concerning a trial over the ownership of a deck of playing cards; a utopian fantasy island in the South Seas; one Statute and two Treatises; and the manner in which ideas were transformed from something one discovers to something one owns
IN THE YEAR 1602, what would be the last full year of the reign of the first Elizabeth, her kingdom’s capital was one of the world’s largest and most vibrant cities, but it would be largely unfamiliar to the modern Londoner. A century before Newcomen began crafting the world’s first steam engine, St. Paul’s Cathedral was still awaiting the fire that would consume its predecessor, and the consequent opportunity to rebuild it. No Buckingham Palace. Hampton Court might be half-familiar, like a poorly remembered dream; most of the modern incarnation was rebuilt after the fire by Christopher Wren for its new owner-occupants, William and Mary. Moreover, for every building in modern London not yet built in the year 1602, there is another from 1602 that no longer stands.
Of the Houses of Parliament, only Westminster Hall remains. Built by William Rufus, son of the Conqueror, and rebuilt by Richard II, who added the great oak hammer-beam roof sometime between 1395 and 1399, it still impresses today, partly because of its scale. The hall was, and is, a huge space, two hundred and fifty feet long by seventy feet wide, with nothing to divide its many functions one from the other—a nontrivial characteristic for a place that England’s monarchs were as likely to use to play tennis as to announce vital decisions about state policy.
Even so, the really impressive aspect of Westminster Hall was that it was, until the 1673 construction of the Old Bailey, the most important courtroom in the realm. This was where William Wallace was tried and found guilty of treason in 1305. In January 1606, it was the site for the trial of Guy Fawkes, Robert Winter, and the other conspirators in the Gunpowder Plot; and, most famously of all, it was the place where, in 1649, Charles I was charged and found guilty of treason and other high crimes. Less well known, but just as historically significant—more significant, from the standpoint of Rocket—is the case sometimes recalled as the Case of Monopolies, the lawsuit that marks the ideological transformation that would, decades hence, create the Industrial Revolution. In one of history’s odder twists, some of the track on which Rocket would one day ride was laid by a lawyer.
Not just any lawyer, to be sure. His name was Edward Coke (pronounced “cook”), and he was, as the sixteenth century turned into the seventeenth, the most prominent, successful, and honored lawyer in England. Before he turned forty, Coke had served as a Member of Parliament, as the Speaker of the House of Commons, and as England’s Attorney General; by the early 1600s, his reputation, already enormous, reached rarefied heights—or at least the height of the Tower of London, the site of the execution of the Earl of Essex, prosecuted by Coke for treason against Elizabeth, and the imprisonment of Walter Ralegh for treason against her successor, James I.
Coke had also, by the time of the accession of James, acquired more than a reputation. Though already in possession of an income1 estimated at £12,000 a year, as large as any in the kingdom, he hatched a plan to solicit “every man of estate” to sue the incoming monarch for a pardon, for the fee of £5 a head. Apparently enough prominent Englishmen were worried about the accession of the first non-Tudor king in more than a century that staggering numbers of them bought into what looks suspiciously like a protection racket; at least one estimate puts Coke’s take at £100,000.2
Coke may not have come by his wealth honestly, but he earned his reputation as the most influential English jurist of all time. His 1628 “Petition of Right,” which enumerated the limits on the power of the king, is not only one of the so-called “Fundamental Laws” of England, but was a precipitating cause of the Civil War. However, neither Coke’s great wealth, his brilliant forensic talent, nor his centuries-long influence on Anglo-American political institutions explain his presence in the middle of a history of the steam revolution.
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 grant 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:
1. 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.
2. 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.
3. 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.
4. 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 Bacon 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.”
Accident as well as geography probably ensured that the idea didn’t find the ground as fertile on the British side of the English Channel, where the common law continued to evolve incrementally, even haphazardly, obedient to custom rather than a grand design. It’s a simplification, though not a gross one, to say that the common law is more messily pragmatic, the civil law more theoretical and pure; these are also designations that might apply, respectively, to Edward Coke and Francis Bacon.
So while Coke would use the civil law, or even sketchier precedents, when needed—he even went so far as to cite it in Darcy v. Allein13—he remained the era’s most eloquent champion of the common law, its great adversary. As Coke put it, under the common law, every man’s house is his castle, not because it is defended by moats or walls, but because while the rain can enter, the king may not; under the civil law, the king is bound by nothing at all. Which was, as we shall see, a clue to the puzzle of Britain’s head start in industrialization, as well as one of the sources of friction between Coke and Bacon.
It wasn’t the only one. By the 1590s, and despite Bacon’s connections through family and friends—he had entered into the circle surrounding the charismatic Robert Devereaux, second Earl of Essex, and another of Elizabeth’s favorites—his legal career was not what one would call brilliant. In 1594, he was rejected in his bid for the position of Attorney General when the Queen selected Coke, and then, insult to injury, for Coke’s former job as Solicitor General* in favor of Thomas Fleming—Coke’s choice. Four years later, the always-short-of-funds Bacon tried to mend his finances matrimonially, and he set his eye on one of the wealthiest, and certainly the most fascinating, women in England. Lady Elizabeth Hatton was beautiful, witty, rich, and, with the death of her first husband in 1597, eligible. To the brilliant, handsome, but impecunious Bacon, who had known her since they were children, she was perfect. He even enlisted Essex in the service of his courtship, and the Earl obliged with a letter to Lady Hatton’s father that read in part, “I had rather match [Elizabeth] with Mr. Bacon than with men of far greater titles.”14 Unfortunately for Bacon, the lady had other ideas.
The clever reader will see this one coming. Coke’s first wife, Bridget, with whom he was apparently deeply in love, died in June 1598. In what seemed even at the time to be the sort of haste that in later eras would have involved a shotgun, Coke and Elizabeth Hatton were married that September. Though Lady Hatton’s beauty and wealth were almost certainly decisive, it is tempting to think that one of the reasons Coke pursued her so avidly was to frustrate his rival. If so, he paid for his momentary triumph with more than thirty years of grief, which included notoriously brutal domestic quarrels, vitriolic public fights, and property disputes so intractable, containing accusations of physical abuse and theft so scandalous, that they occupied England’s Privy Council for three months. To call Coke’s second marriage the worst decision he ever made is to understate the case; upon his death, Lady Hatton wrote “we shall never see his like again,15 praises be to God.” She was not alone in her distaste for her husband. In a famous argument in the chambers of the exchequer in 1601, shortly after Coke had led the brutal prosecution of his onetime mentor, Essex, Bacon told his rival, “Mr. Attorney: I respect you;16 I fear you not, and the less you speak of your own greatness, the more I will think of it.”
Coke and Bacon were so hostile to each other that they would have reflexively taken opposite sides on a debate over the best way to prepare roast beef, but for the history of the Industrial Revolution, the most significant point of divergence between the two was the way they approached the idea of innovation. One of the most consistent themes in the life of Coke, the pragmatic champion of institutions designed to protect and promote the English artisan, was his belief that the state enjoyed the most prosperity when it encouraged those artisans to perfect their craft (or at least did nothing to discourage them). Bacon, on the other hand, had an equally powerful belief in the practice of empirical science, and he advocated for a state-supported foundation that would nurture it.
That advocacy began early in Bacon’s life with a powerful attack on the medieval philosophy that had dominated scholarship for eleven centuries, subordinating Greek philosophy—particularly Aristotle—to the revealed wisdom of the Bible and the Church fathers. And not just philosophy: When natural phenomena conflicted with supernatural explanation, Christian faith demanded choosing the latter, which was clearly no way to advance an understanding of the natural world. However, since people in tenth-century Europe were just as smart as they had been a thousand years before (and would be a thousand years later), their brains had to exercise themselves on something, and the result, from the fifth century through the fourteenth, was a network of Christian schools, and later universities, that established a classical curriculum emphasizing dialectic rather than experiment. Their leaders, known as scholastici, or Scholastics, filtered their Aristotle through a thoroughly Christianized screen that discarded the Greek philosopher’s empirical bent and kept only his appeal to formal logic.
This was the edifice that Bacon set out to undermine when he published The Advancement of Learning in 1605, setting out his ambitious ideas for the reformation of education and philosophy. So ambitious were they that even listing Bacon’s ideas tends to scant the depth of the footprint he left on the modern world. In fact, attempting to encapsulate his thought in a few lines or sentences is not only daunting, but insulting. Suffice it to say that before Bacon, the gold standard in inquiry was essentially contemplative and syllogistic; truth could be discovered by comparing opposing ideas. Afterward—particularly after he wrote Novum Organum, in 1622, in which he famously stated his belief that the compass, the printing press, and gunpowder had changed history more than any empire or religion—truth was something extracted from nature using the tools of observation and experiment. He didn’t, as is sometimes suggested, invent the scientific method; he had too feeble a handle on hypotheses, and especially mathematics, to do so. But what he did understand about the scientific enterprise was profoundly important for the wave of inventions that would inundate the world a century after his death. He knew that to be self-sustaining, both science and invention needed to be social enterprises, depending utterly on the free flow of information among investigators. And since the state is the beneficiary of such a self-sustaining cycle of inventions, it was therefore incumbent on the state to make the information—about discoveries, techniques, and inventions—flow.
By 1608, he was making notes for the idea of a “college for Inventors17 [with] a Library, Vaults, fornaces [sic], Tarraces for Isolation, woork houses of all sorts” that could institutionalize the idea of invention in service of the state. Those notes would eventually find their way into the the posthumous publication of The New Atlantis in 1626, one of the achievements that appears in even the briefest biographies of the man. Bacon’s fictional Atlantis was the utopian kingdom of Bensalem, located somewhere in the South Seas and distinguished by (among other things) what can only be described as a government-funded Research & Development facility. The “College of Six Days Works,” or Salomon’s House, was home to hundreds of investigators into the mysteries of nature; the thirty-six most senior researchers were organized by the nature of their work. Those who performed new experiments, for example, Bacon called Pioneers, or Miners, while the ones who attempted to find applications for new discoveries he called Dowry-men or Benefactors. Tellingly, though Bacon had respect18 for artisans and craftsmen, they were prohibited from full participation in Salomon’s House. Instead, the highest honors were reserved for those “Dowry-men” who produced innovations that were of the highest value to the sovereign. In Bensalem, statues were automatically erected to honor inventors, with one of the highest to “the inventor of ordnance and of gunpowder.”19 Salomon’s House was the explicit inspiration for the Royal Society, which was founded twenty-four years after Bacon’s death in large part to honor his notion of science as a collaborative venture whose proper goal is the material improvement of mankind.
The material improvement of mankind, not of inventors. In Bensalem, inventors were not granted any property rights in their inventions: no patents. In the conflict over the Statute on Monopolies, as with much else, Bacon stood on the opposite side from Coke, and his ideal society, not at all surprisingly, reflected his belief that the surest route to innovation was by relying on men who wanted only fame as a reward. Bacon’s faith in progress20 through collective action by public servants obliged him to reward innovators; his snobbery made it impossible to make those rewards commercially valuable, particularly to anyone who might need the income, and especially in the form of ownership of inventions.
Coke’s pragmatic support for the artisan class and Bacon’s vision of invention as a collective endeavor were both, for their day, progressive—both were willing to grant the highest honors to any accomplished man of low birth—but nonetheless a bit nearsighted: Both could see the value of the innovator to society, but misunderstood how to align social benefits with individual rewards; and Bacon, in particular, was unwilling to grant inventors even a temporary property right in their ideas.
That sort of ownership required a revolution in the idea of property itself.
ON TUESDAY, FEBRUARY 12, 1689, the royal yacht Isabella docked at Gravesend carrying Mary Stuart, the daughter of King James II, on her last day as the Princess of Orange. A day later, in London, she would be acclaimed Mary II, Queen of England, thus putting an end to the most tempestuous four decades in English history. Any fifty-year-old Englishman at Gravesend that day had lived through two or three civil wars; the execution of one Charles and the exile of another; the autocratic rule of Oliver Cromwell; the restoration of Charles II; the 1665 recrudescence of the bubonic plague; and the Great Fire of London the following year. The fifty-year-old would be able to recall more recent events as well, including the rebellion of the Duke of Monmouth and any number of near rebellions beginning with the 1685 death of Charles and the accession of his younger brother, James, whose conversion to Catholicism failed to reignite civil war only because his Protestant daughter, the wife of the Dutch stadtholder William of Orange, was the heiress presumptive.
So when the Isabella arrived with that same daughter, a few months after her husband had successfully asserted her rights at the head of an invading army, she was conveying a much-longed-for respite from what, in the apocryphal curse, are known as “interesting times.” And that wasn’t all. The royal yacht led a flotilla that carried, as a passenger, a sometime poet, essayist, and physician, a fifty-six-year-old man who had been living as an exile in the Dutch cities of Amsterdam, Leiden, and Utrecht for the preceding four and a half years, using the nom de refuge of “Dr. Van der Linden.” His real name was John Locke, and he was, in the words of Thomas Jefferson, one of the three greatest men who ever lived (the other two were Isaac Newton—and Francis Bacon).
Son of a lawyer, grandson of a clothier, Locke had successively been a brilliant but bored student at Westminster School and at Christ Church College, Oxford, where his fellow students included John Dryden, Robert Hooke, and Christopher Wren. It is tempting to think that he cultivated the company of men who formed the kernel of the future Royal Society when they were all at Oxford, but if so, it has escaped the attention of hundreds of biographers.
Locke’s Oxford career gave only hints of his future prominence. Despite his steady climb up the academic ladder, starting as a “student”—at the time, a formal title more like “fellow”—by 1660 becoming a lecturer and reader in rhetoric, and by 1664 the “censor of moral philosophy,” he wasn’t what one might call an academic star. In the words of Lady Damaris Masham,* he “had so small satisfaction from his studies”21 that he failed to work very hard at them. Whether out of boredom or out of resistance to the pressures to take instruction as an Anglican clergyman, he subsequently dabbled in law, medicine, diplomacy, and natural philosophy. In the last capacity, he collaborated with Robert Boyle, who sponsored him for a fellowship in the Royal Society, though Locke’s involvement was scarcely life-changing; in his four decades as a member of the RS,22his only publication was a letter regarding a poisonous fish sent to him by a friend in the Caribbean.
What did change Locke’s life in matters large and small was his relationship with Anthony Ashley-Cooper—Lord Ashley when Locke first met him, and later the first Earl of Shaftesbury, the Lord High Chancellor of England, President of the Privy Council, and ultimately the great political adversary of Charles II. It was in service to Shaftesbury, originally as a physician, that Locke developed temperaments heretofore absent, including a toleration of nonconformist ideas and, more relevant, an interest in the economic relations between men. In 1668 he even wrote a treatise with the wonkish title Some of the Consequences that are Like to Follow upon Lessening of Interest to 4 per cent. And it was in service to Shaftesbury that Locke was forced to leave England not once, but twice. The first time he exiled himself as a precaution, after Shaftesbury’s circle published a series of arguably seditious pamphlets; when the furor had died down, in 1679, he returned. Four years later, however, after the group planned, though never carried out, an assassination attempt on King Charles, Locke, now an accused traitor and fugitive, was forced to escape again, this time to Rotterdam, where he arrived on November 1, 1683, there to stay until he could return more than five years later. With him when he arrived on the Isabella that February day in 1689 was the draft manuscript for a work that would be published later that year under the title Two Treatises on Government.*
As with Bacon, there is no way that Locke’s thoughts on the nature of knowledge, religious freedom, political organization, or a dozen other subjects can be contained within a single book, much less a portion of a single chapter. Those wondering what on earth Locke’s writings have to do with the world’s first steam locomotive, however, will find that the relevant passages from the Treatises concern Locke’s views on the rather slippery idea of property: or, rather, the idea that ideas are property.
Despite much evidence to the contrary, the first word most children learn (after the local equivalent of “mama” and “papa”) is not “mine.” Nonetheless, the concept of ownership in some form is pretty universal, even in eras and cultures that deny it. This is because the idea of property is essential for a culture to be able to speak of the relationship between people and things. And some sort of property law is utterly necessary if a society is to resolve disputes between people over things. The difference between the way property is understood on Wall Street and in an Egyptian souk clearly shows that the concept is absolutely contingent upon culture, but in the societies that trace their legal and philosophical systems back to Greece and Rome, property traditionally has three characteristics, none of them absolute:
1. Exclusive possession (which also obliges everyone else to keep away);
2. Exclusive use; and
3. Some right of conveyance, the ability to transfer the property right.
The Western idea of property is distinctive not because of these three characteristics, but because of its tendency to generalize them; in many non-Western societies, the rules for land may have little or nothing to do with the rules for animals, which in turn may be unrelated to the rules for objects. In the Western tradition, the default position is that individual possession/use/conveyance is the zero point from which exceptions may deviate. This perspective may have begun as nothing more than a convenience—it is easier to adjudicate disputes if all the rights in question are decided together—but like a ratchet that turns in only one direction, it has tended, over the centuries, to promote the accumulation of more and more individual rights over things, such as land, and even water, that were once held in common.
That “accumulation,” of course, was generally done at the point of a sword, which seemed to Locke to be a historical fact, but not a historical right. And rights were what interested Locke. His development of a new definition of property rights evolved over decades, and it owed as much to the recent history of Britain as it did to the Roman idea of usufructus (the right to profit from a thing without owning it) or the medieval notion of seisin (possession of land without title to it). The Civil War, in particular, had turned the world upside down in more ways than one; there was something dangerously explosive about gathering a large number of people by persuading them that God wants them to be free of both political and religious tyranny, and then giving them weapons. Four years after the start of hostilities, a mass movement within Oliver Cromwell’s New Model Army (the first in history to give its soldiers a say in their own governance, an idea that seems as radical today as it did to Cromwell) demanded the right to vote in their “Agreement of the People” of 1647. The conflict prompted a public debate, at Putney in southwest London, between the self-named “Levellers,” the element among the Parliamentarians most in favor of democratic reforms as part of the battle against the royalists, and the Army’s more conservative leadership, and the discussion moved inevitably from voting rights to property rights, since the former depended on the latter.
Common law tradition granted the franchise only to owners of either a specified amount of land or of a license to trade, under the logic that since laws are made to safeguard property, legislators should be elected only by those with an interest in those laws, or, as the conservative faction had it, “disposing of the affairs of the kingdom23 [requires] a permanent fixed interest in this kingdom.” The Leveller response was that every man—almost every man; they excluded servants and beggars,24 for example—has property in his own person and has therefore an interest in parliamentary action.
If the Levellers were the radicalized members of the Parliamentary party, the Diggers, an agrarian communist movement that emerged in 1649, were the radical edge of the Levellers. Their concept of legitimate property was far different, as were their demands, including the right to common land: a return to the state of nature before the appropriation of that land by others. Gerard Winstanley, leader of the Diggers, a onetime cloth merchant who lost his livelihood, and then his family’s land, as a side effect of the Civil War, is remembered as being violently opposed to the very idea of property. In the Digger manifesto, a “Declaration from the Poor Oppressed of England,” he pulled no punches, telling the gentry, “You and your ancestors got your propriety25 [i.e. property] by murder and theft, and you keep it by the same power from us.” But his understanding of property was almost completely limited to that special form known as real estate. This made sense, of course; at a time when virtually everything of value, in Britain and everywhere, was either land or the produce of land, property and land were functionally synonymous. And since the amount of land was essentially fixed, it could be possessed by one man only if he dispossessed another.
Enter John Locke, whose central premise was that man has no right to own the work of God—to own land—but that rightful property is derived from the labor of man mixed with that of God. That is, when man combines his labor with the goods of the earth, he has created a natural right to the product. The right predates government, law, or kings, and is therefore present in his hypothetical state of nature. By deriving the right from the biblical grant by God to Adam of the earth for his subsistence, Locke reasoned his way to the idea that the earth is no good to any particular man unless someone labors to make it so. Locke thus triangulated between the democratic Levellers (and the Diggers who shared an enthusiasm for inventors and inventing: Winstanley wrote, in 1652, “Let no young wit be crushed26 in his invention…. Let every one who finds out an invention have a deserved honour given him”) and the status quo, arguing that the then current division between haves and have-nots was legitimate so long as the cause of the division was labor.
THE PATIENT READER IS now asking, “What does this have to do with steam power?” (The impatient ones asked it twenty pages ago.) This: By equating labor with a property right, Locke found a right to property anywhere labor is added. The defining characteristic became the labor, not the thing. And labor, in Locke’s formulation, was as much of mind as of muscle. “Nature furnishes us only with the material,27 for the most part rough, and unfitted to our use; it requires labour, art, and thought, to suit them to our occasions…. Here, then, is a large field for knowledge, proper for the use and advantage of men in this world; viz. to find out new inventions of despatch to shorten or ease our labour, or applying sagaciously together several agents and materials, to procure new and beneficial productions fit for our use, whereby our stock of riches (i.e. things useful for the conveniences of our life) may be increased, or better preserved: and for such discoveries as these the mind of man is well fitted.”
So, while Edward Coke’s Statute on Monopolies established England’s first patent law, the general acceptance of the notion of what we would now call intellectual property awaited its articulation by John Locke.* It is scarcely surprising28 that the Copyright Law of 1710 appeared so soon after Locke’s works, followed by the 1735 Engraver’s Act, which granted the same rights to prints as the Copyright Act did to literary works.
This does not mean that Locke’s ideas swept all earlier ones away, any more than the Statute on Monopolies caused an immediate explosion in patent grants. Ideas, and the institutions that promote them, take some time to take root. Locke’s own protégé, David Hume, was never persuaded that property rights derived from natural law. Eighty years after Locke’s death, conservatives like Edmund Burke, and progressives like Jeremy Bentham and John Stuart Mill, were still uncomfortable with Locke’s idea of natural laws; Bentham called them “nonsense on stilts.”29 The final victory, however, was Locke’s; in 1776, Adam Smith was virtually channeling Locke’s Second Treatise, writing in The Wealth of Nations, “The property which every man has in his own labour, as it is the original foundation of all other property, so it is the most sacred and inviolable.” Smith’s French counterpart, Anne-Robert-Jacques Turgot, echoed him: “God … made the right of work30 the property of every individual in the world, and this property is the first, the most sacred, and the most imprescriptible of all kinds of property.”
Recognition of a property right in ideas was the critical ingredient in democratizing the act of invention. However imperfectly, Coke’s patent system, combined with Locke’s labor theory of value, offered a protected space for inventive activity. The protected space permitted, in turn, the free flow of newly discovered knowledge: the essence of Francis Bacon’s program. Once a generation of artisans discovered they could prosper from owning, even temporarily, the fruits of their mental labor, they began investing that labor where they saw the largest potential return. Most failed, of course, but that didn’t stop a trickle of inventors from becoming a flood.
The reason that that flood would, eventually, find its way to engine 42B and Rocket—and would become a river instead of a lake—was an unprecedented fusion of theory, experiment, and measurement, which is explored in the next chapter.
* In different parts of the world, the two functions of legal professionals—advising on the law and advocating before judges—are either split or fused. In the English tradition, the first function was traditionally performed by professionals known as solicitors, the latter by barristers, so named because of the literal bar that separated students from practitioners in the Inns of Court. In the United States, and increasingly in the United Kingdom (even to the point of permitting solicitors to wear powdered wigs), the functions are performed by the same lawyers.
* Probably very cold. In 1602, all of Europe was still experiencing the so-called Little Ice Age, during which the Thames froze over so frequently that Elizabeth I took her daily walks there.
* As distinguished from “Lorraine glass” or sheet glass, which was made from cylinders that were melted and formed into squares, Normandy glass was made from circles, or disks, and was later known as “crown glass.” Aren’t you glad you asked?
* For more about the Netherlands, see chapter 11.
* Coke was neither the first, nor the last, to accept “national security” exceptions to his principles.
* Some of that recollection includes theories that can charitably be said to be on the fringe. It is impossible to write about Bacon without mentioning Rosicrucianism, Freemasonry, and the authorship of Shakespeare’s plays. Consider them mentioned.
* Despite the title, England’s Solicitor General is almost always a barrister, not a solicitor. The position is really that of the Attorney General’s chief lieutenant.
* The remarkable Lady Masham was not simply Locke’s first biographer and friend but the first Englishwoman to publish philosophical writings on her own account, and a regular correspondent with, among others, Gottfried Wilhelm Leibniz.
* Or probably the manuscript. From internal evidence—references to “King James” rather than “James II” suggest that at least portions of the Treatises were written before James II’s accession in 1685—it seems safe to assume that tucked away in the onetime exile’s luggage were the draft treatises. Scholars still debate whether they were written in the heat of the controversy over the Exclusion Bill, a statute introduced by Shaftesbury to exclude the now publicly Catholic James II from the throne. If so, they are a powerful argument that engagement in the rough-and-tumble of political life is no barrier to producing original and hugely influential political philosophy.
* Three hundred years later, a group of mathematically minded economists would distinguish between tangible and intellectual property in much the same way, as we shall see in chapter 11.