On the other hand, Darcy v. Allein, the proper name for the litigation known as the Case of Monopolies, does.
In 1602, when the Case of Monopolies was first presented, Coke was fifty years old and had been a practicing barrister* for twenty-four years, representing both the sovereign and a dizzying number of other clients including “country gentlemen, acquisitive parsons,3 Roman Catholic exiles, puritan dissidents, cockney publicans and City haberdashers, duelists, forgers, and burglars.” Many of the most familiar portraits of Coke were painted in his old age and show a rather spare, elegant man with sunken cheeks and a carefully groomed and pointed beard, but the fifty-year-old version was still a big man, made bigger by his robes, with a large head, wide shoulders, famously piercing eyes, and a penchant for intimidating witnesses and opposing counsel alike with his size, his aggressive manner, and his idiosyncratic language.
The law in England is, after all, an idiosyncratic profession, with its own rituals, language, and history. In order to practice it, for example, a barrister was required to affiliate with one of the four so-called “Inns of Court”—Lincoln’s Inn, Gray’s Inn, the Middle Temple, and the Inner Temple—which offered room and board to students and, effectively, a license to practice to barristers, who were otherwise barred from pleading cases in court. Coke’s home base at the time of the Case of Monopolies was the Inner Temple, part of a compound originally built in the twelfth century as a church and residence for a monastic military order founded by two First Crusade refugees, and known as the Poor Soldiers of Christ and the Temple of Solomon, more popularly the Knights Templar.
In Coke’s time, even the judicial calendar was idiosyncratic; Darcy v. Allein was to be heard during the Michaelmas term, one of Westminster Hall’s four sessions, set to the rhythm of the Christian festival year: Michaelmas (early October to late November), Hilary (from late January to late February), Easter, and Trinity (the two weeks after Trinity Sunday). To this day Oxford University’s academic year uses the same terminology, for no explainable reason. We can therefore infer that as Darcy v. Allein came to trial, Westminster Hall was cold* but still warmed by the thousands of litigants, visitors, and lawyers that crowded the space all year long.
Crowded, and noisy. Westminster Hall might have been nearly the size of a football field, but it had to accommodate dozens of cases, with hundreds of lawyers arguing with one another, all at the same time. No walls separated the Court of Common Pleas, for example, which heard most civil suits (then and now, the bulk of the work of any judicial system), from the Court of Chancery, the private court of the Lord Chancellor. And both were in plain sight of the Queen’s Bench, which was where trials in which the sovereign took an interest—most criminal trials, felonies, and civil wrongs touching on the security of the state—were heard.
It was an unlikely place to hear a case about a patent for playing cards.
IN ITS ORIGINAL MEANING, the word “patent” had nothing to do with the rights of an inventor and everything to do with the monarch’s prerogative to grant exclusive rights to produce a particular good or service. The idea of exclusive commercial franchises4 crops up occasionally throughout history: Five centuries before the Common Era, the Greek colony of Sybaris granted exclusive rights for a year to a cook who invented a particularly good dish, and in the first century, a glazier supposedly presented an “unbreakable” glass cup to the Roman Emperor Tiberius, hoping for an imperial grant to manufacture it; he was disappointed when the emperor had the unfortunate soul executed5 (after confirming that the secret of such glass was, indeed, known only to the glazier) in order to preserve the traditional value of gold. Still, one can go centuries between occurrences. The idea started to get a bit more traction once Europe was fully embarked on the historical period known as the Renaissance; in 1421, the Lords of the Council for the city of Florence granted Filippo Brunelleschi three years’ exclusive use of the boat he designed to move the stones needed to build the great Duomo.
As a word, “patent” enters the lexicon in something approaching its modern meaning in 1449, when the mad king Henry VI signed a document known as a letter patent (so called because such letters were issued openly, rather than under seal; the phrase “patently obvious” is cognate) granting a glazier named John of Utynam a twenty-year exclusive right to use his secret method for making the colored glass to be used at the chapel at Eton College. Another hundred years would pass before the next English patent, coincidentally issued to another glazier, this one named Henry Smyth, who had evidently perfected a method for making Normandy glass.*
That patent was the first to be granted by the Tudors, but far from the last, as patents were a reliable source of revenue for a monarch whose taxing authority was severely circumscribed by Parliament, and a powerful tool for rewarding friends and promoting commerce, even to the point of encouraging skilled craftsmen to immigrate to England. By the time of the last of the Tudors—Elizabeth—the royal trade in patents was, however, dangerously out of control. She granted monopolies for the selling of salt, or making of paper, to courtiers who had two things far more important to the queen than inventiveness: loyalty and ready cash. In 1598 she issued a letter patent to Edward Darcy, a courtier ranking high enough in the Queen’s regard that she admitted him to her Privy Chamber, granting him a monopoly on the manufacture, importation, and distribution of playing cards in England, evidently out of some queenly feeling that her subjects ought to be doing something better with their idle hands than dealing pasteboards with them. Unwilling to ban the practice (a slightly different monopoly had been granted by her father twenty years earlier), she was determined to regulate it, and to enrich one of her court favorites at the same time.
Unfortunately for him, three years after receiving his monopoly, in the forty-third year of her reign, Elizabeth agreed to allow her grants to be tested in the common law courts. Within months, lawyers were preparing suits intended to break one or another of these monopolies; in 1602, a competing merchant named Thomas Allein imported his own cards, and Darcy sued. In a slightly perverse reminder that lawyers have clients, not opinions, Edward Coke, as the Attorney General of England, represented Darcy, whose hostility to monopolies was already well known, though less as a matter of principle and more as a matter of economics: Coke was convinced that monopolies were costly6 to Britain’s artisans.
In 1961, the British economist Ronald Coase published an article entitled “The Problem of Social Cost” that jump-started one of the most influential ideas in modern legal theory: the school familiarly known as Law and Economics, which proposes that legal decisions ought to account for economic efficiency as well as more traditional measures such as legislative history or case precedent. Had Coase lived three centuries earlier, he would have found Coke a most congenial colleague, since Coke’s arguments against monopolies were almost entirely derived from their economic impact, specifically on the need for full employment of England’s skilled craftsmen; decades before7 Darcy v. Allein, he supported the 1563 Statute of Artificers, which regulated entry into dozens of skilled crafts, set training requirements, and even allowed justices of the peace to set wages—all provisions strongly supported by the artisan guilds.
With Darcy as his client, however, Coke was trapped between his politics and his profession, and he twisted himself into a pretzel trying to reconcile the two. In order to find a precedent8 that confirmed his aversion to monopolies in general while still advocating on behalf of Darcy, Coke cited every obscure reference he could find, from the Bible to the Magna Carta. Revealingly, in his argument he contended that the justification for granting to the perfumed and periwigged court favorite “the franchises and privileges9 which the subjects have of the gift of the king” was that it was the same right that permitted an artisan to practice the special skills of his trade. Take away Darcy’s right to import playing cards, the logic went, and you take away the right of a tinsmith to sell pots.
Chief Justice Popham wasn’t having any. He ruled that Darcy’s gr
ant was forbidden on several grounds, all of which violated the common law. The most important one—the logic that started the ball rolling downhill toward engine 42B and Rocket—was the judgment of the court that the Crown could not grant a patent for the private benefit of a single individual who had shown no ability to improve the “mechanical trade of making cards,” because by doing so it barred those who did. In other words, the court recognized that the nation could not grant an exclusive franchise to an individual unless that individual had demonstrated some superior “mastery” of a particular trade. Though it would be twenty years before it would be written, one of the foundations of Britain’s first patent law—the doctrine that patent protection must be earned by demonstrating mastery of the method for which protection was asked—was laid.
One can imagine Coke, after this rare loss in court, exhaling with relief. The most durable constants in Coke’s fifty years of legal practice were, first, his support for England’s artisans, even over commercial, manufacturing, and trading interests, and second, his hostility to monopolies. It was scarcely surprising, therefore, that Coke, who had in the intervening years been made Lord Chief Justice of England, drafted the 1623 “Act concerning Monopolies and Dispensations with penall Lawes and the Forfeyture thereof,” or, as it has become known, the Statute on Monopolies. The Act was designed to promote the interests of artisans, and eliminate all traces of monopolies.
With a single, and critical, exception. Section 6 of the Statute, which forbade every other form of monopoly, carved out one area in which an exclusive franchise could still be granted: Patents could still be awarded to the person who introduced the invention to the realm—to the “first and true inventor.”
This was a very big deal indeed, though not because it represented the first time inventors received patents. The Venetian Republic was offering some form of patent protection by 1471, and in 1593, the Netherlands’ States-General10 awarded a patent to Mathys Siverts, for a new (and unnamed) navigational instrument.* And, of course, Englishmen like John of Utynam had been receiving patents for inventions ever since Henry VI. The difference between Coke’s statute and the customs in place before and elsewhere is that it was a law, with all that implied for its durability and its enforceability. Once only inventors could receive patents, the world started to change.
England’s first modern patent regulation contained a number of other relevant properties:
The term of the patent was not to exceed fourteen years, a figure that makes sense only in terms of the artisans for whom Coke was so solicitous. Since the traditional seventeenth-century apprenticeship lasted seven years, a term of fourteen years would allow at least two cycles of apprentices to have been trained in the new industry, and therefore a generation of artisans to demonstrate their mastery of the new art.
The patent “must be of such manufactures, which any other at the making of such Letters Patents did not use.” That is, no patent could be granted if the same process was already in use. Here the justification was political, since England’s existing manufacturers and traders were utterly terrified of monopoly grants over uses already in existence. The later concepts that define patent law—that a patentable invention must be both novel and useful—make their first appearance in this portion of the Statute.
No patent may be “contrary to law.” According to a case decided in 1572, in Coke’s view, “not contrary to law” meant merely that no patent may be granted for an improvement in an existing manufacture. This happened to be the view held in England well into the eighteenth century.
It must not be “mischievous to the State” by raising of prices of commodities at home. Coke was of the view that the introduction of the new industry should not be granted patent protection if it resulted in a price increase, hurt trade, or was “generally inconvenient.”11 What this meant in practice was that the Statute embodied less a love of competition than of a certain class of competitors, specifically including printers and makers of gunpowder,* reflecting his concern for employment of England’s craftsmen above all.
The Statute became law in 1624. The immediate impact was barely noticeable, like a pebble rolling down a gradual slope at the top of a snow-covered mountain. For decades, fewer than six patents were awarded annually, though still more in Britain than anywhere else. It was seventy-five years after the Statute was first drafted, on Monday, July 25, 1698, before an anonymous clerk in the employ of the Great Seal Patent Office on Southampton Row, three blocks from the present-day site of the British Museum, granted patent number 356: Thomas Savery’s “new Invention for Raiseing of Water and occasioning Motion to all Sorts of Mill Work by the Impellent Force of Fire.”
Both the case law and the legislation under which the application was granted had been written by Edward Coke. Both were imperfect, as indeed was Savery’s own engine. The law was vague enough (and Savery’s grant wide-ranging enough; it essentially covered all ways for “Raiseing of Water” by fire) that Thomas Newcomen was compelled to form a partnership with a man whose machine scarcely resembled his own. But it is not too much to claim that Coke’s pen had as decisive an impact on the evolution of steam power as any of Newcomen’s tools. Though he spent most of his life as something of a sycophant to Elizabeth and James, Coke’s philosophical and temperamental affinity for ordinary Englishmen, particularly the nation’s artisans, compelled him to act, time and again, in their interests even when, as with his advocacy of the 1628 Petition of Right (an inspiration for the U.S. Bill of Rights) it landed him in the King’s prisons. He became the greatest advocate for England’s craftsmen, secure in the belief that they, not her landed gentry or her merchants, were the nation’s source of prosperity. By understanding that it was England’s duty, and—perhaps even more important—in England’s interest, to promote the creative labors of her creative laborers, he anticipated an economic philosophy far more modern than he probably understood, and if he grew rich in the service of the nation, he also, with his creation of the world’s first durable patent law, returned the favor.
Coke’s motivation was not, needless to say, a longing to see steam engines decorating the English countryside, but rather a desire to see it filled with English craftsmen. A high level of craftsmanship alone, however, wasn’t going to result in anything like Newcomen’s engine, much less Rocket; artisans can be—frequently are—ingenious without being innovative. Craftsmanship needed to be married to a new way of thinking, one not yet known as the “scientific” method.
Luckily for history, a culture of observation, experimentation, and innovation was being cultivated in England at exactly the same moment that Coke was advocating for her artisans. Luckily for historians, its patron saint was not only Coke’s contemporary, but his professional, political, and even romantic rival.
THE MAN WHO DIED in April 1626 with the titles Baron Verulam and Viscount St. Alban was born sixty-five years before with no title at all. Though his name at birth—Francis Bacon—was decidedly less grand, it would be recollected* in dozens of biographies and writing on everything from the birth of empiricism to the process of inductive logic. His father, Sir Nicholas, was a high-ranking member of Elizabeth’s court, the Keeper of the Great Seal. His mother, Anne, was not only one of the best-educated women in England, fluent in four languages and a translator of serious Christian scholarship into English, but also the sister-in-law of William Cecil, England’s de facto prime minister. It was just the sort of family that would make schooling a priority, and the beneficiary was Francis, who started a fairly traditional medieval education at Trinity College, Cambridge, and continued at the University of Poitiers, the second-oldest university in France and the alma mater of René Descartes. Poitiers was the beginning of Bacon’s French connection, an affinity that shines a light on any number of subsequent events, not least his contrast with his rival Edward Coke’s almost obsessive (there is no other word) Englishness.
The rivalry that features in every biography of either man probably started the day that Ba
con entered Gray’s Inn, another of the four Inns of Court, on June 27, 1576, and began his career in the law. And while it was not inevitable that his professional goals would result in competition with the most ambitious and successful lawyer in England—unlike Coke, Bacon would have equally prominent careers as a diplomat and philosopher—it was likely, since at that moment in history, real success depended on securing the favor of the monarch, and the rise of one courtier almost always came at the expense of another. The competition was exacerbated by what seemed to Coke an unseemly attraction to the European continent. The younger, more elegant, and more charming Bacon not only had been educated in France; almost immediately after entering Gray’s Inn, he left England on a diplomatic mission, spending three years in France, Italy, and Spain, where, in rumor at least, he had a love affair with Marguerite de Valois, daughter of Henry II and Catherine de Medici. Less romantically, but more significantly, his years traveling in Europe, particularly in France and Italy, exposed him to a legal philosophy very different from the one he absorbed in London. And he liked it.12
Almost all modern legal practice is derived from one of two distinct traditions. The first, the so-called civil law tradition, is a direct successor to the jurisprudence of the Roman Empire, and it dominates most of the legal systems of continental Europe; the second is the institution known as the common law, used in Britain and its former colonies. The divergence between the two dates from the eleventh century, when the only surviving copy of the complete reworking of Roman law known as the Codex Justinianus was discovered in an Italian monastery and percolated throughout Europe. The reasons for its diffusion are complicated; partly it was that it resolved an awful lot of messy contradictions between church law, local precedent, and even traditions dating back to the Visigoths. But while the kings who implemented the Justinianic Code may have liked its coherence, they adored its central theme: in Latin, quod principi placuit, legis habet vigorem, “the will of the prince has the force of law.”
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