CHAPTER II

FROM THE CASE OF MONOPOLIES TO THE STATUTE OF MONOPOLIES, 1603-1624

DURING the first few years of his reign, James I was little troubled by parliamentary opposition to patents of monopoly. Shortly after his accession, he published a proclamation condemning the monopolies and ordering their suspension until the Privy Council could consider them. In March, 1604, James opened his first Parliament and ended his speech with a protestation or an apology for his conduct in the matter of gifts, honors, and rewards. In form it was an excuse for his lack of liberality, but his plea of prudence and economy must have appealed strongly to the Commons, as it was an indication of an intention to govern without lavish bounty to favorites. With pledges of this sort, the House of Commons was content and turned to subjects of greater urgency, such as privileges of its own members, and the foreign trading companies. Internal monopolies were neglected, owing to the confidence that the difficulties with respect to them would soon be adjusted."

Sincere efforts were at first made to reform the abuses. An intricate mechanism of investigation was devised, which, if it had been properly used, might have prevented most of the grants which were inexpedient or legally doubtful. An important constituent of the investigating machinery was the permanent body known as the Commissioners for Suits, which was instituted soon after the king's accession. Of the commissioners, Sir Francis Bacon and Sir

1 May 7, 1603. See Appendix L.

2 Parl. Hist. i, pp. 977 ff.

Parl. Hist. i, pp. 996 ff.; C. J. i, pp. 218 ff.

"An open placard concerning the causes of suitors to his Majesty and their Lordships wherein it is ordered that Tuesdays in the afternoon shall be appointed for that purpose and that six of the Lords at the least shall meet to consider and give answer to suitors that shall prefer petitions themselves [as well] as those that shall be referred unto them from his Majesty; provided that they shall entertain no suit whereby any cause depending in a court of justice may be interrupted,

Julius Cæsar were the most prominent. They were on nearly every reference, whether as members of the commission or not; and as the public careers of both practically extended over the whole reign, their connection with the patents was long and intimate. Bacon, moreover, as attorney-general and subsequently as lord keeper, came into contact with every patent that was issued in the latter part of the reign. Other referees very frequently employed were the Earl of Salisbury, secretary of state and later lord treasurer, the Earl of Dorset, Salisbury's predecessor as lord treasurer, the lord chief justices of King's Bench and Common Pleas, the barons of the Exchequer, the lord admiral, the lord mayor and the recorder of London, the lord privy seal, and the lord chancellor. The attorney- and solicitor-generals were also often named on the committees of reference, and had the subsequent duty of drafting or sealing the patents.1

It was not long, however, before the true character of the king was revealed, and it was seen how ready he was to yield to the importunities of suitors, notwithstanding the elaborate machinery which he had interposed between them and himself. As the grants began to multiply, the opposition in Parliament became more pronounced, and in the second session (January to May, 1606) the patents of monopoly became one of the most important subjects handled by the Committee of Grievances, a new political engine destined to give the early Stuarts much trouble and to make the monopolies one of its most important concerns. At the opening of the third session (November, 1606), the king attempted to satisfy the Commons by an elaborate reply to a petition which had been submitted at the end of the second session. He insisted upon retaining a few of the more obnoxious patents, as a matter of right,

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unless upon extraordinary occasion the same be referred unto them from his Majesty ; and for this purpose a commission under the great seal was granted." B. M. Add. 11402, May 30, 1603. In 1611 the commission included the following names: Herbert, Cæsar, Parry, Bacon, More, and Cope. Rem. June 27, 1611.

1 For referees, consult Lansd. 266 for the years 1603-15, and for subsequent years, the Council Registers.

2 Among the patents considered in this session were those for the licensing of wines, the preemption of tin, the importation of logwood, and the searching and sealing of the new draperies. See C. J. April 9, 1606.

• See Petition of Grievances, S. P. D. July 7, 1610. See also C. J. i, pp. 316–318.

but promised considerate execution. The patent which was then regarded as the most serious grievance, the grant to the Duke of Lennox for the sealing of new draperies, was defended, but assurance was given that it would be subjected to the judgment of the courts. On the seventh of July, 1610, shortly before the close of the fourth session, a new petition of grievances was drawn up, couched in respectful language but plainly manifesting disappointment at the unsatisfactory way in which the promises had been carried out. The petition represented that the grievances formerly complained of were not only not redressed but were exceedingly aggravated. Particular remonstrance was made against the unwillingness of the crown to fulfil its pledge that certain patents should be judged in the courts. The strongest protest was directed against the patent for the alnage of the new draperies. It was urged that since the second session the abuses of the deputies of Lennox, instead of being reformed, had increased without restraint or punishment. "Disorders in the execution are so far from being reformed that they multiply every day, to the great grievance and oppression of your Majesty's subjects, and those of the poorer sort, who living hardly upon these manufactures are by the forementioned disorders greatly hindered and some utterly undone, as hath appeared in the particulars presented unto us." 1 Three days later the

1 S. P. D. July 7, 1610.

The original patent had been granted by Elizabeth, in 1594, to George Delves and William Fitzwilliams. Their supervision included such fabrics as worsteds, bays, says, fustians, and frisadoes. A subsidy was to be imposed upon them which the alnagers were to collect for the crown, while they were to exact a fee for their sealing. Defective draperies were to be destroyed, and a penalty was imposed for exposing cloths for sale without seal. One of the new king's Scottish favorites, the Duke of Lennox, "procured" the surrender of this patent and a new one was issued to him, covering eighty new kinds of cloth. Soc. Ant. Proc. Coll. September 16, 1605. The duke's deputies were charged with violent and unauthorized seizure of cloths, with blackmail and extortion upon the poor, with exacting annual rents from those in better circumstances and able to pay well for the privilege of being unmolested. The deputies were also charged with instituting warrants and suits with purely malicious purpose, and delaying, under pretext of pressure of business, to search and affix seals to cloths of those who did not offer special bribes to expedite the examination, the delay causing ruinous loss, since owners were thereby too late for the market times. S. P. D. August 18, 1611. After the re-issue of the patent, in 1613, complaint was made of a practice that had become common, which must have defeated the public object of the search, for the deputies were said to

king replied to the articles of grievance in his usual style, and promised that lawsuits should be expedited. It was at this time that he found it expedient to publish his celebrated Book of Bounty,' which, later, was most adroitly used against him by the popular party. In this he solemnly renounced all intention of granting fresh patents of monopoly or privilege and forbade any to approach him with projects; the law of England and his own royal pleasure were alike opposed to such grants. How difficult it was to please the Commons with his most solemn protestations, James learned in 1614 when his second Parliament found material and opportunity for much discussion upon the subject of monopolies. But this illfated Parliament was dissolved before it had accomplished anything.

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The interval between the first and the third Parliaments of James was characterized by the greatest diversity in policy and counsels. The irregular methods of dealing with patents gave to them an insecurity that impaired their potential or speculative as well as their actual values, and this must necessarily have resulted in diminishing whatever social usefulness they might otherwise have had. Grantees constantly complained of the necessity of contesting projects that were being pressed in opposition to their own privileges. In the notable case of the glass patents an annual rent of the unusually large sum of £1000 was exacted, which was distributed in the shape of annuities or pensions to former patentees whose rights were set aside. In the case of a salt monopoly there was an example of the opposite method of quieting differences. A new patent was set aside and its promoter, in recognition of his have resorted to the device of openly offering for rent stamps by means of which drapers might seal their own cloths. Petitions and Parliamentary Matters, 1620-21, Guildhall Tracts, Beta, no. 16 (old no. 25). (This document, the full text of which I have reproduced in the Quarterly Journal of Economics, August, 1906, bears evidence of the beginnings of the cotton industry in the latter years of Elizabeth.) Abuses continued under this patent in the reign of Charles (S. P. D. 1628, cxxvi, 67, 68), during the Interregnum (Golden Fleece, by W. S., Gent., 1656), and later. See Edward Misselden's letter, S. P. D. April 17, 1621, for similar sale of seals for the old draperies.

1 The Book of Bounty has been republished, with comments on its history, in Gor don's Monopolies by Patents, 1897.

2 C. J. i, pp. 472-506. The glass patents received special attention.

3 C. R. July 11, December 12, 1614. See below, pages 71, 76.

ingenuity in introducing improvements, was given a share in a fresh concession, which was substituted for the original patent enjoyed by the old patentees. At the same time, on the advice of Lord Chief Justice Coke, a third patent was revoked as "void at law," but a recompense for expenses was allowed out of the profits. of the renewed patent.' In several instances, after a patent covering a whole industry had been granted on the ground of a recent improvement, it was found necessary to suspend for a time the exclusive rights, owing to the inability of the patentees to satisfy the market demands. The Council was not, indeed, successful in binding itself. On one occasion, to cite a by no means isolated instance, it resolved that "hereafter no petition be entertained by this Board to the discouragement of the present patent." Yet only a few years later the Council revoked a second and created a third monopoly in the same article. Its opportunist policy is further illustrated by the ready way in which patents were annulled "for reasons of state." The inconveniences that had arisen between 1590 and 1600 by reason of some of the patents had led to the general introduction in subsequent patents of a clause providing for revocation if they were found "inconvenient to the commonwealth."

C. R. February 27, 1615.

The Council authorized a commission to inquire into and adjust the price of glass sold to the London glaziers who complained of excessive scarcity. C. R. April 23, 1617. Isaac Bungar was licensed to continue temporarily his glass-making, accounting to Sir Robert Mansell, the new patentee, who was unable to provide the entire market. C. R. July 6, 1617.

"Elliots and Meysey, patentees, received their grant after divers thorough proofs and have since expended much, their patent is now infringed by others, and Palmer, a Dutchman, also seeks a patent for steel very prejudicial to the patentees and the realm."... "Resolved that hereafter, no petition be entertained by this Board to the discouragement of the present patent." C. R. November 29, 1617. Later, Elliots and Meysey complained of an infringement "contrary to an order at the time Palmer's patent, fraudulently obtained, was cancelled." . . . "Ordered that notice be taken of the information and the attempts suppressed." C. R. May 12, 1618. ... But "upon complaint of the deputies of the United Provinces against the violation of free trade according to treaties, in the patent to Sir Basil Brooke, Kt.,” an investigation was ordered and the attorney-general was instructed to institute quo warranto proceedings. C. R. July 2, 1619. Finally, the Privy Council voted to further a petition for still another privilege for steel sought by Dr. Robert Flood. C. R. September 27, 1620.

E. g., see instructions to the attorney-general to insert clause for revocation by any six of the Council, in the patent for smalt. B. M. Add. 11402, June 11, 1605.