Discover more from Age of Invention, by Anton Howes
Age of Invention: Bears, Bulls, and the Bard
The fall of an entertainment empire, and the enduring legend of the Case of Monopolies
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Although I’ve changed the title, this is really the third instalment of my ongoing series on the early history of the English patent system, leading up to the widely misunderstood Statute of Monopolies of 1624. I changed the title from “Statute of Monopolies, Part III” because the series has turned out to be a lot longer than I was expecting, and I worry that you’re wondering when you’ll actually find out about the statute. Rest assured, it’s coming, but I think this is a very rich and interesting vein to explore in full.
To recap, briefly: in Part I we looked at the origins of patents and their growing infamy as creatures of the Crown, granted by Elizabeth I to her favourite cronies. We saw how she awarded them monopolies over pre-existing industries, not just over inventions, and even intervened to prevent cases against the patents being heard by the common-law courts. In Part II, we then looked at how in 1601 a few brave members of Parliament decided to speak out against these abuses, with the queen cutting short the debate by unilaterally cancelling a whole bunch of controversial patents and allowing some of them to come to trial. This week, we’ll look at the immediate consequence of this compromise — the so-called “Case of Monopolies”, which considered a patent monopoly over a seemingly rather trivial item: the manufacture, importation, and sale of playing cards.
The playing card monopoly was actually quite an old one, having originally been granted about three decades earlier, in 1571,1 to one Ralph Bowes. Bowes appears to have created a sort of Tudor entertainment empire, in 1573 also obtaining the court position of “master of games, past-times and sports” — in practical terms, a patent monopoly over using mastiffs to bait bulls and bears.2 (Before Shakespeare became all the rage, the Tudors were rather keen on watching some extraordinary cruelty to animals — indeed, Bowes or his associates were very probably behind an anonymous 1591 proposal to restrict plays, on the grounds that they were harming the more costly baiting industry. The rivalry between baiters and actors puts a rather interesting spin on Shakespeare’s direction “exit, pursued by a bear”.)
For the cash-strapped queen, selling the baiting and playing card monopolies to Bowes was an easy way to make some money for herself, as well as to cheaply procure some entertainment for her court. In return, Bowes could make substantial sums by licensing the activities to others (as well as by collecting fines from those who tried to do them without his permission). Although he started out as a younger son of minor gentry, Bowes seems to have amassed quite a fortune. In his will he left various country manors and some property in London, as well as bequeathing many of his friends diamond rings.
Accordingly, when Bowes died in 1598, both of his patent monopolies were immediately the subject of intense lobbying by courtiers. The famous theatre partnership of Philip Henslowe and Edward Alleyn — well-known among historians as Shakespeare’s competitors, for Henslowe’s detailed diary, and for Alleyn’s founding of Dulwich College — failed again and again to obtain the monopoly on baiting. Having started their petitions while Bowes was still alive but ill, they eventually only got it six years later by paying the eventual patentee a massive bribe. (Incidentally, they then added apes, lions, tigers, and polar bears to the list of animals they maltreated for show.)
And as for the patent for playing cards, this went to one Edward Darcy, the groom of the privy chamber. Yet this patent was a troublesome one to maintain. As early as 1578, the queen’s ministers had had to intervene directly in upholding Bowes’s patent, calling infringers before the Privy Council for questioning, and periodically having to issue royal proclamations that the monopoly was still in force. Over the decades, the patent was renewed with stronger and stronger terms, and Bowes frequently resorted to the courts (but not the common-law courts) to punish infringers. When Darcy obtained the patent in 1598, he had to defend his investment by being just as aggressively litigious. He became an obvious and timely villain for the anti-monopolists to attack.
In 1600, Darcy got the Privy Council to declare that infringers of his playing card patent would face prison, and in late 1601 the queen intervened to prevent someone from challenging the legality of Darcy’s monopoly in the common-law courts.3 This was just a month before members of Parliament plucked up the courage to challenge the queen’s grants of patents, as I described in Part II. When they did so, Darcy’s monopoly was especially fresh in their minds, and openly condemned — its mention apparently even prompted the queen’s crush, Sir Walter Raleigh, to blush (it’s unclear exactly why, but perhaps Raleigh was known to have corruptly obtained the patent for Darcy, no doubt for a fee). When the queen cut short Parliament’s debate by proclaiming that many of the controversial patents would be revoked, she had to do something about Darcy’s patent. Yet rather than revoking it outright, her ministers announced that the patent would be allowed to be tried at common law.
So just a few months later, in early 1602, the case of Darcy v Allen was allowed to begin. This was, somewhat ironically, a case brought by Darcy against an alleged infringer, a haberdasher named Thomas Allen. The queen’s proclamation had been widely misinterpreted as actually revoking his patent, rather than just allowing it to be tried. Infringement became rife. But some of the infringers seem to have known exactly what they were doing. Allen, with the backing of the lord mayor and aldermen of London, appears to have essentially baited Darcy into making sure they got a test case with which to undermine patent monopolies.4 Given what was at stake, with the queen’s judgement at choosing her patentees being so publicly brought into question, Darcy was represented by the queen’s own lawyers, both the attorney- and solicitor-general.
The case dragged on for about a year, with the court only reaching a decision a little after Elizabeth I’s death in 1603. It probably saved her some embarrassment, because despite having all the legal forces of government stacked in his favour, Darcy lost.
The case was to go down in anti-monopolist legend, becoming known as the Case of Monopolies. Many people point to it as an example of how the common law came to constrain what a monarch could and could not do with their prerogative powers, pointing to it as a significant blow to any absolutist tendencies. A victory of law over power, of rules over whim. It is cited as a precedent in cases even today.
Yet the truth is that we actually don’t know why the judgement was given, as the justices never explained their reasoning. There is every possibility that the case was decided on much narrower, less politically sensitive grounds. The most famous report of the case was written by the attorney-general who had represented Darcy, Sir Edward Coke. But, somewhat ironically, by the time he published his commentary of the case in 1615, Coke was in the middle of waging a long legal battle of his own —against the monopolies granted by Elizabeth’s successor, her Scottish cousin James I.
Coke will be a major figure over the following weeks, as the chief architect of the Statute of Monopolies of 1624 — the culmination of this series of posts. We’ll look at him in detail then. But back in 1602-3 he seems to have been a loyal defender of royal power, happy to maintain the status quo. Historians now think that Coke essentially invented the Case of Monopolies, inserting his own justification for the 1603 Darcy v Allen decision, by making it about some version of the defence’s most radical arguments. By doing so, he created a politically useful precedent for the battles of the 1610s. Pure propaganda, in other words. Anti-monopolist fake news.5
Indeed, there isn’t much evidence that the case’s outcome had much effect at all — not until Coke published and popularised his agenda-driven version of events.6 With a brand new king in 1603, the issue of the royal prerogative was immediately blown right open just as the judgement in the case was handed down. And as for the position of the common law on patent monopolies, this was already well-known. Much older cases from the late sixteenth century had already created precedents that patents could not be granted over existing industries, or be detrimental the public good.7 After all, as we saw in Part II, the crux of Parliament’s protest in 1601 was that the common law was already obvious, with the anti-monopolists even framing their bill as a mere restatement of existing law. The issue for members of Parliament had been the monarch’s prevention of any trial of individual patents in the common-law courts, in order to test whether particular grants were really being used for the public good — not the position of the law itself.
In fact, the controversial monopoly over playing cards even reappeared, though in a weakened form, this time at the behest of English cardmakers themselves — a patent was granted to one Sir Richard Coningsby to search for and levy a tax on all card imports, presumably as a means of protecting the domestic producers.8 Strikingly, this patent was granted in 1615 — the very same year that Coke decided to publish his account of a playing card patent being struck down by the courts. This may just be coincidence of course, but Coke hints that he inserted Darcy v Allen into that year’s volume of his reports because of its relevance to recent events, even though it did not fit chronologically: “though it comes not in sequence of time, yet the case of monopolies cannot come out of time”.9 It sounds like a last-minute addition, to a volume that itself was quite rushed.10 (Whether or not Coke had anything to do with it, the new playing card patent was so unpopular with merchants that just a couple of years later it was revoked.11)
The reality was that the judgement in Darcy v Allen did not do much. It would probably have been forgotten had it not been for Coke’s mythmaking in 1615. But myths and legends, regardless of their truth, can take on a whole new significance and power of their own. As we’ll see next time, the legend of the Case of Monopolies would be of great use to the anti-monopolists when their new king, James I, began to push at the limits of his royal powers.
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The usual date given is 1576, but I think this is a mistake. The 1576 patent appears to have been a strengthened version of an earlier one. Patents for Invention: Abridgements of Specifications Relating to Printing (G.E. Eyre and W. Spottiswoode, 1859), p.51
I’ve drawn all details of Bowes’s entertainment empire from here: S. P. Cerasano, ‘The Master of the Bears in Art and Enterprise’, Medieval & Renaissance Drama in England 5 (1991), pp.195–209.
Adam Mossoff, ‘Rethinking the Development of Patents: An Intellectual History, 1550-1800’, Hastings Law Journal 52, no. 6 (2001), p.1266.
D. Seaborne Davies, ‘Further Light on the Case of Monopolies’ 48, Law Quarterly Review (1932), p.395.
Jacob I. Corré, ‘The Argument, Decision, and Reports of Darcy v. Allen’, Emory Law Journal 45 (1996), pp.1261-1327. Corré points out that when Coke published, many of his contemporaries immediately contested his account of the case, and that Coke himself later retracted a few of his claims.
Matthew Fisher, ‘Darcy v. Allen’, in Landmark Intellectual Property Cases and Their Legacy: IEEM International Intellectual Property Conferences, ed. Christopher Heath and Anselm Kamperman Sanders (Kluwer Law International B.V., 2011), pp.63-81.
Thomas B. Nachbar, ‘Monopoly, Mercantilism, and the Politics of Regulation’, Virginia Law Review 91, no. 6 (2005), pp.1327: “The case broke no new legal ground; the rule it applied had been widely established for some time.”
William Hughes Willshire, A Descriptive Catalogue of Playing and Other Cards in the British Museum: Accompanied by a Concise General History of the Subject and Remarks on Cards of Divination and of a Politico-Historical Character (order of the Trustees, 1876), p.306
Edward Coke, La vnzme part des reports de Sr. Edw. Coke Chivalier, chiefe Iustice Dengleterre, (Society of Stationers, 1615), foreword in English, paragraph 20.
In his dedication to the reader on the following page, Coke says the volume was “published in the tempest of many other important and pressing business; and therefore could not polish them as I desired”.