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PART II: FREE LABOR, FREE ENTERPRISE, AND THE FREEDOM TO CONTRACT OVER INNOVATION, 1860–1895
- The University of North Carolina Press
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p a r t II free labor, free enterprise, and the freedom to contract over innovation, 1860–1895 In the years bracketing the Civil War, much changed in American law and society. The agrarian republic imagined by Jefferson disappeared with early industrialization and the rise of commerce in the North. The “market revolution” that began in the Jacksonian era—the growth of commerce within the settled East and the expansion of commerce into the fast-growing West—opened up new opportunities for entrepreneurship through inventing, manufacturing, and selling. Factory production developed, first in textiles and armaments in New England, and then in clocks and other goods. The construction of roads, canals, and railroads opened up new possibilities for commerce and the extraction and processing of raw materials, including iron, lumber, and all sorts of minerals. In 1860, the United States trailed Great Britain, France, and Germany in industrial output, but by 1900 American industrial production exceeded that of these three countries combined. In those four decades, freedom in the economic sense shifted from the freedom of the yeoman farmers to work their lands to the freedom of white men to use their energy, ingenuity, and knowledge to make their way, and maybe their fortune, in the expanding markets.1 As the early stages of industrialization transformed the landscape and lifestyle of the eastern United States on the eve of the Civil War, leading thinkers contemplated the social significance of invention and what it portended for the future of the American people. One of the most widely quoted of such assessments is Abraham Lincoln’s. In a pair of speeches delivered in 1858 and 1859, Lincoln, himself a patentee,2 freedom to contract over innovation [76] suggested that invention and innovation generally and patents in particular represented a distinguishing feature of American society. As a lawyer, Lincoln put particular emphasis on the significance of patent laws; patents, he said, add “the fuel of interest to the fire of genius.” In modern terms, his argument was that the prospect of financial gain promised by intellectual property rights spurs hard work and creativity. That strictly utilitarian characterization of Lincoln’s meaning does not do justice to the subtlety of his thought. Without any obvious purpose of defending a particular legal regime of patents, Lincoln expounded generally upon a link between free labor, freedom of thought, protection for inventions and discoveries, and political freedom. While Lincoln himself may not have had any law reform in mind relative to patent laws, his connection between free labor, protection for inventors, and political freedom was not merely salient in the tense years before the Civil War; it was a constant undercurrent in the American law of workplace knowledge for much of the nineteenth century. The first speech, which Lincoln delivered in April 1858 to the Young Men’s Association of Bloomington, Illinois, drew the connection between the human soul and the human propensity for discovery and invention.3 Beginning with the statement that “[a]ll creation is a mine, and every man, a miner,” Lincoln elaborated on the notion that the world was God’s gift to humankind for its use. The theme of the lecture was a link between divinity and creativity—Adam’s “first important discovery was the fact that he was naked; and his first invention was the fig-leaf apron.” Creation, as in the world, is there for creation, as in human use. The God-given distinction between humans and animals, Lincoln said, is creativity: “[M]an is not the only animal who labors; but he is the only one who improves his workmanship . This improvement, he effects by Discoveries, and Inventions.” Lincoln associated labor, creativity, discovery, and invention with a sacred connection between the human and the divine. In the second lecture, delivered the following year, Lincoln shifted his focus from the link between invention and divinity to the link between invention and the use and conquest of nature, particularly by the young.4 Invention and discovery were a habit of youth and youthful countries, especially “Young America.” The discovery and conquest of new lands, like the discovery and conquest of new ideas, Lincoln said, were the pursuits of youth. Young America, Lincoln said, with a note of humor tinged by irony, is very anxious to fight for the liberation of enslaved nations and colonies , provided, always, they have land, and have not any liking for his interference. As to those who have no land, and would be glad of help [3...