Age of Invention: The Statute of Monopolies, Part I

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One of the most frequently mentioned landmarks in the history of intellectual property is the Statute of Monopolies, passed by the English parliament in 1624. I’ve often seen it lauded as the beginning of the system of patents for invention, or the first patent law. I remember giving a talk a few years ago where I downplayed the role of formal institutions in encouraging the Industrial Revolution, prompting an outraged economist in the audience to point to the law as a sort of gotcha — “here’s a better explanation: with patents you incentivise invention, and the Brits had just invented patents”.

Which is all to illustrate that the Statute of Monopolies is often fundamentally misunderstood. So what, exactly, did it actually do? It’s a tale of opportunism, corruption, and court intrigue, with some actual innovation inbetween. The whole saga ended Francis Bacon’s political career, led to a major constitutional crisis, and set the scene for how inventors were to behave and act for well over a century. In this first part, I’ll give the context you’ll need to really appreciate what was going on, and I’ll publish the rest in the weeks to come.

First off, the Statute of Monopolies was certainly not the first patent law. Venice’s senate had enacted a law on monopolies for invention as early as 1474. But even then, we shouldn’t be looking for statutes at all. The history of patents does not begin in 1474, but much earlier, with plenty of monopolies over new inventions having already been granted by the ruling grand council of Venice, and by the authorities of other Italian cities like Florence. The key thing to recognise about early patents is that they were not a creation of parliaments or their statutes, but of those in charge. They were the creation of sovereigns, a creature of kings and queens (or in the case of republics like Venice, of governing councils).

As regular readers of this newsletter might remember, patent monopolies for invention had already had long history in England, well before 1624. Patents in general were a very ordinary tool of English monarchs, used to communicate their will. By issuing letters patent, monarchs essentially issued public orders, open for everyone to see. (Think “patently”, as in clearly or obvious, which comes from the same root.) Monarchs used letters patent to grant titles and lands, appoint or remove people as officials, extend royal protections to foreign immigrants, incorporate cities, guilds, even theatre troupes — in general, just to rule.

And, eventually, English monarchs copied the Venetians by issuing letters patent to grant temporary monopolies to particular people, to encourage them to make discoveries, publish books, or introduce new industries or inventions to the realm. It’s only over the passage of centuries that we’ve come to refer to patents for invention — a mere subset of letters patent, and really even a mere subset of patent monopolies for all sorts of other creative work — as simply patents. Intellectual property was thus a ruler-granted privilege, created in the same way that a town gains the official status of a city, or a commoner becomes a knight. English monarchs began granting monopolies for discovering new territories and trade routes from 1496, for printing certain books from 1512, and for introducing new industries or inventions from 1552 (with one weird isolated exception from as early as 1449).

Not all of these monopolies were granted using letters patent, with literary privileges often being announced using a slightly different kind of proclamation, sometimes called placards. I even suspect that some inventions might have been given monopolies via placard too. I’ve seen reference to a placard being used in 1567 to give one Peter Anthony van Ghemen a monopoly on the use of a slitting engine, for processing iron into rods for window grates, bars, locks, and especially nails. In 1576, too, the pioneering cartographer Christopher Saxton appears to have been granted a placard decreeing that he was to be assisted in his endeavours to map certain counties. But unfortunately we don’t know the full terms of these placards, or really any of the details about them, because the official records of them were all destroyed in a fire. We only know anything about placards at all because of stray mentions of them in various manuscript papers, and because publishers highlighted that their books were protected by such privileges in the first few pages of the books themselves — much like copyright notices in the colophons of books today. (Incidentally, I suspect there’s a rich vein of archival research to be done on placard privileges. They have been almost entirely forgotten, except by a handful of book historians.)

Regardless of how they were granted, however, all monopolies over the use of an invention or industry were extremely open to abuse. Patents were, and still are, a reactive instrument, granted only following an application or petition from inventors. But before the days of bureaucratic patent offices, when patents involved a direct contract with the Crown, getting one very much depended on one’s influence at court. Monarchs are not the easiest people to just write to and be heeded. You needed introductions, or to already be known. And you needed to persuade the monarch about what was in it for them — patents were all a matter of quid pro quo. Getting a monopoly involved making a deal, with rulers often personally receiving a share of the profits.

Elizabeth I and James I even started to grant patent monopolies over pre-existing industries, rather than just for inventions. In 1594, one courtier obtained a 21-year privilege to regulate the quality of ale and beer used to make vinegar (alegar and beeregar, to be precise). Alleging in his petition that unscrupulous vinegar-makers were using corrupted ingredients, he proposed that he be given a personal monopoly over the industry so that he could license only the high-quality manufacturers. But having obtained the patent, the courtier simply licensed many of the existing manufacturers, who now simply had to pay him fourpence a barrel — some of which he then passed onto Elizabeth. The distinction began to blur between letters patent for inventions and ones that pretty much appointed parasitic would-be regulators. Tin, coal, leather, wine, salt, inns, and alehouses, were all similarly affected, with many monopolies going to the monarchs’ favourites like Sir Walter Raleigh, the Duke of Buckingham, and their various cronies.

But people were becoming alarmed. When a courtier named Edward Darcy started trying to enforce a patent for approving the quality of leather, glove-makers’ apprentices in London reportedly started a riot. Another of Darcy’s patents, for the making and selling of playing cards, was alleged to have both raised prices and deprived many poor people of an easy trade. Although he obtained the monopoly on the grounds that playing cards resulted in harmful gambling, Darcy reportedly failed to reduce the number of playing cards being made, happily selling licenses to anyone who could pay. Armed with his patent, he allegedly even forced entry into people’s houses on the pretext that they might be hiding illegally-made cards, and seized suspected offenders and making them pay for their release. Ancient English freedoms, it seemed, were dying at the hands of these corrupt “projectors”.

We should be careful, of course, not to always take the complainants against patents at their word. An early patent for glasses, for example, affected merchants who were no longer allowed to import them from abroad, and substantially raised the prices of glasses in England. Opponents of the patent — probably those same merchants — also pointed out that by making glass domestically the state was losing revenue from customs duties, and that the industry was resulting in deforestation, with so much extra wood being burnt for fuel. But it’s easy to see how the patent could also just have been part of an industrial strategy. Any attempt to protect the domestic production of glasses by banning imports would always have come with such complaints. For better or worse, the fact that some people lost out from such a policy didn’t mean that it was actually corrupt or against the public good.

The problem, really, was in the lack of options available for legitimate complaints to be heard. A straightforward way to get a patent rescinded was to petition the monarch directly — it was theirs to remove, as well as to grant. But such petitions were generally just ignored. Another method was to resort to the law. The common law stipulated certain limits on what the monarch could and could not do when creating a monopoly using their prerogative powers. The common law was clear, for example, that the granting of monopolies could not be used to put workers out of a job — the English had a right to practice the profession they had been trained to do.

But very few cases were even allowed to be tested. Elizabeth I would intervene directly, issuing special orders — writs of assistance — to make sure that cases against patents could not even be heard in common-law courts like the King’s Bench. It was, the argument went, a matter of jurisdiction: she wanted matters relating to her prerogative powers to only be tried in the Court of Chancery (where her lord high chancellor could keep a closer eye on proceedings). Thus, with one order the queen bestowed a monopoly, and then when someone wished to challenge it using the common law, she issued another to effectively suspend the case — an effective and unpopular ploy that her successor James I continued.

The only remaining recourse for complainants seemed to be to Parliament. But even this method was fraught with problems. Parliaments, in an ideal world for monarchs, were mainly supposed to just meet and approve higher taxes for them — to vote them “subsidies”. So when in 1571 the speaker of the House of Commons mentioned that there were some abuses by people acting on Elizabeth I’s orders, and hinted that perhaps they should discuss these before voting her the subsidies, he was immediately sent for and given a severe dressing down. As one MP recounted, the speaker returned “with such an amazed countenance that it daunted all the House”. Nobody dared to discuss anything of much importance for the next two or so weeks.

Yet not all MPs were so easily cowed. The experience in 1571 seems to have provoked a few politicians into defending the principle they should have free speech in the House, and by the 1590s they had become especially bold. Towards the end of the 1598 Parliament, MPs even presented the queen with list of complaints about patent monopolies (perhaps they left it so late so as not to incur so much of her wrath). Although she admonished them for questioning her rights, Elizabeth also gave a little ground by promising to allow patent cases be tried in the common-law courts. But it was when she promptly failed to keep said promise that the 1601 Parliament took the extraordinary step of actually debating whether to impose restrictions on the kinds of patent monopolies she was allowed to grant. After decades of patent abuses, Parliament was finally bold enough to question the monarch’s prerogative powers. The scene for a showdown was set, as I’ll discuss in Part II.

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