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Whose Patent is It?

By Sarah Richardson
7/7/2017 • America's Civil War Magazine

Masters owned everything their slaves produced—except their inventions.

In 1857 Oscar Stuart, a planter and lawyer in Pike County, Miss., wanted to patent an ingenious labor-saving device: a contraption that harnessed two plows and allowed a single worker with two horses to do the work of four mules and four workers in a cotton field. Stuart’s first application was turned down. But he did not give up, and in doing so he left a vivid record of the paradoxes confronting a slaveholding society in the throes of an industrial revolution. U.S. patent law, Stuart would learn, collided directly with the slave owners’ most cherished assumptions.

The hitch was that Stuart himself was not the inventor of the innovative plow. It was actually the creation of Ned, a blacksmith and slave Stuart had inherited from his late wife’s estate. In Stuart’s first patent application, he named Ned as the inventor, but the patent was refused. By law, an inventor had to swear that the device was his own creation, and Ned, as a slave, was property and not a citizen; therefore he could not take an oath attesting to what he created. Stuart tried again, this time sending a request for advice to Secretary of the Interior Jacob Thompson, who passed it along to Attorney General Jeremiah Black. Black concurred with the patent office, responding 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 courts against persons who might infringe it.”

Stuart persevered, making his case in a letter to Senator John Quitman of Mississippi: “I presume that 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 hands.” He went on to argue that depriving the master of the right to patent a slave’s invention “subverts that principle of equality, between citizens of the country, which is the conner [sic] stone of our Political edifice—such a construction would result in an unjust discrimination in the Protection due to Property from the government.” Stuart wanted the case to be reviewed by a “Southern man…exempt from all prejudices, which might cloud the understanding of a man from a different latitude.” In short, if slaves and their offspring, integral to the Southern economy, were routinely bought, sold, rented and even mortgaged, why shouldn’t slaveholders also own the intellectual labor of this peculiar form of property? In a remarkably brash postscript, Stuart added, couldn’t the law be changed?

Although both Stuart and Ned were denied a patent for the plow, Stuart was so eager to exploit this creation that he forged ahead, establishing a factory in Summit, Miss., in 1860 to make the tool. Stuart peddled it as “the Stuart Double Plow and Double Scraper, an invention of a negro slave.” And farmers liked it so well that one commended it in a letter to Stuart, adding that “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 invent anything?”

In fact, free blacks already had an impressive record of invention. The first patent issued to an African-American inventor was granted to Thomas Jennings in 1821 for a dry-cleaning technique. Other prominent inventors included Norbert Rillieux, a Creole from New Orleans who invented a sugar-refining technique in 1846, and engineer Elijah McCoy, whose inventions in lubricating engines in motion helped transform the railroad industry. Some free black inventors did not bother to patent their devices. The application process required an onerous $30 fee, and there was the prejudice that would accompany a product invented by a member of what Stuart termed “the servile race.” Some inventors went into business with white partners, or simply sold their designs. In the 1840s, for example, Benjamin Bradley, a Maryland slave, invented a steam engine, and although he could not receive a patent, sold the engine and bought his freedom with the proceeds. And following the war African-American inventors added to the steady stream of industrial innovation. One of the most striking innovators was electrical engineer Granville Woods, whose talents impressed both Alexander Bell and Thomas Edison. Among Woods’ more than 60 patents were 35 related to electrical devices and 15 related to transportation. He won a patent war against Edison for his discovery that allowed moving trains to exchange telegrams, and he devised the “third rail,” the electrical cable that powered streetcars, as well as the grooved wheels, called “trollers,” that trolleys are named after.

Information about inventions of slaves in the antebellum era, though, is scant. The patent examiner in Stuart’s case referred to a few similar applications, all received in 1857— the same year the Supreme Court’s Dred Scott decision underscored slaveholders’ claim on slaves as property. But the only other incident with any detail concerns a prominent Southern family: Jefferson Davis and his brother Joseph.

In 1857 Jefferson Davis, then a senator from Mississippi, applied for a patent on a device—a new kind of boat propeller—created by Benjamin Thornton Montgomery, a gifted slave owned by Joseph Davis, Jefferson’s much older brother. Applying on Joseph’s behalf, Jefferson Davis was turned down, just as Oscar Stuart had been. He resubmitted the application in the name of Benjamin Montgomery. That application was also turned down, for the same reason as in the Stuart case.

History doesn’t record how Jefferson and Joseph reacted to this decision on inventions by slaves, but Jefferson Davis clearly recognized their potential. In 1861, while organizing the Confederate government, Jefferson added a provision to the statute on patent law in the Confederate Provisional Congress that allowed slaveholders to apply for patents on devices invented by their slaves. The Confederacy opened a patent office headed by Rufus Rhodes, a former U.S. patent examiner, and some 200 patents in all were granted during the war. Details about those inventions were lost when the office was dismantled prior to the Union capture of Richmond.

Nothing is known about how Ned developed his talents, but Benjamin Montgomery’s all-around ingenuity is well documented. He was born in Loudoun County, Va., where a child in his owner’s family taught him to read and write. In 1836, at age 17, Montgomery was unexpectedly sold and taken to a slave market in Natchez, Miss., where Joseph Davis bought Montgomery for his plantation at Davis Bend, Miss., about 30 miles south of Vicksburg. Inspired by the utopian ideas of Welsh reformer Robert Owen, Davis ran his plantation based on the view that nurturing talent in a cooperative environment would lead to greater productivity among his more than 300 slaves. “The less people are governed,” he said, “the more submissive they will be to control.” So when Montgomery was quickly captured after running away from Davis Bend, Davis talked to the young man and seeing his frustrated intelligence, Davis let Montgomery use his library. The youthful slave soon learned to survey, repair levees, draw architectural plans and run the steam gin. Montgomery ended up managing cotton sales and running the plantation store. Joseph Davis held him in such high regard that he sold Montgomery the plantation in 1867. A Union officer who had met Montgomery during the occupation at Davis Bend said, “I don’t see how so intelligent a man could have consented to remain so long a slave.”

As for his innovative boat propeller, which had lightweight blades angled at a degree that would minimize water resistance, Montgomery did eventually apply for a patent, but it was never granted, for unknown reasons. A patent examiner who had examined the model left these comments on Montgomery’s invention:

It is well known the office possesses a steamboat model made by Abraham Lincoln, but it is not so well known that it once contained a model constructed by Jefferson Davis’s body servant, a slave who indignantly repudiated the idea of having white blood in his veins. This slave was named Montgomery, and about the time Vicksburg was captured, he came to Cincinnati, and made an application for a patent on his invention, a substitute for paddle wheels.

The application was placed in the hands of the Knight Bros. of this city, and I prepared the drawings for them, and while I was at work on the case, the inventor told me that some of the rebel gun boats were to be provided with his propeller. He also showed me a number of Vicksburg papers that contained very flattering notices of his invention.

I do not remember whether his application was allowed, or was forfeited on account of nonpayment of the final fee, but for some reason the patent was not issued. I was in Washington at the time Mr. Marble was Commissioner, called his attention to the matter, but he took not interest in it, and one of the attendants told me the model had been sent to some Eastern college.

As previously stated, the entire model, including the frame work and metallic portions was made by this slave, and when it was submitted there to an expert model-maker, for the purpose of having it duplicated, he said there was not a man in his shop capable of doing such a finished piece of work. Now if the slave’s propeller model could be procured and exhibited in the same case with the great emancipator’s model of his boat, it would attract the attention of thousands.

It is my impression, however, that Lincoln’s model would suffer by the comparison.

 

Sarah Richardson is a senior editor for America’s Civil War.

Originally published in the March 2013 issue of America’s Civil War. To subscribe, click here.

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