Saturday, December 2, 2017

Rex & Regina v Kempe

A scire facias action in the time of King William and Queen Mary to repeal letters patent granting the office of searcher to one William Kempe.

Source, Lord Raymond's reports, Volume 1, page 49 (1 Ld.Raym. 49)

Trin. Term 7 Will. 3.


Rex & Regina vers. Kempe.

A scire facias issued out of the petty bag in Chancery, to repeal letters patent bearing date the 29th of December in the 27th year of the reign of King Charles the Second, by which that King granted to the defendant the office of searcher in Plymouth. The case was shortly thus: King Charles the Second granted this office to John Martin durante beneplacito. Afterwards by other letters patent, reciting the grant to Martin, he granted this office to Fryer for life, to commence after the death, surrender, or forfeiture, of Martin. Fryer afterwards surrendered his letters patent to the King; who afterwards, in consideration of the surrender of the letters patent of Fryer, granted by letters patent this office to Henry Kempe for life, to commence after the death, surrender, forfeiture, or other determination, of the estate of Martin, and afterwards to William Kempe for life (who is the now defendant) to commence after the death, surrender, forfeiture, or other determination of the estates, of Martin and Henry Kempe. Henry Kempe dies, and then King Charles the Second dies; and now this scire facias is sued against the defendant, to repeal these letters patent.

This case was argued several times by Gould King's serjeant and serjeant Pemberton for the King, and by Sir Thomas Powis, Mr. Northey, &c. for the defendant. And now Sir Samuel Eyre, and Holt chief justice, (there being but two judges in court) gave their opinions in solemn arguments for the defendant. Sir Samuel Eyre justice for the defendant said, that the principal quaere was, whether the letters patent of Fryer were good? For admitting that they were good, the defendant ought to have judgment: For the consideration of the letters patent of Kempe was the surrender of those of Fryer; and is those of Fryer were good, then the consideration of those of Kempe was good, and by consequence the grant. But if the letters patent of Fryer were ill, then there was no consideration in the patent of Kempe, and the King was deceived in his grant, and therefore it was void in law. But he was of opinion, that the letters patent of Fryer were good; against the validity of which it was objected. 1. That an estate for life, as this of Fryer was, could not depend upon an estate at will; to which objection he answered, that this grant of office did not resemble that of lands, for an office is no longer in being than it is in grant by the King; for the King has no reversion of an office, nor can he grant it by that name, as, 8 Hen. 7. 12. 6 Hen. 7. 14. 2 Brownl. 242. 1 Cro. 279. 8 Hen. 7. 1 & 3. 3 Cro. 236. But the King may grant it in possession, or to take effect in futuro. 8 Hen. 7. 12. 1 Hen. 7. 29. 6. 8 Co. 55. Co. Li. 3, 6. 1 Cro. 279. 3 Leon. 31. 9 Co. 47. Nor is a particular estate necessary, to support this grant of the office in futuro.

2. It was objected, that the King was deceived in his grant to Fryer, which was to commence after the death, surrender or forfeiture of Martin; for the estate of Martin being only an estate at will, it could not be surrendered or forfeited; for those acts, which in cases of other particular estates will amount to a surrender or forfeiture, in case of an estate at will amount to a determination of the will; and therefore there cannot be a surrender or forfeiture of an estate at will (which last assertion Mr. justice Eyre agreed to). And in fact the estate of Martin did not determine by his death, surrender or forfeiture, but by the death of King Charles the Second; and therefore this grant to Fryer could not take effect, because Martin's estate did not determine by his death, surrender or forfeiture.

To answer which objections he said, that it ought to be considered, 1. When the King shall be said to be deceived, to avoid a grant. 2. In what manner the grant of the King shall take effect, and what construction it shall have.

As to the first, where the matter expressed to be suggested on the part of the grantee is false, and to the prejudice of the King, there if the King be deceived, that will avoid the grant.

But where the words are the words of the King, and it appears that he has only mistaken th law; there he shall not be said to be deceived, to the avoidance of the grant. As if there is an estate in esse not recited, or when the grant is recited to be of less value than it actually is, by the suggestion of the party, there the King is deceived, and the grant shall be void. For in the first case the intent of the king was, to grant an estate to take effect in possession, which intent cannot take effect, because there was an estate before in esse not recited. In the second case if the grant were good, the King should grant more than he had design'd to do. But if the King is not deceived in his consideration, nor otherwise to his prejudice, but his intent was to pass the lands, only he is deceived in the law, nevertheless his grant shall be good. To warrant which diversity, he cited Co. Li. 3. Dier 352. a. 197, b. 2 Cro. 34. 2 Brownl. 242. 11 Co. Auditor Curl's case. 1 Mod. 196. Lane 75. 31 Hen. 6. 23. 6 Co. Lord Chandos's case.

In what manner these letters patent of the King shall be construed, when he is mistaken in his own words and affirmation. And he said, that it is a rule in law, that where the King is not deceived by the suggestion of the party, and where it appears by the letters patent that the intent of the King was that the patentee should take, such construction shall be made, that the grant shall not be void. 6 Co. 6. 10 Co. 67. 9 Edw. 4. 11. 8 Co. Earl of Rutland's case.

Now to apply this to the present case. In these letters patent to Fryer the King is not deceived, for the precedent letters patent are truly recited, and the suggestion of the party is true, and the intent of the King was, that Fryer should tkae by these patents; and therefore such construction ought to be made, as the grant may take effect.

And as to the commencement of this grant to Fryer, it seemed to him that the King's intent was, that Martin should hold it for his life; that is to say, that he would not determine his will during the life of Martin, but that after Martin's death the new letters patent should take effect. But since Martin's grant determined by the King's death, this grant of Fryer's shall commence after the death of Martin. And for these reasons he was of opinion that the defendant ought to have judgment.

Holt chief justice for the defendant said, that the question was, whether Fryer's letters patent were good? for if they are not, those of Kempe will not be good neither. But he was of opinion, that those of Fryer were good.

1. It was objected, that they were void, because they were not to commence upon the determination of the estate of Martin, but upon his death, surrender, or forfeiture. His death might happen, but not his surrender or forfeiture, because it was but an estate at will.

To which he answered, that an estate at will among common persons cannot be surrendered; because, being at the will of both parties, either of the parties may determine his will. But in the case of the King, it is not at the will of both parties, but of the King only, and the party cannot determine his will but by surrender. For if it be an office of trust, forbearance of execution is fineable; and surrender in such cases is constantly practised, as in the case of Hale chief justice and Scroggs chief justice.

Then if this office granted at will was surrenderable (as by him it was) the expression of the king in his letters patent was proper enough.

2. It was objected, that it was not forfeitable.

To which he answered, that the King's tenant at will may be said to forfeit. For perhaps the King upon suggestion of crimes committed by the party, before he determined his will, shall be informed by inquisition of record, and then upon the very return of the inquisition the office is forfeited. But if it were an estate for life, then there ought to be a scire facias to repeal the letters patent.

Admitting then the law to be so, this grant to Fryer was good, and might have commenced after the death, surrender, or forfeiture of Martin.

But it was farther objected against this grant to Fryer, that suppose the King had determined his will during Martin's life, yet the grant to Fryer could not have taken effect, because the estate of Martin did not determine by the death, surrender, or forfeiture of Martin; and then if the grant to Fryer were good, there woudl be a freehold to commence in futuro, which is against the rules of law.

To which he answered, that this grant would nevertheless have taken effect, but not till the time limited by the letters patent, which then must have been Martin's death, and in the mean time the King might have granted it to whomsoever he pleased; and when Martin died, Fryer's grant would have commenced.

And as to the objection that a freehold cannot be granted to commence in futuro, he answered, that it must be understood of a freehold in esse, as 5 Co. 93, Berwick's case; but a rent de novo may be granted to commence in futuro, or may be granted in fee with fractions, 1 Co. Corbet.'s case, or to commence upon any contingency; because it is a creature of the grantor, who may mould it in what form he pleases. And the grant of this new office resembles the grant of a rent de novo; for since there is no estate in esse, but it is new created by the King, he may mould it as he pleases. And although there is such an office as this of a searcher, yet the estate is new, nad subject to any limitations. And no reasons can be given why a grant in futuro of such a new office should not be good, as well where there is such precedent estate as where there is none at all. For suppose, there being before a grantee for life, the King grants to another, to commence after the death of the grantee for life; this first grant for life is of no avail to make good the last grant, for the last grant is not a remainder, for then it ought to have been created at the creation of the particular estate; nor is it a reversion, for neither the King nor any other has any reversion of the office, and a grant by such name is void; but the king may grant an office in reversion; not in respect of the particular estate,but it is only a future interest to commence in futuro. 1 Cro. Young vers. Stawell, and Young versus Fowler.

But if the King has the inheritance of an office, such a grant as this had been void. And it seemed to him, that the King's intent was, not to determine his will during Martin's life, but that after his death the grant to Frier should commence; and not to give opportunity to any sollicitation, to determine the estate of Martin before his death. Lastly, Frier's letters patent being good, the surrender of them was a good consideration in the grant to Kempe, so that the letters patent granted to Kempe were good. And therefore judgment was given for the defendant.

Tuesday, November 28, 2017

Were Letters Patent for Invention Hereditaments?

In the 18th century cases of Hamblin’s, James’s and Wilkinson’s patent, the committees that examined that patent included serving or retired justices of the common law courts. Moreover the meetings that determined the validity of these patents also advised the King on various appeals made to the King in Council from decisions of the law courts in Jersey, Guernsey and His Majesty’s Colonies. Thus the Privy Council seems to have acted as a conciliar court advising the King on the exercise of his judicial powers.

Consider the act of parliament of 1641 entitled

An act for the regulating of the Privy Council, and for taking away the court commonly called the star-chamber.

The text is on this website:

and on many other websites.

Here is the text of Article 5 of that act of 1641:

V. Be it likewise declared and enacted by authority of this present parliament, That neither his Majesty, nor his privy council, have or ought to have any jurisdiction, power or authority, by English bill, petition, articles, libel or any other arbitrary way whatsoever, to examine or draw into question, determine or dispose of the lands, tenements, hereditaments, goods or chattels of any the subjects of this kingdom, but that the same ought to be tried and determined in the ordinary courts of justice, and by the ordinary course of the law.

In view of this, one might ask whether or not letters patent granting a legal monopoly to an inventor are a hereditament.

First note that “honours, liberties and franchises” (in the medieval sense of those terms) are regularly included with “castles, manors, mesuages…” in lists, in charters etc. in lists that conclude with “and other hereditaments”.

Now, to the best of my knowledge, hereditaments are property, corporeal or incorporeal, that can pass by inheritance.

So the question arises whether, in 18th century England, patent grants could pass by inheritance, if the inventor died within the fourteen year duration of the grant

In the standard boilerplate text of the letters patent, to be found in John Dyer Collier and many other sources:

“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, administrators and assigns, our especial licence, full power, sole privilege and authority, that he the said A. B. his executors, administrators and assigns,…”

The presence of the words “executors, administrators and assigns”, repeated many times in the document, therefore seems to show that such letters patent granted (incorporeal) property that could pass by inheritance or assignments, and therefore were indeed hereditaments.

Sunday, November 26, 2017

Scire Facias action to repeal Letters Patent, in 1383

In 1383, during the reign of King Richard I of England, a scire facias writ issued instituting proceedings to vacate a grant, by letters patent, of a manor by the king to William Wauton, on the grounds that a previous owner had enfeoffed William Chamberlain and William Clopton of that manor. When the case was tried before the King's Council, William Chamberlain and another accomplice confessed to forging the deed allegedly executed by the previous owner of the manor. The case is included in Select Cases before the Kings' Council 1243–1482, on page 71,under the title Confessions of William Chamberlain and John Martin.

Saturday, November 25, 2017

Revocation of Wilkinson's Patent by the Privy Council in 1779: Documents

Letter from Lord Townshend to the Lord President of the Council, dated February 11, 1775.
This is a covering letter from Lord Townshend transmitting a representation from the Lieutenant General and the rest of the Principal Officers of the Ordinance. []
Letter from the Office of Ordnance to Lord Townshend, dated February 7, 1775.
A contract had been finalized to supply iron cannon. But the contractors then received notice from John Wilkinson that Wilkinson had been granted a patent for the manufacture of such cannon. Regarding the affair to be “of the utmost consequence to His Majesty's Service” the Office of Ordinance judged it necessary to obtain a copy of the letters patent, and found in it the proviso authorized annulment by the king on being notified by at least six members of the Privy Council that the requisite conditions for annulment were satisfied. The letter from the Ordinance Office then pointed out that the method described in the patent had been practised under their direction at Woolwich at a time antecedent to the granting of the letters patent by Messrs. John and Peter Verbruggen. They point out that the patent, if permitted to remain in force, would not only be prejudicial to His Majesty's Subjects but also “very detrimental to the Public Service in your Lordship's Department”. Accordingly “We therefore submit to Your Lordship's Consideration the immediate necessity of taking such Steps as Your Lordship may judge proper for the Revocation of the said Patent.” []
John Wilkinson's Patent for “a new method of casting and boring iron cannon”.
Memorandum of Order in Council published in the London Gazette, dated June 16, 1779
Report of a Committee of the Privy Council, dated June 3, 1779.
The report begins with a history of the proceedings. The Attorney General and Solicitor General had examined the matter. There were affidavits in the case, and the law officers were attended by counsel and solicitors for both sides. On finding that the novelty of the claimed invention was the key consideration, they had tried to induce the patentee to sue one of the contractors, on the basis that the Solicitor for the Office of Ordinance would defend the contractor. But the patentee obtained a common injunction, and refused to commence proceedings in law, and, as a result, the committee recommended that the patent be declared void. [
Report of the Attorney General and Solicitor General in the matter of John Wilkinson's patent, dated March 17, 1779, read and reposted June 3, 1779.
Copy of an Order in Council dated October 31, 1683, vacating a patent of invention granted to Mr. Walcot.
First in a collection of “Precedents of Patents vacated under the Hands of 6 Privy Councillors.”. The collection also memod Hamblin's patent and Betton's patent. []
Copy of an Order in Council dated July 16, 1687, vacating a patent of invention granted to Charles Corcellis.
Copy of an Order in Council dated July 30, 1687, vacating a patent of invention granted to John Chater.
Copy of an Order in Council dated January 30, 1689, vacating a patent of invention granted to James Delabadie.
Minutes of the Committee of the Privy Council, dated June 3, 1779 considering the matter of Wilkinson's Patent.
The attendees included “Sir Eardly Wilmot”. This presumably refers to Sir John Eardly Wilmot (1709–1792), who had been Chief Justice of the Common Pleas from 1766 to 1771 (see Wikipedia article). Also “Sir T. Parker” would presumably refer to Sir Thomas Parker (1695–1784), at one time a Justice of the Court of Common Pleas, and subsequently Lord Chief Baron of the Court of Exchequer from 1742 to 1772, and a member of the Privy Council from 1772 (see Wikipedia article). This committee of the Privy Council considered, at the same meeting, an appeal to the King in Council from an order or decree of the Supreme Court of Jamaica, two appeals from orders of the Court of Chancery of the Island of Jamaica, two appeals from courts in Guernsey, an appeal from a court on the Island of St. Christopher, a leave to appeal from a judgment of the Court of Common Pleas in West Florida, and progressed another appeal from Guernsey, amongst other business. []
Minutes recording the vacating of Wilkinson's Patent at a meeting of the Privy Council on June 16, 1779.

Concerning Privy Council consideration of Dr. James Fever Powder patent in 1753

A paper by Professor Gómez-Arostegui and Dr. Sean Bottomley entitled Privy Council and Scire Facias 1700-1883: An Addendum to the Brief for H. Tomas Gomez-Arostegui and Sean Bottomley As Amici Curiae in Support of Neither Party and the earlier book The British Patent System during the Industrial Revolution 1700–1852 by Dr. Sean Bottomley identify some of the Privy Council documents in question. Moreover a web page maintained by Prof. Gómez-Arostegui links to Privy Council records on the Anglo-American Legal Tradition website at the O’Quinn Law Library of the University of Houston Law Center.

The petition by Walter Baker requesting annulment of Dr. James Fever Powder patent was considered by the “Committee of the Council for hearing Appeals from the Plantations &c.” on February 10, 1753, as recorded in Privy Council papers available at the AALT website at the following URL:

Membership of the committee on that day consisted of the Lord President of the Council, four noblemen and Edward Willis, Lord Chief Justice of the Court of Common Pleas.

A letter from the Council Office, Whitehall, dated May 21, 1753, concerning a petition by Walter Baker to have a clerk of the Privy Council attend a law court with the affidavit of Dr. James, to serve as evidence in a perjury case. This letter is to be found in Privy Council papers available at the AALT website at the following URL:

The report of the law officers regarding this petition, (June 23, 1753) is to be found in Privy Council papers available at the AALT website at the following URL:

The dismissal of Walter Baker’s petition by order of the King in Council, August 10, 1753 is recorded in Privy Council papers available at the AALT website at the following URL:

To quote:

“His Majesty, having taken the said Petition into Consideration together with a Report made by His Majesty’s Attorney and Solicitor General thereupon is pleased with the Advice of His Privy Council to Order that the Petition of the said Walter Baker Be, and is hereby dismissed this Board.”

Further observations

At the meeting at which the committee “for hearing appeals from the plantations etc.” considered the petition of Walter Baker requesting that Dr. James’s patent be annulled, it also dealt with some judicial business:

Antigua. The Lords of the Committee this day took into Consideration the revived Appeal of John Dunbar Esqr. and others against Henry Webb Esqr. Attorney General of the Leeward Islands and others from Antigua, and having heard Counsel in Part thereupon adjourned the further Hearing of this Appeal to Friday, the 16. of this Instant at the Six of the Clock in the Evening.”

This is extracted from Privy Council papers available at the AALT website at the following URL:

This is of course the very committee of the Privy Council that considered appeals made to the King in Council from judgments of the law courts of the American colonies.

For more information see Holdsworth A History of English Law, volume 1, at 516-518

The Privy Council consideration of Dr. James's Fever Power Patent was discussed in the following paper:

E. Wyndham Hulme, Privy Council Law and Practice of Letters Patent for Invention From the Restoration to 1794 II, 33 L. Q. Rev. 180, 195 (1917).

The Privy Council consideration of a petition requesting annulment of James' Patent, No. 626 (1747) is described by Hulme on pages 189–191 of this paper. He discusses the matter further on pages 193 and 194. James Oldham had this to say, in his book English Common Law in the Age of Mansfield, at p.199, note 47:

“Hulme presents a somewhat speculative theory in “Privy Council Law,” 193-95, positing a constitutional quarrel arising out of the Privy Council’s refusal to produce an affidavit in a patent case on the advice of the Attorney General Murray. It seems equally possible that the shift in jurisdiction occurred for less dramatic, practical reasons as the number and complexity of patent applications increased.”

Tuesday, November 14, 2017

Affixing the Great Seal to Letters Patent: Regency Bill 1789.

The following is taken from parliamentary debates surrounding the Regency Bill of 1789. The bill passed the House of Commons, but George III subsequently recovered his faculties, rendering the bill unnecessary. Thus it never reached the statute book.

Debrett, History of the Proceedings and Debates of the House of Commons, Volume 25 (1789), p.351

The Solicitor General begged leave to explain to the Committee why he advised them to order the commission, now moved for, to be issued under the great seal; any why it would be right afterwards to put the great seal to another commission, in order to give the Royal assent to the bill appointing a Regent. He was glad that it had not been said in that House, that such a mode of proceeding was not legal. No man had ventured to make such a declaration; nor could any man have dared to have done it; who knew the law and the constitution of the country. When he had troubled the House, with the resolution that it was their right to determine on the means to provide for the deficiency of the exercise of the Royal authority had been under consideration, the Committee would recollect that he had stated, that a Regent could not be appointed but by act of Parliament, nad, in order to pass that act, there mus necessarily be a commission issued under the great seal to open the Parliament, and a subsequent commission to give the Royal assent to such a bill as should be passed by the two Houses. That was the legal mode of proceeding; the other, that of addressing the Prince to take upon him the Regency, a term unknown in law, was clearly illegal. If they addressed the Prince to take upon him the Regency, he could not be Regent, but by some such fiction as that now proposed to be resorted to. It was his duty, the Solicitor General said, as a professional man, to satisfy the House that the mode of proceeding recommended to them was legal. It was a point on which they ought to be satisfied. In the course of the debate on the resolution then before the House, he observed, that the statutes referred to, as bearing upon the question, were the 33d of Henry the Eighth, the act of Charles the Second, and the act of the first of Queen Mary; each of which pointed two ways; but, if it was contended that those were negative statutes, and that they were to regard them in that point of construction, he begged leave to ask how they were to appoint a Regent at all? He denied it to be possible, because the consent of the Crown must be obtained to the act; and it was well known to them all, that His Majesty could not attend in Parliament to signify his consent in person, neither could he put his sign manual to a commission. The only mode of obtaining the King's consent, was by putting the great seal to the commission for passing it, and making it a public act. If it was so authorized, that rendered it a public act; and if, upon the face of it, it expressed that it passed by the consent of the King, Lords, and Commons, the judges of the land could not dispute it. The great seal, once put to it, gave it all the authority of law, and on inquiry could be instituted as to the mode of its having been passed. If letters patent passed, without the King's warrant having been previously granted to direct such letters patent to be made out and sealed, yet, having the great seal annexed to them, however criminal it might be in the person who should, under such circumstances, take upon himself to put the great seal to those letters patent, they would prove of full force, and bind the King himself, although it might be known that His Majesty had not granted his warrant for making out such letters patent.

Friday, November 10, 2017

Revocation of Hamblin's Patent by the Privy Council in 1732: Documents

An informative survey of revocations of patent grants by the Privy Council in England in the 18th century is to be in the following paper:

Privy Council and Scire Facias 1700-1883: An Addendum to the Brief for H. Tomas Gomez-Arostegui and Sean Bottomley As Amici Curiae in Support of Neither Party
Tomas Gomez-Arostegui
Lewis & Clark Law School
Sean Bottomley
Institute for Advanced Study in Toulouse.

This post is concerned specifically with those Privy Council papers from 1731 and 1732 relating to the revocation of a patent granted to Robert Hamblin in 1732 following receipt of a petition from Trinity House, a body incorporated by royal charter in 1514, with statutory authority for pilotage etc. in the Port of London and for lighthouses and lightships around the coasts of England and Wales.

Reasons why the law officers recommended revocation.

That it did appear from the Instrument enrolled and from the swimming Light already erected that the said Robert Hamblin hath aimed at obtaining a power of setting up new Lights under colour of the said Letters Patent rather than of distinguishing those now in being, but as no such power is granted to him by the said Letters Patent they are of opinion that such attempt is not warranted thereby and is therefore an abuse of the Grant, and contrary to Law.

And that it further appeared to them that his general Project of Erecting new Lights particularly swimming Lights wherever he thins fit upon the coast of England and of making a New Chart of such coast may be highly prejudicial and inconvenient to Your majesty's subjects and injurious to the Trade and Navigation of this Kingdom.

Lord Chief Justice Eyre was present at the meeting of 20 April, 1732

The following list includes links to items in the Privy Council Records from the time of George II made available online for perusal at the website of the University of Houston O'Quinn Law Library