Patent Politics: Intellectual Property, the Railroad Industry, and the Problem of Monopoly

As winter descended on Washington in December 1878, the Forty-fifth Congress gathered for what promised to be a hectic third and final session. Emotions ran high. In this era, Congress habitually reserved much of its business for these brief, intense "lame duck" sessions that fell between the election of legislators in November and the adjournment of Congress the following March. Compounding the usual sense of urgency was the startling result of the recent election: the Democratic party had gained control of the Senate and, when the next Congress convened, would control both the Senate and the House for the first time since before the Civil War. Senate Republicans well understood that they had but a few precious months to close ranks and enact legislation on some of the burning issues of the day: civil rights, the currency, the tariff. Yet when the session opened, none of these issues made their way to the floor. Instead, and despite howls of protest from senators eager to move on to what they plainly regarded as more urgent concerns, the Senate assembled on many afternoons for several weeks to debate a completely different matter: a proposed law concerning the rights of inventors. At this critical juncture in American politics, the Senate found itself embroiled in a long and complex discussion of the virtues and deficiencies of the patent system.¹

How do we explain it? Perhaps the episode was merely a diversionary tactic orchestrated by one of the Senate's competing factions to forestall legislation on more pressing matters. Such an explanation would fit neatly with the scholarly consensus that the nineteenth-century American government was a mere "state of courts and parties" that lacked the tools to respond effectively to the complex issues spawned by rapid economic development. It would be equally congenial to the many historical accounts that deny that the nineteenth-century United States even had a state, or that posit that its governmental institutions merely "responded" to changes set in motion by industrialism, a social process presumed to be largely independent of and unrelated to public policy. Both of these interpretations characterize the nineteenth-century Congress as an essentially reactive body balkanized by rival political factions and dominated by party leaders intent on protecting the personal fiefdoms that they had carved out through the judicious disbursement of government contracts and jobs (known as "spoils"). Incapable of enacting constructive legislation, party leaders did all they could to block those who tried. Public policy, as a consequence, lacked coherence, and was little more than the sum total of the particularistic decisions of legislators and judges. Parties ran election campaigns and distributed spoils; courts sorted out the mess. In all matters involving economic regulation, the courts reigned supreme. Since party leaders were preoccupied with placating their supporters, while the federal government lacked effective administrative agencies, it was left to the courts to broker the inevitable disputes that industrialism spawned.²

In certain respects, congressional debate over the regulation of the patent system fits into the "courts and parties" framework. The bill's chief opponent was a consummate spoilsman; the bill failed; and the contest shifted to the courts. The senator who kept the issue on the floor was none other than New York's Roscoe Conkling, the flamboyant leader of a faction of the Republican party known as the "stalwarts" in tribute to their fierce allegiance to ex-President Ulysses S. Grant. Stalwarts had long maintained their influence through the judicious disbursement of political patronage, especially in the pivotal state of New York. In 1878, however, Grant was out of office and the stalwarts' influence was waning. Predictably, Conkling's role in the patent debate was obstructionist: rather than seeking legislation of his own, he sought to kill a bill that someone else had proposed.

Conkling's challengers included ascendant Democrats, Republican rivals such as the anti-Grant faction headed up by presidential hopeful James G. Blaine, and—most threatening of all—an insurgent group of Republican legislators known as "liberals," and sometimes termed by historians the "liberal...