1624 Statute of Monopolies: Political Compromise (PDF)

‘GENERALLY INCONVENIENT’: THE 1624 STATUTE OF MONOPOLIES AS POLITICAL COMPROMISE CHRIS DENT* [The Statute of Monopolies 1624 is central to one of the tests for patentability of inventions in the Patents Act 1990 (Cth). The continued reference to the statute, almost 400 years after it was enacted, accords it an almost idealised status within patent law. Such a status does not acknowledge the political context of its passage through the Jacobean Parliament. This article addresses key aspects of the early modern period — including economic depression, issues of succession, and the rivalry between the City of London and the outports — to argue that the Statute of Monopolies is best seen as a compromise, a political deal done between the Crown, the House of Lords and the individuals and groups within the House of Commons.] CONTENTS I Introduction............................................................................................................. 415 II Patents in Early Modern England........................................................................... 417 III The Role of Parliament in Compromise................................................................. 420 A Parliament and Its Constituencies.............................................................. 421 B The Relationship between the Crown and Parliament............................... 425 1 Parliamentary Debates................................................................... 425 2 Succession..................................................................................... 432 IV The Role of the Public............................................................................................ 433 V The Statute of Monopolies as Compromise............................................................ 438 A Background................................................................................................ 438 B The Relationship between the Statute of Monopolies and the Law of the Time..................................................................................................... 440 C Patents for Invention as an Exception to the Act....................................... 442 D Other Exceptions to the Act....................................................................... 448 VI Conclusion.............................................................................................................. 451 I INTRODUCTION The current law of patents in Australia is underpinned by the Patents Act 1990 (Cth). One of the tests for the patentability of inventions in the Act is that the invention be ‘a manner of manufacture within the meaning of section 6 of the Statute of Monopolies’1 — a statute that was passed by the English Parliament in 1624.2 It would surprise many to hear that the law regulating the latest technical * BA (Hons), LLB (Murdoch), PhD (Murdoch); Senior Research Fellow, Intellectual Property Research Institute of Australia, The University of Melbourne. The author would like to acknowl- edge the support and comments of and conversations with Andrew Christie and Amanda Whiting as well as the feedback of the anonymous reviewers. 1 Patents Act 1990 (Cth) s 18(1)(a). 2 The dating of the Statute of Monopolies 1624, 21 Jac 1, c 3 is not consistent in the secondary literature. Some cases, judgments and texts refer to it as a 1623 Act and others as a 1624 Act. As 415 416 Melbourne University Law Review [Vol 33 innovations is, in part, based on words written almost four centuries ago. This state of affairs is even more surprising given the acknowledgement that the terms of the provision are ‘ambiguous and obscure’.3 This article provides a background to and discussion of this historical requirement and the Statute of Monopolies 1624, 21 Jac 1, c 3 (‘Statute of Monopolies’) generally, in order to reduce that ambiguity. The common understanding amongst lawyers and legal academics of the granting of patents by Elizabeth I and James I is of a tale of nepotism and abuse resulting in the 1624 triumph of Parliament. One prominent legal historian goes so far as to state that ‘[o]f the magnitude of the evils caused by these inconsider- ate grants to all classes of the community there can be no question.’4 The research presented here counters this assessment and argues that the assent of James, and so the content of the Statute of Monopolies, may not be the act of a contrite monarch, but that of an old man who plays one part of a weaving of political compromise out of the economic and social troubles of the time.5 Evidence of the other rapacious actions of the Crown and its favourites of the time — such as the sale of wardships6 and the abuse of customs duties7 — suggests that the political protest that gave rise to the Act cannot be explained solely on the basis of the alleged abuses by patentees and their agents. Few would argue now that the Statute of Monopolies is not a key moment in the history of patent law. This universal acknowledgement runs the risk of ascribing a degree of ideological purity to the Act as the broader context of its passing is forgotten. The purpose here is to highlight the factors that gave rise to the statute was passed during the Parliament of 1624 and assented to on 29 May 1624, it shall be referred to here as a 1624 Act. 3 Australian Law Reform Commission, Genes and Ingenuity: Gene Patenting and Human Health, Report No 99 (2004) 126. What also may be seen as ambiguous and obscure is the High Court’s reference to the granting of some patents of the time as ‘excitingly unpredictable’: National Research Development Corporation v Commissioner of Patents (1959) 102 CLR 252, 271 (Dixon CJ, Kitto and Windeyer JJ). 4 Sir William Holdsworth, A History of English Law (3rd ed, 1945) vol 4, 347. It is acknowledged that nonlegal historians do not have such a bleak view of the operation of the early patent system: see, eg, Joan Thirsk, Economic Policy and Projects: The Development of a Consumer Society in Early Modern England (1978) 51–60; Julian Martin, Francis Bacon, the State, and the Reform of Natural Philosophy (1992) 18. 5 It has already been ascertained, but not widely recognised, that James I supported the passage of the Bill: Chris R Kyle, ‘“But a New Button to an Old Coat”: The Enactment of the Statute of Monopolies, 21 James I Cap 3’ (1998) 19 Journal of Legal History 203, 218. There were, for example, a number of Bills from the 1624 Parliament that were ‘spurned or deferred by James’: G A Harrison, ‘Innovation and Precedent: A Procedural Reappraisal of the 1625 Parliament’ (1987) 102 English Historical Review 31, 42. If it had not been in his political interests, it is likely that James would have, at least, deferred the Statute of Monopolies too. 6 See, eg, J Hurstfield, ‘Lord Burghley as Master of the Court of Wards, 1561–98’ (1949) 31 Transactions of the Royal Historical Society 95, 96. 7 See, eg, Lawrence Stone, ‘The Fruits of Office: The Case of Robert Cecil, First Earl of Salisbury, 1596–1612’ in F J Fisher (ed), Essays in the Economic and Social History of Tudor and Stuart England (1961) 89, 94–8. For another commentator, ‘worse’ than the ‘storms’ caused by patents was the ‘Stuarts’ resort to the imposition of new (and higher) customs duties’: Derek Hirst, The Representative of the People? Voters and Voting in England under the Early Stuarts (1975) 7. 2009] The 1624 Statute of Monopolies as Political Compromise 417 the ‘crisis’ of the 1620s,8 a crisis for which the Statute of Monopolies was a (political) solution.9 This recognition of the politically constituted nature of the Act and its clauses may, in turn, allow for a more flexible approach to its continued use and interpretation in Australian jurisprudence;10 alternatively, it may permit a realisation that the tests in the Act are but phrases of compromise and therefore of little intrinsic value. I I PAT E N T S IN E A R LY M O D E R N E N G L A N D To understand the context of the passage of the Statute of Monopolies, there needs to be an understanding of the patent system of the time. There are many histories of the system as it existed in the early modern period.11 There is no need, therefore, to describe it in great detail here. It is, however, important to highlight key differences between patents then and patents now and to emphasise the policies that justified the granting of many of the patents of the time.12 The term ‘patent’, at least when applied to grants of limited monopolies, is used more restrictively now than it was in early modern England. The term is limited now to new inventions or innovations. Patents then were applied more broadly. Others have considered these early patents to fall into four categories;13 however, they may also easily be seen to fall into three. The first is closely related to the current style of patent: patents for invention.14 Examples under Elizabeth and James include patents for the manufacture of sulphur, oil, sailcloth, 8 The circumstances that gave rise to the Statute of Monopolies were, for one commentator, the second of three crises in the patent system. The first was in 1601 (see below Part III(B)(1)) and the third was in the 1640s ‘when the Long Parliament cleared up some abuses which had recurred under the personal government of Charles’: G N Clark, ‘Early Capitalism and Inven- tion’ (1936) 6 Economic History Review 143, 150. 9 The exploration of this crisis requires the examination of this time from legal, economic, political and social perspectives. To quote Russell, a legal historian runs an ‘acute risk of becoming the prisoner of his documents’: Conrad Russell, Parliaments and English Politics: 1621–1629 (1979) 2. It is important, then, to step outside texts from the legal tradition in order to achieve a wider perspective on the politics and decisions of the time. 10 The interpretation of s 6 of the Statute of Monopolies is currently the focus of a review: Advisory Council on Intellectual Property, Patentable Subject Matter: Issues Paper (2008) 65–6. 11 See, eg, Harold G Fox, Monopolies and Patents: A Study of the History and Future of the Patent Monopoly (1947); William Hyde Price, The English Patents of Monopoly (1913); E Wyndham Hulme, ‘The History of the Patent System under the Prerogative and at Common Law’ (1896) 12 Law Quarterly Review 141; A A Gomme, Patents of Invention: Origin and Growth of the Patent System in Britain (1946); Christine MacLeod, Inventing the Industrial Revolution: The English Patent System, 1660–1800 (1988); Adam Mossoff, ‘Rethinking the Development of Patents: An Intellectual History, 1550–1800’ (2001) 52 Hastings Law Journal 1255; William L Letwin, ‘The English Common Law concerning Monopolies’ (1954) 21 University of Chicago Law Review 355. 12 Much of the description in this Part is based on Chris Dent, ‘Patent Policy in Early Modern England: Jobs, Trade and Regulation’ (2006) 10 Legal History 71. 13 See, eg, D Seaborne Davies, ‘Further Light on The Case of Monopolies’ (1932) 48 Law Quarterly Review 394, 397–8, quoting E Lipson, The Economic History of England (1931) vol III, 352–6. At the time, however, patents were not understood in terms of separate categories. Further, as has been recognised by Davies, these categories are ‘not … mutually exclusive’: D Seaborne Davies, above n 13, 398. 14 ‘Invention’, or ‘to invent’, in early modern England carried additional meanings to the single sense of creation that it does now. Invention, then, also referred to the bringing into England of technologies that were already in use in Europe: see below Part V(C). 418 Melbourne University Law Review [Vol 33 glass, and mills for grinding corn.15 The second category includes the non obstante grants. These allowed the recipients to operate particular industries or businesses notwithstanding the existence of a statute that banned the activity.16 The regulatory grants of the time, the third category of patents, include patents that permitted the regulation of specific trades and trade routes (by bodies such the Society of Merchants Adventurers)17 and patents to ensure that other Acts were complied with. An example of the first of these includes Sir Edward Dyer’s control over the tanning industry.18 An example of the second of these includes a patent to John Martin ‘as “informer and prosecutor” for the Crown on all past or future penal laws’.19 Under this style of grant, patentees had the capacity to levy fines where the statute was being breached. The style of patents granted does not appear to have differed greatly between the Jacobean and Elizabethan periods.20 One similarity between them was their tendency to further particular policy aims, such as ‘the solution of fiscal and administrative problems’.21 Early modern patents can be seen to contribute to the fulfilment of three policy goals: the increase in the level of employment in England; the improvement of the balance of trade between England and its trading partners; and the delegation of governance.22 It is arguable that, while the patents were granted by the Crown, the other branches of government concurred 15 These examples are taken from: Hulme, ‘The History of the Patent System’, above n 11, 145–50; E Wyndham Hulme, ‘The History of the Patent System under the Prerogative and at Common Law: A Sequel’ (1900) 16 Law Quarterly Review 44, 45–51. Hulme, in turn, sourced his information directly from the Patent Rolls and Calendars. 16 An example is the patent for the sowing of woad. Woad was a very profitable crop, so farmers were keen to plant it. However, unrestricted freedom to sow the crop meant that, in some years, there was insufficient food grain planted, leading to hunger in the population. A number of proclamations were issued by Elizabeth I limiting the farming of woad. Non obstante patents were sometimes granted then to ensure there was some woad for the cloth industry. For a discussion of the proclamations and patents on woad, see Frederic A Youngs Jr, The Proclama- tions of the Tudor Queens (1976) 151–4. 17 The Society of Merchants Adventurers, during Elizabethan times at least, ‘supplied the only authorized channel for the largest and most lucrative part of the foreign commerce of England. It enjoyed a monopoly of the trade carried on by English subjects with the Low Countries and Germany’: George Unwin, Studies in Economic History: The Collected Papers of George Unwin (1927) 133. While the first charter was granted to the Merchants Adventurers in 1296, it was during the period 1553–64 that they ‘achieved a fully authorized and exclusive position as a staple for the export of cloth’: at 138–9. 18 E F Churchill, ‘Monopolies’ (1925) 41 Law Quarterly Review 275, 281. 19 Margaret Gay Davies, The Enforcement of English Apprenticeship: A Study in Applied Mercantilism — 1563–1642 (1956) 35. This grant gave him ‘unrestricted powers of entry and search, of seizure, arrest, and pleading; he was to take the informer’s customary half of the forfeitures’. 20 This may be inferred from a comparison of the patents discussed by Hulme (Hulme, ‘The History of the Patent System’, above n 11; Hulme, ‘The History of the Patent System: A Sequel’, above n 15) and the specifications of patents from 1617 onwards, compiled in Bennet Woodcroft, Alphabetical Index of Patentees of Inventions (first published 1854, 1969 ed). 21 Unwin, Studies in Economic History, above n 17, 184. MacLeod also recognised that the introduction of the patent system into England was policy-based: MacLeod, above n 11, 11–13. 22 It is uncontroversial to state that the Tudor monopolies reflected a ‘laudable government intention to foster product innovation and import substitution’: D M Palliser, The Age of Elizabeth: England under the Later Tudors — 1547–1603 (2nd ed, 1992) 376. It is less accepted to say that the goal of delegated governance was a positive policy goal of the Crown of the time. 2009] The 1624 Statute of Monopolies as Political Compromise 419 with the policy positions adopted by the executive.23 If the congruence of the granting of patents and the ruling on grants by the courts are any indication, the broad policies of the time could be more likened to specific goals shared by the elites.24 For the purposes of this article, the two most relevant policy goals are those of employment and regulation.25 Ensuring jobs for the masses is a significant policy goal of current governments. This policy was also particularly important for Elizabeth as the population had been dramatically affected by an event that occurred earlier in the 16th century: the enclosure of land for the exclusive use of particular landowners. Broadly, there were a couple of ways in which the grants of patents were used to improve the employment prospects of the itinerant English workers. Some grants required the patentees to ‘work the patent’ and ‘train apprentices’ in return for the monopoly grant,26 while others included conditions that required the employment of English workers.27 Three forms of patents contributed to the policy goal of regulation. The first is the class of monopoly that controlled particular trades and trade routes — such as the one that gave the Merchants Adventurers its role in the cloth trade28 — and that also contributed to the trade policy. The more common form of regulation achieved through the use of patents was the granting of licences to monitor particular industries. Examples of this second form include the oversight of alehouses and card manufacture. This form of governance had a positive public policy aspect. For example, the maintenance of the quality of manufac- tured goods was one outcome of these grants.29 During argument in 23 For a discussion of the case law of the time in terms of these policy goals, see generally Dent, ‘Patent Policy in Early Modern England’, above n 12. 24 That the elites shared particular goals does not, however, mean that all of society agreed. In fact, the work of McRae and Brace has demonstrated that claims of the early modern elites were contested: see generally Andrew McRae, God Speed the Plough: The Representation of Agrarian England, 1500–1660 (1996); Laura Brace, The Idea of Property in Seventeenth-Century England: Tithes and the Individual (1998) 44–6. 25 In terms of trade policy, Hulme considers that ‘Elizabethan policy aimed beyond question, as a perusal of the grants will amply testify, at the introduction of those industries the products of which had hitherto figured most prominently in the list of imports’: Hulme, ‘The History of the Patent System’, above n 11, 152. 26 Mossoff, above n 11, 1261. 27 For example, the 1561 grant for the making of white soap stipulated that ‘two at the least of the servants of the patentees shall be of native birth’: Hulme, ‘The History of the Patent System’, above n 11, 145. It has also been suggested that grants covering the ‘manufacture of soap, salt and starch’ were an attempt to ‘encourage the influx of new capital into old industries’: B E Supple, Commercial Crisis and Change in England: 1600–42 — A Study in the Instability of a Mercantile Economy (1959) 248. 28 The patents that covered the monopolist trading corporations were further split into those for regulated-stock companies and those for joint-stock companies. This distinction was important for some of the free trade debates in the 17th century and will be discussed below in n 97. 29 Fox, above n 11, 182. Further, the regulation of alehouses, for example, was seen as a necessity because of ‘constant complaints of drunkenness and the resort of undesirable characters to the alehouses’: at 175. For a more complete understanding of the role of alehouses and the motives of those who attacked their place in society, see Keith Wrightson, ‘Alehouses, Order and Reformation in Rural England, 1590–1660’ in Eileen Yeo and Stephen Yeo (eds), Popular Culture and Class Conflict 1590–1914: Explorations in the History of Labour and Leisure (1981) 1. 420 Melbourne University Law Review [Vol 33 Darcy v Allen, the regulatory nature of the grant was emphasised30 — the monopoly on playing cards was, in part, aimed at limiting the playing of cards by workers.31 Whilst this patent was held to be invalid by the Court,32 others were not, and grants for the regulation of alehouses were exempted under the Statute of Monopolies.33 Finally, a significant number of the patents relating to the regulation of behaviour focused on the enforcement of particular statutes. Examples of patents associated with such enforcement include the grant for the enforcement of the statute against gig-mills34 (a labour-saving device used in cloth production) and a grant to collect fines for breach of an Act requiring all owners of 60 or more acres to grow hemp.35 Given the lack of public agencies in the early modern period, those in charge of executing the economic and social policies of the time had to ‘rely, in the absence of paid public inspectors, on creating sufficient incentives for private interests to take part in enforcing the laws.’36 Industry regulation through the granting of licensing patents provided for the monitoring of participants in a society where the state was not large enough to police all aspects of public life.37 The beneficial aspects of the patent system, however, did not prevent its occasional abuse by patentees and their servants. It was the political reaction to such abuses, and alleged abuses, that provided one of the factors which in the end led to the passing of the Statute of Monopolies. III THE ROLE OF PA R L I A M E N T IN COMPROMISE The Statute of Monopolies is a significant marker in the history of patents. Patent law did not start with its passage38 and the Act did not represent the end of 30 The Case of Monopolies (1603) 11 Co Rep 84b, 85b; 77 ER 1260, 1262–3 (commonly known as ‘Darcy v Allen’). It should be noted that there is no record of the judgments in the case; the reports only deal with the arguments of counsel. For a detailed discussion of the case, see Jacob I Corré, ‘The Argument, Decision, and Reports of Darcy v Allen’ (1996) 45 Emory Law Journal 1261. 31 One justification for the disputed patent for playing cards in Darcy v Allen was ‘to stem the tide of skilled subjects who were wasting their labor in the production of playing cards and to suppress a perceived excess of card playing that was diverting the laboring classes from useful work’: Corré, above n 30, 1273. 32 While there is no record of the decision of the Court, Coke reported that the judges, unanimously, had said that the grant was ‘utterly void’ (The Case of Monopolies (1603) 11 Co Rep 84b, 86a; 77 ER 1260, 1263) and Noy reported that the patent was ‘contrary to the laws of the realm, contrary to the laws of God, hurtful to the commonwealth, and in no part good or allowable’ (Darcy v Allin (1603) Noy 173, 174; 74 ER 1131, 1133). 33 For a further discussion of the exemptions to the Statute of Monopolies, see below Part V(D). 34 M W Beresford, ‘The Common Informer, the Penal Statutes and Economic Regulation’ (1957) 10 Economic History Review 221, 233 fn 1. 35 See ibid 228. 36 Margaret Gay Davies, above n 19, 25. It has been suggested that one of the results of this Elizabethan practice was akin to the establishment of a ‘Civil Service’: Unwin, Studies in Economic History, above n 17, 326. 37 For a more detailed discussion of the role of informers in the nation’s governance, see generally Beresford, above n 34. 38 D Seaborne Davies argues that it was under Elizabeth, in 1561, that patent law was introduced into England ‘as a system’: D Seaborne Davies, above n 13, 397 (emphasis in original). 2009] The 1624 Statute of Monopolies as Political Compromise 421 complaints about monopolies granted by the English Crown.39 The reference to the statute in the Patents Act 1990 (Cth) does, nonetheless, demonstrate its continuing importance. This connection to the 17th century does not, however, require that patent law be seen as teleological — that is, as an area of regulation evolving towards the perfect incarnation of protection. The ad hoc nature of the development of law is evident in the factors, the conditions of possibility,40 that gave rise to the passing of the Statute of Monopolies. The Act is an artefact of the Jacobean Parliament. It is necessary, though, to consider the circumstances and concerns surrounding the grant of patents in Elizabethan times, as well as during the reign of James, because a number of events in both periods are relevant to the crisis of the 1620s. More specifically, following the circumstances of the 1590s, patents became an ongoing ‘grievance’ that gave structure to the developing relationship between the Commons and the Crown. After the accession of James, patents continued as an ‘allowed’ point of conflict (and a useful policy device) throughout his reign until the circumstances of the 1620s produced the Statute of Monopolies itself. A Parliament and Its Constituencies The Parliament in early modern times was not like Parliaments of more recent vintages. One aspect of the nascent democracy that should be borne in mind is that Parliaments were called and prorogued by the monarch almost at their leisure.41 This capacity of the Crown meant that the freedoms enjoyed by the parliamentarians of the time were not as formalised as those of today.42 Further, it has been argued that Parliaments of the time were ‘not called to make policy but to applaud whatever policy was decided on’.43 Parliament under Elizabeth, for example, has been characterised as a ‘somewhat raw and amateurish body.’44 39 Raffield, for example, refers to a masque in which members of the Inns of Court paraded as ‘“projectors” of ridiculous inventions’, a ‘controversial political issue’ during the reign of Charles I: Paul Raffield, Images and Cultures of Law in Early Modern England: Justice and Political Power, 1558–1660 (2004) 215. ‘[F]ierce rioting’ also occurred when areas of Dean Forest were enclosed, in part to further the working of patents for mining and manufacturing in the area — again during the reign of Charles: Leah S Marcus, The Politics of Mirth: Jonson, Herrick, Milton, Marvell, and the Defense of Old Holiday Pastimes (1986) 193. Monopolies, as grievances, were also discussed in Parliament in 1640: Robert Ashton, The English Civil War: Conservatism and Revolution 1603–1649 (1978) 73. 40 The phrase ‘conditions of possibility’ is used in order to reduce inferences of causation between studied events: see, eg, Alan Hunt and Gary Wickham, Foucault and Law: Towards a Sociology of Law as Governance (1994) 6–7. In other words, the factors considered in this article should not be seen to have necessarily caused the passing of the Statute of Monopolies; however, the Act’s passage may be seen to be contingent on the existence of these factors. 41 There were, for example, only ten Parliaments during Elizabeth’s reign. These were the Parliaments of 1559, 1563–67, 1571, 1572, 1584–86, 1586–87, 1588–89, 1593, 1597–98 and 1601: J E Neale, The Elizabethan House of Commons (1949) 433. 42 The freedom of speech, for example, was not formalised until the Bill of Rights Act 1689, 1 Wm & M sess 2, c 2. In late Tudor times, freedom of speech was requested by every Speaker of the House ‘at the beginning of the session and recognized in some sort by Elizabeth, but it was as yet an undefined, and a little-regarded right’: Wallace Notestein, The Winning of the Initiative by the House of Commons (1924) 21. 43 Sheila Lambert, ‘Committees, Religion, and Parliamentary Encroachment on Royal Authority in Early Stuart England’ (1990) 105 English Historical Review 60, 60. Pocock has further argued 422 Melbourne University Law Review [Vol 33 While Parliament was divided into the House of Commons and the House of Lords, it is the Commons that is of more interest in the development of the patents crisis.45 A particular subset of the Commons was those Members who also sat on the Privy Council.46 The Privy Council, formally, acted to provide advice to the monarch; in practice, its members acted as a conduit between Parliament and the Crown.47 This meant that, at least during the reign of Elizabeth, the Privy Council played a central role in the execution of Crown policy and an active role in the relationship between the Parliament and the monarch. The attitudes of the time, in terms of that relationship, have been summarised by Carolyn Edie: No doubt members of the House of Commons had little thought of what today is called opposition; they believed in consensus and the crown. But they be- lieved as well in themselves, in the rights, privileges, and future of their own rank and in the importance of advancing their own share of influence in matters of policy and affairs of government. No monarch could be simple enough to grant such a share unless he saw either the necessity or the advantage. This meant attack upon the king’s powers and prerogatives, if not upon the king himself. It meant challenge and defense, debate and argument, a sharpened sense of difference, the strategies and tactics of political encounter.48 To understand this assessment, attention must be paid to the composition of the Commons and to the interests that the parliamentarians represented. In the 17th century, the ‘House of Commons was, in terms of numbers, directly representative of perhaps one-third of the adult male population.’49 The election of these representatives, however, would not be considered an open and fair process by 21st century standards. During Tudor times, for example, the government ‘influence[d] elections’,50 though not to the extent that the Crown that: ‘Post-Reformation England was still a princely society, and the social microcosm around the prince was the milieu in which men became most conscious of themselves as actively governing beings’: J G A Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (1975) 350. 44 Sir David Lindsay Keir, The Constitutional History of Modern Britain since 1485 (9th ed, 1969) 136. According to Russell, above n 9, 3, ‘Parliament was an event and not an institution.’ 45 It has been suggested that the ‘Lords were quite as subservient to the Crown in the time of Elizabeth I as in that of Henry VIII. Many of the peers owed their all to Tudor generosity and knew it’: Notestein, The Winning of the Initiative by the House of Commons, above n 42, 24. 46 It has been suggested that, in Tudor times, the ‘Crown in Council was the Government and the Crown in Parliament was the maker of laws’: ibid, attributing this aphorism to Pollard. See A F Pollard, The Evolution of Parliament (2nd ed, 1926) 276. 47 The Privy Council during the reign of Elizabeth had wide responsibilities. For Elton, ‘nothing that happened within the realm appeared to fall outside its competence’: G R Elton, The Tudor Constitution: Documents and Commentary (1960) 101. Councillors also had a hands-on role in the functioning of the House. They would, for example, ‘prepar[e] a program of legislation to be laid before the commons … They introduced many bills … [and guided] the commons in selecting the bills to be pushed and in discarding others’: David Harris Willson, The Privy Councillors in the House of Commons: 1604–1629 (1971) 8–9. 48 Carolyn A Edie, ‘Tactics and Strategies: Parliament’s Attack upon the Royal Dispensing Power 1597–1689’ (1985) 29 American Journal of Legal History 197, 197. 49 Hirst, above n 7, 157. 50 Neale, The Elizabethan House of Commons, above n 41, 282. This influence included letters from the Privy Council to sheriffs ‘declaring that candidates must be well affected to the government, letters to local magnates supporting certain candidates and deprecating others, 2009] The 1624 Statute of Monopolies as Political Compromise 423 exercised total control over the parliamentarians. That is, while the Parliaments of the time could be seen as a ‘propaganda justification’ for the policies of the Crown, they were also the ‘symbol of legitimate government’.51 One example of this is that Members of Parliament were ‘often subject to close pressures from their constituencies when they acted as local spokesmen’52 — they ‘were not free agents, voting at their own whim’.53 A key constituency of some of the parliamentarians was the corporations such as the City of London and the companies that traded with Europe and the Levant.54 It has been suggested that ‘the great trading companies were the most powerful economic organisations of the time, [with] much influence in parliament’.55 This influence, however, was not conclusive. It has also been argued that: Parliament and the City’s overseas traders tended to be natural opponents. This was because … Parliament was an amalgam of grower, manufacturing, and outport interests, and because each of these interests had an understandable desire for freer trade and thus for the weakening of the London merchants’ companies and privileges. … It was hardly an accident that during the early seventeenth century, the House of Commons launched attack after attack on every aspect of the City merchants’ commercial privileges.56 Evidence of the tension between trading companies and outports may be found as early as 1570 — political strategies were employed by the opponents of trading companies such as the Merchants Adventurers with the aim of getting ‘favorable representation for their position’ in the 1571 Parliament.57 In other words, just as a number of parliamentarians were in the House to further the interests of the trading companies, there were others who were elected to promote the interests of the outports and the competitors of the trading corporations. The reliance on the royal prerogative, together with their role in executing the Crown’s trade policy, meant that corporations like the Merchants Adventurers were linked with the reigning monarch. The Crown was also seen to be connected to the City of London because of the monarch’s continuing need to borrow money.58 The importance of the City of London is, in part, a result of the letters to town corporations, [and] letters to troublesome persons suggesting that they withdraw from election contests’: Willson, above n 47, 8. 51 Lambert, above n 43, 60. 52 Hirst, above n 7, 158. 53 Russell, above n 9, 18. 54 It has been suggested that parliamentarians ‘represented’ the ‘whole realm, not just particular places’: David Harris Sacks, ‘Parliament, Liberty, and the Commonweal’ in J H Hexter (ed), Parliament and Liberty: From the Reign of Elizabeth to the English Civil War (1992) 85, 89. This characterisation, however, may be contrasted with the representation by parliamentarians of specific geographical areas. 55 Clark, above n 8, 152. 56 Robert Brenner, Merchants and Revolution: Commercial Change, Political Conflict, and London’s Overseas Traders, 1550–1653 (1993) 203. 57 David Harris Sacks, The Widening Gate: Bristol and the Atlantic Economy, 1450–1700 (1991) 198. 58 See generally Robert Ashton, The Crown and the Money Market: 1603–1640 (1960). 424 Melbourne University Law Review [Vol 33 ‘expansion of credit and an extension of credit facilities’ during the reign of Elizabeth.59 This development, however, gave rise to another schism in the constituencies of parliamentarians, as the ‘capitalist’ of the time ‘was not a merchant.’60 This meant that some in the Commons reflected the interests of the joint-stock monopolies, some represented the new financiers and others spoke for constituencies from other areas of England — such as the outports of Bristol and Newcastle. Both the trading companies and the City of London had a strong interest in the financial health of the country. The state of the economy was a key factor affecting the attitudes of the financiers, merchants and their competitors and, therefore, the complaints made in Parliament on their behalf. In early modern England, the economy was tied, fundamentally, to the agricultural sector. Without crops, there was insufficient food and little surplus to trade with. During the reigns of Elizabeth and James, there were three major harvest failures;61 further, by the 1620s there was a ‘profound bullion shortage’ in England that ‘helped precipitate a more general business depression.’62 These, combined with the ‘decay of trade’,63 caused difficulties for the finances of the Crown in the periods that featured significant debate in Parliament about the validity of patents and their role in the economic troubles. What must not be forgotten in this understanding of Parliament is the self- interest of those who are elected. John Neale goes so far as to suggest that corruption amongst politicians and courtiers grew in the 1590s.64 More generally, though, the interest of many parliamentarians was either the furtherance of the interests of their constituencies or their own promotion — up until the reign of Charles I, ‘[b]eing a member of Parliament was not a career but at best a stepping-stone to one.’65 While some Members of the Commons may have been 59 A L Rowse, The England of Elizabeth (2nd ed, 2003) 136. 60 William Robert Scott, The Constitution and Finance of English, Scottish and Irish Joint-Stock Companies to 1720 (1912) vol 1, 110. 61 These took place in the years 1586, 1596–97 and 1622: Paul Slack, Poverty and Policy in Tudor and Stuart England (1988) 48–9. Hoskins, however, considers only the harvests of 1596 and 1597 as bad enough to give rise to a dearth of food in England during Elizabeth’s reign (where dearth is defined by Hoskins as a harvest resulting in a 50 per cent rise in the price of wheat above the average price for the surrounding 30 years): W G Hoskins, ‘Harvest Fluctuations and English Economic History, 1480–1619’ (1964) 12 Agricultural History Review 28, 43, 46. Hoskins also considered the harvest of 1622 to be bad enough to produce famine, but not so bad that it gave rise to a dearth of food: W G Hoskins, ‘Harvest Fluctuations and English Economic History, 1620–1759’ (1968) 16 Agricultural History Review 15, 19, 28. In addition, there was a plague in 1592 that contributed to the economic troubles: ibid vol 1, 102. 62 Jonathan Gil Harris, Sick Economies: Drama, Mercantilism, and Disease in Shakespeare’s England (2004) 138. 63 Notestein, The Winning of the Initiative by the House of Commons, above n 42, 31. England’s exports relied heavily on cloth: Harris, above n 62, 138. The agricultural conditions that hampered food production also impacted on cloth production. 64 J E Neale, Essays in Elizabethan History (1958) 76–9. 65 Russell, above n 9, 32. It has also been suggested that for lawyers — the ‘most powerful group in the House of Commons’, at least late in the reign of James (W S Holdsworth, ‘The Commons Debates 1621’ (1936) 52 Law Quarterly Review 481, 489) — ‘Parliament was frequently a forum for the display of their talents, a way station on the highroad to promotion in their chosen profession’ (Robert E Ruigh, The Parliament of 1624: Politics and Foreign Policy (1971) 55). 2009] The 1624 Statute of Monopolies as Political Compromise 425 altruistic, the words of others have to be considered in light of the audiences to which they were speaking. What is not clear, however, is which parliamentarians exaggerated their claims for personal gain and which did not.66 The words of all, therefore, may have to be treated with a degree of scepticism. B The Relationship between the Crown and Parliament There is some evidence that statements against monopolies in the House of Commons were the result of the interests that individual parliamentarians represented. Their complaints may, however, be as much a function of the relationship between Parliament and the Crown as they were to do with hatred of abuses of the royal prerogative. This section will consider this relationship through a focus on the nature of the debates in Parliament, the responses of the Crown to those debates and a consideration of one of the underlying factors of those debates: the issue of succession. By way of introduction, it is said that James believed in the notion of the absolute power of the monarch.67 This is unlikely to have sat well with parliamentarians who were more used to the style of Elizabeth. The belief of the Members of the House of Commons is important to the development of the relationship between the Crown and Parliament, for it was during the reign of Elizabeth that there began to be evidence of a political ‘party’ within Parlia- ment — one that sat in opposition to the Crown.68 As early as 1566, the Queen had to ‘cope’ with a ‘very persistent opposition’,69 although, ‘even at the end of Elizabeth’s reign, the Opposition was a small and uninfluential lot’.70 The lack of cohesion amongst parliamentarians in both the late 16th and early 17th centuries suggests that the complaints about monopolies in Parliament were not the result of a coordinated attack on the Crown but more an expression of particular interests. 1 Parliamentary Debates Patents were the subject of debate late in the decade before Elizabeth’s death and throughout the reign of James. The most vigorous parliamentary session on 66 It has been suggested, for example, that ‘some of those who were loudest in their denunciations of individual patentees would have been far from willing to renounce their share in the corporate monopoly enjoyed by the company of merchants or body of manufacturers to which they belonged’: George Unwin, The Gilds and Companies of London (3rd ed, 1938) 318. 67 Louis A Knafla, Law and Politics in Jacobean England: The Tracts of Lord Chancellor Ellesmere (1977) 65. Further, the relationship between Parliament and James was not always smooth — ‘three of James’s four parliaments were dissolved by the king in fits of anger’: Willson, above n 47, 15. 68 Elton, The Tudor Constitution, above n 47, 302. 69 Notestein, The Winning of the Initiative by the House of Commons, above n 42, 13. 70 Ibid 23. This opposition did not amount to an opposition ‘party’: Williams M Mitchell, The Rise of the Revolutionary Party in the English House of Commons: 1603–1629 (1957) 25. According to Mitchell, such a party would develop in the 17th century. For a discussion of the academic debates surrounding the existence of an opposition party at the time, see Robert Zaller, ‘The Concept of Opposition in Early Stuart England’ (1980) 12 Albion 211. 426 Melbourne University Law Review [Vol 33 this topic in Elizabethan times took place in 1601.71 Unnamed monopolies were, however, challenged in both the 156672 and the 1571 Parliaments.73 Given the few patents granted by that time, it is likely that the monopolies complained of related to a mining commission74 — a commission that gave rise to R v Earl of Northumberland 75 and that may be seen as a battle between the rights of landowners and those of the Crown.76 In terms of the 1597 debate, there is little evidence of what was said in Parliament.77 It is known, though, that the Lord Keeper of the Privy Seal, speaking for Elizabeth, said: touching the monopolies, her Majesty hoped that her dutiful and loving subjects would not take away her prerogative, which is the chiefest flower of her garden and the principal and head pearl of her crown and diadem; but that they will rather leave that to her disposition and as her Majesty hath proceeded to trial of them already, so she promiseth to continue that they shall all be examined to abide the trial and true touchstone of the law.78 This passage suggests a recognition on Elizabeth’s part of the capacity of the Parliament to curtail her use of patent grants. More important, though, is the language used to describe the prerogative. The power to grant patents seems to be considered central to her role as monarch, though this may have been an attempt to emphasise the sacrifice she appeared to be making by submitting patents ‘to the test of the Common Law.’79 There is much more source material available on the 1601 debates. The motivations and aims of those who spoke against patents, however, are not always clear. It has been suggested, for example, that the economic problems of the late years of Elizabeth’s reign meant that ‘all politicians complained of the 71 For a detailed recitation of the debate, see J E Neale, Elizabeth I and Her Parliaments: 1584–1601 (1957) 376–93. 72 Keir, above n 44, 144. 73 Neale, Elizabeth I and Her Parliaments, above n 71, 352. 74 It is possible that the complaints in the 1571 Parliament related to the grants that gave rise to the decisions of Hastings’ Case (1569), Matthey’s Case (1571) and Bircot’s Case (1573). These decisions, referred to below in Part V(C), related to patents for improvements on previous products. All were successfully challenged through the courts; therefore it is not clear why they would have been raised in Parliament. There is no discussion in the literature of the possibility that patents for innovation, however minor, were the subject of complaint in early modern England. 75 (1567) 1 Plow 310; 75 ER 472 (‘The Case of Mines’). 76 For a discussion of this battle, see Eric H Ash, ‘Queen v Northumberland, and the Control of Technical Expertise’ (2001) 39 History of Science 215; Carolyn Sale, ‘“The King Is a Thing”: The King’s Prerogative and the Treasure of the Realm in Plowden’s Report of The Case of Mines and Shakespeare’s Hamlet’ in Paul Raffield and Gary Watt (eds), Shakespeare and the Law (2008) 137. 77 In the words of Neale, ‘[o]bscurity dogs us in this story’: Neale, Elizabeth I and Her Parliaments, above n 71, 354. 78 Quoted in P J Federico, ‘Origin and Early History of Patents’ (1929) 11 Journal of the Patent Office Society 292, 300. 79 Neale, Elizabeth I and Her Parliaments, above n 71, 354. 2009] The 1624 Statute of Monopolies as Political Compromise 427 drying up of the flow of official gifts and rewards.’80 Another commentator argues that the complaints in 1601 were the result of a decline in prosperity in the last decade of the 16th century, following which ‘the first impulse was to seek for real or imaginary abuses to be remedied by Parliament’, with monopolistic patents being the ‘line of least resistance’.81 The uncertainty of the grounds of complaint becomes more obvious if specific patents are considered. The complaint about drinking glasses in 1601, for example, was based on the rise in price of the product.82 The evidence, however, was based on the difference between the low cost of an imported glass and the higher cost of one that was made by the local ‘infant industr[y]’.83 The protection of such industries was sound policy and not counter to the interests of the nation. Another complaint focused on a patent for the manufacture of salt84 — it has been suggested that the salt in question was not the ‘common commodity’, but ‘white salt’, the product of a ‘new industry’.85 Others highlighted problems with the actions of agents of the patentees, rather than the patents themselves,86 and with the monopolies of trading corporations.87 In short, ‘many of the complaints’ in the 1601 Parliament were ‘utterly irrelevant’88 or, at least, they did not directly address problems with monopolies per se but were concerned with the impact of specific grants on specific sectors of the community.89 One set of complaints may, however, be considered separately. A number of the patent grants at the time were non obstante — those grants that allowed the patentee to carry out a particular activity notwithstanding the statutes in place prohibiting the activity. Sir Francis Bacon described these grants, during the Parliamentary debates on monopolies, as ‘hateful’.90 With the growth of the 80 Stone, ‘The Fruits of Office’, above n 7, 91. This raises the possibility that some of the complaints in Parliament may have been motivated, in part, by jealousy rather than an ideologi- cal concern with the grant of patents by the Crown. 81 Scott, above n 60, 107. 82 Ibid 117. 83 Ibid. It is worth noting that it was only the ‘finest’ of drinking vessels that were made out of glass; wood, horn and pewter vessels were much more common: Jeffrey L Singman, Daily Life in Elizabethan England (1995) 138. This means that it would only have been the upper echelons of English society that were adversely impacted by the price of drinking glasses. 84 Neale, Elizabeth I and Her Parliaments, above n 71, 380. 85 Scott, above n 60, 119. 86 Thirsk, above n 4, 60. This supports the claim that ‘the greatest antagonism displayed [in Parliament] against the monopolies was not so much in respect to their existence but … to the manner in which they were supervised’: Fox, above n 11, 186. 87 There was, for example, a pamphlet published in 1601 that touched on the granting of monopolies: John Wheeler, A Treatise of Commerce (1601). This was written by the secretary of the Society of Merchants Adventurers: George Burton Hotchkiss (ed), A Treatise of Commerce by John Wheeler (1931) 10–11, 60. It may have been published, in part, to sway the minds of parliamentarians. 88 Scott, above n 60, 118. 89 It has also been suggested that the complaints against some of the patents in the 1601 debates were motivated by the personality of one of the patentees: Raleigh. Raleigh was said to have been, at that time, ‘the most unpopular man in England’: ibid 111. 90 ‘Debate in Parliament on a Bill against Monopolies, and the Queen’s Message Touching the Same, November, 1601’ in G W Prothero (ed), Select Statutes and Other Constitutional Documents Illustrative of the Reigns of Elizabeth and James I (4th ed, 1913) 111, 112, quoting 428 Melbourne University Law Review [Vol 33 independence of Parliament — evinced by the fact that ‘Elizabeth had in her last years found Parliament refractory and critical’91 — it may have been that the delegation of licensing powers to individuals offended a sense that it was Parliament’s role to govern.92 Further, it is this class of patent that was most affected by the Statute of Monopolies.93 During the 1601 Parliament, in an apparent attempt to at least assuage some of the anger of parliamentarians, Elizabeth issued a Proclamation and addressed the House in November. This address became known as her Golden Speech and has been roundly praised as a ‘brilliant and decisive’ tactical move on her part.94 The relevant sections of the speech are the following: Since I was Queen, yet did I never put my Pen to any Grant, but that upon pretext and semblance made unto me, that it was both good and beneficial to the Subjects in general, though a private profit to some of my ancient Servants who had deserved well: But the contrary being found by Experience, I am exceeding beholding to such Subjects as would move the same at first. And I am not so simple to suppose, but that there be some of the Lower House whom these grievances never touched; And for them I think they speak out of Zeal to their Countries, and not out of Spleen or malevolent Affection, as being Parties grieved; and I take it exceeding gratefully from them, because it gives us to know that no respects or interest[s] had moved them … [t]hat my Grants should be grievous to my People, and Oppressions to be Priviledged under colour of our Patents, our Kingly Dignity shall not suffer it …95 This extract indicates two matters of interest. First, there was acknowledgement that some of the patents granted had produced private, rather than public, gain. The speech does not, however, suggest that all grants were bad or that they had been abused. The second point that may be drawn from the speech is an understanding of the role of parliamentarians as representatives of their constituencies. Elizabeth spoke of those whom ‘grievances never touched [and Heywood Townshend, Historical Collections: Or, an Exact Account of the Proceedings of the Four Last Parliaments of Queen Elizabeth of Famous Memory (1680) 231. 91 Keir, above n 44, 156–7. 92 For a discussion of the Parliaments’ actions with respect to these grants, see Edie, above n 48. 93 A Bill was brought before Parliament in 1601 to the effect that ‘every man which had or could invent any Art or Trade, should for his life monopolize the same to his own use, or he that could add to or refine the same should do the like’: Simonds D’Ewes (ed), A Compleat Journal of the Votes, Speeches and Debates, Both of the House of Lords and House of Commons throughout the Whole Reign of Queen Elizabeth of Glorious Memory (1693) 678. The Bill failed to pass. That there were arguments for and against monopolies of invention suggests that the tension was not simply between the Crown and Parliament. That the debate was over a Bill that allowed for such monopolies also suggests that the preceding debate may not have been only about one sort of grant — whether it be non obstante or those relating to trading corporations. That the prominent speakers recorded in the previous debate were not reported by D’Ewes suggests that it may not simply have been about power struggles either. The best conclusion that may be drawn from the arguments in the Elizabethan Parliaments is that there is no single story that explains the problems, the concerns and the failed solutions of the time. 94 See, eg, Edward C Walterscheid, ‘The Early Evolution of the United States Patent Law: Antecedents’ (Pt 2) (1994) 76 Journal of the Patent and Trademark Society 849, 866. 95 Elizabeth I, ‘The Golden Speech’ (Speech delivered at the House of Commons, London, 30 November 1601), quoted in D’Ewes, above n 93, 659. See also Neale, Elizabeth I and Her Parliaments, above n 71, 389–90. 2009] The 1624 Statute of Monopolies as Political Compromise 429 who] speak out of Zeal to their Countries’. The Queen suggested that this meant that ‘no respects or interest had moved them’, arguably implying that those who complained in Parliament were opposing specific injustices which were occurring in specific locations, rather than protesting against patents generally. As early as 1604, at the beginning of the reign of James, there were more complaints in Parliament about the trading monopolies.96 Importantly, these complaints were made on behalf of provincial merchants who were against the ‘companies whose restrictive membership was a factor ensuring the continued domination of London’,97 and may have been prompted by the decline in trade that followed the plague year of 1603.98 Complaints such as these have been described as ‘little more than the envious rantings of the disgruntled and declining outports.’99 They, therefore, may be an example of where ‘a welter of vested interests came together and cancelled one another out.’100 Following the grievances expressed in and by Parliament,101 there was another regal statement made concerning monopolies. James issued a Declaration in 1610 that came to be known as the Book of Bounty.102 Its purpose was to ‘clarify’ the granting of patents. The Declaration ‘stated that monopolies, grants of dispensation from penal laws, and forfeitures thereof were contrary to the Common Law.’103 One exception to this prohibition was ‘[p]rojects of new invention, so they be not contrary to the Law, nor mischievous to the State, by raising prices of commodities at home, or hurt of trade, or otherwise inconven- 96 See, eg, Robert Ashton, The City and the Court: 1603–1643 (1979) 85. See also Wallace Notestein, The House of Commons: 1604–1610 (1971) 106–25. 97 Ashton, The City and the Court, above n 96, 86. ‘Provincial jealousy’ was also behind complaints against the monopolist Muscovy Company, because its whaling activities stepped on the toes of a number of ‘east-coast ports’: at 89. It has also been suggested that the 1604 complaints arose, in part, from the exclusionary nature of regulated companies (in contrast to joint-stock companies) and the monopolies they controlled: see Theodore K Rabb, Jacobean Gentleman: Sir Edwin Sandys, 1561–1629 (1998) 88–90. 98 Supple, above n 27, 26. More than 30 000 people died in the plague — a figure, in part, achieved through the influx of people into London for the coronation of James: at 25. 99 Ashton, The Crown and the Money Market: 1603–1640, above n 58, 17. Similarly, it has been suggested that the parliamentary attacks on the trading monopolies, in particular, look ‘suspi- ciously like … attempt[s] by those outside the ring, not to destroy the system, but to force an opening just sufficiently wide for themselves to enter into a share of the profits’: Lawrence Stone, ‘State Control in Sixteenth-Century England’ (1947) 17 Economic History Review 103, 118. This continued during the depression of the 1620s, when the restrictions on trade imposed by monopolist corporations such as the Merchants Adventurers were resented ‘more bitterly’ by those excluded by the grants: Russell, above n 9, 61. 100 Lambert, above n 43, 64. This has been put by Lambert, somewhat harshly, in terms of the debates in the Commons during the reign of James being ‘frequently little more than shadow- boxing’: at 76. 101 Patents attacked in the Committee for Grievances included those where licensees extracted payments ‘for commodities not within the scope of the patent’ and the granting of licences to ‘sell wines in villages and towns, where wines had not been sold before, as well as to unruly alehousekeepers “to the great increase of drunkenness”’: Notestein, House of Commons, above n 96, 167. It should be noted that not all grievances before the Committee arose from patents. Others included the payment of fees by sheriffs, the ‘exportation of iron ordnance’ and the impositions levied on currants: at 169. 102 A Declaration of His Majesties Royall Pleasure, in What Sort He Thinketh Fit to Enlarge: Or Reserve Himselfe in Matter of Bountie (1610) (‘Book of Bounty’). 103 Kyle, above n 5, 205, citing ibid 13–14. 430 Melbourne University Law Review [Vol 33 ient.’104 Aside from these well-meaning patents, James ‘solemnly renounced all intention of granting fresh patents of monopoly or privilege and forbade any to approach him with projects’.105 This Declaration was made despite his previous publication, The True Lawe of Free Monarchies (1598), that inclined him ‘towards a conception of enlightened absolutism.’106 This neither satisfied the Members of Parliament nor stopped the granting of monopolies. The good intentions of the King did not mean that there were not specific complaints that had sound (if partisan) grounds. One class of these were the complaints relating to the grants for the enforcement of penal statutes.107 According to Robert Ashton, ‘[o]ne of the reasons why parliament disliked [this] system was that it put effective enforcement of some of the legislation which it had passed into the hands of private individuals’.108 These patents were considered by the Committee for Grievances, where it was further alleged that patentees had the power to dispense with the penalty.109 In other words, as the patentees could profit from failing to enforce the statutes, this was a direct challenge to the authority of the legislature.110 In the 1621 Parliament, ‘the hostility of the Commons to privileged economic concessionaires was greatly exacerbated by severe economic depression’;111 ‘no concessionary interest, monopolist, customs farmers, licensee or member of a 104 Book of Bounty, above n 102, 21. See also Thomas A Hill, ‘Origin and Development of Letters Patent for Invention’ (1924) 6 Journal of the Patent Office Society 405, 408. It may be noted, however, that according to one commentator there were examples of patents being suspended in times of dearth in order to increase the supply of the monopolised goods and to reduce the price of the goods: Price, above n 11, 29. 105 Price, above n 11, 28. The Book of Bounty, however, maintained a number of rights for the King that assisted his finances including: ‘customs, impositions and seizures of the same; licences to import and export commodities prohibited by law or any other items without customs charges; [and] profits from tenures and alienations or from the use of seals’: Kyle, above n 5, 205. 106 Keir, above n 44, 157. 107 It may be noted that this class of patent was also complained of in the Parliament of 1593: A Hassell Smith, County and Court: Government and Politics in Norfolk, 1558–1603 (1974) 124. 108 Ashton, The English Civil War, above n 39, 46. 109 Ibid 165. According to one commentator, the ‘common lawyers, who were so important in the House, were outraged at the grant of the right of dispensing with penal statutes’: Elizabeth Read Foster, ‘The Procedure of the House of Commons against Patents and Monopolies, 1621–1624’ in William Appleton Aiken and Basil Duke Henning (eds), Conflict in Stuart England: Essays in Honour of Wallace Notestein (1970) 57, 60. It should not be forgotten, however, that ‘Parliament was called only infrequently; exceptions could not wait five or ten years. Statute was respected, but the effective remedy against its inconveniences and injustices lay in the discretionary powers of the Crown’: Edie, above n 48, 199. 110 These patents were also a threat to the justices of the peace because, in some cases, the patentees could enforce statute that the justices chose to ignore and, in others, the patent allowed the justices to be ignored altogether in terms of the enforcement of statutes: Smith, above n 107, 122–3. According to Russell, ‘[w]hen the [justices of the peace], as was admitted in the Commons, were often unable to make effective use of this power, their protests at having it taken away from them perhaps savour of the dog in the manger’: Russell, above n 9, 70. 111 Ashton, The English Civil War, above n 39, 88. It has been argued that ‘the effective and immediate cause of the depression … during the early 1620s was a series of currency manipula- tions in some of the principal European markets for English textiles, which priced the cloth out of those markets’: Supple, above n 27, 80. The economic troubles, though linked to trade, could not be blamed on the existence or structure of the trading companies. 2009] The 1624 Statute of Monopolies as Political Compromise 431 privileged trading company was safe from attack.’112 It has been suggested, in particular, that ‘[s]ome of the more vocal attacks on the restriction of trade’ by the monopolist corporations in the 1620s were ‘fiscal, rather than economic, in origin’113 — that is, Parliament wanted these receivers of royal benefit to pay more for the privilege, thereby reducing the size of the supply sought by the Crown. Also, ‘[v]ested interests, including the [Company of] Staplers, excluded from normal trade were quick to seize the opportunity afforded by the depression to press for a liberalization’.114 The stench attached to the label ‘monopoly’ meant that in 1621 any proposal put forward to regulate an industry would be objected to on the basis that it was a monopoly — examples include a Bill to ‘conserve fish by prohibiting fishing with fine mesh nets’ and a Bill ‘giving Trinity House power to supervise lighthouses’.115 Patents were put to another use in the 1621 Parliament: they provided an opportunity by which ‘ambitious men at court could hope to discredit each other’.116 One of the ‘successes’ of 1621 was the impeachment of Sir Giles Mompesson.117 He is now known as a monopolist who abused the privileges he was granted;118 he was also, however, ‘one of the most notorious’ players in the system by which ‘concealed’ Crown lands were found and profited from.119 The hunt for such concealed Crown lands ‘was a subject of bitter Parliamentary 112 Ashton, The City and the Court, above n 96, 107. One of the first classes to be attacked was that relating to bullion: Robert Zaller, The Parliament of 1621: A Study in Constitutional Conflict (1971) 55. Foster acknowledges, however, that it was unclear which of these ‘Members of Parliament were moved by their own initiative to present grievances, and how often they spoke as the representatives of special interests’: Foster, above n 109, 65. 113 Russell, above n 9, 60. 114 Supple, above n 27, 62. It has also been suggested that foreigners, such as the Venetian ambassador, who had a desire to trade in muscatel, encouraged parliamentarians to protest against regulated trade: Foster, above n 109, 81 fn 36. Foster also emphasised the role of other ‘lobbying interests’ in the parliamentary debates: at 66. 115 Russell, above n 9, 93–4. The term monopoly had also been applied derisively to the College of Physicians in the 16th century: Christopher Hill, Intellectual Origins of the English Revolution Revisited (1997) 68. 116 Russell, above n 9, 87. Russell later provides the example of an attack, aimed at other courtiers, by Alford and Sackville on the gold and silver thread making patent. The two were ‘asking the King for his support in this attack’: at 100. One of the grounds of attack was the depression, as the use of bullion in the manufacture of thread was said to contribute to the ‘shortage of coin’. This, then, is an example of a political attack that took advantage of the circumstances of the time and that was not directed against the principle of monopoly patents. 117 It has been argued that the impeachment of Mompesson has been considered ‘politically unimportant’: John Dykstra Eusden, Puritans, Lawyers, and Politics in Early Seventeenth- Century England (1968) 151. Others have argued that the impeachments in the 1620s ‘reflected factional politics at court’: Linda Levy Peck, Court Patronage and Corruption in Early Stuart England (1990) 186. The process is nonetheless noteworthy as it was the first time such proceedings had been used since the mid-fifteenth century: Colin C G Tite, Impeachment and Parliamentary Judicature in Early Stuart England (1974) 1. The action against Mompesson may, therefore, be seen as indicative of a shift in the attitude and intention of Parliament itself — the ‘attack upon patents was just part of the much broader criticism of the structure of office and of fees’: W J Jones, Politics and the Bench: The Judges and the Origins of the English Civil War (1971) 56–7. 118 See Keir, above n 44, 167; Tite, above n 117, 89–90; Churchill, above n 18, 279. His patents included one for the licensing of alehouses: Peck, above n 117, 142. 119 Russell, above n 9, 66. See generally C J Kitching, ‘The Quest for Concealed Lands in the Reign of Elizabeth I’ (1974) 24 Transactions of the Royal Historical Society 63. 432 Melbourne University Law Review [Vol 33 complaint’.120 The relative importance of Mompesson’s actions as a licensor of alehouses and as a seeker of concealed lands in his impeachment is not clear.121 Legal histories written in the last century tend to focus on his role as a patentee; however, that oversimplifies the complexity of interests in the parliamentary debates. More detail on the events in the 1621 and 1624 Parliaments, and negotiations around the different interests evident there, will be provided below in Part V in the context of the background to the Statute of Monopolies itself. 2 Succession In addition to the economic problems during both the 1590s and 1620s, there was another commonality between the two periods. They were both known to be the end of the reign of the monarch. Elizabeth died in 1603 and James in 1625. It was no secret in the years preceding their deaths that their respective healths were ailing. This meant that the politics of succession were to the fore. There was also another succession issue — that relating to changes in the powerbrokers of the time. It is, therefore, likely that one factor in the complaints against specific patentees was the jockeying for position, or attention, in readiness for the change of regime. Succession had also been a point of conflict between Parliament and Elizabeth for much of her reign.122 A significant contributor to this was her reluctance to name the person who would succeed her. That she had no children meant that the field of prospective successors was unusually wide. Sir William Cecil (Lord Burghley), for example, was concentrated near the end of his life ‘on securing the succession’ for his son.123 The Earl of Essex was another who sought advancement but was prone to indiscretion; his final mistake, the raising of a rebellion (a significant form of succession) caused his execution.124 The ambitions and practices of those in power and at the court meant that Parliament was ‘restive’.125 The ‘Queen’s loosening grip in her last years … allowed the Court to become riven by the faction dispute of Essex and [Robert] Cecil, and patronage to become exercised in an increasingly self-interested fashion.’126 The disappearance of Lord Burghley from the scene is also an important factor in the development of the patent crisis. He died in 1598, after having enjoyed an 120 Russell, above n 9, 66. 121 The issue of concealment of Crown lands was subject to statute in 1624: Crown Suits, etc Act 1624, 21 Jac 1, c 2. See also Kitching, above n 112, 77. 122 This was, in part, fuelled by ‘fears of a popish succession’: Elton, The Tudor Constitution, above n 47, 302. The importance of the issue to the wider community is demonstrated by the perception that the work of Shakespeare ‘return[s] continually to the question of succession’: Clare Asquith, Shadowplay: The Hidden Beliefs and Coded Politics of William Shakespeare (2005) 81. 123 Neale, Essays in Elizabethan History, above n 64, 80. 124 See generally J E Neale, Elizabeth I (2005) ch 21. 125 Mitchell, above n 70, xiv. 126 Hirst, above n 7, 10. For a discussion of the difficulties of defining the ‘court’ and therefore its influence, see G R Elton, ‘Tudor Government: The Points of Contact — The Court’ (1976) 26 Transactions of the Royal Historical Society 211. 2009] The 1624 Statute of Monopolies as Political Compromise 433 ‘immense concentration of power [over] four momentous decades.’127 Burghley had been central to Elizabeth’s approach to industrial development: he had wanted to make the ‘realm self-sufficient. … He desired to develop English industry of every kind’.128 Not only would his death have meant a loosening of control over what was said in Parliament, but there would also have been power plays to replace him — with this in mind, it is unsurprising that the debates in 1601 (the first Parliament after his death) were more vigorous than in 1597. It is likely that, given the allegations of favouritism and nepotism that stalk discussions of late Elizabethan patent grants, the targets were the recipients of the grants rather than the grants themselves. The machinations that would have been occurring for the replacements of both the Queen and Lord Burghley may have been significantly affected by allegations of impropriety and abuse. There was a smoother transition of power at the end of James’s reign as he had a son who was his obvious successor. As will be noted below, Charles had a significant role in the compromise of 1624, although attacks on and defences of particular patentees for political purposes persisted nonetheless. More importantly, the profile that the political jockeying gave to monopolies at the end of the 16th century handed many in Parliament a weapon to wield in debates. As will be seen in Part IV, this ‘patent problem’ was not necessarily something that troubled the average English citizen. IV THE ROLE OF THE PUBLIC While the trading companies and other corporations such as the City of London had a significant impact on the opinions of parliamentarians, another group did not. That group included the average members of the public. As stated above, most of the men and all of the women were not, in effect, represented in the Commons in the early modern period. The voices of these disenfranchised folk are, however, given significant weight in the standard legal histories of patents. It is often said that the patents were unpopular and that this was an important factor in the passing of Statute of Monopolies.129 This Part considers the possible existence of any public anger with patents outside Parliament to see if the debates in the House reflected such anger or whether the statements in the Commons merely described the position of other constituencies. 127 Joel Hurstfield, ‘The Succession Struggle in Late Elizabethan England’ in S T Bindoff, J Hurstfield and C H Williams (eds), Elizabethan Government and Society: Essays Presented to Sir John Neale (1961) 369, 369. 128 Fox, above n 11, 67. 129 D Seaborne Davies, for example, claims that the patent that gave rise to the case of Darcy v Allen was ‘widely resisted and opposed throughout the whole country’: D Seaborne Davies, above n 13, 400. His evidence for this is the records of the Privy Council and the State Papers Domestic of the Public Record Office. All that these show, however, are claims by the patentee that his patent was being infringed. Another historian refers to a ‘riot’ that resulted from a patent granted to Edward Darcy over the manufacture of gloves: Unwin, The Gilds and Companies of London, above n 66, 299. Earlier in the same text, however, Unwin describes the ‘riot’ as a gathering of ‘city apprentices’ from the leather-working trade (who had a commercial interest in the failing of the competing glove-makers) that ensued after Darcy struck an alderman: at 257. The riot therefore seems to be more akin to industrial unrest as a result of competition than widespread dissatisfaction amongst the general population. 434 Melbourne University Law Review [Vol 33 Despite assertions in the traditional histories of patents, there is little evidence of anti-monopolist public opinion.130 The sole specific comment found on the subject is that of Sir Robert Cecil. He is quoted as saying, in 1601, ‘Parliament matters are ordinarily talked of in the streets. I have heard myself, being in my coach, these words spoken aloud: “God prosper those that further the overthrow of these monopolies.”’131 This does not describe ‘public outcry’132 and it is not clear which monopolies are being complained of.133 It is possible that the overheard complaint focused on those that regulated trade (if they contributed to a rise in prices), the actions of licensees of particular monopolies (such as those for the mining of saltpetre134 or for alehouses),135 or it could be that the 130 I have seen no discussion in the literature of specific petitions to the Parliament or any details of pamphlets circulated at the time that indicate a general protest about monopolies. For a discus- sion of the role of pamphlets, including those going to matters political, see generally Joad Raymond, Pamphlets and Pamphleteering in Early Modern Britain (2003). In the literature, there are reproductions of handbills with illustrations lampooning patentees: see, eg, Unwin, The Gilds and Companies of London, above n 66, 298, 322. These, most likely, were published in the 1640s. There was also the pamphlet, A Treatise of Commerce, that touched the granting of monopolies: see above n 87. This was written in 1601, the time of the tension in Parliament. That the Merchants Adventurers chose to engage with certain members of the public directly suggests a desire to at least ‘sell’ the benefits of monopolistic trade to a wider audience. This may have been to encourage readers to pressure their parliamentarian directly, rather than necessarily trying to quell any public outcry. It may be difficult to consider a 184-page pamphlet as targeting a mass market of public opinion. It has also been suggested that the pamphlet was a response to another leaflet that attacked, amongst other things, the practices of the Merchants Adventurers. This pamphlet was written by a customs officer about the problems facing those in his position and was distributed only to the Lords of the Privy Council: Hotchkiss, above n 87, 10–11, 60, 64. 131 Quoted in Hirst, above n 7, 178. Notestein, however, suggests that ‘Parliament and its daily goings-on were matter for gossip on the streets and in alehouses’ throughout the 1590s and does not indicate that this was limited to discussions of monopolies: Notestein, The Winning of the Initiative by the House of Commons, above n 42, 22. 132 Edith Tilton Penrose, The Economics of the International Patent System (1951) 5. Another commentator described the level of protest as a ‘national outburst’: Churchill, above n 18, 289. Neither author provided evidence for these claims. The detail added by one commentator is enlightening. There were allegedly complaints about the patent granted for starch manufacture. The grant was an attempt to limit starch in order for the corn to be eaten rather than used on cloth. One of the reasons for an increased demand for starch was the increase in the size of the ruffs worn for the sake of fashion — ‘the bigger the ruff, the more it rubbed your neck, the dirtier it became, the more often it had to be starched’ and the more starch was needed: Thirsk, above n 4, 88. Complaints about the starch monopoly may have been from gentlemen who wanted to follow fashion, rather than from the general populace complaining about abuse by the monarch. 133 It is arguable that the actions of the Stationers’ Company in the 16th century may have been sufficient to attract protest. The enforcement of the printing licences and the regulations that governed them ‘lay first and foremost’ with the Company. Their enforcement included ‘weekly searches’ and the ‘[Stationers’] Court of Assistants … destroyed illicit books, defaced illegal type, fined, excluded and occasionally imprisoned offending printers on its own authority’: D M Loades, ‘The Theory and Practice of Censorship in Sixteenth-Century England’ (1974) 24 Transactions of the Royal Historical Society 141, 155. This possibility has not been raised, however, in the patent literature. 134 Such licensees were permitted to enter private property to dig for saltpetre. At the time, saltpetre was made from manure (Mick Hamer, ‘Blast from the Past’ (5 November 2005) New Scientist 33, 34) and so had to be sourced from animal waste. Limitations were placed on the manner of mining — for example, it had to be between sunrise and sunset and there could be no digging in the floors of houses or barns (The Case of the King’s Prerogative in Saltpetre (1606) 12 Co Rep 12, 12; 77 ER 1294, 1295–6). It was, however, alleged in the Committee for Grievances that the ‘saltpeter men … enter the houses of … subjects, use them continuously, [and] dig up their dove- houses at unseasonable times’: Notestein, House of Commons, above n 96, 168, quoting the 2009] The 1624 Statute of Monopolies as Political Compromise 435 complainant simply did not like those that encouraged the importation of expertise, and experts, from the continent.136 It is also possible that the words heard by Cecil were the result of attempts to spread more widely the concerns of the commercial constituencies of parliamentarians.137 It is, therefore, necessary to look elsewhere for evidence of public anger.138 The record of unrest is similarly weak if artefacts of popular culture are examined.139 There is reference in the literature to reports in the news publications, such as existed in 1621, describing ‘the misdeeds of monopolists and the imprisonment of [parliamentarians]’.140 These reports most likely refer to the ‘impeachment of two notorious monopolists, Michell and Mompesson’,141 rather than concerns over patents generally.142 Another example of alleged public complaint is the poem of Edmund Spenser, Prosopopoia: Or Mother Hubberds Tale (‘Prosopopoia’),143 which has been said to ‘bitterly describ[e]’ the activities of courtiers in their pursuit of monopolies.144 This work, however, was written in 1591 — well before the bulk of complaints about patents in Parliament.145 If Prosopopoia is, however, a statement against Petition of Grievances (1606). It has also been suggested that the reason for the complaints was the need for the licensees to dig in the ‘grounds “of the better sort”’ of citizens due to the increase in demand for saltpetre at the time: Scott, above n 60, 114. This, again, would impute a more selfish motivation on the part of the parliamentarians or others who raised concerns about them. 135 ‘Severe fines were stipulated for unlicensed brewing’: Steve Hindle, The State and Social Change in Early Modern England, 1550–1640 (2002) 152. This certainly could have generated public complaint. 136 There were riots against ‘foreign artisans’ in London in the 1590s: Palliser, above n 22, 363. One of the ancillary issues is the terminology that may be used to describe protests. A description of a ‘riot’ (see, eg, above nn 39, 129) with respect to activities in Dean Forest may suggest significant complaint. The definition of ‘riot’ in early modern England was, however, limited to ‘three or more persons committing, with force, an unlawful act’: John Walter and Keith Wrightson, ‘Dearth and the Social Order in Early Modern England’ (1976) 71 Past and Present 22, 26. This could include large-scale protests; though it could also include ‘petty acts of neighbourly malice’. 137 According to Cecil, some parliamentarians ‘had desired to be popular without the House for speaking against Monopolies’: quoted in Hirst, above n 7, 178. 138 One commentator suggests the reverse: that Elizabeth’s use of monopolies reduced her need to seek money from Parliament and therefore ‘greatly increased her popularity’: Theodore F T Plucknett, Taswell-Langmead’s English Constitutional History: From the Teutonic Conquest to the Present Time (11th ed, 1960) 310. Another commentator suggests that the granting of patents to courtiers for the purpose of regulating industries meant that ‘[p]ublic opinion was gratified’: Unwin, The Gilds and Companies of London, above n 66, 256. 139 For a discussion of the use of propaganda in Elizabethan England, with particular mention of plays, see Gladys Jenkins, ‘Ways and Means in Elizabethan Propaganda’ (1941) 26 History 105. 140 Richard Cust, ‘News and Politics in Early Seventeenth-Century England’ (1986) 112 Past and Present 60, 74. 141 Keir, above n 44, 167. 142 Peck, above n 117, 189, asserts that ‘[s]atirical prints’ of Mompesson ‘circulated after his impeachment in 1621 and contemporary tracts attacked official venality.’ Further, as has been noted, complaints about Mompesson may not have been focused on his role as patentee: see above nn 117–21 and accompanying text. 143 Edmund Spenser, Prosopopoia: Or Mother Hubberds Tale (1591). 144 Rowse, above n 59, 185. 145 Further, another commentator has argued that the poem ‘speaks most directly to the relations between the court and the monarch’ and is connected to Spenser’s desire that Elizabeth seek appropriate counsel: Richard F Hardin, Civil Idolatry: Desacralizing and Monarchy in Spenser, 436 Melbourne University Law Review [Vol 33 courtiers generally, it is possible that any public unrest that it represented was directed at the arbitrary powers of the Crown, rather than monopolies specifi- cally.146 There have, for example, been suggestions that there were public reactions to other shows of arbitrary power.147 Analysis of commentary produced around the time of Elizabeth’s death suggests that the prerogative powers of the monarch could be considered in terms of the merchant role148 — an analogy that is not overly flattering of the Crown. Further, Paul Slack writes of ‘opposition’ to the various Books of Order that included provisions for the regulation of the sales of grain to protect food sources and for the better management of infectious diseases.149 Such opposition suggests resistance to a particular form of social control (and therefore offers insights into the sentiments of those governed by it); however, it is less clear whether such resistance has anything to say about patents and monopolies. There is one final example of the public perception of power that is worth noting. If taken at face value, the suggestion that Elizabeth was known to be identified, in the public mind, with Richard II — a tyrant — may support an anti-Crown and perhaps an anti-monopoly perspective.150 This symbolic connection, however, lasted throughout her reign, which raises the question as to the reason for the link.151 It is possible that the association arose as a result of Shakespeare, and Milton (1992) 97–8. The critique of courtiers in popular culture was continued in the 17th century, for example in John Milton, A Maske Presented at Ludlow Castle, 1634 (1637) (commonly known as ‘Comus’): Christopher Hill, Liberty against the Law: Some Seventeenth-Century Controversies (1996) 11. 146 It has been suggested that Ben Jonson’s 1616 play — Ben Jonson, The Devil Is an Ass (1631), which was first performed in 1616 — includes reference to a patent relating to the sale of aqua vitae that was complained of in the 1601 debates: Scott, above n 60, 116. This suggests that the creative class at the time was willing to raise the issue of monopolies. However, the few mentions do not, in turn, imply a groundswell of public opposition. Jonson included a reference to a patent for forks as a ‘jibe’ at a friend of his, rather than a protest over patents: M Frumkin, ‘The Origin of Patents’ (1945) 27 Journal of the Patent Office Society 143, 146–7. Another commentator highlighted that the ‘notorious abuses of dishonest informers were sufficient to people a whole season of Jonsonian comedies’: Beresford, above n 35, 231. 147 There is also a suggestion that there were reactions to corruption linked to monopolies. According to Hotchkiss, there was a play published in 1607 that implied that a ‘closely allied group of merchants control[led] the export of cloth, and maintain[ed] their monopoly by heavy bribes’: Hotchkiss, above n 87, 85–7. This is understood to suggest that the Society of Merchants Adventurers paid bribes to Members of the House of Lords to block passage of a free trade Bill in 1604. This Bill, however, is not best seen as an anti-monopoly Bill, but as an anti-regulated corporation Bill — that is, the attack was based on the restricted access to the benefits of the Society’s monopoly rather than on the monopoly it held over certain types of trade. 148 Jordan, for example, argues that the work of Fulbecke sees the monarch as, in part, ‘a trader in merchandise, profiting from the common wealth’: Constance Jordan, Shakespeare’s Monarchies: Ruler and Subject in the Romances (1997) 122–3, citing William Fulbecke, Pandectes of the Law of Nations (1602). 149 Slack, above n 61, 139–42. 150 It has been reported that she said to her Keeper of the Rolls, ‘I am Richard II, know ye not that?’: Frank Kermode, The Age of Shakespeare (2004) 45. It has been suggested, however, that Shakespeare himself avoided direct reference to the Queen in his plays: Lisa Hopkins, Writing Renaissance Queens: Texts by and about Elizabeth I and Mary, Queen of Scots (2002) ch 6. 151 See generally Lily B Campbell, Shakespeare’s ‘Histories’: Mirrors of Elizabethan Policy (1947) ch 13. 2009] The 1624 Statute of Monopolies as Political Compromise 437 questions of Elizabeth’s legitimacy as monarch.152 If this was the case, it was in all probabilities a function of the religious division in England at the time.153 Elizabeth was a Protestant and many felt that a Catholic should have been on the throne.154 This would explain why she was equated with the deposed King.155 If the connection arose as a result of specific improper exercises of power (such as the granting of monopolies) then it is likely that the link would have been established later in her reign. In other words, claims of dissatisfaction with Elizabeth’s rule may have developed from problems with her receiving the Crown to begin with.156 Whilst it is difficult to prove a negative — that there was no public outcry — there is little evidence to indicate the existence of widespread antagonism to monopolies amongst the general public.157 152 See Mary Ann McGrail, Tyranny in Shakespeare (2001) 2. For a discussion of Elizabeth in terms of the reign of King John and his improper seizure of power, see ibid ch 12. 153 It has been observed that ‘[r]eligion permeated every aspect of English society in the sixteenth and seventeenth century’: David Cressy and Lori Anne Ferrell, ‘Introduction’ in David Cressy and Lori Anne Ferrell (eds), Religion and Society in Early Modern England: A Sourcebook (1996) 1, 1. 154 According to Plucknett, above n 138, 296–7: the natural prejudice of most of the Roman Catholics in favour of a monarch of their own religion, and the impossibility of a catholic admitting that Elizabeth was legitimate, coupled with the preference felt by many for a strictly hereditary over a purely parliamentary title, led them to regard the Queen of Scots, granddaughter of Henry VIII’s elder sister Margaret, as having a prior right to the throne … 155 A side issue to this is the promotion of the idea of the ‘King’s two bodies’ in the contest of the legitimacy of Elizabeth’s rule and her succession. This doctrine, popularised by Kantorowicz, holds that the Crown has a ‘body natural’ and a ‘body politic’: see generally Ernst H Kan- torowicz, The King’s Two Bodies: A Study in Mediaeval Political Theology (1997). Kantorowicz, at 7–23, opens his book, and bases much of his argument, on the idea as expressed in Plowden’s Reports. Others, however, have argued that such an approach ignores the context of Plowden’s writing. Rolls, for example, argues that Kantorowicz does not take account of the ‘particularities of the theory in Elizabethan England [and has] disregarded, simplified, and occasionally misrepresented the elements of the theory’: Albert Rolls, The Theory of the King’s Two Bodies in the Age of Shakespeare (2000) 55. Further, Hardin argues that Kantorowicz ‘moves dubiously from the legal fiction of the immortality of corporate bodies to the claim that medieval and Tudor England subscribed to a sacred or mystical theory of kingship’: Hardin, above n 145, 24. Marie Axton, The Queen’s Two Bodies: Drama and the Elizabethan Succession (1977) 16 (citations omitted), offers a more political view, arguing that Plowden, as a Catholic, personally suffered from the demise of Queen Mary and from the political and religious innovations of her successor. It is understandable that [he] should seek to minimize the per- sonal impact of the new sovereign and should emphasize the continuity of the monarchy in their professional work. William Shakespeare’s Richard II (1st folio, 1623) may be understood from the perspective of this doctrine: C G Thayer, Shakespearean Politics: Government and Misgovernment in the Great Histories (1983) ch 1. Further, not all jurists agreed with the concept of the two bodies; Lord Ellesmere, the Lord Chancellor, for example, ‘believed in a concept of the King’s single, natural body’: Knafla, Law and Politics in Jacobean England, above n 67, 66. This debate shows the complexity of understandings of political life and the nature of the political state. Simplistic characterisations of any facet of public life at the time, therefore, may not be particularly useful. 156 Also, if the work of Shakespeare is considered, then it is not clear that he would write his Richard II (1st folio, 1623) and intend it to highlight concerns about the use of prerogative powers yet not reference ‘Caesar’s unlawful appropriation of royal powers and prerogatives’ in his Julius Caesar (1st folio, 1623): James Shapiro, 1599: A Year in the Life of William Shake- speare (2005) 147. 157 Indeed, another historian who quoted Cecil and the words he had overheard on the street appended another statement: ‘The time was never more apt to disorder’: Neale, Elizabeth I and Her Parliaments, above n 71, 386. Cecil was not reporting protests in the street, but rather the 438 Melbourne University Law Review [Vol 33 V T H E S TAT U T E OF MONOPOLIES AS COMPROMISE Others have noted that the Statute of Monopolies was a compromise; however, this perspective has been limited to a conception of James compromising his power to grant patents in order to gain funds from Parliament.158 Such a conception acknowledges the defining need of the monarch to achieve supply; it does not, however, recognise that there were other politics at play. It is argued here that the Statute of Monopolies represented a compromise not only between the Crown and Parliament, but also between different groups within Parlia- ment — for as early as the first Parliament of James, the ‘self-centred’ nature of the individual Members and the focus on their own ‘political advancement’ had been noticed.159 The importance of this acknowledgement is that the Statute of Monopolies itself, when taken as a whole, is not an expression of idealism, but is best characterised as a statement of political appeasement. A Background The drafting of the Statute of Monopolies has a lengthy history, much of which is detailed elsewhere.160 For the purposes of this article, the detailing of its past may start with preparations for the 1621 Parliament. James established a commission to examine the patents and monopolies that were ‘grievous to the commonwealth’.161 The report of the commissioners was considered by the Privy Council. Its conclusions were based on a strategic engagement with the wishes and expected actions of the Commons. In the end, the Council decided to allow the lower House to choose the patents to be challenged.162 It should not be forgotten that

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