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Notes
1 Primary source material has been pressented using original spelling and grammar, except that the long ‘s’ has been replaced by its modern equivalent. Translations are by the author unless otherwise stated.
2 Shapiro, ‘The Concept “Fact”’; A Culture of Fact; and Probability and Certainty. Earlier references to the interconnections between early-modern science and law can be found in Kocher, ‘Francis Bacon’; and Loevinger, ‘Law and Science as Rival Systems’. Of particular importance to the history of science were the comments made on the assessment of witnesses in Shapin and Schaffer, Leviathan, 55–60, 326–329. Recent studies have focussed more on the emergence of the concept of ‘natural law’: see e.g. Daston and Stolleis, Natural Law. In consequence, less space has been devoted to the particularity of legal practices.
3 For a concise overview of the similarities and disparities between ‘privileges’ and ‘patents’, see Biagioli, ‘Patent Specification’. Please note that I use the expression ‘inventor privileges’ rather than ‘patents’ in this paper in order to avoid misunderstandings and anachronistic interpretations. Although early-modern legal scholars did use the word ‘patent’ in the expression of a ‘letter patent’, these patent letters had very little to do with what we nowadays understand a patent to be. ‘Letters patent’ was the literal translation of the Latin litterae patentae, which meant ‘open letters’ (from the verb pateo) as opposed to sealed letters (i.e. ‘closed letters’). See Hill, ‘Origin and Development’, 406. Patent letters thus alluded to the form – not to the content – of a legal decision and, in consequence, they could be used for a variety of purposes.
4 Historians generally take Venetian law from 1474 as the starting point for a more systematic approach to inventor privileges. On this ‘Venetian moment’, see notably Mandich, ‘Le privative industriali veneziane (1450–1550)’. It was only by the mid-sixteenth century, however, that the use of inventor privileges had spread widely throughout Europe, including to the kingdoms of Spain, France, and England, and the majority of Italian city-states. For the different phases in the use of inventor privileges, see Silberstein, Erfindungsschutz und merkantilistische Gewerbeprivilegien. For an excellent bibliography with regard to the privilege practices in individual countries, see Biagioli, ‘From Print to Patents’.
5 Over the last 30 years, our understanding of the Scientific Revolution has been broadened and thoroughly redefined. For an introduction to this issue, see Lindberg and Westman, Reappraisals; and Osler, Rethinking the Scientific Revolution. Also useful are: Porter, ‘The Scientific Revolution’; and Cunningham and Williams, ‘De-centring’.
6 Among the rare exceptions are Biagioli, ‘From Print to Patents’; Iliffe, ‘In the Warehouse’; Popplow, ‘Models of Machines’. See also Harkness, The Jewel House, in particular 142–180.
7 De Vries, Economy of Europe, 92; Israel, Dutch Primacy, 410. Recently, Karel Davids has provided a dazzling summary of technological developments in the Netherlands between 1350-1800 in terms of technological leadership: see Davids, The Rise and Decline. For the importance of privileges in this context, see Davids, The Rise and Decline, 400–420. For the study of inventor privileges in the Dutch Republic more generally, the work by Gerard Doorman remains invaluable: Doorman, Octrooien.
8 There is a great number of good books on the history of the Dutch Republic. For a general overview, see for instance Israel, The Dutch Republic. For the more economic aspects, see De Vries and Woude, The First Modern Economy. For an overview of political institutions, see Fruin, Geschiedenis der staatsinstellingen.
9 The Dutch Republic consisted of seven provinces with voting rights that were united on the basis of the Union of Utrecht (1579). Although nominally these provinces were sovereign, they gave up these sovereign rights on a number of issues that were of common interest, such as defense and finance. These issues were decided upon in the assembly of the States-General in consultation with the Council of State.
10 The number of privileges issued by the individual provinces remained negligible until the 1640 s. See Davids, ‘Patents and Patentees’, 264–265.
11 In terms of numbers, there was a sharp rise in the 1620 s before the number dropped significantly, settling to around one per year at the beginning of the eighteenth century. For an overview of the number of privileges, the fields in which they were granted, etc., see Davids, ‘Patents and Patentees’.
12 For concrete examples of this practice in the Dutch Republic, see ibid., 273–275.
13 Although the official procedure was only set in motion when the inventor submitted a petition, in some cases he had been asked by the authorities (both on an urban and on an interprovincial level) to develop a specific technology. In those cases, the act of petitioning was more or less just pro forma.
14 These drawings and models (the precursors of what we call ‘patent specifications’ nowadays) have received relatively little scholarly attention, but see Biagioli, ‘Patent Republic’; Davies, ‘The Early History’; and Popplow, ‘Models of Machines’.
15 In my broader ongoing research, I have found that inventors from deviant creeds, such as Anabaptists or Catholics, had little problem in accessing the privilege system; what mattered was simply whether an invention would be profitable for the local economy.
16 In 1600, the first full-time chair for mathematics in the Republic was established at the University of Franeker. It was held by Adriaan Adriaansz. Metius (1571–1635), who taught in the vernacular, and who was directly involved with the privilege business on several occasions.
17 ‘dat in de Universiteit alhyer soude worden gedoceert in goeder duytscer tale die telconste ende landmeten principalycken tot bevordering van de geenen die hen souden willen begeven tottet ingenieurscap.’ Molhuysen, Bronnen, 1:122. The program of the new school, later renamed the Nederduytsche Mathematique, had been designed by none other than Simon Stevin at the instigation of Stadtholder Count Maurice of Orange (1567–1625). For the program, see Molhuysen, Bronnen, 1:389*.
18 Molhuysen, Bronnen, 1:392*. The attendance list dates from somewhere between 1600–1611.
19 Moreover, the first directors of the Nederduytsche Mathematique were Ludolph van Ceulen (1540–1610) and Symon Fransz. van Merwen (1548–1610), who were both involved in the examination of privilege applications.
20 See, for example, the application by Gregoris Sir Jacob (dated 14 July 1599). Doorman, Octrooien, 101; Japikse and Rijperman, Resolutiën, 10:824. It should be noted here that there were many variations on the general procedure.
21 The negotiations about the duration of the privilege also took place at the assembly of the States-General; unfortunately, most of these negotiations took place behind closed doors and have not been recorded.
22 Compared to the modern patent system, the notions of ‘utility’ and ‘novelty’ had a completely different meaning. What mattered was that an inventor was the first to practice a certain craft in the territory of the Dutch Republic; that he would be the first to reveal the technical details of an invention and thus render the invention useful to the local economy. For a more detailed discussion of these issues, see Biagioli, ‘Patent Specification’.
23 For the involvement of tin manufacturers, see Doorman, Octrooien, 101 (2 January 1599); Japikse and Rijperman, Resolutiën, 10:821. For gun manufacturers, see Japikse and Rijperman, Resolutiën, 10:370 (6 June 1598). For an example of the role played by the corporate textile guilds, see Posthumus, Bronnen, 4:82 (no. 65). This example relates to the Leyden saainering, a professional organization of textile workers. A nering, following Posthumus' definition, was an ‘organization of house-industrial producers completed with industrial entrepreneurs’. Posthumus, Neringen, 20. For ‘city carpenters’, see Doorman, Octrooien, 107 (12 January 1602). For the admiralties, see Doorman, Octrooien, 129 (6 June 1615).
24 Davids, Zeewezen en wetenschap, especially 65–85.
25 Some of the people on these commissions included: Willem Janszoon Blaeu, Samuel Marolois, Adriaan Adriaanszoon Metius, Joseph Justus Scaliger, Willebrord Snellius, and Simon Stevin. The case of Jarichs has been diligently studied by Davids: ibid., 73–85.
26 For an overview of the legal history of privileges, see Dölemeyer and Mohnhaupt, Das Privileg. Despite the long pre-history, the practice of using a privilege to establish a monopoly was unique to the early-modern period. Fiercely condemned by both Roman and canon law, monopolies had always been believed to lead to a disturbance of the ‘just price’. See Höffner, Wirtschaftsethik, 64–100, 135–146; Roover, ‘Monopoly Theory Prior to Adam Smith: A Revision’, 495–499. The transformation of these ideas was related to the rise of new ideas about how to run a political economy; I intend to publish more extensively about this in the near future.
27 As in other countries, treatises that explicate the logic of early-modern inventor privileges were rare in the Dutch Republic. The most elaborate legal commentary I have encountered was by the Leiden University scholar Paullus Merula (1558–1607). Merula belonged (together with Hugo Grotius, among others) to an exclusive group of scholars that gathered around the humanist Joseph Justus Scaliger (1540–1609) with the goal of developing a new legal framework that would serve as the basis for the administration of justice in the young Dutch Republic. In that context, he wrote an incomplete legal textbook, later quoted extensively in other Dutch legal treatises, entitled: Manier van procederen in de provintien van Holland, Zeeland ende West-Friesland belangende civile zaaken. The book was first printed in Amsterdam in 1592; I use a reprint from 1705 by Adrian Beeman. See for a (somewhat outdated) biography of Merula: Haak, Paullus Merula. For the use of Merula's book in the University of Leiden, see Ahsmann, Collegia en colleges, 21–23.
28 Monté Verloren, Hoofdlijnen, 235. Cf. Merula, Manier van procederen, 52.
29 The generally accepted solution was that a privilege should not be entirely [ex diametro] in conflict with the common law [gemeene rechten] but that ‘the word Slightly [ … ] softens the contradiction’ (Het woord Eenigsints [ … ] versacht de Contrarieteit). Moreover, a privilege should not infringe on the existing rights of third parties. Merula, Manier van procederen, 41. See also Franceschelli, ‘Lo origini’, 163.
30 Quaritsch, Staat und Souveränität, 129. Quaritsch makes the interesting observation that, as long as the privilege (an Einselfallgesetz) only transformed the legal status of the person to whom it applied (namely, from general to particular), common law and privilege were pretty well matched. Only when general laws came to set aside privileges was the way freed for an absolutist understanding of legal power that turned the king into the origio iuris. Ibid., 129–136. Quaritsch traces the roots of this transformation to events in thirteenth-century Germany.
31 Merula, Manier van procederen, 41.
32 Ibid., 52.
33 ‘Halve preuve, is sodanige bewering, daar by den Regter wel enige kennis van de saak krygd, maar niet volkome, of sodanig, dat daar uit de saak by vonnis mag werden gewesen, of voor Regt kan werden uitgesproken.’ Leeuwen, Het Rooms-Hollands-regt, 618. Cf. Merula, Manier van procederen, 527.
34 Leeuwen, Het Rooms-Hollands-regt, 695.
35 Ibid. The claimant would provide a brief statement with the arguments why he thought he was right, whereupon the defendant would have the possibility to make a statement to the contrary. It was then up to the judge to further decide upon the matter.
36 Ibid., 616. Other methods to furnish evidence, such as presumption, rumors, and hearsay, were never conclusive in the court of law. Ibid., 619.
37 ‘By oculaire inspectie, dat is, vertoog en aanwysing op en omtrent de ding-pligtige saak, werden ten vollen bewesen alle grond-sscheidingen, of Erf of Land-diensstbaarheden. [ … ] De welk ook in veel andre gelegentheden nodig is: als om te oordelen van een wonde van een nedergeslagen, of deselve doodlyk is geweest, en over Egt-scheiding om oorsaak dat yemand tot voortteling onbequaam is, en om te oordelen of een Vrouwe swanger gaat, en diergelyke, werden deselve personen aan de ervare Medicyns en Vroed-wyven ten ondersoek voorgesteld, de welk daar van na genomen inspectie en klaar betoog, oordelen wat van de saak is.’ Leeuwen, Het Rooms-Hollands-regt, 617–618. Cf. Merula, Manier van procederen, 485.
38 Merula, Manier van procederen, 502–503.
39 ‘meer den geenen die in Digniteytt zijn, dan andere gemeende Luyden [ … ] Meer den Rijcken dan den Armen, om de vreese van Corruptie [ … ] meer den Armen van goeden leven ende opregt in haaren handel; dan den Rijcken quaad van Leven ende gedisfameerd.’ Ibid., 500.
40 Ibid., 501. As Merula formulated it, the most reliable testimony was that of ‘each in his art’ (Maar voor al een eyder in zyne konste). For similar observations in the English context, see Shapiro, A Culture of Fact, 75–76. Legislation in the Dutch Republic, for that matter, always called for the full disclosure of any of the witnesses. See, for instance, Instructiën vanden Hove van Hollandt, Zeelandt, ende Vrieslandt (The Hague: Jacobus Scheltus, ca.1699), 1–8 (‘Octroy beroerende de openinge van informatien van gegeeven getuygenissen’).
41 The standard biography for Stevin is Dijksterhuis, Simon Stevin, notably chapter 1. Stevin was born in Bruges into a family with a certain standing. In 1583, he registered as a student at the faculty of Artes Liberales at Leiden University, where he probably became acquainted with the Stadtholder Count Maurice of Orange. Stevin was then taken into the service of the Court of Maurice in 1593 as his private tutor and personal advisor. On the relationship between Stevin and Maurice, see also Kubbinga, ‘Stevin en Maurits’. Throughout his career Stevin obtained several inventor privileges that affirmed his importance as one of the leading military engineers in the service of the state. On Stevin's ‘patents’, see Stevin, Principal Works, 5:11–38.
42 There were a number of testimonials that confirmed the utility of Stevin's invention. These are given in full by Stevin's son Hendric; Stevin, Wisconstich filosofisch bedryf, Book X, 3–10. A transcription can be found in Stevin, Principal Works, 5:386–390. An English summary is in ibid., 5:391–392. I shall not deal with the entire application in every detail: Stevin had first obtained a privilege for a drainage mill on 24 November 1586 from the States-General, and one on 23 February 1588 from Sir Robert Dudley, 1st Earl of Leicester (1533–1588), who acted as the Governor-General of the Republic during the years 1585–1588. They were both inscribed in the Rekenkamer (Audit Office) of Holland on 15 September 1588 (Camer van Rekening in Hollant, Witte register met de Rode roos, fol. 51). On 23 August 1588, Stevin entered into a contract with his friend Johan Cornets de Groot (1554–1640), the later mayor of Delft, for the exploitation of his inventions. De Groot would have an equal share in the proceeds of the two privileges, and together Stevin and De Groot implemented the invention at several locations. Ibid., 5:13–14. On the fate and fortune of the mills invented by Stevin, see ibid., 5:309–412, especially 324–332.
43 ‘omme kennisse te dragen vande prouf die de Stolwijcksche Molen, by M. Joost Govertsz Timmerman, op de nieuwe maniere vande voorschreve Mr. Simon Stevin vermaekt ende geerigeert, doen soude tegens de Beeyersche Molen, daer beneffens staende.’ Stevin, Principal Works, 5:387. The Beyersche mill was located in Het Beijersche, a hamlet in the province of Holland, between Gouda and Stolwijck.
44 ‘voorsz Requirant seeckere peyl neffens twater hebbe gestelt [ … ], inder voegen dat dien volgende de] Beeyrsche Molen in den bosem, een tijt van drie uyren aen malcanderen eerst heeft gemalen, sulx Sylieden Attestanten, by een Santloper gemerkt ende onthouden hebben.’ Ibid.
45 ‘dat de voorschreve Stolwijcksche Molen op de maniere vande voorschreve Mr. Simon Stevin als vooren geerigeert, daer nae in de voorschreve bosem, den tijt van een uyre alleenlick heeft gemalen, nae het Santloper teycken voorsz, ende dat Sylieden alsdoen insgelijcx een peylteycken daer van genomen.’ Ibid., 5:388.
46 ‘by de selve conferentie bevonden hebben, dat de voorschreve Stolwijcksche Molen in een uyre so veel water inden voorschreve bosem heeft gemalen als de Beeyersche Molen in drie uyren.’ Ibid.
47 For a similar case in the Spanish context, see Goodman, Power and Penury, 134–136. Cf. Barrera-Osorio, Experiencing Nature, 62–63. For a similar case in the Venetian context, see Berveglieri, Inventori stranieri a Venezia, 111–115 (no.48, Giacomo Obertraut).
48 ‘dat de Beeyersche Molen het voormalen heeft gehadt.’ Stevin, Principal Works, 5:388.
49 ‘D'voorsz. contra-proeve wierdt by Hellinx voortgebracht, om tot enervatio ende confusie vande 1. proeve te bethoonen dat gealloyeerde penn: of silver, mede konde gesneden werden.’ Coren, Observationes rerum, in the margins of page 181 (note 33). For more detail, see Buning, ‘Privileged Knowledge’.
50 Moreover, experiments performed within the legal framework of inventor privileges did not deal necessarily with the examination of any tangible reality. I suspect that further research will show that the speculation on the feasibility of these projects contributed to the increasing importance of probability theories in the course of the sixteenth and seventeenth centuries. In other words, the thoughts of Blaise Pascal or Cristiaan Huygens on this matter only made sense when there was something at stake, and it was perhaps more than a coincidence that these two ‘scientists’ were closely involved in the privilege business. Cf. Franklin, The Science of Conjecture, 350.
51 This awareness primarily finds its roots in the work of Edgar Zilsel. More recent scholarship has in many ways refined the harsh dichotomy between ‘artisans’ and ‘scholars’, ‘practice’ and ‘theory’. For a useful discussion of the historiography on this issue, see Long, Artisan/Practitioners and the Rise of the New Sciences, 1400–1600, particularly 10–29. Other recent studies that take a more differentiated look at contemporary technological and scientific practice include Roberts, Schaffer, and Dear, The Mindful Hand; Harkness, The Jewel House; and Smith, The Body of the Artisan.
52 Whereas relatively little research has been done on the first centuries of the patent system, quite a lot of attention has been devoted over the last 30 years to the study of patents in the Industrial Revolution. Examples are: Dutton, The Patent System; MacLeod, Inventing the Industrial Revolution; Hilaire-Pérez, Inventions et Inventeurs; Seckelmann, Industrialisierung, Internationalisierung und Patentrecht. Aside from the fact that these studies cover a different period as well as different geographical areas, they differ from the approach presented in this paper in the sense that they are not occupied with the correlation between legal proof and scientific practice. All the same, these studies provide some valuable insights. They show, for instance, a clear notion of the patent office as a place where different actors intersected with one another at different levels. For illustration, see Seckelmann, Industrialisierung, Internationalisierung und Patentrecht, 245–307. One can apply this observation to the early-modern ‘patent office’ as well, where a wild bunch of inventors, merchants, scribes, state officials, impostors, professors, army commanders, etc., came in contact with one another.