Age of Invention: The Statute of Monopolies, Part II

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In the first part, I gave some background to understanding the Statute of Monopolies of 1624, widely and mistakenly lauded as the start of the patent system. (If you missed it, you can read it here). As I noted, patents for invention were in fact far older, and were not even the creations of parliaments. They were creatures of the Crown. Yet patent monopolies had become increasingly unpopular, especially when Elizabeth I granted them to well-connected courtiers to regulate pre-existing industries and professions, and not just for inventions. The grounds for some patents being in the public interest were flimsy. To add insult to injury, the queen ignored petitions to rescind patents, and even prevented cases about them being heard in the common-law courts. She left the aggrieved with little option but to appeal to Parliament.

Where we last left off, in 1601, members of Parliament had finally plucked up the courage to openly debate a bill that would affect the monarch’s granting of patents. They thus meddled with Elizabeth’s very exercise of her prerogative powers, and implied that Parliament might have the power to constrain her. A constitutional crisis seemed about to begin.

The accounts of the 1601 debates provide a fascinating insight into the slippery nature of power and legitimacy. Some MPs, for example, noted that Parliament might end up actually weakening itself by trying to go too far, especially as the queen could in theory just exercise some of her other prerogative powers to deny the law assent, or even just exempt herself from it — “it is to no purpose to offer to tie her hands by Act of Parliament, when she may loosen herself at her pleasure.” The best way to remove the abuses of patents, some argued, would be to simply ask her nicely.

It was a proposal seized on by ministers and their cronies. The queen would listen, they claimed, if only MPs would draw up a precise list of the offending patents and ask. Otherwise, questioning the queen’s powers was akin to blasphemy. Likely alluding to the punishment for that crime, Secretary of State Robert Cecil said he would sooner “wish my tongue cut out of my head” than try to limit her prerogative. The now-famous Francis Bacon, then queen’s counsel and an MP for Ipswich, warned the House of Commons that the prerogative “is such, as I hope I shall never see discussed”. And just in case anyone missed that point, he added: “I say, and I say again, that we ought not to deal or meddle with, or judge of Her Majesty’s prerogative. I wish every man therefore, to be careful”.

But even the anti-monopolist ringleaders in Parliament were adamant that they were not, in fact, challenging the queen or her prerogative. The MP who introduced the bill to curtail them, a lawyer named Lawrence Hyde, put this as clearly as he possibly could: “far be it from this heart of mine to think, this tongue to speak, or this hand to write anything, either in prejudice or derogation of Her Majesty’s prerogative royal”. Hyde even dug up an old precedent from the 1370s, to show that a patentee with a monopoly on importing sweet wines had been hauled before Parliament, imprisoned, and fined, with his patent cancelled too — all with no mention or questioning of the royal prerogative at the time.

The problem was that MPs had already tried petitioning the queen at the end of the last Parliament in 1597. She had promised to reform the abuses with patents, and then, well, not. This is why Hyde and many others felt they needed to try something different. And so Hyde and the anti-monopolists tried to present their bill as merely a statement of the common law — that is, of the kinds of decisions that the common-law courts would have been reaching (had the queen not continually intervened to prevent them). Hyde even carefully entitled his bill “an act for explanation of the common law, in certain cases of letters patent.” Rather than openly pitting themselves against the Crown, the anti-monopolists were trying to remove any question of a constitutional crisis. They mainly just wanted results.

But they knew that the forces of the queen and her ministers would still be pitted against them. From the get-go, Cecil played tricks with parliamentary procedures to try and prevent Hyde’s bill from being read — something only achieved thanks to the persistence and defiance of one Gregory Donhault (incidentally, the secretary to the lord keeper, who had been trying to get the queen to cancel some patents before the 1601 Parliament, which might have pre-empted the issue entirely). And Francis Bacon interrupted the anti-monopolists when they were trying to complain about things by just being insulting. When the bill was referred to a committee to discuss it in detail, he called the whole thing “injurious and ridiculous”. Perhaps to embarrass Hyde, a fellow barrister of about the same age, he patronisingly noted that “all men of the law know, that a bill which is only expository to expound the common law, does enact nothing”.

Yet feelings ran too high for the queen’s ministers to control. One extremist thought they should do to the monopolists what had been done in the 1370s: “let us do generously and bravely, like Parliament-Men; and ourselves send for them, and their patents, and cancel them before their faces”. Cecil complained angrily, following a commotion, and after days of heated debate, of some MPs’ behaviour being “more fit for a grammar school, than a Parliament” — perhaps a dig at the ever-disruptive Donhault’s past as the headmaster of Gloucester grammar school. With even the anti-monopolists unable to decide among themselves whether to go ahead with the bill or simply petition, it all seemed to be getting out of hand. Indeed, the talk and sentiment of Parliament was even beginning to spill out into the streets. Cecil conjured visions of populist anarchy should things have continued.

Finally, the queen herself decided to intervene, to cut short the debate. The Speaker suddenly rose, surprising everyone into silence, and read out a message from her. Noting the complaints, she claimed that she was as angry about the monopolists’ abuses as they were, and so immediately terminated a whole swathe of patents — especially the ones that had been most vocally complained of, along with some more for good measure. And she made promises, again, to allow many of the specific patents that remained to be tried in the common-law courts.

Parliament was overjoyed. But the mass cancellation of so many patents also set a precedent. Elizabeth I died only a year and a half later, and would not see the results. But it was a precedent her successor would come to lament. More on that next time in Part III.

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