[26] The new law regarding service-books has confined the independence of workers within narrower limits. The democratic press has again thundered its indignation this subject against those in power, as if they had been guilty of anything more than the application of the principles of authority and property, which are those of democracy. What the Chambers have done in regard to service-books was inevitable, and should have been expected. It is as impossible for a society founded on the proprietary principle not to end in class distinctions as for a democracy to avoid despotism, for a religion to be reasonable, for fanaticism to show tolerance. This is the law of contradiction: how long will it take us to understand it?
Thus the police function, instituted for the defence of the proletariat, is directed entirely against the proletariat. The proletaire is driven from the forests, from the rivers, from the mountains; even the cross- roads are forbidden him; soon he will know no road save that which leads to prison.
The advance in agriculture has made the advantage of artificial meadows and the necessity of abolishing common land generally felt. Everywhere communal lands are being cleared, let, enclosed; new advances, new wealth. But the poor day-laborer, whose only patrimony is the communal land and who supports a cow and several sheep in summer by letting them feed along the roads, through the underbrush, and over the stripped fields, will lose his sole and last resource. The landed proprietor, the purchaser or farmer of the communal lands, will alone thereafter sell, with his wheat and vegetables, milk and cheese. Instead of weakening an old monopoly, they create a new one. Even the road- laborers reserve for themselves the edges of the roads as a meadow belonging to them, and drive off all non-administrative cattle. What follows? That the day-laborer, before abandoning his cow, lets it feed in contravention of the law, becomes a marauder, commits a thousand depredations, and is punished by fine and imprisonment: of what use to him are police and agricultural progress? Last year the mayor of Mulhouse, to prevent grape-stealing, forbade every individual not an owner of vines to travel by day or night over roads running by or through vineyards,--a charitable precaution, since it prevented even desires and regrets. But if the public highway is nothing but an accessory of private property; if the communal lands are converted into private property; if the public domain, in short, assimilated to private property, is guarded, exploited, leased, and sold like private property,--what remains for the proletaire? Of what advantage is it to him that society has left the state of war to enter the regime of police?
Industry, as well as land, has its privileges,--privileges consecrated by the law, as always, under conditions and reservations, but, as always also, to the great disadvantage of the consumer. The question is interesting; we will say a few words upon it.
I quote M. Renouard.
"Privileges," says M. Renouard, "were a corrective of regulation."
I ask M. Renouard's permission to translate his thought by reversing his phrase: Regulation was a corrective of privilege. For whoever says regulation says limitation: now, how conceive of limiting privilege before it existed? I can conceive a sovereign submitting privileges to regulations; but I cannot at all understand why he should create privileges expressly to weaken the effect of regulations. There is nothing to prompt such a concession; it would be an effect without a cause. In logic as well as in history, everything is appropriated and monopolized when laws and regulations arrive: in this respect civil legislation is like penal legislation. The first results from possession and appropriation, the second from the appearance of crimes and offences. M. Renouard, preoccupied with the idea of servitude inherent in all regulation, has considered privilege as a compensation for this servitude; and it was this which led him to say that PRIVILEGES ARE A CORRECTIVE OF REGULATION. But what M. Renouard adds proves that he meant the opposite: The fundamental principle of our legislation, that of granting temporary monopoly as a condition of a contract between society and the laborer, has always prevailed, etc.
What is, in reality, this grant of a monopoly? A simple acknowledgment, a declaration. Society, wishing to favor a new industry and enjoy the advantages which it promises, BARGAINS with the inventor, as it has bargained with the farmer; it guarantees him the monopoly of his industry for a time; but it does not create the monopoly. The monopoly exists by the very fact of the invention; and the acknowledgment of the monopoly is what constitutes society.
This ambiguity cleared up, I pass to the contradictions of the law.
All industrial nations have adopted the establishment of a temporary monopoly as a condition of a contract between society and the inventor...I do not take readily to the belief that all legislators of all countries have committed robbery.
M. Renouard, if ever he reads this work, will do me the justice to admit that, in quoting him, I do not criticise his thought; he himself has perceived the contradictions of the patent law. All that I pretend is to connect this contradiction with the general system.
Why, in the first place, a TEMPORARY monopoly in manufacture, while land monopoly is PERPETUAL? The Egyptians were more logical; with them these two monopolies were alike hereditary, perpetual, inviolable. I know the considerations which have prevailed against the perpetuity of literary property, and I admit them all; but these considerations apply equally well to property in land; moreover, they leave intact all the arguments brought forward against them. What, then, is the secret of all these variations of the legislator? For the rest, I do not need to say that, in pointing out this inconsistency, it is not my purpose either to slander or to satirize; I admit that the course of the legislator is determined, not by his will, but by necessity.
But the most flagrant contradiction is that which results from the enacting section of the law. Title IV, article 30, % 3, reads: "If the patent relates to principles, methods, systems, discoveries, theoretical or purely scientific conceptions, without indicating their industrial applications, the patent is void."
Now, what is a PRINCIPLE, a METHOD, a THEORETICAL CONCEPTION, a SYSTEM? It is the especial fruit of genius, it is invention in its purity, it is the idea, it is everything. The application is the gross fact, nothing. Thus the law excludes from the benefit of the patent the very thing which deserves it,--namely, the idea; on the contrary, it grants a patent to the application,--that is, to the material fact, to a pattern of the idea, as Plato would have said. Therefore it is wrongly called a PATENT FOR INVENTION; it should be called a PATENT FOR FIRST OCCUPANCY.
In our day, if a man had invented arithmetic, algebra, or the decimal system, he would have obtained no patent; but Bareme would have had a right of property in his Computations. Pascal, for his theory of the weight of the atmosphere, would not have been patented; instead of him, a glazier would have obtained the privilege of the barometer. I quote M. Arago: After two thousand years it occurred to one of our fellow-countrymen that the screw of Archimedes, which is used to raise water, might be employed in forcing down gases; it suffices, without making any change, to turn it from right to left, instead of turning it, as when raising water, from left to right. Large volumes of gas, charged with foreign substances, are thus forced into water to a great depth; the gas is purified in rising again. I maintain that there was an invention; that the person who saw a way to make the screw of Archimedes a blowing machine was entitled to a patent.
What is more extraordinary is that Archimedes himself would thus be obliged to buy the right to use his screw; and M. Arago considers that just.
It is useless to multiply these examples: what the law meant to monopolize is, as I said just now, not the idea, but the fact; not the invention, but the occupancy. As if the idea were not the category which includes all the facts that express it; as if a method, a system, were not a generalization of experiences, and consequently that which properly constitutes the fruit of genius,--invention! Here legislation is more than anti-economic, it borders on the silly. Therefore I am entitled to ask the legislator why, in spite of free competition, which is nothing but the right to apply a theory, a principle, a method, a non-appropriable system, he forbids in certain cases this same competition, this right to apply a principle?" It is no longer possible," says M. Renouard, with strong reason, "to stifle competitors by combining in corporations and guilds; the loss is supplied by patents." Why has the legislator given hands to this conspiracy of monopolies, to this interdict upon theories belonging to all?
But what is the use of continually questioning one who can say nothing? The legislator did not know in what spirit he was acting when he made this strange application of the right of property, which, to be exact, we ought to call the right of priority. Let him explain himself, then, at least, regarding the clauses of the contract made by him, in our name, with the monopolists.
I pass in silence the part relating to dates and other administrative and fiscal formalities, and come to this article: The patent does not guarantee the invention.
Doubtless society, or the prince who represents it, cannot and should not guarantee the invention, since, in granting a monopoly for fourteen years, society becomes the purchaser of the privilege, and consequently it is for the patentee to furnish the guarantee. How, then, can legislators proudly say to their constituents: "We have negotiated in your name with an inventor; he pledges himself to give you the enjoyment of his discovery on condition of having the exclusive exploitation for fourteen years. But we do not guarantee the invention"? On what, then, have you relied, legislators? How did you fail to see that, without a guarantee of the invention, you conceded a privilege, not for a real discovery, but for a possible discovery, and that thus the field of industry was given up by you before the plough was found? Certainly, your duty bade you to be prudent; but who gave you a commission to be dupes?
Thus the patent for invention is not even the fixing of a date; it is an abandonment in anticipation. It is as if the law should say: "I assure the land to the first occupant, but without guaranteeing its quality, its location, or even its existence; not even knowing whether I ought to give it up or that it falls within the domain of appropriation!" A pretty use of the legislative power!
I know that the law had excellent reasons for abstaining; but I maintain that it also had good reasons for intervening. Proof: "It cannot be concealed," says M. Renouard, "it cannot be prevented; patents are and will be instruments of quackery as well as a legitimate reward of labor and genius...It is for the good sense of the public to do justice to juggleries."
As well say it is for the good sense of the public to distinguish true remedies from false, pure wine from adulterated; or, it is for the good sense of the public to distinguish in a buttonhole the decoration awarded to merit from that prostituted to mediocrity and intrigue. Why, then, do you call yourselves the State, Power, Authority, Police, if the work of Police must be performed by the good sense of the public?
As the proverb says, he who owns land must defend it; likewise, he who holds a privilege is liable to attack.
Well! how will you judge the counterfeit, if you have no guarantee? In vain will they offer you the plea: in right first occupancy, in fact similarity. Where reality depends upon quality, not to demand a guarantee is to grant no right over anything, is to take away the means of comparing processes and identifying the counterfeit. In the matter of industrial processes success depends upon such trifles! Now, these trifles are the whole.
I infer from all this that the law regarding patents for inventions, indispensable so far as its motives are concerned, is impossible--that is, illogical, arbitrary, disastrous--in its economy. Under the control of certain necessities the legislator has thought best, in the general interest, to grant a privilege for a definite thing; and he finds that he has given a signature-in-blank to monopoly, that he has abandoned the chances which the public had of making the discovery or some other similar to it, that he has sacrificed the rights of competitors without compensation, and abandoned the good faith of defenceless consumers to the greed of quacks. Then, in order that nothing might be lacking to the absurdity of the contract, he has said to those whom he ought to guarantee: "Guarantee yourselves!"
I do not believe, any more than M. Renouard, that the legislators of all ages and all countries have wilfully committed robbery in sanctioning the various monopolies which are pivotal in public economy. But M. Renouard might well also agree with me that the legislators of all ages and all countries have never understood at all their own decrees. A deaf and blind man once learned to ring the village bells and wind the village clock. It was fortunate for him, in performing his bell- ringer's functions, that neither the noise of the bells nor the height of the bell-tower made him dizzy. The legislators of all ages and all countries, for whom I profess, with M. Renouard, the profoundest respect, resemble that blind and deaf man; they are the Jacks-in-the- clock-house of all human follies.
What a feather it would be in my cap if I should succeed in making these automata reflect! if I could make them understand that their work is a Penelope's web, which they are condemned to unravel at one end as fast as they weave at the other!
Thus, while applauding the creation of patents, on other points they demand the abolition of privileges, and always with the same pride, the same satisfaction. M. Horace Say wishes trade in meat to be free. Among other reasons he puts forward this strictly mathematical argument: The butcher who wants to retire from business seeks a purchaser for his investment; he figures in the account his tools, his merchandise, his reputation, and his custom; but under the present system, he adds to these the value of the bare title,--that is, the right to share in a monopoly. Now, this supplementary capital which the purchasing butcher gives for the title bears interest; it is not a new creation; this interest must enter into the price of his meat. Hence the limitation of the number of butchers' stalls has a tendency to raise the price of meat rather than lower it.
I do not fear to affirm incidentally that what I have just said about the sale of a butcher's stall applies to every charge whatever having a salable title.
M. Horace Say's reasons for the abolition of the butcher's privilege are unanswerable; moreover, they apply to printers, notaries, attorneys, process-servers, clerks of courts, auctioneers, brokers, dealers in stocks, druggists, and others, as well as to butchers. But they do not destroy the reasons which have led to the adoption of these monopolies, and which are generally deduced from the need of security, authenticity, and regularity in business, as well as from the interests of commerce and the public health. The object, you say, is not attained. My God! I know it: leave the butcher's trade to competition, and you will eat carrion; establish a monopoly in the butcher's trade, and you will eat carrion. That is the only fruit you can hope for from your monopoly and patent legislation.
Abuses! cry the protective economists. Establish over commerce a supervisory police, make trade-marks obligatory, punish the adulteration of products, etc.
In the path upon which civilization has entered, whichever way we turn, we always end, then, either in the despotism of monopoly, and consequently the oppression of consumers, or else in the annihilation of privilege by the action of the police, which is to go backwards in economy and dissolve society by destroying liberty. Marvellous thing! in this system of free industry, abuses, like lice, being generated by their own remedies, if the legislator should try to suppress all offences, be on the watch against all frauds, and secure persons, property, and the public welfare against any attack, going from reform to reform, he would finally so multiply the non-productive functions that the entire nation would be engaged in them, and that at last there would be nobody left to produce. Everybody would be a policeman; the industrial class would become a myth. Then, perhaps, order would reign in monopoly.
"The principle of the law yet to be made concerning trade-marks," says M. Renouard, "is that these marks cannot and should not be transformed into guarantees of quality."
This is a consequence of the patent law, which, as we have seen, does not guarantee the invention. Adopt M. Renouard's principle; after that of what use will marks be? Of what importance is it to me to read on the cork of a bottle, instead of TWELVE-CENT WINE or FIFTEEN-CENT WINE, WINE-DRINKERS' COMPANY or the name of any other concern you will? What I care for is not the name of the merchant, but the quality and fair price of the merchandise.
The name of the manufacturer is supposed, it is true, to serve as a concise sign of good or bad manufacture, of superior or inferior quality. Then why not frankly take part with those who ask, besides the mark of ORIGIN, a mark significant of something? Such a reservation is incomprehensible. The two sorts of marks have the same purpose; the second is only a statement or paraphrase of the first, a condensation of the merchant's prospectus; why, once more, if the origin signifies something, should not the mark define this significance?
M. Wolowski has very clearly developed this argument in his opening lecture of 1843-44, the substance of which lies entirely in the following analogy: Just as the government has succeeded in determining a standard of QUANTITY, it may, it should also fix a standard of QUALITY; one of these standards is the necessary complement of the other. The monetary unit, the system of weights and measures, have not infringed upon industrial liberty; no more would it be damaged by a system of trade-marks.
M. Wolowski then supports himself on the authority of the princes of the science, A. Smith and J. B. Say,--a precaution always useful with hearers who bow to authority much more than to reason.
I declare, for my part, that I thoroughly share M. Wolowski's idea, and for the reason that I find it profoundly revolutionary. The trade-mark, being, according to M. Wolowski's expression, nothing but a standard of qualities, is equivalent in my eyes to a general scheduling of prices. For, whether a particular administration marks in the name of the State and guarantees the quality of the merchandise, as is the case with gold and silver, or whether the matter of marking is left to the manufacturer, from the moment that the mark must give THE INTRINSIC COMPOSITION OF THE MERCHANDISE (these are M. Wolowski's own words) AND GUARANTEE THE CONSUMER AGAINST ALL SURPRISE, it necessarily resolves itself into a fixed price. It is not the same thing as price; two similar products, but differing in origin and quality, may be of equal value, as a bottle of Burgundy may be worth a bottle of Bordeaux; but the mark, being significant, leads to an exact knowledge of the price, since it gives the analysis. To calculate the price of an article of merchandise is to decompose it into its constituent parts; now, that is exactly what the trade-mark must do, if designed to signify anything. Therefore we are on the road, as I have said, to a general scheduling of prices.
But a general scheduling of prices is nothing but a determination of all values, and here again political economy comes into conflict with its own principles and tendencies. Unfortunately, to realize M. Wolowski's reform, it is necessary to begin by solving all the previous contradictions and enter a higher sphere of association; and it is this absence of solution which has brought down upon M. Wolowski's system the condemnation of most of his fellow-economists.
In fact, the system of trade-marks is inapplicable in the existing order, because this system, contrary to the interests of the manufacturers and repugnant to their habits, could be sustained only by the energetic will of power. Suppose for a moment that the administration be charged with affixing the marks; its agents will have to interpose continually in the work of manufacture, as it interposes in the liquor business and the manufacture of beer; further, these agents, whose functions seem already so intrusive and annoying, deal only with taxable quantities, not with exchangeable qualities. These fiscal supervisors and inspectors will have to carry their investigation into all details in order to repress and prevent fraud; and what fraud? The legislator will have defined it either incorrectly or not at all; it is at this point that the task becomes appalling.
There is no fraud in selling wine of the poorest quality, but there is fraud in passing off one quality for another; then you are obliged to differentiate the qualities of wines, and consequently to guarantee them. Is it fraudulent to mix wines? Chaptal, in his treatise on the art of making wine, advises this as eminently useful; on the other hand, experience proves that certain wines, in some way antagonistic to each other or incompatible, produce by their mixture a disagreeable and unhealthy drink. Then you are obliged to say what wines can be usefully mixed, and what cannot. Is it fraudulent to aromatize, alcoholize, and water wines? Chaptal recommends this also; and everybody knows that this drugging produces sometimes advantageous results, sometimes pernicious and detestable effects. What substances will you proscribe? In what cases? In what proportion? Will you prohibit chicory in coffee, glucose in beer, water, cider, and three-six alcohol in wine?
The Chamber of Deputies, in the rude attempt at a law which it was pleased to make this year regarding the adulteration of wines, stopped in the very middle of its work, overcome by the inextricable difficulties of the question. It succeeded in declaring that the introduction of water into wine, and of alcohol above the proportion of eighteen per cent., was fraudulent, and in putting this fraud into the category of offences. It was on the ground of ideology; there one never meets an obstacle. But everybody has seen in this redoubling of severity the interest of the treasury much more than that of the consumer; the Chamber did not dare to create a whole army of wine-tasters, inspectors, etc., to watch for fraud and identify it, and thus load the budget with a few extra millions; in prohibiting watering and alcoholization, the only means left to the merchant-manufacturers of putting wine within the reach of all and realizing profits, it did not succeed in increasing the market by a decrease in production. The chamber, in a word, in prosecuting the adulteration of wines, has simply set back the limits of fraud. To make its work accomplish its purpose it would first have to show how the liquor trade is possible without adulteration, and how the people can buy unadulterated wine,--which is beyond the competency and escapes the capacity of the Chamber.
If you wish the consumer to be guaranteed, both as to value and as to healthfulness, you are forced to know and to determine all that constitutes good and honest production, to be continually at the heels of the manufacturer, and to guide him at every step. He no longer manufactures; you, the State, are the real manufacturer.
Thus you find yourself in a trap. Either you hamper the liberty of commerce by interfering in production in a thousand ways, or you declare yourself sole producer and sole merchant.
In the first case, through annoying everybody, you will finally cause everybody to rebel; and sooner or later, the State getting itself expelled, trade-marks will be abolished. In the second you substitute everywhere the action of power for individual initiative, which is contrary to the principles of political economy and the constitution of society. Do you take a middle course? It is favor, nepotism, hypocrisy, the worst of systems.
Suppose, now, that the marking be left to the manufacturer. I say that then the marks, even if made obligatory, will gradually lose their SIGNIFICANCE, and at last become only proofs of ORIGIN. He knows but little of commerce who imagines that a merchant, a head of a manufacturing enterprise, making use of processes that are not patentable, will betray the secret of his industry, of his profits, of his existence. The significance will then be a delusion; it is not in the power of the police to make it otherwise. The Roman emperors, to discover the Christians who dissembled their religion, obliged everybody to sacrifice to the idols. They made apostates and martyrs; and the number of Christians only increased. Likewise significant marks, useful to some houses, will engender innumerable frauds and repressions; that is all that can be expected of them. To induce the manufacturer to frankly indicate the intrinsic composition--that is, the industrial and commercial value--of his merchandise, it is necessary to free him from the perils of competition and satisfy his monopolistic instincts: can you do it? It is necessary, further, to interest the consumer in the repression of fraud, which, so long as the producer is not utterly disinterested, is at once impossible and contradictory. Impossible: place on the one hand a depraved consumer, China; on the other a desperate merchant, England; between them a venomous drug causing excitement and intoxication; and, in spite of all the police in the world, you will have trade in opium. Contradictory: in society the consumer and the producer are but one,--that is, both are interested in the production of that which it is injurious to them to consume; and as, in the case of each, consumption follows production and sale, all will combine to guard the first interest, leaving it to each to guard himself against the second.
The thought which prompted trade-marks is of the same character as that which formerly inspired the maximum laws. Here again is one of the innumerable cross-roads of political economy.
It is indisputable that maximum laws, though made and supported by their authors entirely as a relief from famine, have invariably resulted in an aggravation of famine. Accordingly it is not injustice or malice with which the economists charge these abhorred laws, but stupidity, inexpediency. But what a contradiction in the theory with which they oppose them!
To relieve famine it is necessary to call up provisions, or, to put it better, to bring them to light; so far there is nothing to reproach. To secure a supply of provisions it is necessary to attract the holders by profits, excite their competition, and assure them complete liberty in the market: does not this process strike you as the absurdest homoeopathy? How is it that the more easily I can be taxed the sooner I shall be provided? Let alone, they say, let pass; let competition and monopoly act, especially in times of famine, and even though famine is the effect of competition and monopoly. What logic! but, above all, what morality!
But why, then, should there not be a tariff for farmers as well as for bakers? Why not a registration of the sowing, of the harvest, of the vintage, of the pasturage, and of the cattle, as well as a stamp for newspapers, circulars, and orders, or an administration for brewers and wine-merchants? Under the monopoly system this would be, I admit, an increase of torments; but with our tendencies to unfairness in trade and the disposition of power to continually increase its personnel and its budget, a law of inquisition regarding crops is becoming daily more indispensable.
Besides, it would be difficult to say which, free trade or the maximum, causes the more evil in times of famine.
But, whichever course you choose,--and you cannot avoid the alternative,--the deception is sure and the disaster immense. With the maximum goods seek concealment; the terror increasing from the very effect of the law, the price of provisions rises and rises; soon circulation stops, and the catastrophe follows, as prompt and pitiless as a band of plunderers. With competition the progress of the scourge is slower, but no less fatal: how many deaths from exhaustion or hunger before the high prices attract food to the market! how many victims of extortion after it has arrived! It is the story of the king to whom God, in punishment for his pride, offered the alternative of three days' pestilence, three months' famine, or three years' war. David chose the shortest; the economists prefer the longest. Man is so miserable that he would rather end by consumption than by apoplexy; it seems to him that he does not die as much. This is the reason why the disadvantages of the maximum and the benefits of free trade have been so much exaggerated.
For the rest, if France during the last twenty-five years has experienced no general famine, the cause is not in the liberty of commerce, which knows very well, when it wishes, how to produce scarcity in the midst of plenty and how to make famine prevail in the bosom of abundance; it is in the improvement in the methods of communication, which, shortening distances, soon restore the equilibrium disturbed for a moment by local penury. A striking example of that sad truth that in society the general welfare is never the effect of a conspiracy of individual wills!
The farther we delve into this system of illusory compromises between monopoly and society,--that is, as we have explained in % 1 of this chapter, between capital and labor, between the patriciate and the proletariat,--the more we discover that it is all foreseen, regulated, and executed in accordance with this infernal maxim, with which Hobbes and Machiavel, those theorists of despotism, were unacquainted: EVERYTHING BY THE PEOPLE AND AGAINST THE PEOPLE. While labor produces, capital, under the mask of a false fecundity, enjoys and abuses; the legislator, in offering his mediation, thought to recall the privileged class to fraternal feelings and surround the laborer with guarantees; and now he finds, by the fatal contradiction of interests, that each of these guarantees is an instrument of torture. It would require a hundred volumes, the life of ten men, and a heart of iron, to relate from this standpoint the crimes of the State towards the poor and the infinite variety of its tortures. A summary glance at the principal classes of police will be enough to enable us to estimate its spirit and economy.