THE LAW OF INTELLECTUAL PROPERTY FOOTNOTES
CHAPTER 6 <fn15> <fn16> [*170] 1 Kent
522. 7th edition.
<fn17> [*171] Among
the exceptions referred to, are these- that a woman, on marriage, shall lose the control of her property, her natural right of making contracts,&c.; that a child, born out of wedlock, shall not inherit the father's estate; and some others not necessary to be named. These exceptions to the principles of natural law, are of such antiquity, that the time and mode of their establishment are now known. And no laws whatever, contrary to the law of nature, are parts of the Common Law,
unless they have been in force from time immemorial. It will be shown hereafter that no immemorial law has existed in England, adverse to the rights of authors and inventors to a perpetual property in their ideas. <fn18> [*176] For the historical proofs that the Common Law and the English Constitution were such as have here been described, I refer the reader to my "Essay on the Trial by Jury."
<fn19> [*181] Wm. Blackstone 301 and 321. <fn20>
[*185] <fn21> [*187] 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that natural law has been superseded by arbitrary legislation; and all the legal mind of England and America, has been engrossed, for centuries, in intepreting and enforcing this legislation,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 happend only when the government finds that a revolution, dangerous to its
existence, is impending. <fn22> [*187-188] An English patent is granted in the 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 maybe for the public good,
are graciously pleased to condescend to the petitioner's request. Know ye, therefore, that we, of our special grace, certain knowledge, and mere notion, 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 special license, full power, sole priviledge, and authority, that he the said A.B., his executors, &c., shall and lawfully may
make, use, excercise, and vend his said invention," &c. It is not nearly and infinite insult that men as Awkright and Watt who were of ten thousand times more value to mankind than all of the kings
and queens that time has ever produced, or will even produce, should be necessitated to hold their natural rights to the products of their own labor, on such terms as these ? If a greatre 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. The 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 be no longer necessitated to be 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. <fn23>
[*188] 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.
<fn24> [*191] Coke's 3 Inst. 184. <fn25> [*193] Hindmarch
46. 3 Car. and Payne 611. <fn26> [*193] Hindmarch 46. 1 Starkie's R. 205. <fn27> [*197] 4 Burrows 2303. <fn28> [*202] Chapter IV, pages
119-120-133. <fn29> [*203] Parliamentary History, Vol. 17, p.981. <fn30> [*204] Page 68. <fn31> [*205] Chapter IV, page 113. <fn32> [*207]
Chapter IV. <fn33> [*211] Parliamentary History, Vol. 17, p. 953. <fn34> [*217] Chapter IV, page 115. <fn35> [*219] Advancement Of Learning, B
.8, Aphorisms 10 and 11. <fn36> [*221] By the English constitution, an order of nobility could exist only on the foundation of the feudal system. When that system was abolished, all
distinctions of political rank, inferior to that of the king, were, constitutionally speaking, abolished with it. And all the legislative and judicial power, since exercised by the lords, as a body, has been a
sheer usurpation. This usurpation was originally accomplished by them, by means of their wealth, and by conspiring with the king, the knights, and the "forty shillings freeholders," so called
(originally represented in the House of Commons); a class, whom Mackintosh designates as "a few freeholders then accounted wealthy." (Makintosh's Hist. of Eng., Ch.3) The same kind of influences,
which originally enabled them to accomplish this usurpation, have enabled them hitherto to sustain it. It never had the least authority in the constitution of the kingdom. <fn37> [*232]
Campbells Lives of the Lord Chancellors, Vol. 5, p. 215. Entick vs. Carrington,19 State Trials 1066. <fn38> [*233] The following is a copy of his note.
"The favors I am to request from your Grace's despatch, are as follows. 1. My patent for the salary. 2. Patent for £1500 a year upon the Irish establishment, in case my office should
determine before the tellership drops. 3. The patent for tellership for my son. 4. The equipage money; Lord Worthington tells me it is £2000. This I believe is ordered by a
warrant from the Treasury to the Exchequer." Campbells Lives of the Lord Chancellors, Vol. v, p. 221.
