Primary Sources on Copyright (1450-1900)
www.copyrighthistory.org
Identifier: uk_1624

Commentary on the Statute of Monopolies 1624
Ronan Deazley

School of Law, University of Birmingham, UK

Please cite as:
Deazley, R. (2008) ‘Commentary on the Statute of Monopolies 1624', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

1. Full title

2. Abstract

3. Industry, the Royal Prerogative and Monopolies in the Tudor Period

4. The Statute of Monopolies 1624

5. Jacobean Newspapers and the Regulation of the Press

6. References

1. Full title
An Act concerning Monopolies and Dispensations with Penal Laws and the forfeitures thereof, 1624, 21 Jac.I, c.3 (1624)

2. Abstract
Legislation restricting the monarch's ability to make monopoly grants in accordance with the royal prerogative, and providing a statutory basis for the patent system. The legislation established the basis upon which patents for "new manufacture[s]" might be granted to "the true and first inventor" of the same in furthering the interests of industry, the economy, and the state. At the same time, privileges concerning printing were left unaffected by the legislation, as were those for the manufacture of saltpetre or gunpowder and for the casting and making of ordnance (canons). In limiting the term of protection for future patents to 14 years while confining existing patents for the same to a period of 21 years, the legislation influenced the choice of the two copyright terms in the Statute of Anne 1710.

3. Industry, the Royal Prerogative and Monopolies in the Tudor Period
In 1518, when Henry VIII (1491-1547) began to grant privileges concerning the right to print and publish certain types of books,[1] he did so under the aegis of the royal prerogative, through which he also sought to regulate and administer economic policy and trade. The concept of using royal privileges to encourage new manufacture within the country was evidenced as early as 1331 when Edward III (1312-1377) granted Letters of Protection to John Kempe, a Flemish weaver, as part of a concerted effort to encourage foreign craftsmen to settle in England.[2] Linen weavers came from Flanders; clock makers came from Delft. Mining, metal working and coining were all industries that benefited from importing the skills of foreign workers, as did the manufacture of ordnance (canons) and gunpowder.[3] Magna Carta may have guaranteed freedom of trade to all merchants within the realm,[4] but it was nevertheless accepted that, so long as the Crown was acting in the general public good, then it had the power, as part of the prerogative, to grant privileges promoting economic and industrial development by restricting competition.[5] Moreover, these privileges might relate to the import and export of particular goods, to the manufacture and sale of specific commodity, or to a general power to supervise an individual trade or industry.[6]

During Elizabeth's (1533-1603) reign the consistent use of these privileges took on the shape of strategic national policy, while the privileges themselves took on the character of monopolistic grants.[7] At the same time, Elizabeth was not above making use of these grants to both increase royal revenue as well as reward those who should find themselves in favour at court. As a result, towards the end of her reign there was growing discontent about her use and abuse of these monopoly grants. In 1597 an address was presented to the Queen concerning the matter. In response, she conveyed her wish that "her dutiful and loving subjects would not take away her prerogative, which is the choicest flower in her garden, and the principal and head pearl in her crown and diadem", in exchange for which she promised to examine all patents "to abide the trial and true touchstone of the law".[8] Despite Elizabeth subsequently agreeing to revoke a number of grants to which the Commons objected,[9] things did not improve. In 1598, Elizabeth had granted Edward Darcy a monopoly on the import, manufacture and sale of playing cards in England and its dominions for the period of twenty-one years, which grant gave rise to the seminal decision in Darcy v. Allen (1603),[10] otherwise referred to as the Case of Monopolies. In Darcy the court held that the grant to the plaintiff was void on the grounds of being a monopoly contrary to the common law (as well as several statutes).[11] The decision did not, however, render all monopolies void; rather, it simply set out various common law principles regulating such grants, principles that were further elaborated upon in the subsequent decision of the King's Bench in the Cloth Workers of Ipswich Case (1614).[12]

4. The Statute of Monopolies 1624
When James (1566-1625) acceded the throne, having received a number of petitions concerning Elizabethan monopolies on his journey south from Scotland to London,[13] he responded by issuing a proclamation acknowledging and apologizing for Elizabeth's behaviour in the "too large extending" of her prerogative in relation to the grant of monopolies, and suspending all grants and charters of monopoly until they could "be examined & allowed of by us, with the advise of our Counsell, to bee fit to be put in execution, without any prejudice to our loving Subjects".[14] As one commentator remarks, however, he did so only "to prepare a way for a series of really objectionable [monopolies] of his own creation".[15] The controversy over the use and abuse of monopolies continued throughout the Jacobean period, with a more politically robust House of Commons exhibiting an increasing willingness to raise grievances against and call into question the scope and use of the royal prerogative.[16] James, for example, had hoped that the first session of the 1604 Parliament might focus upon the issues of subsidy, revision of the laws, and an Anglo-Scots Union; instead, the Commons set these aside to address various grievances concerning, amongst other things, the royal interference with members' privileges, abuses in the ecclesiastical courts, and the problem of monopolies.[17] In 1606 a petition concerning several monopolies was presented by the Commons to the King,[18] followed by another in 1610.[19] The question received considerable attention in the House in 1614,[20] and again in the early 1620s,[21] which discussions eventually resulted in the passing of the Statute of Monopolies 1624.[22]

Although designed to bring about an end to the abuse of monopolies the 1624 legislation did not immediately do so.[23] Neither did it mark the beginnings of the modern patent system as is often claimed to be the case. Certainly the statute represents a significant moment in the history of the British patent system, but it is perhaps best understood as a declaratory instrument, restating and representing the jurisprudence upon monopolies that had developed in the common law courts throughout the previous two decades.[24] In substance, the statute declared all monopolies to be contrary to the laws of the realm subject to certain exceptions, and provided that what monopolies and privileges should be tolerated were to be "hereafter examined, heard, tried and determined by and according to the common laws of the realm, and not otherwise".[25] Exempt from the general prohibition on monopolies were "letters patent and grants of privilege for the term of fourteen years or under, hereafter to be made, of the sole working or making of any manner of new manufactures within this realm",[26] in addition to which existing monopolies for new inventions were not to be prejudiced if granted for no longer than twenty-one years.[27] As Rose observes, when the Statute of Anne 1710 was subsequently passed,[28] protecting works already in print (for twenty-one years) as well as those yet to be published (for an initial period of fourteen years), it certainly appears to be the case that parliament considered "a suitable precedent for the copyright term existed in the old Statute of Monopolies".[29] More significant perhaps within the context of the history of the development of copyright was the fact that the 1624 Act also included a proviso preserving any existing or future grants "concerning printing"; in relation to such grants it was to be "as if this act had never been had nor made".[30] The king's authority over the press was to remain unaffected by the new legislation.

5. Jacobean Newspapers and the Regulation of the Press
Patterson, discussing the Statute of Monopolies and the exemption for patents concerning printing writes that "[t]he reason for this exception is not clear".[31] In reality, however, the reason seems more readily comprehensible than Patterson would appear to concede. In 1619, with the outbreak of the war between Frederick V (the King of Bohemia) (1596-1632) and Ferdinand II (1578-1637), there was an extraordinary increase in public interest in international affairs, which in turn led to a proliferation of political tracts and news-books concerning James' foreign policy and the war, printed both in England and overseas.[32] In late 1620 the first newspaper, in English, appeared in London, the earliest existing example of which is dated 2 December. It was published by the Dutch printer Petrus Keerius and provided the first English language example of the early news serials otherwise referred to as corantos.[33] James, on 24 December, issued a proclamation "against excesse of Lavish and Licentious Speech of matters of State" commanding every one "from the highest to the lowest, to take heede, how they intermeddle by Penne, or Speech, with causes of State, and secrets of Empire, either at home or abroad".[34] Soon after, in January 1621, he persuaded the States General to ban the export of these corantos to Britain entirely.[35] Regardless of this intervention, the Dutch corantos continued to appear, and they were soon to be joined by a number of similar London-based publications. The first of these was printed by Thomas Archer in early 1621; later that year Archer found himself in prison over material he had published upon the war in the Palatinate.[36]

That the news on the war overseas continued to circulate led James to renew his efforts to regulate the press. Francis Cottington (1579?-1652) was appointed as "the first regular government licensor of newsbooks and other predominantly political texts",[37] and in July 1621 James issued a further proclamation concerning "speech of matters of State" explaining that, "notwithstanding the strictnesse" of his previous proclamation, he considered it necessary to "redouble [his] Princely Direction".[38] This was followed by an edict from the Archbishops of Canterbury and York, issued at the king's request in August 1622, that preachers refrain from touching upon matters of state in their morning sermons,[39] a Proclamation against the disorderly Printing, uttering, and dispersing of Bookes, Pamphlets, &c in September 1623,[40] followed by a second in August 1624: a Proclamation against Seditious, Popish, and Puritanicall Bookes and Pamphlets.[41] In addition, in September 1621, Nicholas Bourne (d.1661) and Nathaniel Butter (bap.1583, d.1664) were granted a monopoly for printing and publishing the news upon condition that their work was read and licensed by Cottington before publication.[42] Naturally this grant remained unaffected by the Statute of Monopolies and Bourne and Butter continued to enjoy their protected status until October 1632,[43] when Charles I (1600-1649), at the request of the Spanish ambassador, banned the publication of all such newspapers.[44] As is evident, between 1619 and 1624 James repeatedly sought to control the press, and in particular news about domestic and foreign affairs, with more than a few authors and publishers running afoul of this campaign.[45] Moreover, in so doing, "all the devices of the crown for the control of printing were employed", including royal proclamations, the licensing system, and the royal prerogative power to grant exclusive printing privileges.[46] Against this backdrop, whatever the Statute of Monopolies stood for, whether as a check upon the power and authority of the monarchy, or as a catalyst for the process wherein competition would eventually displace reliance upon monopoly in shaping the nation's economic development, it seems clear that James was not prepared to tolerate any interference with his authority to regulate and censure the press. Just as patents "concerning the digging, making or compounding of saltpetre or gunpowder, or the casting or making of ordnance, or shot for ordnance"[47] were exempt from the provisions of the legislation so as not to interfere with the manner in which the Crown managed the defence of the realm, so too the security of the state was to be secure against ideological attack in the guise of critical political speculation and commentary in print.

6. References

Governmental papers and legislation

Magna Carta, 1297, 25 Edw.I, c.9

In what Sort Italian Merchants may sell Merchandises. Several Restraints of Aliens, 1484, 1 Ric.III, c.9

Statute of Monopolies, 1624, 21 Jac.I, c.3

Statute of Anne, 1710, 8 Anne, c.19

Cases

Darcy v. Allen (1603) 11 Co. Rep. 84b

Cloth Workers of Ipswich Case (1614) Godb. R. 252.

Books and Articles

Bracha, O., "Owning Ideas: A History of Anglo-American Intellectual Property", http://www.obracha.net/oi/oi.htm [accessed 1 May 2007]

Clegg, C.S., Press Censorship in Jacobean England, (Cambridge: Cambridge University Press, 2001)

Corré, J.I., "The Argument, Decision, and Reports of Darcy v. Allen, Emory Law Journal, 45 (1996): 1261-1328

Fox, H.G., A Study of the History and Future of the Patent Monopoly (Toronto: University of Toronto Press, 1947)

Frank, J., The Beginnings of the English Newspaper, 1620-1660 (Cambridge, Mass., 1961)

Fraser, P., The Intelligence of the Secretaries of State & their Monopoly of Licensed News, 1660-1688 (Cambridge: Cambridge University Press, 1956)

Hulme, E.W., "The History of the Patent System under the Prerogative and at Common Law", Law Quarterly Review, 12 (1896): 141-154

Hulme, E.W., "On the Consideration of the Patent Grant, Past and Present", Law Quarterly Review, 13 (1897): 313-318

Hulme, E.W., "The History of the Patent System under the Prerogative and at Common Law. A Sequel", Law Quarterly Review, 16 (1900): 44-56

Hulme, E.W., "On the History of Patent Law in the Seventeenth and Eighteenth Centuries", Law Quarterly Review, 18 (1902): 280-288

Knafla, L.A., Law and Politics in Jacobean England: The Tracts of Lord Chancellor Ellsemere, (Cambridge: Cambridge University Press, 1977)

Larkin, J.F., and Hughes, P.L., eds, Stuart Royal Proclamations, Volume I, Royal Proclamations of King James I, 1603-1625, (Oxford: Clarendon Press, 1973)

Loewenstein, J., The Author's Due: Printing and the Prehistory of Copyright (Chicago and London: University of Chicago Press, 2002)

Patterson, L.R., Copyright in Historical Perspective (Nashville: Vanderbilt University, 1968)

Raymond, J., The Invention of the Newspaper: English Newsbooks 1641-1649 (Oxford: Clarendon Press, 1996)

Rose, M., Authors and Owners: The Invention of Copyright (London: Harvard University Press, 1993)

Scott, W.R., The Constitution and Finance of English, Scottish, and Irish Joint-Stock Companies to 1720, 3 vols., (Cambridge: Cambridge University Press, 1910-1912),

Siebert, F.S., Freedom of the Press in England, 1476-1776 (Urbana: University of Illinois Press, 1965)

[1] See: uk_1518.

[2] H.G. Fox, A Study of the History and Future of the Patent Monopoly (Toronto: University of Toronto Press, 1947), 43-46. The letters of protection issued by Edward III in time gave way to the monopoly grants and privileges relied upon by the Tudors and Stuarts; ibid. 55-56.

[3] Ibid., 47-50. In the time of Richard III the printing industry received similar encouragement in allowing foreign printers and booksellers to operate within the city of London at a time when foreign merchants in other trades were prohibited from so doing; In what Sort Italian Merchants may sell Merchandises; Several Restraints of Aliens, 1484, 1 Ric.III, c.9; see: uk_1518.

[4] Magna Carta, 1297, 25 Edw.I, c.9: "All merchants may enter or leave England unharmed and without fear, and may stay or travel within it, by land or water, for purposes of trade, free from all illegal exactions, in accordance with ancient and lawful customs. This, however, does not apply in time of war to merchants from a country that is at war with us. Any such merchants found in our country at the outbreak of war shall be detained without injury to their persons or property, until we or our chief justice have discovered how our own merchants are being treated in the country at war with us. If our own merchants are safe they shall be safe too". See also: 9 Edw.III, st.1, c.1; 25 Edw.III, c.2; 27 Edw.III, c.10.

[5] Fox writes as follows: "[T]he development of English industry owed much to the importation of foreign skill, particularly in regard to the manufacture of textiles and hardware, and methods of mining, drainage, and refining of materials, and ... in this development, the use of the monopoly patent played a substantial and significant role"; Fox, 54.

[6] Ibid., 57-65.

[7] Patterson writes: "Under the Tudors ... the patent system underwent a change by reason of the inclusion of monopoly clauses in the grants which perverted the medieval policy of encouraging industry. It is the monopoly clauses which distinguish the Elizabethan grants from the earlier ones"; L.R. Patterson, Copyright in Historical Perspective (Nashville: Vanderbilt University, 1968), 83.

[8] Hansard, 1^st ser., 1 (1066-1625): 905.

[9] The question of monopolies was extensively debated in the Commons in 1601; Hansard, 1^st ser., 1 (1066-1625): 923-42.

[10] Darcy v. Allen (1603) 11 Co. Rep. 84b.

[11] For a full exposition of the arguments and decision in Darcy see J.I. Corré, "The Argument, Decision, and Reports of Darcy v. Allen", Emory Law Journal, 45 (1996): 1261-1328.

[12] Cloth Workers of Ipswich Case (1614) Godb. R. 252.

[13] J.F. Larkin and P.L. Hughes, eds, Stuart Royal Proclamations, Volume I, Royal Proclamations of King James I, 1603-1625 (Oxford: Clarendon Press, 1973), 12, n.2.

[14] A Proclamation inhibiting the use and execution of any Charter or Graunt by the late Queene Elizabeth, of any kind of Monopolies, &c, 7 May 1603, ibid., 11-14.

[15] W.R. Scott, The Constitution and Finance of English, Scottish, and Irish Joint-Stock Companies to 1720, 3 vols. (Cambridge: Cambridge University Press, 1910-1912), 1: 119. Similarly, Loewenstein comments that James' commitment to reforming the use of monopolies "was notoriously shallow and short-lived"; J. Loewenstein, The Author's Due: Printing and the Prehistory of Copyright (Chicago and London: University of Chicago Press, 2002), 139.

[16] In general see L.A. Knafla, Law and Politics in Jacobean England: The Tracts of Lord Chancellor Ellsemere (Cambridge: Cambridge University Press, 1977), 77-92.

[17] Ibid., 77-78.

[18] St. P. Dom. Jac.I, xxiii, 66; the List of Grievances presented by the Commons is reproduced in Fox, 329.

[19] Cal. St. P. Dom. Jac.I, 1603-1610, 622.

[20] Fox, 98-100.

[21] Hansard, 1^st ser., 1 (1066-1625): 1192-94, 1204-08, 1218-28.

[22] Statute of Monopolies, 1624, 21 Jac.I, c.3.

[23] Fox, 116, 127-39.

[24] For example, Hulme writes that "the statute must be interpreted as recapitulating limitations already assigned by the common law"; E.W. Hulme, "The History of the Patent System under the Prerogative and at Common Law: A Sequel", Law Quarterly Review, 16 (1900): 44-56 (55). See also: Fox, 125; Loewenstein, 140; O. Bracha, "Owning Ideas: A History of Anglo-American Intellectual Property", http://www.obracha.net/oi/oi.htm [accessed 1 May 2007] (paras 25-50).

[25] s.2.

[26] s.6; the introduction of this fourteen year limit does represent one of the ways in which the statute brought something new to the existing common law principles regulating these monopoly grants.

[27] s.5.

[28] Statute of Anne, 1710, 8 Anne c.19; see: uk_1710.

[29] M. Rose, Authors and Owners: The Invention of Copyright (London: Harvard University Press, 1993), 45.

[30] s.10.

[31] Patterson, 86.

[32] Clegg estimates that "[f]or the five years prior to 1621, continental imprints average thirty-one per year. In 1621 this nearly doubles to fifty-nine, and then averages forty-six for the next three years, and drops off significantly after 1625. 1620 saw the number of books printed in the Netherlands double what had been printed in 1618, and in 1622 and 1623 the number tripled"; Cyndia Susan Clegg, Press Censorship in Jacobean England (Cambridge: Cambridge University Press, 2001), 181-82.

[33] J. Frank, The Beginnings of the English Newspaper, 1620-1660 (Cambridge, Mass.: Harvard University Press, 1961), 3-6; J. Raymond, The Invention of the Newspaper: English Newsbooks 1641-1649 (Oxford: Clarendon Press, 1996), 7.

[34] A Proclamation against excesse of Lavish and Licentious Speech of matters of State, 24 December 1620, Larkin & Hughes, 495-96. Although the proclamation did not make specific reference to printing and publishing "licentious speech", Clegg notes that "writers and printers of texts on politics seem to have been included among ‘the multitude and generalities of Offenders'"; Clegg, 186.

[35] Siebert, 150.

[36] Ibid., 149-51.

[37] Clegg, 181; see also Siebert, 153-54.

[38] A Proclamation against excesse of lavish and licentious speech of matters of State, 26 July 1621, Larkin & Hughes, 521-22.

[39] Clegg, 169.

[40] A Proclamation against the disorderly Printing, uttering, and dispersing of Bookes, Pamphlets, &c., 25 September 1623, Larkin & Hughes, 583.

[41] A Proclamation against Seditious, Popish, and Puritanicall Bookes and Pamphlets, 15 August 1624, Larkin & Hughes, 599-600.

[42] Although no record of this grant appears to have survived, Siebert finds early evidence for it in a letter by Joseph Mead, dated 22 September 1621, which reads as follows: "My corrantor, Archer, was laid by the heels, for making, or adding to his corrantos as they say. But now there is another that hath got licence to print them, and sell them, honestly translated out of the Dutch"; quoted in Siebert, 151, n.10. See also the order of the king's Council, dated 17 October 1632, and reproduced in n.44.

[43] On the careers of Bourne and Butter see Frank, 6-16, and Siebert, 151-56.

[44] See Frank, 14. The order, issued by the king's Council on 17 October, reads as follows: "Upon consideration (had at the Board) of the great abuses in the printing and publishing of the ordinary Gazetts and Pamphletts of News from forraing parts: And upon signification of His Maiesties express pleasure and command, to the Board for the present suppressing the same. It was thought fitt and hereby ordered that all printing and publishing of the same be accordingly suppressed and inhibited and that as well Nathaniell Butter and Nicholas Bourne Booksellers under whose name the said Gazetts have been usually published, as all other Booksellers Printers and Stationers, presume not from henceforth to print publish or sell any of the said Pamphlets as they will answere the contrary at their peril. And Mr. Secretary Windebank is likewise prayed to send for the said Butter and Bourne and to lay a strict command upon them on that behalfe"; quoted in Siebert, 156. On the licensing of the news in the later Stuart period, see P. Fraser, The Intelligence of the Secretaries of State & their Monopoly of Licensed News, 1660-1688 (Cambridge: Cambridge University Press, 1956).

[45] For an account of various authors and publishers who found themselves in trouble with the government during this period, see Clegg, 184-86.

[46] Siebert, 151.

[47] s.10.