Front Page Titles (by Subject) SECTION II.: Why the Common Law Right of Property in Ideas has not been more fully Acknowledged. - The Law of Intellectual Property; or An Essay on the Right of Authors and Inventors to a Perpetual Property in their Ideas
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SECTION II.: Why the Common Law Right of Property in Ideas has not been more fully Acknowledged. - Lysander Spooner, The Law of Intellectual Property; or An Essay on the Right of Authors and Inventors to a Perpetual Property in their Ideas 
The Law of Intellectual Property; or An Essay on the Right of Authors and Inventors to a Perpetual Property in their Ideas (Boston: Bela Marsh, 1855).
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Why the Common Law Right of Property in Ideas has not been more fully Acknowledged.
It will, I think, be hereafter rationally shown, that the nonestablishment, in England, of the right of property in ideas, is to be attributed solely to the overthrow of the ancient, constitutional, Common Law government, and to the establishment of arbitrary power in its stead. But to understand how such a cause has been productive of such an effect, we must attend somewhat to events and dates.
The Great Charter—which was at once the embodiment and guarantee of the Common Law form of government, and which, within about two hundred years from the grant of it in 1215, was confirmed more than thirty times, was confirmed for the last time in 1415. It had been much encroached upon before; but from this time the government degenerated rapidly into absolutism. And such has now been its character for some four hundred years.
In saying this, I do not mean that absolute power has been vested in the hands of the king alone; although at times his power has, in practice, very nearly approximated to absolutism. But I mean that there has existed in England a self-constituted, and unconstitutional legislative power, which has arbitrarily assumed the prerogative of setting aside the Common Law, or law of nature, and setting up its own will in its stead.
This legislative power, which was wholly unknown to the English Constitution, and which had its origin solely in a conspiracy between the king, the nobility, and the wealth of the kingdom, to rule and plunder the mass of the people, has consisted of the king and the parliament united; the parliament consisting of the higher orders of nobility, as one branch, and of a few representatives of the cities, boroughs, and wealthy freeholders, as a second branch, called the House of Commons.
The relative influence of the king, the nobility, and the House of Commons, in controlling legislation, has greatly fluctuated. Each House of Parliament has at times been the tool or confederate of the king against the other. At other times the king would call a parliament only at long intervals; exercising nearly absolute power meanwhile. But since 1688, the power of the crown has been effectually broken. Nevertheless the government has hardly been less arbitrary or tyrannical, as against the mass of the people, than it was before. The nobility, of course, have represented only their own interests. The House of Commons, (falsely so called,) has, in its best estate, represented, at most, only the wealth of the kingdom, instead of the people. In its worst estate, it has been made up of tools of the king, tools of the nobility, and the representatives and tools of wealth. The suffrage has been so limited, and otherwise arranged, as designedly to secure these results.
One of the first acts of parliament, on obtaining its ascendancy, in 1688, was to impose upon the king an oath, “To govern the people of this kingdom of England, and the dominions thereto belonging, according to the statutes in Parliament agreed on, and the laws and customs of the same;” in the place of the ancient and constitutional oath, that “the just laws and customs, which the common people [acting as jurors] had chosen, should be preserved;” thus formally abolishing the authority of the Common Law, as compared with the will of parliament.
To give more certain effect to the arbitrary legislation of the king, and of the king and the parliament, the Common Law juries have been abolished, for some five hundred years last past, by laws fixing such property qualifications for jurors as would exclude a large, probably much the largest, portion of the people, and include generally only such as were represented in the House of Commons; and also by laws authorizing the king’s sheriffs and other officers to select the jurors; thus enabling them to secure those favorable to the government.
The judges too have always been appointed by the king; and until 1688, were removable by him at pleasure. But for five hundred years they have also been liable to impeachment and punishment by parliament. The consequence has been that they have always been mere tools of the king, or of parliament, or of both; so much so that, notwithstanding since 1344, (without any exception, so far as I know,) they have been sworn to maintain the Common Law, and deny it to no man for any cause, they have for a long period unanimously adopted and acted upon the doctrine, that parliament is omnipotent, and its statutes obligatory in all cases whatsoever, the Common Law to the contrary notwithstanding. And they have also been the instruments of the government for imposing this doctrine upon juries. When the truth all the while was, that, by the English Constitution, both Houses of Parliament, as legislative bodies, were purely usurpers, and never had the slightest particle of authority to legislate for, or bind the people.
In addition to all these usurpations, for the overthrow of the Common Law, the king, for the two or three hundred years ending in 1640, maintained an extraordinary and unconstitutional court, of the most arbitrary character, called the Star-chamber court, composed wholly of his ministers and instruments, who exercised the power of summoning before them, and punishing at discretion, any one who had been guilty of any thing, which they chose to consider a contempt of the royal authority. Members of parliament were not exempt from this usurped jurisdiction. Jurors were often brought before it, and reprimanded or punished for the verdicts they had rendered. Private citizens, who had violated the king’s authority in any way, were brought before it, summarily tried, and punished at discretion. Under some reigns the audacity and tyranny of this court were such as to make it the terror of the kingdom.
Such, in general terms, has been the absolute and unconstitutional character of the English government for some four hundred years. And the consequence has been, that there has been no Common Law in force in England, during that time, except such as this arbitrary legislative power has seen fit to spare.
But we are now to show how this state of things has operated to prevent the acknowledgment of the Common Law right of property in ideas.
It is within four hundred years that the art of printing was introduced into England. But it was then in so rude a state, and the people in a condition of such ignorance, that little printing was done for many years. Consequently few persons were engaged in it. And very few persons wrote books. Under such circumstances, no questions of copyright would be likely to arise. At length the art attracted the attention of the government, from its being foreseen that it might prove dangerous both to the church and the state. And from this time the government assumed unlimited authority over the press, prohibiting the publication of every thing heretical in politics or religion, and enforcing its restrictions by means of the Star-chamber court and otherwise, in the most summary and tyrannical manner. These restrictions continued, with no important interruptions, down to 1694; and were effectual in confining the liberty of printing to such books as the government approved. One mode of restriction, which prevailed for about one hundred years, was that of requiring each book to be specially licensed by the government, before it could be printed. When a book was allowed to be printed at all, the permission was without limitation as to time; and was usually, if not universally, confined to authors and their assigns. These restrictions upon the press, therefore, necessarily operated as a perpetual copyright upon the books allowed to be published; and so long as they were continued, no question of copyright at Common Law would be likely to arise in the courts. If any unlicensed person published a book, he was punished, not for infringing the author’s copyright, but for printing without the king’s permission; which answered the same purpose for the author.
At the expiration of these restrictions, still another circumstance tended to keep the law question out of the courts. The great body of the publishers were members of an ancient association, called the Stationers’ company. And when they found that their copyrights were no longer protected by the licensing act of the government, they adopted an ordinance among themselves, imposing penalties upon any of their own number, who should infringe another’s copyright.
Furthermore, in the year 1710, an act of parliament went into effect, securing to the proprietors of books already printed, a copyright for twenty-one years from the date of tho operation of the act, and to the authors of books thereafter to be printed, a copyright for fourteen years, with a right of renewal at the end of that time, for another fourteen years, if the authors should then be living. This act kept the question of copyright, at Common Law, out of the courts for still another period.
After the expiration of the terms granted by this act, some injunctions were granted against infringements, apparently upon the ground that a right existed at Common Law. These injunctions, however, were acquiesced in, and the question was not tried at law.
And the question never came before the King’s Bench until the case of Tonson vs. Collins,* in 1760, and 1761, when the arguments were heard, but the court refused to give any decision, from a discovery of collusion between the parties. And it was not until the case of Millar vs. Taylor, in 1769, that the opinion of the King’s Bench was obtained; when three of the justices decided in favor of the right, and one opposed it.
Although, therefore, from various causes, the question never came to a clear decision, until some three hundred years after the introduction of printing, yet it is a well known historical fact, that for some hundred and fifty or two hundred years prior to that decision, (if not from the first introduction of printing,) it was a prevailing opinion among authors, publishers, and in the government itself, that the Common Law gave to authors a perpetual property in their works. John Milton, as early as 1644, speaking in behalf of the right of authors to print their thoughts freely without getting a license for each book, alluded to the subject of copyright, and said, “That part [of an order of parliament for licensing books] which preserves justly every man’s copy [right], or provides for the poor, I touch not” [do not object to]. Also, “The just retaining of each man his several copy [right], God forbid should be gainsaid.”
My argument now is, that if the Common Law, and the ancient constitutional, or Common Law form of government, had been preserved, this question would have been brought to the same decision long before three hundred years from the introduction of printing should have elapsed. And why would it have been thus brought to this decision? For various reasons, as follows.
The question would, in the first instance, have come before juries; and those juries would have been free from all legislative authority, and sworn simply to do justice. And it is hardly probable they would ever have puzzled themselves, for a moment, with any of the abstruse objections which lawyers have raised. They would have promptly followed both their instincts and their reason, in saying that authors, like other men, should control the products of their labor. If the question had then been carried to the king’s court, it would still have to be decided on natural principles, unembarrassed by any legislative interference. And it would very likely have been decided rightly from the first. But even if the judgments of the juries had at first been reversed, and the cases sent back to new juries for new trials, the new juries would most likely have repeated the original judgments, inasmuch as the opinions of the king’s court was of no legal authority over them. And thus by repeated judgments in the same cases, and by new judgments in new cases, the juries would have forced upon the king’s court the conclusion, that the sense of the nation was in favor of the right; and the law would consequently have been so recognized.
If, however, it shall be thought by any one, that the question could not have been so easily settled, and that juries would have been incompetent and unfavorable tribunals for adjudicating on such a matter, he will perhaps change that opinion when he reflects, that, if Common Law principles in general, and the Common Law form of government, had been preserved, the common people, living under the protection of equal laws, and in the enjoyment of such freedom as the Common Law form of government secured, would have rapidly advanced in wealth and intelligence, instead of being condemned to such poverty, ignorance, and degradation, as the tyrannical character of the government has subjected them to. Printing, too, would always have been free, from its first introduction; for it is not to be supposed that juries could ever have been influenced by such motives for restraining the freedom of the press, as have influenced religious and political tyrants, who feared its effects on their power. The press being free, and the people being both free and prosperous, literature would have flourished; and the rapid enlightenment of the whole nation, the common people no less than others, would have been the result. Under these circumstances, authors would have brought the question of their rights both before the public, and into the courts, at an early period after the introduction of printing. And the question, after being once brought before the public, and the courts, could never have been laid to rest, until the rights of authors were acknowledged. And that this would have been done long before 1769, (three hundred years after the introduction of printing,) I think it would be unreasonable to doubt; because, before that time, the people would not only have sufficiently comprehended the question, as one of natural justice, but they would also have learned that it was for their own true interests to encourage literature, by protecting the property of authors in their works.
If the right of property of authors in their works had been once established, under the Common Law form of government, the right would have been perpetual of course; because juries would never have thought of so absurd an idea, as that of acknowledging the property, and yet limiting the right in point of time; and there was no other legislative power competent to establish such a monstrosity.
Such, then, we may conclude, would have been the result, as regards the rights of authors.
The next question is, what would have been the fate of the rights of inventors, had the Common Law system of government been preserved?
But, before answering this question, let us see what their fate has actually been, under the arbitrary system that has prevailed.
Patents for new inventions have, in England, always been classed under the head of “monopolies” arbitrarily granted by the crown.
Now the granting of monopolies—by which I mean the granting exclusively to one what is the right of all—was plainly incompatible with the Common Law. It must also have been impossible for the king, in cases where his grants were clearly unjust and unreasonable, to maintain their inviolability, so long as the ancient constitutional form of government was preserved; because he could punish infringements upon his grants, only by the consent of juries, who would judge of the matter on its merits, independently of his authority. Nevertheless, we are told that, from a very ancient date, the kings have been in the habit of granting to individuals the exclusive right to practice new arts and manufactures, introduced by them into the kingdom. It was immaterial whether those, who introduced them, were also the inventors of them, or had learned them in foreign countries. It was enough that they were the first to introduce them into England.
How far these grants were effectual, in the early times, for the purposes intended by them—that is, how far they were sustained by the judgments of juries—I do not know. To my mind, it is not at all probable that they were universally sustained. Yet I think we may reasonably conclude that some of them were sustained; otherwise the practice of granting them would hardly have been continued. If, then, any considerable portion of them were sustained, that fact indicates that even in that rude and ignorant age, the unlearned common people—of whom the juries were composed—had some natural and just, though imperfect, appreciation, either of a man’s right of property in his invention, or of their moral indebtedness to one who gave a new and valuable art to the public. And this fact tends also to show that, with the progress of knowledge, and the increased experience of the utility of new inventions, the principle of a man’s right of property in his ideas, would have made its way, as a principle of natural law, into the minds of the people, and long ere this have been acted upon, as such, by the juries, had the Common Law institutions been preserved.
English judges, as far back at least as 1366, have held that grants by the king to individuals of the exclusive privilege of practising for a time a new art or manufacture introduced by them into the kingdom, were consistent with the Common Law. The reason given, in a case of that date, was “that arts and sciences, which are for the public good, are greatly favored in law, and the king, as chief guardian of the common weal, has power and authority, by his prerogative, to grant many privileges, for the sake of the public good, although prima facie they appear to be clearly against common right.”
Coke says, “The reason wherefore such a privilege is good in law, [that is, at the Common Law,] is because the inventor bringeth to and for the commonwealth a new manufacture by his invention, costs, and charges, and therefore it is reason that he should have a privilege for his reward, (and the encouragement of others in the like,) for a convenient time.”*
Now, I do not cite these opinions of judges as any proof at all, that the Common Law recognizes a man’s right of property in his inventions. No such proof is needed, for the nature of the Common Law itself establishes that point. Besides, the opinions themselves are altogether too loose and crude to be worth any thing for that purpose; for they apply as well to persons who bring inventions from other countries, as to inventors themselves; and they also absurdly assign reasons of expediency to the public, instead of reasons of right to the inventor, as the grounds on which the Common Law allows of such grants. The opinions were also given by judges, who were either the creatures of the crown alone, or of the crown and parliament, and who doubtless were in the habit of sanctioning every thing which the king and the parliament desired them to sanction. But I cite them as evidence that, for at least five centuries, there have prevailed, in England, a general sense of obligation, or indebtedness, on the part of the public, towards one who introduces a new art, and an idea that he ought in some way to be paid. And my argument is, that if arbitrary power had never interfered to check the progress of knowledge, and to exercise absolute authority over the rights of inventors, as well as of others, this public sense of obligation, and this vague idea that an inventor should be paid, would long ago have found body and form in a well digested system of natural law, based on the principle of a man’s absolute right of property in the productions of his mind.
The tendency towards this result has been greatly obstructed by the arbitrary character of the English government, for the last four or five centuries. For example, in those periods, when the power of the king was at its height, he was in the habit of granting a great variety of monopolies, without any pretence of new inventions, but only as a means of rewarding favorites, or of raising revenue. And these monopolies were maintained through the instrumentality of the Star-chamber court, which summarily punished infringers. These monopolies were so numerous, unjust, and oppressive, that parliament, in 1623, interfered to suppress them; and an act was passed for that purpose, specially on the ground that they were contrary to the Common Law. Yet, in this act, which was intended to be effectual for the suppression of all monopolies, except such as were either consistent with the Common Law, or supposed to be beneficial to the public, patents for new inventions, and licenses for printing, were specially excepted from the general prohibition; thus again partially recognizing the right of property in ideas, by indicating it to be the sense of the nation, that both justice and policy required that authors and inventors should receive some reward for their labors; and that the most reasonable and expedient mode of securing this end, was, by giving to authors an unlimited monopoly of their works, and to inventors a monopoly of their inventions for a limited time.
But from all this it must not be inferred that correct scientific views of the law of nature on this subject, had made any great progress; nor could they do so, for scientific views of the law of nature, relative to any subject, make little progress in the midst of despotism and ignorance. But my argument is, that, but for the despotism, no general ignorance would have prevailed; the press would have been free; the people would have become enlightened; would have been free in the choice of their pursuits; inventions would have multiplied; their importance would have come to be more justly appreciated; the law relative to them, being left to rest, as it would have done, upon natural principles, would necessarily have become an important subject of investigation, (in connexion with the rights of authors,) and from the necessity of the case, it would have made progress.* And is it in the least extravagant—is it not indeed entirely within the limits of probability, to suppose that an inventor’s property in his invention would long ago have been recognized as a right, founded in nature, instead of being regarded as that contemptible and detestable thing, which the English government persists in regarding it, to wit, not a right, but a privilege, granted to an inventor by the crown, as a mere matter of royal grace, favor, and discretion?†
But I wish now to show why the rights of inventors, to a perpetual property in their inventions, has never come distinctly before the English courts, as a question of Common Law.
Prior to the introduction of printing, and for a considerable time after, there could have been but very few inventions, of any considerable importance, made in England.* The English were not naturally an inventive people. The Italians and Germans were much in advance of them in that respect. The English were an agricultural and military, and not a mechanical, people. Most of their inventions were brought from the continent, and even those doubtless were not numerous. The art of printing, after some lapse of time, began to increase the mental activity of the people. Yet this activity, for a long time, took the directions of literature, politics, religion, colonization, commerce, and war, rather than of invention, or progress in the arts. Indeed it is only within the last hundred years, or thereabouts, that many important inventions have been made in England.
Under these circumstances, it was natural that the rights of inventors, as a question of Common Law in the courts, should lag behind those of authors; and for various reasons, as follows.
1. One’s authorship of a book could much more easily be proved, to the satisfaction of a jury, than one’s authorship of an invention. That proof could also be much more easily perpetuated, than in the case of an invention; because a book, once published, generally carried the author’s name with it, whereby the latter became at once notorious, and false claims to the authorship became forever after impossible to be established. Whereas, in the case of an invention, unless the proof of authorship were made at once, to the satisfaction of the king, and a patent obtained, the evidence would soon either be entirely lost, or become so uncertain as to be insufficient to establish one’s right.
2. The number of printers were so few, and those few so well known, that the infringement of an author’s copyright was much more sure of being detected, than an infringement of one’s invention. The latter could easily be concealed, if perpetrated at some distance from the locality of the inventor; because there was so little travel and intercourse in those days, among the common people, that an invention could be easily practised a long time so privately as not to become known to a person at a distance.
3. Copyrights were perpetual; whereas patents for new inventions were temporary. The former too were obtained without any important cost or trouble; whereas it was doubtless a very serious and expensive undertaking to prove, to the satisfaction of the crown, one’s authorship of an invention, and get a patent for it. There were also doubtless many more books written, than there were important inventions made. For these reasons, the copyrights of books were doubtless much more numerous than the patents for inventions. These copyrights, too, very many of them, went into the hands of printers, who were able to defend them in the courts; whereas it is likely the inventors were generally too poor to go to law for their rights.
4. Since 1623, (until 1835,) patents have been granted but for fourteen years; and (before the English became so eminently a manufacturing nation) a new manufacture could be introduced but so slowly, that unless the invention were of great importance, a patent for so short a period, would be of too little value to be worth the cost of procuring.
5. The fact, that the government made no distinction between those who imported inventions, and those who made them, tended to confuse men’s notions as to the rights of real inventors. And the further fact, in this connexion, that patents granted to mere importers of inventions, would justly be regarded with odium, if prolonged for any considerable time, tended to reconcile men to the practice of protecting original inventors for a short period also; and this made their rights of too little value to be worth protecting by expensive litigation.
6. A mechanical invention is much more difficult to be defined, or described, to the satisfaction of a jury, than the contents of a book; and therefore it would be much more difficult to prove, to the satisfaction of a jury, the infringement of a patent, than of a copyright.
7. A claim for copyright would meet with fewer obstacles from the prejudices of a jury, than a claim for an invention; because a book interfered with no man’s interests; whereas labor-saving inventions were often very odious, on account of their turning large numbers of people out of employment. We, of this day, who have become accustomed to look upon a new labor-saving invention as one of the greatest blessings, can hardly fail to be astonished at the ancient prejudices against such as superseded other labor. As an illustration of these prejudices, it may be stated, that it is less than two hundred years, since a saw-mill in England was pulled down by a mob, on account of its interfering with the employment of the splitters and hewers of timber. Coke also gives a curious illustration, not merely of the popular prejudice, but also of the government’s prejudice, against a new invention, if it were one that would deprive many persons of their employment. He says,
“There was a new invention found out heretofore that bonnets and caps might be thickened in a fulling mill, by which means more might be thickened and fulled in one day, than by the labors of fourscore men who got their living by it. It was ordained that bonnets and caps should be thickened and fulled by the strength of men, and not in a fulling mill, for it was holden inconvenient to turn so many laboring men to idleness.”*
8. Inventors not being literary men, and perhaps often wholly illiterate men, could not advocate their own rights, as the authors could theirs. They had no John Miltons among them to speak for them. They could only let their deeds speak for themselves. Besides, they were doubtless too much engrossed in their inventions, (as most inventors are even at this day,) to give much thought to their legal rights. They naturally accepted such protection as the government offered them, without raising any further question about it.
For all these reasons, and perhaps for others, it was natural that the perpetual right of inventors should be behind the perpetual right of authors, in coming into the courts, as a question of Common Law. And such was the fact. Not only so, but, unfortunately for the inventors, when the rights of authors did finally come before the King’s Bench, as a Common Law question, in 1769, that court, while it sustained the rights of authors, gratuitously prejudged and condemned the rights of inventors without a hearing, as we shall hereafter sec. The House of Lords virtually did the same in 1774.
Beyond and above all this, the act of parliament of 1628, expressly forbade patents to be granted for a longer period than fourteen years. And this prohibition remained in force until the act of 1835, which allowed an extension of seven years in certain cases. So that the Common Law rights of inventors could be set up, in court, only on one or both of these two grounds, viz.: 1. That the act of parliament, limiting the duration of the patent, was constitutionally void—a ground, which is true in itself, but which no court in England would think of sustaining. 2. That the rights of inventors were not derived from, and did not depend on, their patents—a ground, which is also true in itself, but which patentees could not be expected to understand, or at least to have confidence in, as a ground of successful litigation, considering that the uniform practice of the courts had been to hold the contrary.
Besides, the task of inventors to secure to themselves even such rights as the acts of parliament intended they should enjoy, has always been too hard a one, to leave them any confidence for advancing new claims, (however just in themselves,) in manifest opposition to the intention of parliament, and the practices of courts. For the courts, persisting in the idea that a patent was, in some sort at least, an arbitrary grant of an unjust monopoly, have, until quite recently, been in the habit of exerting their ingenuity to invalidate even such patents as were granted. For example. If a specification claimed a particle too much, or was a particle deficient in the description of the art, the courts, instead of holding the patent good for whatever was good, as they were bound to do, would take advantage of the error to invalidate the patent altogether. Thus, as late as 1829, “in the case of Felton vs. Greaves, the title of the plaintiff’s patent described the invention to be a machine for giving a fine edge to knives, razors, scissors, and other cutting instruments; but it appeared that the invention, as described in the specification, was inapplicable for the sharpening of scissors; and Lord Tenterden, Chief Justice, therefore held the patent to be void, and nonsuited the plaintiff.”* And in 1816, “in the case of Cochrane vs. Smethurst, it appeared that the plaintiff’s patent was for an improved method of lighting cities, towns, and villages; but his invention really was an improved street lamp; and it was held by Mr. Justice Le Blanc that the title was too general in its terms, and the patent void.”†
These cases are given merely as illustrations of the absurdities and atrocities, which the courts have habitually practised, up to a very recent date, when adjudicating upon the rights of inventors. It seems never to have entered their heads, that it was any part of the object of a patent, to secure to an inventor the quiet possession of what was exclusively his own. On the contrary, they have treated a patent as a bargain, between the public and the inventor, of this kind, to wit. They considered that the art, instead of being an honest product of the inventor’s labor, and therefore his own, was one, which rightfully belonged to the public, and which had merely happened to become known only to the inventor; and that he, like the dog in the manger, would neither use it, nor let others use it, unless he could get something for his secret. They of course held that he really ought to give the secret freely to the public; and that any attempt, on his part, to get a price for it, was merely an attempt at levying black mail, and should be defeated if possible. They then considered that the public, finding themselves in this unfortunate predicament, their rights locked up in the breast of a scoundrel, acting under the force of an unjust necessity, made a contract with him, (through their representative, the king,) by which they agreed to give him a monopoly of the art for fourteen years, provided he would give the art freely to the public forever afterwards. To secure the benefits of this bargain to the public, the king required the villain to put on the king’s records such an accurate description of the art, as that other men, by reading the description, might be able to understand and practise the art. If, now, this specification have described the invention as being a particle more than it really was, the courts have said that the inventor had practised a fraud, and obtained a patent, without giving for it the full price agreed upon; and that therefore the patent was void: If, on the other hand, the specification have not so fully described the invention, as that it may be entirely known by other persons on reading the description, then the courts have said that the inventor was a cheat, because he had not made known the invention, which he agreed to make known, as the price of his patent; that he has therefore obtained his patent on false pretences, and that it is consequently void. Thus, if the courts, by splitting a hair ’twixt north and north-west side, could so construe a specification as to make the patentee to have defrauded the public, to the amount of a farthing, in the price agreed to be paid by him for his patent, they have held that the patent was void; as if the patentee were a swindler, getting unjust monopolies out of the public by false representations, instead of being, as he no doubt usually has been, a simple honest man, who wished to secure to himself the products of his honest labor, but who was not sufficiently skilled in letters, law, and the arts, to know whether or not his invention were described with the greatest possible accuracy, of which the case admitted.
This is the spirit in which English courts up to a very recent date, if not indeed up to the present date, have adjudicated upon the rights of inventors. Whereas, if the Common Law rights of inventors were acknowledged, it would be the duty of courts to recognize the sufficiency of a specification, if it described the invention with such general accuracy, as to put second persons reasonably on their guard against infringing it.
When we consider for how long a period inventors have been compelled to deal with such pettifoggers, sharpers, and asses, as these courts have thus shown themselves to be, it is perhaps not to be wondered at, that they have never seen fit to ask any thing more at their hands than was given them by acts of parliament—the only law the judges have acknowledged on this question. They have accordingly turned their attention to getting improvements in acts of parliament, rather than to asserting their Common Law rights.
Looking back, now, over the ground, for five hundred years, we see, on the one hand, the advantages, which the Common Law rights of inventors have enjoyed; and, on the other, the disadvantages under which they have labored.
Under the head of advantages, we may reckon, that during all that time, (five hundred years,) it has been held, by kings, courts, and parliaments, to be consistent with the Common Law, for the king to grant, both to actual inventors, and to the mere importers of new inventions, a temporary monopoly of the use of their inventions; and that for more than two hundred years, (since 1623,) the sentiment on this point has been so strong, and so strong also the conviction of the good policy of encouraging the arts in this way, that these monopolies have, by a special act of parliament, stood excepted out of the prohibition laid upon monopolies in general.
Under the head of disadvantages, we may reckon, that the English were not originally an inventive people; that it is only within a hundred years, or thereabouts, that their minds have been particularly turned in the direction of inventions; that from the first, the grant of a patent for a new invention, has been held, by the government, to be an act of grace, favor, and discretion, on the part of the crown, and not any thing which a subject could claim as a right; that the rights of a real inventor have always been placed on the same footing with the impertinent and groundless claims of a mere importer of an invention, and have, therefore, necessarily been discredited by the association; that patents for new inventions, from being always classed among arbitrary monopolies, have always had to bear, by association, more or less of the odium which justly attaches to those violations of common right; and, finally, that for more than two hundred years, (that is, since 1623,) there has been an imperative act of parliament, (which judges, in violation of their oath, and their duty, always bow to, in preference to the Common Law,) prohibiting the grant of a patent for any more than a limited period.
Now, the whole object of the argument in this section, is simply this. First, to prove, reasonably, that if the ancient Common Law system of government had been preserved, and arbitrary power, neither that of the king, nor that of the king and parliament, had ever interfered with the question of intellectual property, the rights of authors, to a perpetual property in their ideas, would have been first established; and that, too, long before the decision in their favor by the King’s Bench in 1769. And, secondly, that the establishment of the rights of actual inventors, (not of importers of inventions,) to a perpetual property in their ideas, would also have speedily followed the establishment of the rights of authors. And that both these events would have occurred long before now.
Considering, then, on the one hand, that the claims of inventors, as being founded in the Common Law, were at least partially recognized so long ago as five hundred years; and considering also, that the rights of authors were also, at least partially, recognized, nearly as soon after the invention of printing as there were any authors having rights to be protected; and then considering also, on the other hand, the arbitrary character of the government during all this time, the restrictions on the press, the oppression, and consequent poverty and ignorance of the people; and also the arbitrary limitations, imposed by acts of parliament, for the last two hundred and thirty years, upon the rights of inventors, and for the last one hundred and forty years, upon the rights of authors; considering all these things, I think the conclusion is certainly a reasonable one, that if the ancient constitutional Common Law form of government had been preserved, and knowledge and wealth had been, (as under such circumstances they would have been,) not only immensely increased, but more equally diffused among the people, the Common Law, as a science, would have made such progress, and literature and the arts would have so commended themselves to the approbation and protection of the people, that the rights of both authors and inventors, to a perpetual property in their ideas, would have been long since established.
And the true method of proceeding, at this day, in order to establish the rights of authors and inventors, is to re-establish the constitutional authority of the Common Law over acts of parliament.
[* ]Wm. Blackstone 301 and 321.
[* ] For these and various other authorities, showing the opinions of English judges, that patents for new inventions were good at Common Law, see Hindmarch on Patents, ch. 1 and 2. Also Coke’s chapter on Monopolies, 3 Inst. 181.
[* ] One reason why no more progress has been made in other branches of natural law, has been, that natural law has been superseded by arbitrary legislation; and all the legal mind of England and America, has been engrossed, for centuries, in interpreting and enforcing this legislation, instead of pursuing the study of natural law as a science. Another reason is, that the progress of natural law, in any direction, is dangerous to arbitrary institutions; and therefore courts, sitting under the authority of arbitrary governments, systematically ignore all discoveries in natural law, until they have first been sanctioned by the legislative power. And this last event generally happens only when the government finds that a revolution, dangerous to its existence, is impending.
[† ] An English patent is granted in these supercilious and insolent terms. After reciting that the applicant has “humbly petitioned” the crown for a patent, it adds,
“And we, [the queen,] being willing to give encouragement to all arts and inventions, which may be for the public good, are graciously pleased to condescend to the petitioner’s request. Know ye, therefore, that we, of our especial grace, certain knowledge, and mere motion, have given and granted, and by these presents, for us, our heirs, and successors, do give and grant unto the said A. B., his executors, &c., our especial license, full power, sole privilege, and authority, that he the said A. B., his executors, &c., shall and lawfully may make, use, exercise, and vend his said invention,” &c.
Is it not nearly an infinite insult, that such men as Arkwright and Watt, who were of ten thousand times more value to mankind than all the kings and queens that time has ever produced, or ever will produce, should be necessitated to hold their natural rights to the products of their own labor, on such terms as these? If a greater insult can be conceived, it would seem to be, that authors, and such authors as John Milton, should be compelled to ask “license” of a king to print their own thoughts. This insult to authors is no longer practised; because the authors, with truth on their side, proved themselves stronger than the king. When inventors assert their rights in like manner, they will no longer be necessitated to accept them as grants, or favors, “graciously” bestowed on them by the government.
The Common Law never required that a freeborn Englishman should “humbly petition” the crown for the enjoyment of his natural rights of property; nor that he should ever accept those rights as a grant originating in the “gracious pleasure and condescension” of the king. And if the constitutional system of government had been preserved, such degradation, on the part of inventors, would not, at this day certainly, have been witnessed.
[* ] During the first twenty years of the present century there were but one hundred and three patents a year, on an average, granted for both foreign and domestic inventions. (See Pritchard’s list of Patents.) From this fact one can judge somewhat how few inventions could have been made in former times, when the population was comparatively small, and the arts had made so little comparative progress.
[* ]Coke’s 3 Inst. 184.
[* ]Hindmarch 46. 3 Car. and Payne 611.
[† ]Hindmarch 46. 1 Starkie’s R. 205.