WHAT'S NEW IN THE PAST?

YOU'RE ABOUT TO FIND OUT

PROLOGUE

-OFTHENATIONAL ARCHIVES

22 PROLOGUE-SPRING 1980

The first page of the letter Stuart wrote Inquiring whet~er a patent could be issued him as the master of the slave-Inventor.

The Master, the Slave, and the Patent Laws:

A Vignette of the 1 8505

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In histories of technology inventors normally playa principal if not a heroic role. But not every society has permitted such prominence to all men of creative talent, and antebellum America was one such place. Thus, the following vignette has no winners, though at least two losers. The leading role was played by one of the losers, Oscar J. E. Stuart, a prominent lawyer of Pike County, Mississippi. Supporting roles fell to Jacob Thompson, also a Mississippian, who served as secretary of the interior in the administration of President James Buchanan; Joseph Holt, commissioner of patents, then an officer within the Interior Department; and Jeremiah S. Black, Buchanan's attorney general. Ironically, the role least prominent, though most crucial, was that of the other loser, Ned, the Negro slave who invented the machine around which this story develops. Of Ned we know little except that he possessed considerable ingenuity and that he belonged to Oscar J. E. Stuart.

On August 25, 1857, Stuart wrote Secretary

© 1980 by Norman O. Forness

The author is Associate Professor of History at Gettysburg College.

NORMAN O. FORNESS

Thompson to inquire about the prospect of receiving for himself a patent on an invention by his slave, Ned. Stuart acknowledged that the law required the government to issue a patent only to a person who could swear that the invention was the contrivance of his own brain. Legally, said Stuart, a master owned both the manual and intellectual fruits of his slave's labor. Therefore, if he added to the regular procedure of patent application an affidavit explaining the circumstances, could the patent be issued to him as the master of the slave-inventor?

Stuart described the invention as "a double cotton scraper, in front of which is attached two ploughs, to run in the spaces between the ridges." It enabled one man and two horses to do a task which otherwise required the labor of four men and four horses. If as master he could qualify for a patent on this invention by his slave, Stuart would submit a model of the machine and the documentary evidence required by the Patent Office. 1

1 Stuart to Thompson, Aug. 25, 1857, box 74, Letters Relating to the Patent Office, Records of the Office of the Secretary of the Interior, Record Group 48, National Archives (hereinafter cited as RG 48, NA).

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Within two weeks of Stuart's writing, Secretary Thompson decided to submit the question to Attorney General Black for an opinion on the point of law requiring the inventor's oath, a point which Thompson found embarrassing in Stuart's case. This step availed nothing. By late September Thompson had to inform Stuart that the attorney general would not address himself to an abstract question and would offer an opinion only when Stuart made actual application to the Patent Office.f

By early December Stuart's official application had reached Commissioner of Patents Holt and elicited some Patent Office responses. Holt suggested that Secretary Thompson seek from the attorney general an opinion judging the merits of this application against the patent legislation of July 4, 1836. That legislation required with evidence of an invention the oath of the inventor, who alone could testify to the origins and history of his invention. Holt, a Kentuckian who had, COincidentally, practiced law for several years in Mississippi, believed that the incompetence of a slave to take an oath and to receive a patent constituted a casus omissus which new legislation alone could supply. For this reason he urged the Congress in his annual report for 1857 to modify the law which by denying a slave the right to an oath also denied him a patent and the right to transfer his interest to others."

Though the attorney general allowed six more months to pass before rendering his official opinion, the Mississippi lawyer shortly fired off several opinions of his own to Secretary Thompson. In a letter written one month following his application for a patent, Stuart poured forth his outrage at the Washington bureaucracy and the restraints of patent law, together with several pungent comments on

"Thompson to the attorney general [Black], Sept. 7, 1857, Thompson to Stuart, Sept. 29, 1857, Thompson to A. G. Brown, Sept. 30, 1857, Thompson to the commissioner of patents [Holt], Sept. 30, 1857, Letter Book, Patents, vol. 1, ibid. Because Sen. Albert G. Brown of Mississippi had taken an interest in the Stuart case, Thompson presented both him and Holt with copies of the correspondence regarding Stuart's question.

3 Holt to Thompson, Dec. 12,1857, box 75, Letters From the Commissioner of Patents, ibid.; U. S. Senate, "Report of the Commissioner of Patents for the Year 1857" (Arts and Manufacturers, vol. 1), Senate Exec. Doc. #30, 35th Cong., 1st sess., 1857-58, pp. 8-9. Biographical data for Holt may be found in Journal of the Patent Office Society 18 (July 1936): 156-157, and the Dictionary of American Biography, s.v. "Holt, Joseph."

24 PROLOGUE-SPRING 1980

the proper relationships of slaves and masters+ The letter reveals a man far more accustomed to a world where slaves responded upon command than to an emerging technological order where the disinterest of legal detail and bureaucratic practice proved to be dominant realities.

In his heated recounting of developments in the previous weeks, Stuart reported that in order to procure the patent he had sent to Washington in mid-November a petition and specifications accompanying the drawings of the machine invented by his slave. Moreover, Mississippi's senator, Albert G. Brown, had received from Stuart a model of the machine, which the senator then promised to deliver to the Patent Office. With all necessary papers properly signed and witnessed, Stuart had also submitted to Commissioner Holt a letter discussing the political philosophy of patent law, concluding that he deserved a patent because the spirit of the law upheld his case, though the letter of the law opposed him.

To this, complained Stuart, the Patent Office had first responded by returning the drawings, though without any accompanying explanation. A week later Commissioner Holt had sent a pamphlet containing patent laws and a note explaining that an applicant must make an oath or affirmation of citizenship, an impossible procedure in Ned's case because United States law did not recognize slaves as citizens. Therewith, Holt had also returned the petition and the specifications.

Stuart found such handling of his application offensive because it assumed that Ned had been the applicant, whereas Stuart alone had made application. He admitted that friends had persuaded him to include with the papers of application Ned's affidavit that he was Stuart's slave and the machine's inventor, as set forth also in the petition. Because Stuart regarded a slave to be a master's "automaton," he denied that the affidavit implied the foolish assumption that Ned could receive a patent. The affidavit, said Stuart, could be regarded only as "mere surplussage, neither strengthening or diminishing" the merit of his application. Holt's response, it seemed to Stuart, re-

4 Stuart to Thompson, Dec. 18,1857, box 74, Letters Relating to the Patent Office, RG 48, NA. Stuart's quoted and paraphrased statements, prior to the next footnote, are from this letter.

fleeted the "monstrous conclusion" which held the surplussage to be the main substance of the matter.

Possibly Stuart's anger with Holt betrayed a deeper discontent-his frustration for not knowing with certainty the full range of a bright slave's activities. Withholding at first any expression of his unsureness, he attacked Holt because the commissioner refused to decide the case on the single issue of the invention's merit and because, in Stuart's opinion, he obfuscated the issue by focusing on the inventor. Though Stuart accused Holt of proceeding erroneously, that is, as though Ned had applied for the patent, he apparently lacked the conviction that this had not actually happened. Such an uncertainty may explain one of his concluding statements, that "if the slave has ever had any correspondence with his [Holt's] bureau upon the subject, I am ignorant of it, and for such impertinence, you know according to our Southern usage, I would correct

h· " im,

Unable to gain a patent because of the letter of the law, the commissioner's "monstrous conclusion," and Ned's possible impertinence, Stuart could do no more than appeal to a tradition of honor that he hoped to find in Secre-

Jeremiah S. Black, President Buchanan's attomey general from 1857 to December 1860 when he succeeded Lewis Cass as secretary of state.

tary Thompson. "I address you," he concluded, "because you are a Mississippian, and a Southern man,-and besides you have an official supervision over the Commissioner of Patents." Thompson, however honorable, could do no more than submit the case to the attorney general and inform Senator Brown of the department's actions in behalf of his constituent."

Ultimately, the attorney general vindicated the position of the commissioner of patents. In an opinion addressed to Jacob Thompson on June 10, 1858, Jeremiah Black concluded that "a machine invented by a slave, though it be new and useful, cannot, in the present state of the law, be patented. I may add that, if such a patent were issued to the Master, it would not protect him in the courts against persons who might infringe it." 6 Black's elucidation bluntly asserted that if patent law recognized only free

• Thompson to the attorney general, Dec. 27. 1857; Thompson to A. G. Brown. Jan. 11.1858. Letter Book. Patents. vol. 1. ibid.

• Black to Thompson, June 10, 1858. box 348. Opinions of the Attorney General-Patents; 1857-95. Letters Received, Patents and Miscellaneous, ibid.; Thompson to Stuart. June IS, 1848. Letter Book. Patents. vol. 1. ibid.

Joseph Holt, commissioner of patents, who fired off several opinions of his own to Secretary Thompson.

VIGNETTE OF TI-IE 18505 25

Holt's letter to Secretary Thompson- requesting him to seek the opinion of the attorney general.

citizens as inventors, it did not thereby subsume, as in Stuart's logic, that masters could lay exclusive claim to the inventive achievements of their slaves. Of slavery, patent law took no cognizance.

Although Jeremiah Black's opinion closed the Stuart case for the Patent Office, it did not end Oscar J. E. Stuart's efforts to capitalize upon Ned's inventive talent. He next memorialized the United States Senate for an amendment to the patent law. That maneuver came to naught." Undaunted, Stuart began to manu-

7 U.S., Congress, Senate, Congressional Globe, 35th Cong., 2d sess., 1858-59, p. 687.

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facture cotton scrapers at Summitt, Mississippi. In 1860 he published' a broadside offering cotton scrapers for sale at forty dollars each, noting further that this price would decline should demand prove sufficient to warrant the implement's manufacture by machine in Wheeling, Virginia, In addition, the broadside published statements written in 1858 and 1859 by eight persons who testified to the superiority of Stuart's machine over earlier cultivating devices such as the Taylor scraper and the Yost scraper,

Of all the broadside's testimonials, the most detailed came from Albert G, Brown, In a state-

any mention of Ned and his cotton scraper. The invention came late in North America's experience wi th slavery, and soon both Stuart's efforts at manufacturing and his ownership of slaves were swept away in the currents of civil war. For his efforts Ned had received nothing more than Stuart's grudging acknowledgement of the cotton scraper's ingenuity. But the same law that denied recognition to Ned also mildly avenged him in that it denied Stuart legal privileges to an invention not of his own creation. Though this. incident is very likely, as Holt reported to the Congress, the only recorded instance of a master seeking for himself a patent on the invention of his slave, it was surely not the only time that slavery deprived a man of the full joy of his creative talent. 9 Neither was it the only time that a confrontation between dissimilar legal traditions demonstrated the stark incongruity between the slavery system and the laws intended to enhance the rights of free individuals. 0

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ment harking back to Stuart's struggle with the Patent Office, Brown said "I am glad to know that your implement is the invention of a negro slave--thus giving the lie to the abolition cry that slavery dwarfs the mind of the negro. When did a free negro ever invent anything?" 8 If Brown's statement exposed his ignorance of free Negroes, it also illustrated well the increasing tendency of antebellum Southerners to shape for the defense of slavery all issues involving black men. Whereas Stuart in 1857 had despaired over the frustrating inconveniences of the collision between slave status and patent law, Brown, after more time for reflection, managed so to reassess these circumstances that he might credit the peculiar institution with a special beneficence.

And what about Ned in all of this? None of the records from which this story comes bears evidence of his sentiments. Indeed, the whole story ends with the publication of the 1860 broadside, and thereafter neither the Stuart family papers nor government records make

8 Brown to Stuart, May 26, 1859, reprinted on a broadside entitled" A Want Supplied in the Cultivation of Cotton and Com," 1860, in the Oscar J. E. Stuart Papers, Department of History and Archives, Jackson, Miss.

9 U. S., Senate, "Report.of the Commissioner of Patents," pp.8,9.

VIGNEITE OF TIlE 1850s 27