THE HISTORY OF THE DEPARTMENT OF STATE

IV

SOMETIME AND OCCASIONAL DUTIES OF THE DEPARTMENT

In previous papers of this JOURNAL I have shown that the Department of State was created to manage not only the foreign affairs of the government, but such domestic executive business as did not naturally fall under the war and treasury departments; 1 and in addition it has performed certain temporary or occasional duties some of which have passed to other departments and some of which are still under its jurisdiction. In the natural expansion of the business of the government the tendency has been to transfer from the Department all those duties which are purely domestic, and those which have been thus transferred will now be considered.

First in magnitude is the granting of patents for inventions. The act of April 10, 1790, which first regulated the business, authorized the Secretary of State, Secretary of War, and Attorney-General, or any two of them, to issue letters patent in the name of the United States upon petition setting forth the invention or discovery of " any useful art, manufacture, engine, machine, or device, or any improvement therein, not before known or used," if the invention or discovery was deemed to be useful and important, granting to the petitioner, for a term not exceeding fourteen years, the sole and exclusive right of making, using, and selling it. The Attorney-General was to examine the letters patent, and, if he found them to conform to the act, was to so certify and present them to the President, who was to cause the seal of the United States to be affixed, when they became available, and, after having been recorded in the Secretary of State's office and endorsed by him, they were to be delivered to the patentee or his agent. The grantee was to deposit descriptions, specifications, drawings, and models, and certified copies of the specifications were

1 See this JOURNAL, 1:867, 2:591, 3:137.

to be accepted before all courts as competent evidence. Copies of specifications and permission to have copies of models made were to be granted upon application to the Secretary of State. Penalties were provided for infringements. The fees to be paid by patentees to the several officers who made out the letters patent were: for receiving and filing the petition, fifty cents; for filing specifications, ten cents for every copy sheet of one hundred words; for making out the patent. two dollars; for affixing the great seal, one dollar; for endorsing the day of delivering the patent, and all intermediate services, twenty cents.2 Remsen, the chief clerk of the Department, who was immediately in charge of the patent business, prepared the papers for final action by the board, and the patent granted to Samuel Hopkins July 31, 1790, which was the first one issued, was signed by the President, Thomas Jefferson, and Edmund Randolph, the Attorney-General. February 21, 1793, another act was approved abolishing the joint agency and lodging the granting of patents in the Secretary of State, the Attorney-General, however, to examine the letters patent and pass upon their conformity to the act.3

In 1802 began the real formation of the Patent Office with the assignment to the duty of superintending that part of the Department's business of a remarkable and versatile character, Dr. William Thornton, who was styled Superintendent of Patents, and who continued in that office for twenty-six years, until his death March 28, 1828.4 He received his first government appointment in connection with the laying out of Washington in 1794. It appears from his letters that he had been a student at the University of Edinburgh and in London and Paris where he studied mineralogy under Faujas

2 I Stat. 109.

3 Id., 318.

4 No biography of Thornton exists, but a careful study of his career and accomplishments would be interesting and valuable. He had studied medicine; he was the author of erudite pamphlets on the origin of language; his genius in architecture is stamped upon the Capitol; he helped to lay out the grounds of the White House. He became an ardent sympathizer with the South American struggle for independence and applied for a South American mission. A great many of his letters are in the Department of State MSS., especially among the applications for office, 1809-1828, and his papers are in the Library of Congress MSS.

de St. Fond.5 His salary at first was $1,400 per annum, but was increased by Madison from October 24, 1808, to $2,000, until 1810, when inadequate appropriations compelled its reduction. In a memorial to the House of Representatives, dated March 21, 1818, he submitted an account for a balance due him of $4,186.18.6

His administration was marked by friction with the secretary and inventors, the latter charging him with discrimination and personal interest in some of the patents issued. Among the most vigorous of these complainants was Robert Fulton, between whom and Thornton a bitter feud arose. Fulton, in a letter dated December 27, 1814, wrote the Secretary, asking that patents granted Thornton be annulled, as they were infringements on his inventions and that Thornton be dismissed from office.7 On December 23, 1814, Thornton had petitioned for a patent for an improvement in the application of steam to flutter or paddle wheels on the sides of a boat. Fulton's request was granted in part, and Thornton was prohibited from taking out any patents while he held the office of Superintendent, a verdict against which he protested vigorously. He described the vexation of his situation in a letter to Secretary J. Q. Adams December 13, 1817, saying:

8

I have hopes if there be a purgatory, that the Superintendt of the Patent office will be exempt from many sufferings in consequence of the dire situation he has experienced on earth."

The method of procedure required the applications to be made to the Superintendent, who passed upon them and then submitted the question of issuing the patents to the Secretary of State, and applicants who were dissatisfied with the Superintendent's ruling appealed from them to the Secretary of State.10

Upon Thornton's death Thomas P. Jones was appointed the Super

5 Thornton to J. Q. Adams, September 15, 1820; to Jefferson, January 8, 1821; to Madison, January 20, 1821. Department of State MSS. applications for office.

Department of State MSS., Miscellaneous Letters, 62:5.

7 Id., vol. 45.

8 Id., vol. 45.

9 Id., vol. 59. 10 Id., vol. 59.

intendent, and he in turn was succeeded by Dr. John D. Craig in 1830. Craig was the first to make an orderly arrangement by subjects of the drawings and models in his charge, but his methods of business were so irregular that an official investigation became necessary in 1833. He was censured and a number of new rules for conducting his office were laid down.

In 1810, by act of April 28, Congress authorized the moving of the office to a new building which was to be erected, and April 11, 1816, President Madison recommended the establishment of a distinct patent office under the Department of State, with an adequate salary for the Director.1 Additional quarters were provided for in 1828 and in 1836 the Patent Office building was ordered to be built.12

11

The title of Superintendent which Thornton held by courtesy was not recognized by law until April 23, 1830, when the salary was fixed at $1,500.13 The whole system underwent modification, and all previous acts were repealed by the act of July 4, 1836, which created the office of Commissioner of Patents, under the Department of State, provided for a chief clerk, authorized the designing and using of a separate seal, and specified minutely how patents were to be applied for, granted, etc. All patents were to be signed by the Secretary of State, and countersigned by the Commissioner of Patents.1 14 In 1849 when the Department of the Interior was formed the Patent Office became a part of it and all the records were transferred as the act required. It had, for all practical purposes, been independent of the Department of State for some years. From 1790 to 1836 the Secretary of State reported annually the lists of patents to Congress, from 1836 to 1842 the reports were made by the Commissioner of Patents, and after 1843, until the business passed to the Interior Department, the reports included the claims of patents granted.15

11 Messages and Papers of the Presidents, 1:571.

12 IV Stat. 303, V. 115.

13 IV Stat. 396.

14 V Stat. 117 et seq.

15 On the subject of the history of the Patent Office, see Official Gazette, vol. 12, No. 15, and the "Patent System of the United States, a History," by Levin H. Campbell, Washington, 1891; also Annual Report of the Commissioner of Patents, 1900, VIII, "The American Patent System."

The control of the federal government over the granting of patents was given by the eighth section of the first article of the Constitution which conferred upon "Congress the power to promote the progress of science and useful arts by securing for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries." Copyrights and patents were thus grouped together and the former became in a limited degree a part of the sometime duties of the Department of State.

In 1783 Connecticut, New York, Massachusetts and New Jersey, in the order named, adopted copyright laws, and in 1785 Virginia and Delaware, but the other states never had such laws.16 Under the new government the system was regulated by the act of May 31, 1790,17 requiring, in order to secure copyright of a map, chart or book, first, that its title be deposited in the clerk's office of the United States District Court where the person in interest resided and the record of the clerk inserted upon the first or second page; second, that public notice be then given in the newspapers; and third, that within six months a copy of the publication be deposited in the Department of State for preservation. The copyright was to run fourteen years, as in the case of a patent, and might be renewed. By a subsequent act (April 29, 1802), the provisions were extended to engraved prints. In 1831 19 (act of February 3), musical compositions were included, and the clerks of the courts were ordered to transmit at least once a year to the Secretary of State certified lists of all copyrights granted by them and copies of the books or works for preserva tion in the Department. It was thus never more than the place of deposit of copyrighted works and of the records. A book when transmitted directly by an author was usually accompanied by a letter of which the following is an example:

18

16" Origin of the Copyright Laws in the United States," in "A collection of Papers on Political, Literary and Moral Subjects," by Noah Webster, p. 173 et seq., New York, 1843.

17 XV Stat. 125.

18 II Stat. 171.

19 IV Stat. 436.