The Writings of Thomas Jefferson, Vol. 6 (of 9)

Have you seen the memorial to Congress on the subject of Oliver Evans' patent rights? The memorialists have published in it a letter of mine containing some views on this difficult subject. But I have opened it no further than to raise the questions belonging to it. I wish we could have the benefit of your lights on these questions. The abuse of the frivolous patents is likely to cause more inconvenience than is countervailed by those really useful. We know not to what uses we may apply implements which have been in our hands before the birth of our government, and even the discovery of America. The memorial is a thin pamphlet, printed by Robinson of Baltimore, a copy of which has been laid on the desk of every member of Congress.

You ask if it is a secret who wrote the commentary on Montesquieu? It must be a secret during the author's life. I may only say at present that it was written by a Frenchman, that the original MS. in French is now in my possession, that it was translated and edited by General Duane, and that I should rejoice to see it printed in its original tongue, if any one would undertake it. No book can suffer more by translation, because of the severe correctness of the original in the choice of its terms. I have taken measures for securing to the author his justly-earned fame, whenever his death or other circumstances may render it safe for him. Like you, I do not agree with him in everything, and have had some correspondence with him on particular points. But on the whole, it is a most valuable work, one which I think will form an epoch in the science of government, and which I wish to see in the hands of every American student, as the elementary and fundamental institute of that important branch of human science.¹¹

I have never seen the answer of Governor Strong to the judges of Massachusetts, to which you allude, nor the Massachusetts reports in which it is contained. But I am sure you join me in lamenting the general defection of lawyers and judges, from the free principles of government. I am sure they do not derive this degenerate spirit from the father of our science, Lord Coke. But it may be the reason why they cease to read him, and the source of what are now called "Blackstone lawyers."

Go on in all your good works, without regard to the eye "of suspicion and distrust with which you may be viewed by some," and without being weary in well doing, and be assured that you are justly estimated by the impartial mass of our fellow citizens, and by none more than myself.

TO OLIVER EVANS, ESQ

Monticello, January 16, 1814.

Sir,—In August last I received a letter from Mr. Isaac McPherson of Baltimore, on the controversies subsisting between yourself and some persons in that quarter interested in mills. These related to your patent rights for the elevators, conveyors, and hopper-boys; and he requested any information I could give him on that subject. Having been formerly a member of the patent board, as long as it existed, and bestowed in the execution of that trust much consideration on the questions belonging to it, I thought it an act of justice, and indeed of duty, to communicate such facts and principles as had occurred to me on the subject. I therefore wrote the letter of August 13, which is the occasion of your favor to me of the 7th instant, just now received, but without the report of the case tried in the circuit court of Maryland, or your memorial to Congress, mentioned in the letter as accompanying it. You request an answer to your letter, which my respect and esteem for you would of themselves have dictated; but I am not certain that I distinguish the particular points to which you wish a specific answer. You agree in the letter, that the chain of buckets and Archimedes screw are old inventions; that every one had, and still has, a right to use them and the hopper-boy, if that also existed previously, in the forms and constructions known before your patent; and that, therefore, you have neither a grant nor claim, to the exclusive right of using elevators, conveyors, hopper-boys, or drills, but only of the improved elevator, the improved hopper-boy, &c. In this, then, we are entirely agreed, and your right to your own improvements in the construction of these machines is explicitly recognized in my letter. I think, however, that your letter claims something more, although it is not so explicitly defined as to convey to my mind the precise idea which you perhaps meant to express. Your letter says that your patent is for your improvement in the manufacture of flour by the application of certain principles, and of such machinery as will carry those principles into operation, whether of the improved elevator, improved hopper-boy, or (without being confined to them) of any machinery known and free to the public. I can conceive how a machine may improve the manufacture of flour; but not how a principle abstracted from any machine can do it. It must then be the machine, and the principle of that machine, which is secured to you by your patent. Recurring now to the words of your definition, do they mean that, while all are free to use the old string of buckets, and Archimedes' screw for the purposes to which they had been formerly applied, you alone have the exclusive right to apply them to the manufacture of flour? that no one has a right to apply his old machines to all the purposes of which they are susceptible? that every one, for instance, who can apply the hoe, the spade, or the axe to any purpose to which they have not been before applied, may have a patent for the exclusive right to that application? and may exclude all others, under penalties, from so using their hoe, spade, or axe? If this be the meaning, my opinion that the legislature never meant by the patent law to sweep away so extensively the rights of their constituents, to environ everything they touch with snares, is expressed in the letter of August 13, from which I have nothing to retract, nor ought to add but the observation that if a new application of our old machines be a ground of monopoly, the patent law will take from us much more good than it will give. Perhaps it may mean another thing, that while every one has a right to the distinct and separate use of the buckets, the screw, the hopper-boy, in their old forms, the patent gives you the exclusive right to combine their uses on the same object. But if we have a right to use three things separately, I see nothing in reason, or in the patent law, which forbids our using them all together. A man has a right to use a saw, an axe, a plane separately; may he not combine their uses on the same piece of wood? He has a right to use his knife to cut his meat, a fork to hold it; may a patentee take from him the right to combine their use on the same subject? Such a law, instead of enlarging our conveniences, as was intended, would most fearfully abridge them, and crowd us by monopolies out of the use of the things we have.

I have no particular interest, however, in these questions, nor any inclination to be the advocate of either party; and I hope I shall be excused from it. I shall acquiesce cheerfully in the decisions in your favor by those to whom the laws have confided them, without blaming the other party for being unwilling, when so new a branch of science has been recently engrafted on our jurisprudence, one with which its professors have till now had no call to make themselves acquainted, one bearing little analogy to their professional educations or pursuits. That they should be unwilling, I say, to admit that one or two decisions, before inferior and local tribunals, before the questions shall have been repeatedly and maturely examined in all their bearings, before the cases shall have presented themselves in all their forms and attitudes, before a sanction by the greater part of the judges on the most solemn investigations, and before the industry and intelligence of many defendants may have excited to efforts for the vindication of the general rights of the citizen; that one or other of the precedents should forever foreclose the whole of a new subject.

To the publication of this answer with your letter, as you request, I have no objection. I wish right to be done to all parties, and to yourself, particularly and personally, the just rewards of genius; and I tender you the assurances of my great esteem and respect.

TO JOSEPH C. CABELL, ESQ

Monticello, January 17, 1814.

Dear Sir,—In your last letter to me you expressed a desire to look into the question whether, by the laws of nature, one generation of men can, by any act of theirs, bind those which are to follow them? I say, by the laws of nature, there being between generation and generation, as between nation and nation, no other obligatory law; and you requested to see what I had said on the subject to Mr. Eppes. I enclose, for your own perusal, therefore, three letters which I wrote to him on the course of our finances, which embrace the question before stated. When I wrote the first, I had no thought of following it by a second. I was led to that by his subsequent request, and after the second I was induced, in a third, to take up the subject of banks, by the communication of a proposition to be laid before Congress for the establishment of a new bank. I mention this to explain the total absence of order in these letters as a whole. I have said above that they are sent for your own perusal, not meaning to debar any use of the matter, but only that my name may in nowise be connected with it. I am too desirous of tranquillity to bring such a nest of hornets on me as the fraternities of banking companies, and this infatuation of banks is a torrent which it would be a folly for me to get into the way of. I see that it must take its course, until actual ruin shall awaken us from its delusions. Until the gigantic banking propositions of this winter had made their appearance in the different legislatures, I had hoped that the evil might still be checked; but I see now that it is desperate, and that we must fold our arms and go to the bottom with the ship. I had been in hopes that good old Virginia, not yet so far embarked as her northern sisters, would have set the example this winter, of beginning the process of cure, by passing a law that, after a certain time, suppose of six months, no bank bill of less than ten dollars should be permitted. That after some other reasonable term, there should be none less than twenty dollars, and so on, until those only should be left in circulation whose size would be above the common transactions of any but merchants. This would ensure to us an ordinary circulation of metallic money, and would reduce the quantum of paper within the bounds of moderate mischief. And it is the only way in which the reduction can be made without a shock to private fortunes. A sudden stoppage of this trash, either by law or its own worthlessness, would produce confusion and ruin. Yet this will happen by its own extinction, if left to itself. Whereas, by a salutary interposition of the legislature, it may be withdrawn insensibly and safely. Such a mode of doing it, too, would give less alarm to the bank-holders, the discreet part of whom must wish to see themselves secured by some circumscription. It might be asked what we should do for change? The banks must provide it, first to pay off their five-dollar bills, next their ten-dollar bills and so on, and they ought to provide it to lessen the evils of their institution. But I now give up all hope. After producing the same revolutions in private fortunes as the old Continental paper did, it will die like that, adding a total incapacity to raise resources for the war.

Withdrawing myself within the shell of our own State, I have long contemplated a division of it into hundreds or wards, as the most fundamental measure for securing good government, and for instilling the principles and exercise of self-government into every fibre of every member of our commonwealth. But the details are too long for a letter, and must be the subject of conversation, whenever I shall have the pleasure of seeing you. It is for some of you young legislators to immortalize yourselves by laying this stone as the basis of our political edifice.

I must ask the favor of an early return of the enclosed papers, of which I have no copy. Ever affectionately yours.

TO MR. R. M. PATTERSON, SECRETARY OF THE AMERICAN PHILOSOPHICAL SOCIETY

Monticello, January 20, 1814.

Sir,—I have duly received your favor of the 7th, informing me that the American Philosophical Society, at their meeting of that day, had been pleased unanimously to elect me as President of the Society. I receive with just sensibility this proof of their continued good will, and pray you to assure them of my gratitude for these favors, of my devotedness to their service, and the pleasure with which at all times I should in any way be made useful to them.

For yourself be pleased to accept the assurance of my great esteem and respect.

TO PRESIDENT ADAMS

Monticello, January 24, 1814.

Dear Sir,—I have great need of the indulgence so kindly extended to me in your favor of December 25, of permitting me to answer your friendly letters at my leisure. My frequent and long absences from home are a first cause of tardiness in my correspondence, and a second the accumulation of business during my absence, some of which imperiously commands first attentions. I am now in arrear to you for your letters of November 12, 14, 16, December 3, 19, 25.

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You ask me if I have ever seen the work of I. W. Goethen's Schriften? Never; nor did the question ever occur to me before where get we the ten commandments? The book indeed gives them to us verbatim, but where did it get them? For itself tells us they were written by the finger of God on tables of stone, which were destroyed by Moses; it specifies those on the second set of tables in different form and substance, but still without saying how the others were recovered. But the whole history of these books is so defective and doubtful, that it seems vain to attempt minute inquiry into it; and such tricks have been played with their text, and with the texts of other books relating to them, that we have a right from that cause to entertain much doubt what parts of them are genuine. In the New Testament there is internal evidence that parts of it have proceeded from an extraordinary man; and that other parts are of the fabric of very inferior minds. It is as easy to separate those parts, as to pick out diamonds from dunghills. The matter of the first was such as would be preserved in the memory of the hearers, and handed on by tradition for a long time; the latter such stuff as might be gathered up, for imbedding it, anywhere, and at any time. I have nothing of Vives, or Budæus, and little of Erasmus. If the familiar histories of the Saints, the want of which they regret, would have given us the histories of those tricks which these writers acknowledge to have been practised, and of the lies they agree have been invented for the sake of religion, I join them in their regrets. These would be the only parts of their histories worth reading. It is not only the sacred volumes they have thus interpolated, gutted, and falsified, but the works of others relating to them, and even the laws of the land. We have a curious instance of one of these pious frauds in the laws of Alfred. He composed, you know, from the laws of the Heptarchy, a digest for the government of the United Kingdom, and in his preface to that work he tells us expressly the sources from which he drew it, to wit, the laws of Ina, of Offa and Aethelbert, (not naming the Pentateuch.) But his pious interpolator, very awkwardly, premises to his work four chapters of Exodus (from the 20th to the 23d) as a part of the laws of the land; so that Alfred's preface is made to stand in the body of the work. Our judges too have lent a ready hand to further these frauds, and have been willing to lay the yoke of their own opinions on the necks of others; to extend the coercions of municipal law to the dogmas of their religion, by declaring that these make a part of the law of the land. In the Year-Book 34, H. 6, p. 38, in Quære impedit, where the question was how far the common law takes notice of the ecclesiastical law, Prisot, Chief Justice, in the course of his argument, says, "a tiels leis que ils de seint eglise ont, en ancien scripture, covient a nous a donner credence; car ces common luy sur quels touts manners leis sont fondes; et auxy, siv, nous sumus obliges de canustre lour esy de saint eglise," &c. Finch begins the business of falsification by mistranslating and mistating the words of Prisot thus: "to such laws of the church as have warrant in holy scripture our law giveth credence." Citing the above case and the words of Prisot in the margin, Finch's law, B. 1, c. 3, here then we find ancien scripture, ancient writing, translated "holy scripture." This, Wingate, in 1658, erects into a maxim of law in the very words of Finch, but citing Prisot and not Finch. And Sheppard, tit. Religion, in 1675 laying it down in the same words of Finch, quotes the Year-Book, Finch and Wingate. Then comes Sir Matthew Hale, in the case of the King v. Taylor, 1 Ventr. 293, 3 Keb. 607, and declares that "Christianity is part and parcel of the laws of England." Citing nobody, and resting it, with his judgment against the witches, on his own authority, which indeed was sound and good in all cases into which no superstition or bigotry could enter. Thus strengthened, the court in 1728, in the King v. Woolston, would not suffer it to be questioned whether to write against Christianity was punishable at common law, saying it had been so settled by Hale in Taylor's case, 2 Stra. 834. Wood, therefore, 409, without scruple, lays down as a principle, that all blaspheming and profaneness are offences at the common law, and cites Strange. Blackstone, in 1763, repeats, in the words of Sir Matthew Hale, that "Christianity is part of the laws of England," citing Ventris and Strange, ubi supra. And Lord Mansfield, in the case of the Chamberlain of London v. Evans, in 1767, qualifying somewhat the position, says that "the essential principles of revealed religion are part of the common law." Thus we find this string of authorities all hanging by one another on a single hook, a mistranslation by Finch of the words of Prisot, or on nothing. For all quote Prisot, or one another, or nobody. Thus Finch misquotes Prisot; Wingate also, but using Finch's words; Sheppard quotes Prisot, Finch and Wingate; Hale cites nobody; the court in Woolston's case cite Hale; Wood cites Woolston's case; Blackstone that and Hale, and Lord Mansfield volunteers his own ipse dixit. And who now can question but that the whole Bible and Testament are a part of the common law? And that Connecticut, in her blue laws, laying it down as a principle that the laws of God should be the laws of their land, except where their own contradicted them, did anything more than express, with a salvo, what the English judges had less cautiously declared without any restriction? And what, I dare say, our cunning Chief Justice would swear to, and find as many sophisms to twist it out of the general terms of our declarations of rights, and even the stricter text of the Virginia "act for the freedom of religion," as he did to twist Burr's neck out of the halter of treason. May we not say then with him who was all candor and benevolence, "woe unto you, ye lawyers, for ye lade men with burthens grievous to bear."

I think with you, that Priestley, in his comparison of the doctrines of philosophy and revelation, did not do justice to the undertaking. But he felt himself pressed by the hand of death. Enfield has given us a more distinct account of the ethics of the ancient philosophers; but the great work of which Enfield's is an abridgment, Brucker's History of Philosophy, is the treasure which I would wish to possess, as a book of reference or of special research only, for who could read six volumes quarto, of one thousand pages each, closely printed, of modern Latin? Your account of D'Argens' Œileus makes me wish for him also. Œileus furnishes a fruitful text for a sensible and learned commentator. The Abbé Batteaux, which I have, is a meagre thing.

You surprise me with the account you give of the strength of family distinction still existing in your State. With us it is so totally extinguished, that not a spark of it is to be found but lurking in the hearts of some of our old tories; but all bigotries hang to one another, and this in the Eastern States hangs, as I suspect, to that of the priesthood. Here youth, beauty, mind and manners, are more valued than a pedigree.

I do not remember the conversation between us which you mention in yours of November 15th, on your proposition to vest in Congress the exclusive power of establishing banks. My opposition to it must have been grounded, not on taking the power from the States, but on leaving any vestige of it in existence, even in the hands of Congress; because it would only have been a change of the organ of abuse. I have ever been the enemy of banks, not of those discounting for cash, but of those foisting their own paper into circulation, and thus banishing our cash. My zeal against those institutions was so warm and open at the establishment of the Bank of the United States, that I was derided as a maniac by the tribe of bank-mongers, who were seeking to filch from the public their swindling and barren gains. But the errors of that day cannot be recalled. The evils they have engendered are now upon us, and the question is how we are to get out of them? Shall we build an altar to the old paper money of the revolution, which ruined individuals but saved the republic, and burn on that all the bank charters, present and future, and their notes with them? For these are to ruin both republic and individuals. This cannot be done. The mania is too strong. It has seized, by its delusions and corruptions, all the members of our governments, general, special and individual. Our circulating paper of the last year was estimated at two hundred millions of dollars. The new banks now petitioned for, to the several legislatures, are for about sixty millions additional capital, and of course one hundred and eighty millions of additional circulation, nearly doubling that of the last year, and raising the whole mass to near four hundred millions, or forty for one, of the wholesome amount of circulation for a population of eight millions circumstanced as we are, and you remember how rapidly our money went down after our forty for one establishment in the revolution. I doubt if the present trash can hold as long. I think the three hundred and eighty millions must blow all up in the course of the present year, or certainly it will be consummated by the re-duplication to take place of course at the legislative meetings of the next winter. Should not prudent men, who possess stock in any monied institution, either draw and hoard the cash now while they can, or exchange it for canal stock, or such other as being bottomed on immovable property, will remain unhurt by the crush? I have been endeavoring to persuade a friend in our legislature to try and save this State from the general ruin by timely interference. I propose to him, First, to prohibit instantly, all foreign paper. Secondly, to give our banks six months to call in all their five-dollar bills (the lowest we allow); another six months to call in their ten-dollar notes, and six months more to call in all below fifty dollars. This would produce so gradual a diminution of medium, as not to shock contracts already made—would leave finally, bills of such size as would be called for only in transactions between merchant and merchant, and ensure a metallic circulation for those of the mass of citizens. But it will not be done. You might as well, with the sailors, whistle to the wind, as suggest precautions against having too much money. We must bend then before the gale, and try to hold fast ourselves by some plank of the wreck. God send us all a safe deliverance, and to yourself every other species and degree of happiness.

P. S. I return your letter of November 15th, as it requests, and supposing that the late publication of the life of our good and really great Rittenhouse may not have reached you, I send a copy for your acceptance. Even its episodes and digressions may add to the amusement it will furnish you. But if the history of the world were written on the same scale, the whole world would not hold it. Rittenhouse, as an astronomer, would stand on a line with any of his time, and as a mechanician, he certainly has not been equalled. In this view he was truly great; but, placed along side of Newton, every human character must appear diminutive, and none would have shrunk more feelingly from the painful parallel than the modest and amiable Rittenhouse, whose genius and merit are not the less for this exaggerated comparison of his over zealous biographer.