censure displayed either against the legislation or against property in

inventions.”

Would it not be more reasonable to acknowledge that if the learned

law-makers of the numerous countries in which the principle of property

in inventions has been adopted have not been able to frame laws capable

of protecting the rights of pretended proprietors conjointly with those

of individuals and society at large, it is because the principle is

radically wrong, and contrary to the general interests of mankind? The

law-giver finds an obstacle at every side in legitimate scruples; he

fears to give too much, and he fears to take too much.

At present the censure is almost unanimous, it is acknowledged. Let us

suppose that property in invention were abolished, and what complaints

would result from the abolition? Few or none. When the inventor knew

that, placed on the same level as all other workers, he must only rely

on his intelligence, his capital, his time, and his right arm he would

leave off claiming a privilege and complaining of the insufficiency of

his rewards. At present the inventor says to the State: “I have found

out a great thing, but I require your protection; you must place at my

disposal your agents and your law-courts; the first shall enter the homes

of my fellow-citizens, shall search their drawers, examine their books

and papers, in my interest. By the second, their cause being lost, shall

be condemned to ruin and misery. I am about to bring ruin on such and

such manufacturers, to condemn a crowd of work-people to idleness; but

you must grant me a privilege which will place me beyond the reach of

all opposition, and allow me to make a fortune, quietly and without much

chance of a failure.”

What difference do the champions of Patents find between this language

and that which was held by the Protectionists? They also required

Custom-house officers, and law-courts always open, to punish the

smuggler; they further required the ruin of those who traded with distant

countries, and the continual inactivity of our mercantile marine and

sea-board population.

VIII.

The honourable Belgian economist next combats the opinion of those

who, struck by the numerous and weighty inconveniences presented by

the Patent-Laws, and their extreme diversitude in every country, have

imagined a remedy in the expropriation of invention for the public good.

We shall be far from attaining our object if the reader has not

already understood that, renouncing all idea of property as applied

to manufacture, we shall not discuss this phase of the question. We

will say, however, that we must protest with all our might against the

following principle, expressed by M. le Hardy de Beaulieu: “Neither can

we admit,” says he “the justice of expropriation for the public good so

far as it concerns property in inventions any more than in real property.

Here also,” he adds, “the _right_ of one ought to prevail over the

_interest_ of the greater number.”

It is no doubt intentionally that the word _interest_ in this phrase is

put in opposition to the word “right.” But would it not be more correct

to say, the _right_ of the community ought to prevail over the _interest_

of the individual.

Individual right in property is certainly worthy of respect, and cannot

be called in question; but to our thinking, the right of the community

precedes and is superior to it. A part cannot be greater than the whole;

no one can place his right above that of mankind, and the individual

cannot oppose his will, good or bad, on the whole community.

We belong to no learned corporation—a simple volunteer in the army of

economist disputants—and have no other banner than that of the truth;

but we cannot refrain from saying one word in defence of those whom the

learned Belgian speaks of among many others in these terms: “The judgment

of the Academy of Sciences on the steamboat invented by Fulton may help

to form an estimate of the contradiction which experience sometimes

inflicts on the best-intentioned verdict of a committee of _savants_.”

We assert as a fact that if the steamboat presented to the Academy of

Sciences by Fulton were now submitted to the judgment of a committee of

machine builders, they would declare unanimously that the boat could not

navigate. We wish in no way to seek to depreciate the acknowledgments

which mankind owes to Fulton; but his invention, as all are at starting,

was only a sketch, which required half a century of labour to perfect and

to make as practical as it now is.

Here there is room for an observation which must be noted.

The advocates for the principle of property in inventions fall into

ecstacies before a transatlantic steamer, and exclaim, “Behold, what a

crying injustice! what deplorable ingratitude! Society has denied the

rights of the inventor to this wonder of the sea! He died in poverty, or

nearly so.”

Others go further back, and attribute to Solomon de Caux, or to Papin,

all the honour; they forget that between Papin, or Solomon de Caux

and Fulton, a crowd of men of genius brought their contributions

of knowledge, experiment, and work of every kind; and that between

Fulton and the makers of our day there are so many inventors, so many

explorers, fortunate or unfortunate, ridiculous or serious, whose

attempts or applications have helped to perfect the steam-engine, that it

may truly be said that every one has had a hand in it.

It is the same with the railway, the electric telegraph, and the

different machines for spinning, carding, weaving, &c.

IX.

To pretend, as does the defender of the principle of property in

inventions, in the ninth paragraph of his work, that the sudden and

inconsiderate introduction of a new invention may cause a sensible

injury to existing manufacturers, and that it is consequently advisable

to maintain the system of Patents, which during a certain time limits

their use and hinders production, to prevent the lowering of prices

immediately at least; so to pretend is to renew the plea of the protected

manufacturers, who demanded that the greatest precautions should be

taken to facilitate the transition from Protection to Free-trade. But

we do not see clearly what benefit there can be to the community at

large in delaying the advantages to be derived from an invention. The

misunderstood interests of certain manufacturers may appear to require

this delay, but common sense tells us that manufacturers and consumers

have every interest in immediately adopting every invention which saves

labour, capital, and time.

If we look back, we will see that a delay of this kind would have

retarded for an indefinite period the discoveries of Columbus in order

to avoid a sensible injury to the monopoly which Venice had acquired in

Eastern commerce. We maintain, as indeed experience proves, that however

innovating inventions may be, displacement of labour occurs gradually. We

will only cite, in support of this assertion, the well-known instance of

the substitution of printing for manuscript copying. It may be answered

that the substitution of mechanical spinning and weaving for hand-work

caused great suffering. We answer, that you should blame the system of

Patents, which, raising inordinately the cost of the machines, must

have restricted labour, although they lowered the price of the product.

If there had been no royalty to pay to the inventor, the number of the

machines would have rapidly increased, and a greater number of workmen

would at once have found employment similar to that to which they had

been accustomed.

How many enterprising and intelligent speculators would most eagerly have

availed themselves of these new outlets for their activity, if the course

had been cleared of all these obstructions which the law has arbitrarily

established.

At the risk of being considered by the honourable Professor grossly

ignorant of the laws of political economy, we do not believe that

monopolies will always exist, as he ventures to affirm. We know that

there always will be intellectual superiority, unrivalled artistic

ability, or special natural advantages; but these do not constitute

monopolies, in the proper acceptation of the term; and the object we

shall not cease to strive for is that no others shall exist.

X.

It is beyond our province to consider the inquiries of M. le Hardy de

Beaulieu as to the best plan of securing to inventors exclusive right in

their discoveries. To take up this question is to undertake the discovery

of the philosopher’s stone, or the squaring of the circle; several

generations have vainly grappled with it, and the different attempts

made without satisfactory results in almost every country prove this

conclusively.

But the honourable Professor seems to calculate on the improvement of

public morals, in order to reach the point where every attempt against

the property of the inventor shall be considered as guilty as robbery, or

as any injury done to property existing in material shape.

Under the uncompromising Protective system also it was attempted to

improve the morals of the public, who would not see the equal guilt of

the smuggler and the robber, and always loudly protested when repression

was enforced by bloodshed.

No reform of public morals will change the nature of these acts; they

will always be received as the appeal of right against abuse; and we

would deeply pity the country where it would be sufficient to say such is

the law, and where no conscience might protest against it.

XI.

“Discovery, the appropriation and creation of outlets, is too complicated

a work,” says M. le Hardy de Beaulieu, “for the inventor singly, and

especially without the aid of capital, to undertake with sufficient

chance of success.”

Here again we believe the learned economist is in error; he seems to

imagine one inventor arriving at perfection either at a jump, or after

many attempts—one inventor giving us at once our ocean steamer, or a

spinning-mill with a hundred thousand spindles! Inventions go more

slowly; when they spring from the brain of the thinker, they are only

sketches, and no man in his senses will risk a large capital before

making many trials, and that only on a small scale. We do not believe

there has been a single invention which, after numerous trials, has not

been modified, improved, and perfected.

And how many have at last been thrown into oblivion, from which they will

never be recalled?

Also, when we see the defenders of property in invention draw a sad

picture of the piercing miseries which inventors of these last have had

to endure, we are always tempted to ask them to show us the pitiful

account of ruin caused among those who placed faith in their promises

and delusions. Every medal has its reverse, and if more than one real

inventor has been misunderstood, many of the too-confident have been

victims of the mad and inapplicable ideas of inventors who imagined

themselves men of genius.

Is the law, which seems to promise an Eldorado to all inventors, to blame

for these losses, for these undeserved sufferings?

Bernard de Palissy’s saying, “Poverty hinders the success of the clever

man,” is often quoted. But this saying will always be true, whatever the

law may be. Can we admit that if perpetual property of invention had

existed in his time, Bernard would more easily have found the money which

he required?

The success of an invention is secured by the services it can render

being easily understood, immediate, and speedily realisable. The

capitalist, in dealing with hazardous undertakings—and inventors’

undertakings “are always hazardous”—does not calculate on perpetuity.

He works for immediate and large profits; he is in a hurry to realise,

because he knows that some other invention may dispossess him of all his

advantages. Little does he care, therefore, about the perpetuity.

XII.

In his twelfth and last paragraph the learned Professor answers several

minor objections to the system of property in inventions—objections which

seem to us not to carry great weight.

However, in answer to the objection taken from the case of two

applications for similar Patents, made at intervals of a few minutes

only, the eminent economist says that this case occurs only at rare

intervals, and making light of the rights of the slower, affirms that it

is not worth considering. Does not this denial of a right on account of

its infrequency, however, seem to show how arbitrary and artificial is

the constituting of property in invention?

We are among those who believe in the harmony of all economic relations,

of all legitimate interests; and when we see the right of one sacrificed

to false exigencies, we mistrust the exigencies. We believe them unjust

and contrary to the principles of equity, which forms the basis of all

economic science. We should wish to have seen M. le Hardy de Beaulieu

more logical in his deductions, claiming, as he has done, for real

property [la propriété foncière] that the right of one ought to prevail

over the interest of the greater number, and give a chance of obtaining

an indemnity, if he could not be assured of a part of the property

[Donner ouverture a l’obtention d’une indemnité si l’on ne pouvait lui

assurer une part de propriété].

But we repeat, these questions of the arrangement [organization] of

property, which we do not acknowledge, are beyond our province, and

if we accidentally touch upon them, it is only to show how little the

foundations of this right are similar to those on which rests the

principle of material property.

In recapitulation, we reject property in inventions and the advantages

claimed for it, because it seems to us that all this scaffolding of legal

prescription and Government protection only results in throwing out of

their natural course a crowd of workmen who would become more useful to

society and to themselves in ceasing to pursue chimeras.

We reject the proposed assimilation of this property to that of the

soil, because the privilege sought to be created cannot fail to hinder

and lessen the right of each member of the body politic. We reject

this privilege because nothing justifies it; the services rendered to

society by inventors being nowise different in their nature from those

daily conferred by skilful manufacturers, intelligent agriculturists,

_savants_, navigators, &c.

Finally, we reject it because history attests that great discoveries were

made before there was any conception of such property, and that it could

hardly be in operation at this day, except with regard to modifications,

or, if you will, improvements [perfectionnements], which do not merit

this abstraction from the common right.

ADDITIONAL CHAPTERS (FROM THE MAY NUMBER OF THE _JOURNAL DES

ECONOMISTES_).

The question of granting or denying a property in inventions is of

such importance that the discussion raised by the honourable Belgian

Professor, M. le Hardy de Beaulieu, ought not to be allowed to drop, and

that we should try to renew it.

We believe it to be of importance for the future of manufactures and of

progress, and most especially to the security of real property, that

whatever is doubtful and disputed in this question be deeply studied, and

that all should be agreed as to what property is, and if this title ought

to be applied to all or any of the inventions which daily start up.

M. le Hardy de Beaulieu pretends that one of the most frequent errors

of those whose enlightenment ought most to guard them against it

is to believe that property being inherent in matter, is, like it,

imperishable, and that property in land especially is as durable as the

land itself. He adds that we should beware of it, because this error

lays open landed property without defence to the attacks of communists

and socialists, who, sliding down the incline of irresistible logic, are

fatally led to declare all property illegitimate, to whatever purpose it

is applied.

Here, it seems to us, is a misunderstanding which may be easily explained.

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