Feb. 8 (Bloomberg) -- It is easy to look to early America as a moment of unshackled innovation. Yet in this respect the pre-Civil War period was especially problematic.
Then, intellectual property and human property were dual and dueling pillars of capitalist development, and for a vast swath of the population, invention was stifled under the crushing weight of slavery.
In the years before the outbreak of the Civil War -- the historical record is not clear exactly when -- the future president of the Confederacy, Jefferson Davis, filed a patent claim on an improved riverboat propeller with the U.S. Patent Office. The novel design promised both increased efficiency and improved maneuverability compared with the paddlewheels then favored by most river steamships. His claim, however, was summarily denied.
Davis is remembered for many things, though not for being an accomplished inventor, and for good reason: The improved propeller wasn’t his to patent. Instead, it was the work of Benjamin Montgomery, a slave on the plantation of Davis’s brother Joseph.
After the patent office turned down Jefferson Davis’s claim, Joseph tried his luck, applying for a patent on the propeller and making clear, as Jefferson had, that it was Montgomery’s design. Since Montgomery was Joseph Davis’s human property, Joseph had every reason to expect that the Patent Office would accept his claim. Naturally, as one slave owner phrased it, “no one could rationally doubt, that in legal contemplation, the master has the same right to the fruits of the labor of the intilect [sic] of his slave, that he has to those of his hand.”
No one, that is, except U.S. Commissioner of Patents Joseph Holt.
Unfortunately for the Davis brothers, Holt ruled in 1857 that slave inventions couldn’t be patented under existing law. As a slave, Montgomery wasn’t a citizen and was therefore “legally incompetent,” in Holt’s words, to file a claim on his own. At the same time, because neither Jefferson nor Joseph Davis was the “true and original inventor” of Montgomery’s propeller, neither could file a claim on the slave’s behalf and thus legally protect the invention.
In effect, slaves’ intellectual property simply didn’t exist. This posed a significant problem, not only for the Davis brothers, but for any slave owner who sought to protect and profit from slaves’ inventions. On the eve of the Civil War, several slaveholders met with similarly negative responses from the Patent Office. For these Southerners, their prerogatives as slave owners (-to maintain a legal system that inscribed the inferiority of slaves),- and as capitalists (-to profit from the judicious employment of their capital),- were thrown into conflict by Holt’s patent ruling.
Still, the Davis brothers could have simply claimed Montgomery’s inventions as their own. Evidence suggests that Eli Whitney’s cotton gin and Cyrus McCormick’s reaper, both landmark antebellum inventions, were at least partially the products of slave intellectual labor. The Davis brothers took a different approach, asserting the intellectual capabilities of slaves such as Montgomery, while trying to claim the profits of that ingenuity as their own.
The creation of the Confederacy, though, offered slaveholders a chance to square this circle. Through their new government, Southerners sought to institute legal structures that would allow them to deploy their human capital most efficiently -- whether toward manual or intellectual labor -- securing for slave owners the profits from that work.
With Jefferson Davis at the helm, the Confederate States enacted a patent law in 1861 that formalized slaveholders’ ownership of slave inventions.
If the “original inventor” was a slave, the act read, the owner of the slave may “have all the rights to which a patentee is entitled by law.”
Such legislative labors ultimately proved unnecessary. Of 274 patents issued by the Confederate Patent Office from August 1861 to March 1865 -- including improvements to rifle and cannon technology, submarine and torpedo models, and a new type of artificial leg -- none appears to have been the product of slaves. Montgomery’s case proved to be a rare exception.
Still, even after the war, some Southerners continued to promote and seek profit from the ideas of onetime slaves. One Southerner marketed a novel agricultural implement using the following testimonial: “I am glad to know this implement is the invention of a negro slave -- thus giving the lie to the abolition cry that slavery dwarfs the negro mind. When did a free negro ever invent anything?”
The long history of African-American invention need not be recounted here to demonstrate the falsehood of this statement. Conversely and unsurprisingly, abolition greatly increased the rate of black inventiveness, and led to what one scholar has called “a burst of patents.” Clearly, the promise of owning their own intellectual property prompted African-Americans to pursue innovation in their own interests.
(Sean Vanatta is a graduate student at Princeton University. The opinions expressed are his own.)
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