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Massachusetts declared in 1783 was a property than which none was more peculiarly a man's own," and the control of which was "a natural right of all men"; and has also led, as we have lately seen, artists to doubt whether they could protect themselves against the universal unauthorized publication of their pictures by chromo-lithogra.phy; a right which upon the doctrine of the law of publication as applied to lectures, plays, music, and etchings the artist must possess, until by his own consent copies of his picture were multiplied and sold in open market.

The rule of exclusive property in creation holds good with regard to invention. That arrangement of words which formulates thought is literary creation. It is entirely independent of the paper on which, or the ink in which, it is written, or the breath with which it is spoken; and it is very analogous to the arrangement of bits of metal of various forms and sizes, with which a dynamic idea is formulated in machinery. And, in each case, the act of creation is one of selection and formulation alone. The steam-engine is complete as a creation when it is drawn on paper; the employment of diamonds for drill points is complete as a creation when conceived. The motor does not exist, it is true, nor the drill; but from the drawing or the description a man of ordinary skill as a mechanic can make the machine.

Having seen, then, that the right to the enjoyment of all kinds of ideal property inheres in the originator or creator of it, and is a natural right of man, let us consider next to what means he must resort to compel the recognition of his rights by society.

Every man makes his own reputation. It results naturally from his action towards his fellow-man. So also with regard to the good-will of his business, and the designative authority of his trade-mark. And the judicial power --that branch of society whose duty it is to establish rights against society or the individual, or redress wrongs of society or the individual-will, on proper

application, assert, against all assailants, an exclusive usufructory property in the person to the reputation he has established, the good-will he has built up, or the trade-mark to which he has given a designation and authority. The property inheres from its creation in the creator, and is defended by society upon complaint of infringement, so long as it be in use.

In the more embodied forms of ideal property, where spiritual force is formulated in sound or substance, there has been, for reasons satisfactory to society, and founded on general utility, a separation of rights into rights before publication, which are vested by creation and are protected whenever desired, and rights after publication, which, though natural, are secured only by certain formalities, and by entering into a contract with society to abandon them to the public after a specified time. There would constantly arise in any attempt to assert rights after publication, without the statute, the complication that now arises at times when rights before publication are asserted. It would always be said, as in a recent case relative to the play of "Our American Cousin," that the plaintiff had abandoned his exclusive rights to the public, and the expense and tediousness of litigation would be increased. In the matter of invention, non-user and abandonment would always be insisted on to defeat the right of the inventor; and, in both instances, endeavors would be made to show that the idea had been conceived and formulated before by others. To avoid these difficulties, a registration of the formula or method of formulating has been prescribed, to be made in a solemn manner, in a public office; in return for which a public officer gives a certificate of protection for a definite term; and it is only upon this proof of contract with the public that a court of law will act against violators of the secured right.

Of course, if the holder of the certificate is not the creator or his assign, he has no right to secure; and so the certificate is waste paper. In most cases

of copies, the certificate is called a copyright, and in case of invention a patent.

In ideal property of mixed æsthetic and economic character, such as designs, engravings, pictures, and the like, it may be a copyright or a patent, according as its aesthetic or economic character predominates. A map, however, which is purely economic, is, because of its method of making, a subject of copyright; and a statue, because it is more nearly classed as a design, like a carpet pattern or a cooking-stove casting, than as a book like a map or a chart, is subject of patent.

This registration and receipt of a certificate, in every country but America, is all that is required for inventions. Here, however, in the year 1836 the National Legislature decided that government should take upon itself to adjudicate in advance upon all inventions, and decide whether they were new and useful; at the same time, however, refusing to make the patent issued conclusive evidence of a right to recover against an infringer. Why this rule was adopted, how it could have been imagined possible that a body of savans could be assembled in Washington, kept constantly informed of all that was going on in the world, with the knowledge of the past and present all at command, and judging competently as to novelty in fact and the utility of the novelty in practice, is inconceivable. In trials of patent cases, where the defence is lack of novelty, a devotion and investigation of months is often given by specialist experts; the reasoning faculties of the most highly educated reasoners, the bar, are taxed often for years to decide these questions; and the amount of money expended in the 'preparation for a hearing in court on a simple question of novelty or utility is always large, and often reaches to tens, and at times hundreds, of thousands of dollars. The annual salary of one of the junior counsel in the great Indiarubber controversy was larger than that paid to the Attorney-General or Chief-Justice of the United States;

and the fees of the leaders, for their occasional counsel and labor in court, were even more magnificent. Money enough has been expended in this country, in patent suits, to pay a great share of the national debt; and it is not probable that the system of preliminary examination at the Patent Office has decreased this sum at all. A great invention always meets its opponents and infringers; the cost of overcoming prejudice and opposition is, of course, greater the more radical and advantageous the improvement or innovation; and it is the controversy attending infringement which induces the world to consider and adopt.

A valuable invention ought to be litigated to introduce it; and no invention not valuable is ever litigated. The preliminary examination is of no value as preventing litigation, and would be hurtful if it did.

Were it possible to obtain a complete knowledge of the work, published and unpublished, before the world and in the closet, of all students, a preliminary examination might insure novelty. It cannot do this; and, of course, without experiment or a perfect knowledge of principles and a perfect reasoning faculty, utility cannot be insured.

What results, then, from the system of examination? A sort of pinchbeck assurance of novelty and utility, giving to the proprietor of an invention of comparatively small value a quasi government indorsement, influencing purchasers to better offers of price. It helps the charlatan and hinders the savant. It is a cheap repute and brassfarthing celebrity, that the United States boasts of, when it plumes itself on the progress of invention shown by the number of patents issued.

Invention is conception and formulation of a dynamic idea. To discover the identity of formulas in language requires a linguist, a philologist, a man of letters. To discover the identity of dynamic formulas requires an investigation the more profound, as the ability to estimate force and its applications and channels is more rare than the ability to

consider facts and figures and words. The United States can never afford to pay in money a first-class salary for highly educated labor; or, at any rate, it does not do so. A large steamboat line pays its superintending and constructing engineer ten thousand dollars a year or more. A first-class factory pays at the same rate for its manufacturing agent. Brains have a market value, and the United States tries to purchase cheap, and in many instances gets a low order of talent. The salaries of Patent Office examiners range from eighteen hundred to three thousand dollars. Now the duty done by examiners in the Patent Office is that of dynamic criticism. A literary reviewer's duty is criticism of thought. No leading magazine could exist whose criticisms were simply verbal; and no dynamic criticism is of value, that does not consider the dynamic idea, as well as its formula. Yet an examination of the list of published patents will show that the large majority of inventions patented are only dynamic formulas, and very many of them are only old formulas put into equivalent terms, mere translations, as it were, into different dialects or languages.

It is a current notion that invention is the result of lucky hits. But it is no more proper to think of luck in invention than in literature. Organization or capacity is the only luck in either case. Education, generally of a special sort, has built the habit of thought which in the one case makes a successful book, in the other a successful machine. Invention is the literature of dynamics; and is as impossible without training as literary work. And the same habits of observation and ability for deductive reasoning are requisite as in the law or in medicine. A successful inventor is always, consciously or unconsciously, a logician. This training or education, this logical work, then, combined with the criticism which the inventor himself would consider necessary to make, or have made, by competent friends, upon his conception and its embodiment, in order that he might warrant his work, and secure the greatest profit from it,

would be a far greater security than a government examination as at present. All great inventors and most of the lesser are specialists, and in their own lines consider rightly that they know more than the Patent Office. What we want, then, is a change in the patent law to make a patent evidence only of registration and of the inventor's opinion regarding its novelty and utility, and to this extent a patent should make a prima facie case for the patentee. Next the patent should be issued without Government examination or guaranty, upon the relation of the inventor, and should so state. And, thirdly, the patentee in his specification should be allowed to state his invention, either by distinguishing what is old or asserting what is new, and not, as at present, simply asserting what is new. Fourthly, the patent should always be favorably construed for the patentee, quo res magis valeat quam percat, and reissues should be abolished.

In this way invention would be assimilated more nearly with other ideal property; the requirements of the public in registration would be attained; property of the highest order, that which advances the economies of the world, would be secured as readily as æsthetic property, or that which instructs or amuses the mind, and the public be as much or more benefited than at present.

There sometimes arises a controversy as to who is the true inventor. If two people study on the same subject, reason on the same facts, they must, if they study or reason correctly, come to similar conclusions. In formulating the conclusion, they will present it in different terms. One may say specific gravity instead of atomic weight, specific heat instead of insusceptibility to heat. One may prescribe an eccentric instead of a crank, a slotted yoke in lieu of a connecting-rod. In solving the problem of placing marine engines below the water-line, the Princeton had pendulum engines; the Barwon, steeple; and almost every conceivable form of engine has since been used. Now, from what we

have already seen with regard to other property than the ideal, the reasonable demand of the public for the use of the invention must be supplied; and if an inventor simply formulates on paper, or conceives a notion without putting it to practical employment, he is not so well entitled to protection as the man who actually builds the working machine from his own conceptions, and runs it, and offers it for sale. The world has an interest in progress, and he who can help, and does not, will not be allowed to prevent the work and help of those who can and do. The law has hardly gone so far as this; but, before it is settled on the basis of right reason, it will. True liberty of the person within the law is the basis of our government. The ownership of body and soul is the foundation of liberty. The closer to the person the more sacred the property. Repute, good-will, trade-mark, property in copy, invention, all flow out from the person to the public; and the maintenance of their creator's property in them, and his exclusive control over them by act and deed, is only less important to the establishment of that personal and individual royalty or kinghood of each member of society which forms the true foundation of a free government, than liberty of religious and intellectual thought and speech, and the right of each man to control his own manual labor.

Unless the end and aim of republican government is to make a society of kings and queens, - acknowledged as such in all countries; held as natural equals everywhere by the highest class

es, because of their grand humanity and essential spiritual force, a republic is no better than a monarchy. Unless it succeeds in making a goodly number of them, it is not so good as an aristocracy; and, if it do not progress upward, it will surely go downward. One step to the establishment of intelligent kinghood is established sanctity of ideal property, an education into the belief that the nearer the soul of man the better the property; and, the better the quality of property near his soul, the less earthly is his soul likely to be.

NOTE. That which is here stated as the law of copy as distinct from copyright will probably be disputed by many lawyers, but it results inevitably from the dicta and decisions of both English and American courts. A résumé, more or less thorough, of the whole matter may be found in 4 House of Lords Cases, in an elaborate opinion of Judge Cadwallader of Pennsylvania, reported in 9 American Law Register, and in an opinion of Judge Hoar of Massachusetts, reported in the 15 Gray's Reports. Cadwallader's opinion contains absolutely all the learning on the subject, but it is not so compactly arranged as Hoar's. The comedy of "Our American Cousin" is the subject-matter of most of the American decisions; and the research and acumen of the plaintiffs counsel in the cases, Mr. William D. Booth, of New York, have mainly produced a crystallization of the law of copy in America, so that to-day it is much more compact and definite here than in England.