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

Thursday, November 9, 2017

Legality of Judgments on Scire Facias given in King's Bench

Sir Edward Coke’s had asserted (4 Inst. 79) that, in cases such as scire facias cases originating in Chancery and subsequently transferred to King’s Bench for jury trial, the record should be transferred back to Chancery for judgment.

See page 79 of the Fourt Part of Coke's Institutes

However the justices of the King’s Bench and the Lord Chancellor ruled unanimously in Jefferson v. Dawson (1 Mod. 29) that, once the report had been transmitted to the Court of King’s Bench, the judgment should be given in that court. This case was also reported by Sir Edmund Saunders as part of Jefferson v. Morton and others (2 Saund. 23, on page 26). This case was decided back during the reign of Charles II, back in the 17th century. See the report of Jefferson v. Dawson at page 29 in the first volume of Modern Reports. See also the same case reported at page 25 in the second volume of Sir Edmund Saunders’s Reports (5th edtion, 1824)

The principle decided by the Court of King’s Bench (and approved also by the Lord Chancellor of the day) was affirmed at the commencement of the reign of King George I, at the beginning of the 18th century, in The Queen against Aires. See the Sixth Exception on page 260 of the 10th volume of Modern Reports (case 10 Mod. 258)

The Court of Queen’s Bench returned to the question in 1846, in Bynner v. The Queen. They re-affirmed that the practice followed in scire facias actions such as R. v. Arkwright, where the case was transferred to the Court of King’s Bench for jury trial, and judgment delivered there, was indeed proper practice, notwithstanding the assertion of Sir Edward Coke (4 Inst. 79, see above). But this judgment merely reaffirmed what had been decided nearly two centuries beforehand, and supplied extra authority, produced by a search of medieval patent rolls.

Monday, October 30, 2017

Sir Oliver Butler's Case - Sir Creswell Levinz's Report (3 Lev. 220.)

Source: The Reports of Sir Creswell Levinz, Volume 3, 220—223 (3 Lev. 220.)


The King against Sir Oliver Butler in the House of Lords.

S. C. 2 Ventris 344.

ERROR of a Judgment in a Scire facias in the Petty-bag Office in Chancery, where by the Scire fac' it was shewn, that the City of Rochester is an ancient City, and incorporated Time out of Mind by the Name of Citizens of Rochester, until 1 E 4. when they were incorporated by the Name of the Mayor and Citizens; and that the Citizens till 1 E 4. and from thence the Mayor and Citizens have had a Market there held every Wednesday and every Friday, and Tolls &c. and that they held the said City of the King by the Fee-Farm Rent of 12l. per annum; and that the King by Letters Patents of the 7th of March last (reciting an Inquisition on an ad quod dampnum, whereby it was found, that it would not be to the Damage of the King, or of any other Person, if the King granted a Market in Chatham to Sir Oliver Butler the Defendant, to be held every Tuesday) granted to the Defendant a Market to be held there every Tuesday, with all Profits, &c. prout per [*P221.] easdem Literas Patentes apparet: And whereas the Town of Chatham is within a Mile and Half of Rochester, and whereas we are given to understand by the Mayor &c of Rochester, that the said Writ ad quod dampnum was executed the same Day it bears Date, at the Distance of thirty Miles from Rochester, and without Notice to the Mayor, &c. surreptitiously and fraudulently in Deceit of them; and that the Grant to the Defendant is to the Damage, &c. of the City of Rochester, and of the Market there; and that by Reason thereof the said Letters Patents to the Defendant are void: Therefore the Sheriff of Kent is commanded to warn the Defendant to appear to shew Cause wherefore the said Letters Patents should not be cancelled. The Defendant appears, and pleads, that the Scire Facias and the Matter therein contained minus sufficien' in lege existunt ad ipsum ad respondend' compellend' quodq; ipse ad Breve prædictum modo & forma præd' impetrat' necesse non habet, nec per legem terræ tenet' respondere, & hoc, &c. The Attorney-General replies, that the Writ and the Matter therein contained are good and sufficient in Law to cause the said Letters Patents to be cancelled and vacated; and thereby is the Demurrer joined. And upon arguing the Case in Chancery, the Lord Chancellor Finch (being assisted by the then Ch. Just. North, and by Jones then a judge in B. R. and now Ch. Just. of C. B.) gave Judgment that the Patent should be cancelled and vacated: Whereupon Sir Oliver Butler brought Error in the House of Peers: And after Argument at the Bar there the Lords referred the Matter to the Judges then attending in Parliament, viz. Gregory, Charlton, Levinz, Withers, Halloway and Walcot, who all unamously [sic.] agreed, that the Judgment given in the Chancery ought to be affirmed; and accordingly they delivered their Opinions seriatim to the Lords by their Lordships Command, with their Answers to the several Objections which had been made for Reversal of the Judgment, viz. 1. That a Sci. Fa. does not lie to repeal such Patents, because there is another Remedy by the Common Law, i. e. by Assize of Nusance, Quod permittat, &c. where the Matter shall be tried by a Jury and several Judges, and not by one Judge only, as it is in Chancery: To which they answered, that the King has an undoubted Right to repeal a Patent wherein he is deceived, or his Subjects prejudiced, and that by Sci. Fa.; as 2 E. 3. 34. a Sci. Fa. to repeal a Patent for Toll, 17 E. 59. b. of a Market, 11. H. 4. 5. of a Market, Dy. 197, 198. 3 El. 7, or 8. the [*P.223.] like Precendents are cited, Dy. 276. 19 El. of Markets; and Staundf. Prerog. says, that it is jure regio by the Common Law, and in none of the Cases was it any Question whether the Writ would lie, but only the Manner of pursuing it, and other incident Matters; and it is not unusual for the King to have his Remedy, as well as the Subject also; as in Batteries, Trespasses, &c. the King has a Remedy by Information and Indictment, and the Party grieved by his Action. As to the second Objection, that no ad quod damp' was necessary; that the Patent might have been granted without it, and therefore, though it were surreptitious, it is not material. It was answered and resolved by all the Judges, that which is always done in Pleading is necessary to be done; but it may be dispensed with by a Non obstante; (Quær.) for there the King takes Notice, that it is not ad dampnum, &c. and yet if it be ad dampnum the Patent is void; for in all such Patents the Condition is implied, viz. that it be not ad dampnum of the neighbouring Merchants; and in this Case it is confessed by the Demurrer, that the Patent is ad dampnum of Rochester, and was illy executed, and in Deceit of the King. As to the third Objection, That Nothing here is positively alledged but with a dat' est nobis intelligi, so and so, &c. it was answered and resolved by the said Judges. 1. It is positively alledged, that concessio praed' est ad dampn' & depauperationem, &c which is a sufficient Cause to revoke the Patent, if there were Nothing more. 2. That all under the dat' est nobis intelligi is a sufficient Allegation to put the Party to answer, as in all Informations in B. R. the Form is, that the Attorney General, or Coroner of the Court dat Cur' intelligi & informari, &c.. As to the fourth Objection, That the Demurrer was not well joined, the Defendant saying, that the Writ was not sufficient to put him to answer, and the Attorney-General replying, quod bon' & sufficien' ad causand' Literas patentes præd' cancelland' & vacand'. It was answered and resolved by the said Judges, that it was sufficient to put the Matter in Judgment of the Court, and that it was well done of the Attorney-General to reply as he did, in Order to have the Event of his Suit, viz. the Patent cancelled. As to the fifth Objection, That upon this Demurrer a Judgment in chief ought not to have been given, but only a respondeas ouster, it was answered and resolved by the said Justices, that the Sci. fac. shewing sufficient Matter to have the Patent cancelled, and the Defendant having confessed it by his Demurrer, he shall not by the [*P.223.] Manner of his Demurrer alter the Judgment of the Court; for if so, it would be in his Power to procure a Delay for himself; but the Matter in the Sci. fa. appearing sufficient, and not denied by any Plea of the Defendant, but confessed by his Demurrer, ad Judgment peremptory in Chancery ought to be given, and not a respondeas ouster; and so was it done in the Case 17 E. 3. 59. b. and lately in a Scire fac' in B. R. between Cole and Green, 1 Lev. 312. by Hale Ch. Just. and the whole Court; where in a Scire fac' upon a Judgment in Waste upon the Damages recovered, the Defendant demurred partly in Abatement, and partly in Bar, and yet the Court gave Judgment in chief. To the sixth Objection, that there ought to have been an Office found before the scire facias issued, for that a Sci. fac. is a judicial Writ, and ought to be founded upon a Record; it was answered and resolved by the Judges, that true it is, a Sci. fac. ought to be founded on a Record, and so it is here; for the Patent is a Record in Chancery, upon which this Sci. fac. issued, and it is a sufficient Record whereon to found it, as appears by the Precedents before cited; but where the Sci. fac. is brough for the Forfeiture of a Patent, or other Thing in another Court, there ought to be found an Office in such other Court, before the Sci. fac. issues, except the Forfeiture appears of Record in the same Court whereupon to found the Scire fac'; and where the Office is found, the King shall seize presently upon the Office (found); but where the Scire fac. is founded on the Patent itself, as here, the King cannot seize till the Forfeiture or other Defect of the Patent be tried upon the Scire fac' as in 11 H. 4, 5. And at last all the said Judges agreed, that by the Demurrer in this Case it is confessed, that the ad quod dampnum was deceitfully executed, and that the Patent was ad dampnum & depauperationem of Rochester and their Market; and therefore the Judgment in Chancery ought to be affirmed, which the Lords in Parliament did accordingly. But afterwards, as I heard, the Defendant sued another Writ of ad quod dampnum, and took a new Patent, which was granted because a Market at Chatham was very convenient, if not (absolutely) necessary in Respect of Navigation, and the Shipping and Stores, and the Labourers about the Shipping there.

Sir Oliver Butlers Case - Journal of the House of Lords

Transcripts of the Journal of the House of Lords, volumes 13 and 14, relating to Sir Oliver Butler's Case (1680—1685)

Transcriptions on the website of British History Online at https://www.british-history.ac.uk/ were used in the preparation of material below, but HTML markup has been added.


https://www.british-history.ac.uk/lords-jrnl/vol13/pp676-679

[19 November, 1680]

Sir Oliver Boteler versus Regem.

Upon reading the Petition of Sir Oliver Boteler; shewing,“That having brought into this Court, by Writ of Error, a Judgement given in Chancery against him, concerning a Market and Fair at Chatham, and hath assigned Errors, and that Issue is joined thereupon; and therefore praying, That a Day may be appointed to argue the same:”

It is Ordered, by the Lords Spiritual and Temporal in Parliament assembled, That this House will hear the said Errors argued, by Counsel on both Parts, the Tenth Day after that it shall be made appear to this House, that the said Oliver Boteler hath caused Notice hereof to be given to His Majesty's Attorney General and the City of Rochester, for this Purpose.


https://www.british-history.ac.uk/lords-jrnl/vol13/pp682-685

Sir Oliver Butler versus Regem, &c.

[23 November, 1680]

Whereas there is an Appeal of Sir Oliver Boteler depending in this House, to which Sir Phillip Warwicke and others have put in their several Answers; it being prayed, by the Petition of the said Sir Oliver Boteler, that a Day of Hearing may be appointed thereupon, as that he may give Notice to the said Respondents, some of which live far out of Town:

It is Ordered, by the Lords Spiritual and Temporal in Parliament assembled, That this House will hear Counsel at the Bar, upon the said Appeal and Answers, on Wednesday the Eighth Day of December next, at Three of the Clock in the Afternoon; whereof the said Sir Oliver Boteler is to cause timely Notice to be given to the said Respondents respectively for that Purpose.


https://www.british-history.ac.uk/lords-jrnl/vol13/pp689-691

Sir Oliver Boteler versus Regem, &c.,

[26 November, 1680]

Whereas it was this Day made appear, at the Bar, that Sir Oliver Boteler hath given Notice to the City of Rochester, and to His Majesty's Attorney General, that this House would hear Counsel, to argue the Errors upon his Writ of Error, whereby a Judgement of the Court of Chancery, for vacating His Majesty's Letters Patents concerning a Market and Fair at Chatham in Kent, is brought into this House:

It is thereupon Ordered, by the Lords Spiritual and Temporal in Parliament assembled, That this House will hear the said Errors argued, by Counsel, at the Bar, on both Parts, on Monday the Sixth Day of December next, at Nine of the Clock in the Forenoon; whereof the said Sir Oliver Boteler is to cause timely Notice to be given to His Majesty's Attorney General, and the City of Rochester, for that Purpose.


https://www.british-history.ac.uk/lords-jrnl/vol13/pp700-701

[4 December, 1680]

Sir O. Boteler versus Attorney General, in Error.

Whereas this House had appointed to hear Counsel on Monday next, to argue the Errors upon Sir Oliver Boteler's Writ of Error, whereby a Judgement of the Court of Chancery, for vacating His Majesty's Letters Patents concerning a Market and Fair at Chatham in Kent, is brought into this House:

It is this Day Ordered, by the Lords Spiritual and Temporal in Parliament assembled, That this House will hear the said Errors argued, by Counsel, at the Bar of this House, on Saturday the Eleventh of this Instant December, at Nine of the Clock in the Forenoon; whereof all Parties concerned are to take Notice, and attend accordingly.


https://www.british-history.ac.uk/lords-jrnl/vol13/pp703-706

[7 December, 1680]

Sir Oliver Boteler versus Reg. m, &c. in Error.

Upon reading the Petition of Sir Oliver Boteler Baronet; shewing, “That this House having appointed to hear Counsel To-morrow, upon his Appeal from a Decree made in the Court of Chancery, to which Appeal His Majesty's Attorney General (among others) was to put in his Answer, which was not done till Yesterday; so that, by reason of the Public Business of this House, he could not have a Copy thereof timely enough to instruct his Counsel fully; and therefore that he may have a further Day assigned for that Purpose:”

It is thereupon Ordered, by the Lords in Parliament assembled, That this House will hear Counsel, at the Bar, upon the said Appeal and Answers, on Saturday the Eleventh Day of this Instant December, at Ten of the Clock in the Forenoon; whereof the said Sir Oliver Boteler is to cause timely Notice to be given to His Majesty's Attorney General, and the other Respondents, for that Purpose.


https://www.british-history.ac.uk/lords-jrnl/vol13/p712"

[11 December, 1680]

Sir O. Boteler versus Regem, &c. in Error.

This Day the House heard Counsel argue the Errors, in a Writ of Error, to reverse a Decree in the Court of Chancery, wherein Sir Oliver Boteler is Plaintiff, and the King Defendant.

And, after some Consideration thereof, it is Ordered, by the Lords Spiritual and Temporal in Parliament assembled, That the Judges shall have the Transcript of the Judgement given in Chancery, which was brought into this House by Writ of Error (by Sir Oliver Boteler), for vacating Letters Patents, concerning a Market and Fair at Chatham, in Kent, to consider thereof, to the End they may come prepared to deliver their Opinion concerning the same, in this House, on Thursday Morning next.


https://www.british-history.ac.uk/lords-jrnl/vol13/pp717-719

[16 December, 1680]

Hearing of Causes put off.

It is this Day Ordered, by the Lords Spiritual and Temporal in Parliament assembled, That, in regard of the Public Business now before this House, the Hearing of all Private Causes between Party and Party be, and are hereby, put off till after Christmas Holydays; and then they are to come on in the same Course as they now stand.


https://www.british-history.ac.uk/lords-jrnl/vol13/pp751-753

[24 March, 1681]

Sir Ol. Boteler versus Regem, in Error.

Upon reading the Petition of Sir Oliver Boteler, praying Judgement upon his Writ of Error depending in this House:

It is Ordered, by the Lords Spiritual and Temporal in Parliament assembled, That the Judges shall deliver their Opinions in this House, upon the said Writ of Error, so soon as they come from the Circuit, at which Time their Lordships will give Judgement thereon.


https://www.british-history.ac.uk/lords-jrnl/vol14/pp59-63

[26 June, 1685]

Sir O. Boteler versus Regem, in Error.

Ordered, by the Lords Spiritual and Temporal in Parliament assembled, That the Judges do deliver their Opinions in Sir Oliver Boteler's Cause, referred to them, To-morrow Morning.


https://www.british-history.ac.uk/lords-jrnl/vol14/pp63-66

Sir O. Butler versus Regem, &c.

[27 June, 1685]

Ordered, That the Judges do deliver their Opinions in Sir Oliver Butler's Case on Monday next, at Ten of the Clock in the Forenoon.


https://www.british-history.ac.uk/lords-jrnl/vol14/pp66-68

[29 June, 1685]

Sir O. Butler versus Regem, &c.

This Day the House heard the Judges, videlicet, Justice Walcot, Justice Holloway, Justice Withens, Justice Leventz, Justice Charlton, and Baron Gregory, deliver their particular Opinions severally, in the Case of the Writ of Error brought into this House by Sir Oliver Butler, against a Judgement given upon a Scire facias brought by the King, to reverse his Patent for making the Town of Chatham a Market Town: And their several Opinions were, “That the Judgement given in Chancery in this Case is well given, and is according to Law.”

Whereupon the House made the Judgement ensuing: Judgement affirmed.

“Upon hearing Counsel at the Bar, to argue the Errors assigned by Sir Oliver Butler Baronet, upon a Writ of Error depending in this House, wherein the King's Majesty is made Defendant, for reversing a Judgement given in the Court of Chancery in Hillary Terme, in the One and Thirtieth and Two and Thirtieth Years of the Reign of our late Sovereign Lord King Charles the Second, of Blessed Memory, for vacating of certain Letters Patent, dated the Seventh Day of March, in the One and Thirtieth Year of our said late Sovereign the King, granting a Market Weekly, and a Fair Yearly, to the said Sir Oliver Butler, to be kept in the Town of Chatham: After due Consideration had of what was offered by Counsel on either Part, it is ORDERED and Adjudged, by the Lords Spiritual and Temporal in Parliament assembled, That the Judgement given on His Majesty's Behalf in the Chancery, against the said Sir Oliver Butler, be, and is hereby, affirmed.”


[Judgment as reported by Sir Creswell Levinz, on Google Books: 3 Lev. 220

Sunday, October 29, 2017

The Queen against Aires (King's Bench, 1717)

Source: Thomas Leach, Modern Reports, Or, Select Cases Adjudged in the Courts of King's Bench, Chancery, Common Pleas and Exchequer, Volume 10 (3rd Edition, 1795) [258]

Case heard in Michaelmas Term, the First of George the First [1714], before the Court of King's Bench, and adjourned to Hilary Term, the Third of George the First [1717], when judgment was given for the king.


[*258] The Queen against Aires

A SCIRE FACIAS was brought by the late queen, to repeal her own letters patents, whereby she had granted some fairs to Thomas Aires, in the town of Winster, in the county of Derby.

The scire facias set forth, that precedent to the grant of the fairs a writ of ad quod damnum issued out; but that it was clandestinely executed, so that the jury found that the grant was not ad damnum of any-body; when it was ad grave damnum of the Earl of Rutland, who had fairs in the manor of Bakewell, four miles distant.

The defendant, protestando that it was not clandestinely and fraudulently executed, pleaded, that the grant of the fairs to him was not ad damnum of the Earl of Rutland, or any-body whatsover.

Upon this issue was joined in chancery.

A venire was awarded out of that court, returnable into the court of king's bench, and the court of king's bench awarded a distringas; upon which the cause was tried; and the jury found, that it was ad grave damnum of the Earl of Rutland.

Mr. Salkeld moved in arrest of judgment,

First, that the scire facias was abated by the death of the queen. But the common law, there is no difference between the king and the subject; but the death of the plaintiff had in both cases abated the suit. Indeed, were this an original writ, it would be helped by the statute i. Anne, c. 8. but being a judicial writ, it is not. In the case of Sir Oliver Butler (a) it was held, that a scire facias is a judicial writ.

[*259] Northey, Attorney General, answered, that this was not judicial but an original writ; that judicial writs are those only that are founded upon judgment and judicial process; but that this was no consequence of any judicial proceeding, or founded upon the former letters patent, but purely the fraud; and that there are many scire facias's in the Register, among the original writs (b)

The second exception was, that upon issue joined the court of chancery (not being a proper court for trial of a matter of fact) is at a full stand, and the court of king's bench ought to have awarded the venire; whereas here the venire is awarded by the court of chancery, returnable into the court of king's bench. And the case of Martin v. Blackston (c) was cited.

To this exception it was answered, that the constant practice is, for the chancery to award the venire facias, returnable into the court of king's bench. So is the case of Jeffreson v. Morton and Dawson (d) and Sir George Reynel's Case (e). And that case of Martin v. Blackston, as reported by W. Jones, 82. does not make against it.

The Court. There is no other way to give day in this court but by awarding a venire out of chancery returnable here; and it is always done so.

The third exception was, that the fairs granted to Mr. Aires were four; one upon June the twenty-third, another October the seventeenth, a third November the twenty-eighth, another April the twelfth: those granted to the Earl of Rutland were upon March the twenty-ninth, May the seventeenth, and August the twenty-fifth. It appears plainly that the days are very different; and, for aught appears upon the record, the places where these fairs are to be held may be forty miles distant; for the record says only, “that they are four miles distant,” but does not add “and no more.” [*260] Now it was said, that it was not to be presumed, that where time and place are so different, the one set of fairs could be prejudicial to the other.

The Attorney General replied, that time and place were matters of evidence for the jury, not the Court, to consider of; that damage or no damage very often depended on different circumstances; and that it was possible for a market to be held on the same day, and close by another, without prejudice; as in London.

The fourth exception was, that a scire facias was not the proper remedy; but that it should have been by action on the case, to have recovered in damages.

The Attorney General, in answer to this exception, cited, Dyer, 197, 198. 11. Co. Rep. 74. 8. Rep. Prince's Case, Fitzherbert, tit. “Brief,” 651. 2. Vent. 344. Sir Oliver Butler's Case 3. Lev. 220, where it is held, that the crown de jure ought to suffer the subject to use their name.

The fifth exception was, that the Earl of Rutland had not set forth a sufficient title to the fair, by alledging it to be appendant to a manor.

The sixth exception was, that being an issue out of chancery, and sent to the common law only for trial, the record ought to be remitted into chancery, and judgment given there, and not here. Raym. 178.

But the Court said, this point had been so firmly settled, in the case of Jeffreson (a), that they would not suffer it to be debated.

Adjournatur. To be set down in the paper (b).


(a) 3 Lev. 220.

(b) The Court were all of opinion, that this was helped by the statute of the i. Anne, c. 8. S. C. post. 355.

(c) Palm. 410. S.C.W. Jones, 82.

(d) 2. Saund. 6. 23

(e) [No text.]

(a) 2. Saund. 26. [Note on following page.]

(b) In Hilary Term, 3. Geo. i. judgment was given for the king.

Thursday, September 14, 2017

The Charter of the Province of the Massachusetts Bay in New England, 1691

Source:
The Charters and General Laws of the Province of Massachusetts Bay (Published by order of the General Court, Boston, T.B. Wait and Company, 1814), pp. 18—37


THE CHARTER
OF THE
PROVINCE OF THE MASSACHUSETTS BAY
IN
NEW ENGLAND.
1691.

WILLIAM AND MARY, by the grace of God, King and Queen of England, Scotland, France and Ireland, defenders of the faith, &c. To all to whom these presents shall come, greeting. Whereas his late majesty King James the first, our royal predecessor, by his letters patent under the great seal of England, bearing date at Westminster the third day of November, in the eighteenth year of his reign, did give and grant unto the council established at Plymouth in the county of Devon, for the planting, ruling, ordering and governing of New England in America, and to their successors and assigns, all that part of America lying and being in breadth from forty degrees of northerly latitude, from the equinoctial line to the forty-eighth degree of the said northerly latitude, inclusively, and in length of and within all the breadth aforesaid throughout all the main landes from sea to sea, together also with all the firm lands, soils, grounds, havens, ports, rivers, waters, fishings, mines and minerals, as well royal mines of gold and silver, as other mines and minerals, precious stones, quarries, and all and singular other commodities, jurisdictions, royalties, privileges, franchises and preeminences, both within the said tract of land upon the main, and also within the islands and seas adjoining, Provided always, that the said lands, islands, or any the premises by the said letters patent intended or meant to be granted, were not then actually possessed or inhabited by any other christan prince or state, or within the bounds, limits or territories of the southern colony, then before granted by the said late king James the first, to be planted by divers of his subjects in the South parts: To have and to hold, possess and enjoy, all and singular the aforesaid continent lands, territories, islands, hereditaments, and precincts, seas, waters, fishings, with all and all manner of their commodities, royalties, liberties, preeminences and profits that should from thenceforth arise from thence, with all and singular their appurtenances, and every part and parcel thereof, unto the said council, and their successors and assigns for ever, to the sole and proper use and benefit of the said council, and their successors and assigns forever: To be holden of his said late majesty king James the first, his heirs and successors, as of his manor of East Greenwich in the county of Kent, in free and common soccage, and not in capite, or by knight's service: Yielding and paying therefor to the said late king, his heirs and successors, the fifth part of the ore of gold and silver, which should from time to time, and at all times then after happen to be found, gotten, had and obtained, in, at, or within any of the said lands, limits, territories or precincts, or in, or within any part or parcel thereof, for or in respect of all and all manner of duties, demands and services whatsoever, to be done, made or paid to the said late king James the first, his heirs and successors (as in and by the said letters patent, amongst sundry other clauses, powers, privileges and grants therein contained, more at large appeareth :) And whereas the said council established at Plymouth in the county of Devon, for the planting, ruling, ordering and governing of New England in America, did by their deed indented under their common seal, bearing date the nineteenth day of March, in the third year of the reign of our royal grandfather king Charles the first, of ever blessed memory, give, grant, bargain, sell, enfeoff, alien and confirm to Sir Henry Roswell, Sir John Young, Knights, Thomas Southcott, John Humphreys, John Endicott, and Simon Whetcombe, their heirs and assigns, and their associates for ever, all that part of New England in America aforesaid, which lies and extends between a great river there, commonly called Monomack alias Merimack, and a certain other river there called Charles river, being in a bottom of a certain bay there commonly called Massachusetts, alias Mattachusetts, alias Massatusetts bay, and also all and singular those lands and hereditaments whatsoever, lying within the space of three English miles on the south part of the said Charles river, or of any and every part thereof; and also all and singular the lands and hereditaments whatsoever, lying and being within the space of three English miles to the southward of the southernmost part of the said bay called Massachusetts, alias Mattachusetts, alias Massatusetts bay: and also all those lands and hereditaments whatsoever which lie and be within the space of three English miles to the northward of the said river called Monomack alias Merimack, or to the northward of any and every part thereof, and all lands and hereditaments whatsoever lying within the limits aforesaid North and South in latitude, and in breadth, and in length, and longitude, of and within all the breadth aforesaid throughout the main lands there, from the atlantic and western sea and ocean on the east part to the south sea on the west part, and all lands and grounds, place and places, soil, woods and wood grounds, havens, ports, rivers, waters, fishings, and hereditaments whatsoever, lying within the said bounds and limits, and every part and parcel thereof; and also all islands lying in America aforesaid, in the said seas, or either of them on the western or eastern coasts or parts of the said tracts of lnad, by the said indenture mentioned to be given and granted, bargained, sold, enfeoffed, aliened and confirmed, or any of them; and also all mines and minerals, as well royal mines of gold and silver, as other mines and minerals whatsoever in the said lands and premises, or any part thereof, and all jursidictions, rights, royalties, liberties, freedoms, immunities, privileges, franchises, preeminences and commodities whatsoever, which they the said council established at Plymouth in the county of Devon, for the planting, ruling, ordering and governing of New England in America, then had, or might use, exercise or enjoy, in or within the said lands and premises, by the same indenture mentioned to be given, granted, bargained, sold, enfoeffed and confirmed, in or within any part or parcel thereof: To have and to hold the said part of New England in America, which lies and extends, and is abutted as aforesaid, and every part and parcel thereof; and all the said islands, rivers, ports, havens, waters, fishings, mines, minerals, jurisdictions, franchises, royalties, liberties, privileges, commodities, hereidaments and premises whatsoever, with the appurtenances, unto the said Sir Henry Roswell, Sir John Young, Thomas Southcott, John Humphreys, John Endicott, and Simon Whetcombe, their heirs and assigns and their associates for ever, to the only proper and absolute use and behoof of the said Sir Henry Roswell, Sir John Young, Thomas Southcott, John Humphreys, John Endicott, and Simon Whetcombe, their heirs and assigns and their associates for evermore: To be holden of our said royal grandfather king Charles the first, his heirs and successors, as of his manor of East Greenwich in the county of Kent, in free and common soccage, and not in capite nor by knight's service, yielding and paying therefor unto our said royal grandfather, his heirs and successors, the fifth part of the ore of gold and silver which should from time to time, and at all times hereafter happen to be found, gotten, had and obtained in any of the said lands within the said limits, or in or within any part thereof, for and in satisfaction of all manner of duties, demands and services whatsoever, to be done, made or paid to our said royal grandfather, his heirs or successors (as in and my the said recited indenture may more at large appear.) And whereas our said royal grandfather in and by his letters patent under the great seal of England, bearing date at Westminster the fourth day of March, in the fourth year of his reign, for the consideration therein mentioned, did grant and confirm unto the said Sir Henry Roswell, Sir John Young, Thomas Southcott, John Humphreys, John Endicott, and Simon Whetcombe, and to their associates after named, viz. Sir Richard Saltonstall, Knight, Isaac Johnson, Samuel Aldersey, John Ven, Matthew Craddock, George Harwood, Increase Nowell, Richard Perry, Richard Bellingham, Nathaniel Wright, Samuel Vassall, Theophilus Eaton, Thomas Goffe, Thomas Adams, John Brown, Samuel Brown, Thomas Hutchins, William Vassall, William Pincheon, and George Foxcroft, their heirs and assigns, all the said part of New England in America, lying and extending between the bounds and limits in the said indenture expressed, and all lands and grounds, place and places, soils, woods and wood grounds, havens, ports, rivers, waters, mines, minerals, jurisdictions, rights, royalties, liberties, freedoms, immunities, privileges, franchises, preeminences and hereditaments whatsoever; bargained, sold, enfeoffed and confirmed, or mentioned or intended to be given, granted, bargained, sold, enfeoffed, aliened and confirmed to them the said Sir Henry Roswell, Sir John Young, Thomas Southcott, John Humphreys, John Endicott, and Simon Whetcombe, their heirs and assigns, and to their associates for every, by the said recited indenture: To have and to hold the said part of New England in America, and other the premises thereby mentioned to be granted and confirmed, and every part and parcel thereof, with the appurtenances, to the said Sir Henry Roswell, Sir John Young, Sir Richard Saltonstall, Thomas Southcott, John Humphreys, John Endicott, Simon Whetcombe, Isaac Johnson, Samuel Aldersey, John Ven, Matthew Craddock, George Harwood, Increase Nowell, Richard Perry, Richard Bellingham, Nathaniel Wright, Samuel Vassall, Theophilus Eaton, Thomas Goffe, Thomas Adams, John Brown, Samuel Brown, Thomas Hutchins, William Vassall, William Pincheon, and George Foxcroft, their heirs and asigns for ever, to their only proper and absolute use and behoof for evermore: To be holden of our said royal grandfather, his heirs and successors, as of his manor of East Greenwich aforesaid, in free and common soccage, and not in capite nor by knight's service; and also yielding and paying therefor to our said royal grandfather, his heirs and successors, the fifth part only of all the ore of gold and silver which from time to time and at all times after should be there gotten, had or obtained, for all services, exactions and demands whatsoever, acccording to the tenor and reservation in the said recited indenture expressed. And further our said royal grandfather by the said letters patent did give and grant unto the said Sir Henry Roswell, Sir John Young, Sir Richard Saltonstall, Thomas Southcott, John Humphreys, John Endicott, Simon Whetcombe, Isaac Johnson, Samuel Aldersey, John Ven, Matthew Craddock, George Harwood, Increase Nowell, Richard Perry, Richard Bellingham, Nathaniel Wright, Samuel Vassall, Theophilus Eaton, Thomas Goffe, Thomas Adams, John Brown, Samuel Brown, Thomas Hutchins, William Vassall, William Pincheon, and George Foxcroft, their heirs and assigns, all that said part of New England in America, which lies and extends between a great rive commonly called Monomack, alias Merimack river, and a certain other rive there called Charles river, being in the bottom of a certain bay there commonly called Massachusetts, alias Mattachusetts, alias Massatusetts bay; and also all and singular those lands and hereditaments whatsoever, lying within the space of three English miles, on the south part of the said river called Charles river, or of any or every part thereof; and also all and singular the lands and heridaments whatsoever, lying and being within the space of three English miles to the southward of the southernmost part of the said bay called Massachusetts, alias Mattachusetts, alias Massatusetts bay; and also all those landsd and hereditaments whatsoever, which lie and be within the space of three English miles to the northward of the said river called Monomack alias Merimack, or ot the northward of any and every part thereof, and all lines and hereditaments whatsoever lying within the limits aforesaid, north and south in latitude, and breadth, and in length and longitude, or and within all the breadth aftersaid throughout the main lands there, from the atlantic or western sea and ocean on the east part, to the south sea on the west part; and all lands and grounds, place and places, soils, woods, and wood lands, havens, ports, rivers, waters and hereditaments whatsoever, lying within the said bounds and limits, and every part and parcel thereof; and also all islands in America aforesaid, in the said seas, or either of them on the western or eastern coasts or parts of the said tracts of lands, thereby mentioned ot be given and granted, or any of them; and all mines and minerals, as well royal mines of gold and silver, as other mines and minerals whatsoever in the said lands and premises, or any part thereof; and free liberty of fishing in or within any of the rivers and waters within tbe bounds and limits aforesaid, and the seas thereunto adjoining; and of all fishes, royal fishes, whales, balene, sturgeon, and other fishes of what kind or nature soever, that hsould at any time thereafter be taken in or within the said seas or waters, or any of them, by the said Sir Henry Roswell, Sir John Young, Sir Richard Saltonstall, Thomas Southcott, John Humphreys, John Endicott, Simon Whetcombe, Isaac Johnson, Samuel Aldersey, John Ven, Matthew Craddock, George Harwood, Increase Nowell, Richard Perry, Richard Bellingham, Nathaniel Wright, Samuel Vassall, Theophilus Eaton, Thomas Goffe, Thomas Adams, John Brown, Samuel Brown, Thomas Hutchins, William Vassall, William Pincheon, and George Foxcroft, their heirs or assigns or by any other person or persons whatsoever there inhabiting, by them or any of them to be appointed to fish therein. Provided always, that if the said lands, islands, or any the premises before mentioned, intended and meant to be granted, were at the time of granting of the said former letters patent, dated the third day of November, in the eighteenth year of the reign of his late majesty king James the first, actually possessed or inhabited by any other christian prince or state, or were within the bounds, limits or territories of the said southern colony then before granted by the said king, to be planted by divers of his loving subjects in the south parts of America, that then the said grant of our said royal grandfather should not extend to any such parts or parcels thereof so formerly inhabited, or lying within the bounds of those southern plantation as aforesaid. but as to those parts or parcels so possessed or inhabited by such christian prince or state, or being within the boundaries aforesaid, should be utterly void: To have and to hold, possess and enjoy the said parts of New England in America, which lie, extend, and are abutted as aforesaid, and every part and parcel thereof; and all the islands, rivers, ports, havens, waters, fishings, fishes, mines, minerals, jurisdictions, franchises, royalties, liberties, privileges, commodities, and premises whatsoever, with the appurtenances, unto the said Sir Henry Roswell, Sir John Young, Sir Richard Saltonstall, Thomas Southcott, John Humphreys, John Endicott, Simon Whetcombe, Isaac Johnson, Samuel Aldersey, John Ven, Matthew Craddock, George Harwood, Increase Nowell, Richard Perry, Richard Bellingham, Nathaniel Wright, Samuel Vassall, Theophilus Eaton, Thomas Goffe, Thomas Adams, John Borwn, Samuel Brown, Thomas Hutchines, William Vassall, William Pincheon, and George Foxcroft, their heirs and assigns for ever: To the only proper and absolute use and behoof of the said Sir Henry Roswell, Sir John Young, Sir Richard Saltonstall, Thomas Southcott, John Humphreys, John Endicott, Simon Whetcombe, Isaac Johnson, Samuel Aldersey, John Ven, Matthew Craddock, George Harwood, Increase Nowell, Richard Perry, Richard Bellingham, Nathaniel Wright, Samuel Vassall, Theophilus Eaton, Thomas Goffe, Thomas Adams, John Brown, Samuel Brown, Thomas Hutchins, William Vassall, William Pincheon, and George Foxcroft, their heirs and assigns for evermore: To be holden of our said royal grandfather, his heirs and successors, as of his manor of East Greenwich in the county of Kent, within the realm of England, in free and common soccage, and not in capite nor by knight's service: And also yielding and paying therefor to our said royal grandfather, his heirs and successors, the fifth part only of all the ore of gold and silver which from time to time and at all times hereafter, should be gotten, had or obtained, for all services, exactions and demands whatsoever. Provided always, and his majesty's express will and meaning was, that only one fifth part of all the gold and silver ore a bove mentioned in the whole, and no more, should be answered, reserved or payable unto our said roayal grandfather, his heirs and successors, by colour or virtue of the said last mentioned letters patent, the double reservations or recitals aforesaid, or any thing therein contained notwithstanding. And to the end that the affairs and business which from time to time should happen and arise concerning the said lands, and the plantations of the same, might be the better managed and ordered, and for the good government thereof, our said royal grandfather king Charles the first, did by his said letters patent create and make the said Sir Henry Roswell, Sir John Young, Sir Richard Saltonstall, Thomas Southcott, John Humphreys, John Endicott, Simon Whetcombe, Isaac Johnson, Samuel Aldersey, John Ven, Matthew Craddock, George Harwood, Increase Nowell, Richard Perry, Richard Bellingham, Nathaniel Wright, Samuel Vassall, Theophilus Eaton, Thomas Goffe, Thomas Adams, John Brown, Samuel Brown, Thomas Hutchins, William Vassall, William Pincheon, and George Foxcroft, and all such others as should thereafter be admitted and made free of the company and society therein after mentioned, one body corporate and politick in fact and name, by the name of the Governor and company of the Massachusetts Bay in New England, and did grant unto them and their successors divers powers, liberties and privileges, as in and by the said letters patent may more fully and at large appear. And whereas the said governor and company of the Massachusetts Bay in New England, by virtue of the said letters patent did settle a colony of the English in the said parts of America, and divers good subjects of this kingdom, encouraged and invited by the said letters patent, did transport themselves and their effects into the same, whereby the said plantation did become very populous, and divers counties, towns and places, were created, erected, made, set forth, or designed within the said parts of America, by the said governor and company for the time being: And whereas in the term of the Holy Trinity, in the thirty-sixth year of the reign of our dearest uncle King Charles the Second, a judgment was given in our court of Chancery then siting at Winchester, upon a writ of scire facias, brough and prosecuted in the said court against the governor and company of the Massachusetts Bay in New England, that the said letters patent of our said royal grandfather King Charles the First, bearing date at Westminster the fourth day of March, in the fourth year of his reign, made and granted to the said governor and company of the Massachusetts Bay in New England, and the enrolment of the same, should be cancelled, vacated and annihilated, and should be brought into the said court to be cancelled, (as in and by the same judgment remaining upon record in the said court doth more at large appear:) And whereas several persons employed as agents in behalf of our said colony of the Massachusetts Bay in New England, have made their humble application unto us, that we would be graciously pleased by our royal charter to incorporate our subjects in our said colony, and to grant and confirm unto them such powers, privileges and francises as in our royal wisdom, should be thought most conducing to our interest and service, and to the welfare and happy state of our subjects in New England: And we being graciously pleased to gratify our said subjects; and also to the end our good subjects within our colony of New Plymouth in New England aforesaid, may be brought under such a form of government, as may put them in a better condition of defence, and considering as well the granting unto them as unto our subjects in the said colony of the Massachusetts Bay our royal charter, with reasonable powers and privileges, will much tend not only to the safety, but to the flourishing estate of our subjects in the said parts of New England, and also to the advancing of the ends for which the said plantations were at first encouraged; of our special grace, certain knowledge, and mere motion, have willed and ordained, and we do by these presents for us, our heirs and successors will and ordain, that the territories and colonies commonly called or known by the names of the colony of the Massachusetts Bay, and colony of New Plymouth, the province of Main, the territory called Accada, or Nova Scotia; and all that tract of land lying between the said territories of Nova Scotia, and the said province of Main, be erected, united and incorporated: And we do by these presents unite, erect and incorporate the same into one real province by the name of our province of the Massachusetts Bay in New England; and of our especial grace, certain knowledge, and mere motion, we have given and granted, and by these presents, for us, our heirs and successors, do give and grant unto our good subjects, the inhabitants of our said province or territory of the Massachusetts Bay, and their successors, all that part of New England in America, lying and extending from the great river commonly called Monomack, alias Merimack, on the north part, and from three miles northward of the said river to the Atlantic or western sea or ocean on the south part, and all the lands and hereditaments whatsoever lying within the limits aforesaid, and extending as far as the outermost points or promontories called Cape Cod, and Cape Malabar north and south, and in latitude, breadth, and in length and longitude, of and within all the breadth and compass aforesaid throughout the main land there, from the said Atlantic or western ea, and ocean on the east part towards the south sea, or westward as far as our colonies of Rhode Island, Connecticut, and the Narragansett country: And also all that part and portion of main land, beginning at the entrance to Piscataway harbour, and so to pass up the same into the river of Newichwannock, and through the same into the furthest head thereof, and from thence north-westward, till one hundred and twenty miles be finished, and from Piscataway harbour mouth aforesaid north-eastwrad along the sea coast to Sagadehock, and from the period of one hundred and twenty miles aforesaid to cross over land to the one hundred and twenty miles before reckoned up into the land from Piascataway harbour through Newichwannock river, and also the north half of the Isles of Shoals, together with the Isles of Capawock, and Nantuckett near Cape Cod aforesaid, and also the lands and hereditaments lying and being in the country or territory commonly called Accada, or Nova Scotia, and all those lands and hereditaments lying and extending between the said country or territory of Nova Scotia, and the said river of Sagadehock or any part thereof; and all lands, grounds, places, soils, woods and woodgrounds, havens, ports, rivers, waters, and other hereditaments and premises whatsoever, lying within the said bounds and limits aforesaid, and every part and parcel thereof: and also all islands and islets lying within ten leagues directly opposite to the main land within the said bounds: and all mines and minerals, as well royal mines of gold and silver, as other mines and minerals whatsoever in the said lands and premises, or any part thereof. To have and to hold the said territories, tracts, countries, lands, hereditaments, and all and singular other the premises, with their and every of their appurtenances to our said subjects the inhabitants of our said province of the Massachusetts Bay in New England, and their successors to their only proper use and behoof for evermore, to be holden of us, our heirs and successors, as of our manor of East Greenwich, in the county of Kent, by fealty only in free and common soccage: yielding and paying therefor yearly to us, our heirs and successors, the fifth part of all gold and silver ore, and precious stones which shall from time to time, and at all times hereafter, happen to be found, gotten had and obtained in any of the said lands and premises, or within any part thereof: Provided nevertheless, and we do for us, our heirs and successors grant and ordain, that all and every such lands, tenements and hereditaments, and all other estates, which any person or persons, or bodies politick or corporate, towns, villages, colleges or schools, do hold and enjoy, or ought to hold and enjoy, within the bounds aforesaid, by or under any grant or estate duly made or granted by any general court formerly held, or by virtue of the letters patent herein before recited, or by any other lawful right or title whatsoever, shall be by such person and persons, bodies politick and corporate, towns, villages, colleges, or schools, their respective heirs, successors and assigns for ever, hereafter held and enjoyed, according to the purport and intent of such respective grant, under and subject nevertheless to the rents and services thereby reserved or made payable, any matter or thing whatsoever to the contrary notwithstanding. And provided also, That nothing herein contained, shall extend, or be understood, or taken, to impeach or prejudice any right, title, interest or demand, which Samuel Allen of London, merchant, claiming from and under John Mason, Esq. deceased, or any other person or persons, hath or have, or claimeth to have, hold or enjoy, of, into, or out of any part or parts of the premises, situate within the limits above mentioned: but that the said Samuel Allen, and all and every such person and persons, may and shall have, hold and enjoy the same in such manner (and no other than) if these presents had not been had or made. It being our further will and pleasure, That no grants or conveyances of any lands, tenements or hereditaments to any towns, colleges, schools of learning, or to any private person or persons, shall be judged or taken, to be avoided or prejudiced, for, or by reason of any want or defect of form, but that the same stand and remain in force, and be maintained, adjudged, and have effect, in the same manner as the same should or ought before the time of the said recited judgment, according to the laws and rulese then and there usually practised and allowed. And we do further, for us, our heirs and successors, will, establish, and ordain, That from henceforth for ever there shall be one governor; one lieutenant or deputy governor; and one secretary of our said province or territory, to be from time to time appointed and commissionated by us, our heirs and successors; and eight and twenty assistants, or counsellors, to be advising and assisting to the governor of our said province or territory for the time being, as by these presents is hereafter directed and appointed: which said counsellors or assistants are to be constituted, elected and chosen in such form or manner as hereafter in these presents is expressed. And for the better execution of our royal pleasure and grant in this behalf, we do by these presents, for us, our heirs and successors, nominate, ordain, make and constitute our trusty and well beloved Simon Broadstreet, John Richards, Nathaniel Saltonstall, Wait Winthrop, John Phillips, James Russell, Samuel Sewall, Samuel Appleton, Bartholomew Gidney, John Harthorn, Elisha Hutchinson, Robert Pick, Jonathan Corwin, John Jolliffe, Adam Winthrop, Richard Middlecot, John Foster, Peter Serjeant, John Lynde, Samuel Heyman, Stephen Mason, Thomas Hinkley, William Bradford, John Walley, Barnabus Lothrop, Job Alcot, Samuel, Daniel, and Silvanus Davis, Esqrs. the first and present counsellors or assistants of our said province; to continue in their said respective offices or trusts of counsellors or assistants until the last Wednesday in May, which shall be in the year of our Lord, one thousand six hundred ninety and three, and until other counsellors or assistants shall be chosen and appointed in their stead, in such manner as in these presents is expressed. And we do further by these presents constitute and appoint our trusty and well-beloved Isaac Addington, Esq. to be our first and present secretary of our said province, during our pleasure. And our will and pleasure is, that the governor of our said province for the time being, shall have authority, from time to time, at his discretion, to assemble and call together the counsellors or assistants of our said province for the time being: And that the said governor, with the said assistants or counsellors, or seven of them at the least, shall and may from time to time hold and keep a council for the ordering and directing the affairs of our said province. And further, we will, and by these presents for us, our heirs and successors, do ordain and grant, that there shall and may be convened, held and kept by the governor for the time being, upon every last Wednesday in the month of May, every year, for ever, and at all such other times as the governor of our said province shall think fit and appoint, a great and general court of assembly; which said great and general court or assembly shall consist of the governor and council or assistants for the time being; and of such freeholders of our said province or territory as shall be from time to time elected or deputed by the major part of the freeholders, and other inhabitants of the respective towns or places who shall be present at such elections; each of the said towns and places being hereby empowered to elect and depute two persons and no more to serve for and represent them respectively in the said great and general court or assembly. To which great and general court or assembly to be held as aforesaid, we do hereby, for us, our heirs and successors, give nad grant full power and authority from time to time t odirect, appoint and declare what number each county, town and place shall elect and depute to serve for and represent them respectively in the said great and general court or assembly. Provided always, that no freeholder, or other person, shall have a vote in the election of members to serve in any great and general court or assembly to be held as aforesaid, who at the time of such election shall not have an estate of freehold in land within our said province or territory, to the value of forty shillings per annum at the least; or other estate to the value of forty pounds sterling: and that every person who shall be so elected, shall, before he sit or act in the said great and general court or assembly, take the oaths mentioned in an act of parliament made in the first year of our reign, entitled, An act for abrogating of the oaths of allegiance and supremacy, and appointing other oaths, and thereby appointed to be taken instead of the oaths of allegiance and supremacy: and shall make, repeat and subscribe the declaration mentioned in the said act, before the governor or lieutenant or deputy governor, or any two of the assistants for the time being, who shall be thereunto authorized and appointed by our said governor. And that the governor for the time being shall have full power and authority from time to time, as he shall judge necessary, to adjourn, prorogue and dissolve all great and general courts or assemblies met and convened as aforesaid. And our will and pleasure is, and we do hereby, for us, our heirs and successors, grant, establish and ordain, that yearly, once in every year for ever hereafter, the aforesaid number of eight and twenty counsellors or assistants shall be by the general court or assembly newly chosen; that is to say, eighteen at least of the inhabitants of, or proprietors of lands within the territory formerly called the colony of the Massachusetts Bay; and four at the least of the inhabitants of, or proprietors of lands within the territory formerly called New Plymouth; and three at the least of the inhabitants of, or proprietors of land within the territory formerly called the Province of Main; and one at least of the inhabitants of, or proprietors of land within the territory lying between the reiver of Sagadehock and Nova Scotia. And that the said counsellors or assistants or any of them, shall or may at any time hereafter, be removed or displaced from their respective places or trust of counsellors or assistants by any great or general court or assembly; and that if any of the said counsellors or assistants shall happen to die, or be removed, as aforesaid, before the general day of election, that then, and in every such case, the great and general court or assembly at their first sitting, may proceed to a new election of one or more counsellors or assistants, in the room or place of such counsellors or assistants so dying or removed. And we do further grant and ordain, that it shall and may be lawful for the said governor, with the advice and consent of the council or assistants, from time to time, to nominate and appoint judges, commissioners of oyer and terminer, sheriffs, provosts, marshals, justices of the peace, and other officers, to our council and courts of justice belonging. Provided always, that no such nomination or appointment of officers be made without notice first given, or summons issued out seven days before such nomination or appointment, unto such of the said counsellors or assistants as shall be at that time residing within our said province. And our will and pleasure is, that the governor, and lieutenant or deputy governor and counsellors or assistants for the time being, and all other officers to be appointed or chosen, as aforesaid, shall, before the undertaking the execution of their offices and places respectively, take the several and respective oaths for the due and faithful performance of their duties in their several and respective offices and places; and also the oaths appointed by the said act of parliament made in the first year of our reign, to be taken instead of the the oaths of allegiance and supremacy; and shall make, repeat and subscribe the declaration mentioned in the said act, before such person or persons as are by these presents herein after appointed: (that is to say,) the governor of our said province or territory, for the time being, shall take the said oaths, and make, repeat and subscribe the said declaration before the lieutenant or deputy governor; or, in his absence, before any two or more of the said persons hereby nominated and appointed the present counsellors or assistants of our said province or territory, to whom we do by these presents give full power and authority to give and administer the same to our said governor accordingly. And after our said governor shall be sworn, and shall have subscribed the said declaration, that then our lieutenant or deputy governor for the time being, and the counsellors or assistants before by these presents nominated and appointed, shall take the said oaths, and make, repeat and subscribe the said declaration before our said governor; and that every such person or persons as shall (at any time of the annual elections, or otherwise upon death or removal) be appointed to be the new counsellors or assistants, and all other officers to be hereafter chosen from time to time, shall take the oaths appointed by the said act of parliament, to be taken instead of the oaths of allegiance and supremacy; and shall make, repeat and subscribe the declaration mentioned in the said act, before the governor, or lieutenant or deputy governor, or any two or more counsellorsor assistants; or such other person or persons as shall be appointed thereunto by the governor for the time being: to whom we do therefore by these presents give full power and authority from time to time, to give and administer the same respectively, according to our true meaning herein before declared, without any commission or further warrant, to be had or obtained from us, our heirs and successors in that behalf. And our will and pleasure is, and we do hereby require and command, that all and every person and persons hereafter by us, our heirs and successors, nominated and appointed ot the respective offices of governor, or lieutenant or deputy governor, and secretary of our said province or territory (which said governor, or lieutenant, or deputy governor, and secretary of our said province or territory for the time being, we do hereby reserve full power and authority, to us, our heirs and successors to nominate and appoint accordingly) shall before he or they be admitted to the execution of their respective offices, take as well the oath for the due and faithful performance of the said offices respectively, as also the oaths appointed by the said act of parliament, made in the said first year of our reign, to be taken instead of the said oaths of alligiance and supremacy; and shall also make repeat and subscribe the declaration appointed by the said act in such manner and before such persons as aforesaid. And further our will and pleasure is, and we do hereby for us, our heirs and successors, grant, establish and ordain, that all and every of the subjects of us, our heirs and successors, which shall go to and inhabit within our said province and territory, and every of their children which shall happen to be born there, or on the seas in going thither, or returning from thence, shall have and enjoy, all liberties and immunities of free and natural subjects within any of the dominions of us, our heirs and successors, to all intents, constructions and purposes whatsoever, as if they and every of them were born within this our realm of England. And for the greater ease and encouragement of our loving subjects inhabiting our said province or territory of the Massachusetts Bay, and of such as shall come to inhabit there, we do by these presents, for us, our heirs and successors, grant, establish and ordain, that for ever hereafter there shall be a liberty of conscience allowed in the worship of God to all christians (except papists) inhabiting or which shall inhabit or be resident within our said province or territory. And we do hereby grant and ordain, that the governor, or lieutenant, or deputy governor of our said province or territory, for the time being, or either of them, or any two or more of the council or assistants for the time being, as shall be thereunto appointed by the said governor, shall and may at all times, and from time to time hereafter, have full power and authority to administer and give the oaths appointed by the said act of parliament, made in the first year of our reign, to be taken instead of the oaths of allegiance and supremacy, to all and every person and persons which are now inhabiting or residing within our said province or territory, of which shall at any time or times hereafter go or pass thither. And we do of our further grace, certain knowledge and mere motion, grant, establish and ordain, for us, our heirs and successors, that the great and general court or assembly of our said province or territory for the time being, convened as aforesaid, shall for ever have full power and authority to erect and constitute judicatories and courts of record, or other courts, to be held in the name of us, our heirs and successors; for the hearing, trying and determining of all manner of crimes, offences, pleas, processes, plaints, actions, matters, causes and things whatsoever, arising or happening within our said province or territory; or between persons inhabiting or residing there; whether the same be criminal or civil, and whether the said crimes be capital or not capital, and whether the said please be real, personal or mixt; and for the awarding and making out of execution thereupon: To which courts and judicatories, we do hereby, for us, our heirs and successors, give and grant full power and authority, from time to time to administer oaths for the better discovery of truth in any matter in controversy or depending before them. And we do fur us, our heirs and successors, grant, establish and ordain, that the governor of our said province or territory for the time being, with the council and assistants, may do, execute or perform all that is necessary for the probate of wills, and granting of administrations for, touching or concerning any interests or estate which any person or persons shall have within our said province or territory: And whereas we judge it necessary, that all our subjects should have liberty to appeal to us, our heirs and successors, in cases that deserve the same, we do by these presents ordain, that in case either party shall not rest satisfied with the judgment or sentence of any judicatories or courts within our said province or territory in any personal action, wherein the matter in difference doth exceed the value of three hundred pounds sterling, that then he or they may appeal to us, our heirs and successors, in our or their privy council. Provided, such appeal be made within fourteen days after the sentence or judgment given; and that before such appeal be allowed, security be given by the party or parties appealing, in the value of the matter in difference, to pay or answer the debt or damages for the which judgment or sentence is given, with such costs and damages as shall be awarded by us, our heirs or successors, in case the judgment or sentence be affirmed: And provided also, that no execution shall be staid or suspended, by reason of such appeal unto us, our heirs and successors, in our or their privy council; so as the party suing or taking out execution, do in the like manner give security to the value of the matter in difference, to make restitution in case the said judgment or sentence be reversed or annulled upon the said appeal. And we do further, for us, our heirs and successors, give and grant to the said governor, and the great and general court or assembly of our said province or territory, for the time being, full power and authority, from time to time, to make, ordain and establish all manner of wholesome and reasonable orders, laws, statutes and ordinances, directions and instructions either with penalties or without (so as the same be not repugnat or contrary to the laws of this our realm of England) as they shall judge to be for the good and welfare of our said province or territory, and for the government and ordering thereof, and of the people inhabiting, or who shall inhabit the same; and for the necessary support and defence of the government thereof. And we do for us, our heirs and successors, give and grant, that the said general court or assembly shall have full power and authority to name and settle annually all civil officers within the said province, such officers excepted, the election and constitution of whom we have by these presents reserved to us, our heirs and successors, or to the governor of our said province for the time being; and to set forth the several duties, powers and limits of every such officer to be appointed by the said general court or assembly; and the forms of such oaths not repugnant to the laws and statutes of this our realm of England, as shall be respectively administered unto them for the execution of their several offices and places; and also to impose fines, mulets, imprisonments, and other punishments; and to impose and levy proportionable and reasonable assessments, rates and taxes, upon the estates and persons of all any every the proprietors and inhabitants of our said province or territory, to be issued and disposed of by warrant under the hand of the governor of our said province for the time being, with the advice and consent of the council, for our service in the necessary defence and support of our government of our said province or territory, and the protection and preservation of the inhabitants there, according to such acts as are or shall be in force within our said province; and to dispose of matters and things whereby our subjects, inhabitants of our said province, may be religiously, peaceably and civilly governed, protected and defended; so as their good life and orderly conversation may win the Indians, natives of the country, to the knowledge and obedience of the only true God and Saviour of mankind, and the Christian faith, which his royal majesty our royal grandfather king Charles the first, in his said letters patent declared was his royal intention, and the adventurers free professon to be the principal end of the said plantation. And for the better securing and maintaining liberty of conscience hereby granted to all persons, at any time being and residing within our said province or territory as aforesaid, willing, commanding and requiring, and by these presents for us, our heirs and successors, ordaining and appointing that all such orders, laws, statutes, and ordinances, instructions and directions as shall be so made and published under our seal of our said province or territory, shall be carefully and duly observed, kept and performed, and put in execution according to the true intent and meaning of these presents. Provided always, and we do by these presents, for us, our heirs and successors, establish and ordain, that in the framing and passing of all such orders, laws, statutes and ordinances, and in all elections and acts of government whatsoever, to be passed, made or done by the said general court or assembly, or in council, the governor of our said province or territory of the Massachusetts Bay in New England for the time being shall have the negative voice; and that without his consent or approbation signified and declared in writing, no such orders, laws, statutes, ordinances, elections, or other acts of government whatsoever, so to be made, passed or done by the said general assembly or in council, shall be of any force, effect or validity; any thing herein contained to the contrary in any wise notwithstanding. And we do for us, our heirs and successors, establish and ordain, that the said orders, laws, statutes and ordinances, be by the first opportunity after the making thereof, sent or transmitted unto us, our heirs and successors, under the public seal, to be appointed by us, for our or their approbation or disallowance. And that in case all or any of them shall at any time within the space of three years, next after the same shall have been presented to us, our heirs and successors, in our or their privy council, be disallowed and rejected, and so signified by us, our heirs and successors under our or their privy council, unto the governor for the time being, then such and so many of them as shall be so disallowed and rejected shall thenceforth cease and determine, and become utterly void and of none effect. Provided always, that in case we, our heirs or successors, shall not within the term of three years after the presenting of such orders, laws, statutes or ordinances, as aforesaid, signify our or their disallowance of the same, then the said orders, laws, statutes or ordinances, shall be and continue in full force and effect, according to the true intent and meaning of the same, until the expiration thereof, or that the same shall be repealed, by the general assembly of our said province for the time being. Provided also, that it shall and may be lawful for the said governor and general assembly to make or pass any grant of lands lying within the bounds of the colonies formerly called the colonies of the Massachusetts Bay, and New Plymouth, and province of Main, in such manner as heretofore they might have done by virtue of any former charter or letters patent; which grants of lands within the bounds aforesaid we do hereby will and ordain to be and continue for ever of full force and effect, without our further approbation or consent. And so as nevertheless, and it is our royal will and pleasure, that no grant or grants of any lands lying or extending from the river of Sagadehock to the gulf of St. Laurence and Canada rivers, and to the main sea northward and eastward, to be made or passed by the governor and general assembly of our said province, be of any force, validity or effect, until we, our heirs and successors, shall have signified our or their approbation of the same. And we do by these presents for us, our heirs and successors, grant, establish and ordain, that the governor of our said province and territory for the time being, shall have full power by himself, or by any chief commander, or other officer or officers, to be appointed by him from time to time, to train, instruct, exercise and govern the militia there; and for the special defence and safety of our said province or territory, to assemble in martial array, and put in warlike posture the inhabitants of our said province or territory, and to lead and conduct them, and with them to encounter, expulse, repel, resist and pursue by force of arms, as well by sea as by land, within or without the limits of our said province or territory, and also to kill, slay, destroy and conquer, by all fitting ways, enterprises and means whatsoever, all and every such person and persons as shall at any time hereafter attempt or enterprise the destruction, invasion, detriment or annoyance of our said province or territory; and to use and exercise the law martial in time of actual war, invasion or rebellion, as occasion shall necessarily require; and also from time to time to erect forts, and to fortify any place or places within our said province or territory, and the same to furnish with all necessary ammunition, provisions and stores of war, for offence or defence, and to commit from time to time the custody and government of the same to such person or persons as to him shall seem meet; and the said forts and fortifications to demolish at his pleasure, and to take and surprise by all ways and means whatsoever all and every such person or persons with their ships, arms, ammunition, and other goods, as shall in a hostile manner invade, or attempt the invading, conquering or annoying of our said province or territory. Provided always, and we do by these presents for us, our heirs and successors, grant, establish and ordain, that the said governor shall not at any time hereafter, by virtue of any power hereby granted, or hereafter to be granted to him, transport any of the inhabitants of our said province or territory, or oblige them to march out of the limits of the same, without their free and voluntary consent, or the consent of the great and general court or assembly of our said province or territory; nor grant commissions for exercising the law martial upon any the inhabitants of our said province or territory, without the advice and consent of the council or assistants of the same. Provided in like manner, and we do by these presents, for us, our heirs and successors, constitute and ordain, that when and as often as the governor of our said province for the time being, shall happen to die, or be displaced by us, our heirs or successors, or be absent from his government; that then and in any of the said cases, the lieutenant or deputy governor of our said province, for the time being, shall have full power and authority to do and execute all and every such acts, matters and things, which our governor of our said province, for the time being, might or could by virtue of these our letters patent lawfully do or execute, if he were personally present, until the return of the governor so absent, or the arrival or constitution of such other governor as shall or may be appointed by us, our heirs or successors in his stead: And that when and as often as the governor, and lieutenant or deputy governor of our said province or territory, for the time being, shall happen to die, or be displaced by us, our heirs or successors, or be absent from our said province; and that there shall be no person within the said province, commissionated by us, our heirs or successors to be governor within the same; then and in every of the said cases, the council or assistants of our said province shall have full power and authority, and we do hereby give and grant unto the said council or assistants of our said province, for the time being, or the major part of them, full power and authority to do and execute all and every such acts, matters and things which the said governor, or lieutenant or deputy governor of our said province or territory, for the time being, might or could lawfully do or exercise, if they or either of them were personally present, until the return of the governor, lieutenant or deputy governor so absent, or arrival or constitution of such other governor, or lieutenant or deputy governor, as shall and may be appointed by us, our heirs or successors from time to time. Provided always, and it is hereby declared, that nothing herein shall extend or be taken to erect, or grant, or allow the exercise of any admiral court, jurisdiction, power or authority,but that the same shall be, and is hereby reserved to us and our successors, and shall from time to time be erected, granted and exercised by virtue of commissions to be issued under the great seal of England, or under the seal of the high admiral, or the commissioners for executing the office of high admiral of England. And further, our express will and pleasure is, and we do by these presents, for us, our heirs and successors, ordain and appoint that these our letters patent shall not in any manner enure, or be taken to abridge, bar or hinder any of our loving subjects whatsoever, to use and exercise the trade of fishing upon the coasts of New England, but that they and every of them shall have full and free power and liberty to continue and use their said trade of fishing upon the said coast, in any of the seas thereunto adjoining, or any arms of the said seas or salt water rivers, where they have been wont to fish; and to build and set upon the lands within our said province or colony, lying waste, and not then possessed by particular proprietors, such wharves, stages and work-houses, as shall be necessary for the salting, drying, keeping and packing of their fish, to be taken or gotten upon that coast; and to cut down and take such trees and other materials there growing, or being upon any parts or places lying waste, and not then in possession of particualr proprietors, as shall be needful for that purpose, and for all other necessary easements, helps and advantages concerning the trade of fishing there, in such manner and ofrm as they have been heretofore at any time accustomed to do, without making any wilful waste or spoil; any thing in these presents contained to the contrary notwithstanding. And lastly, for the better providing and furnishing of masts for our royal navy, we do hereby reserve to us, our heirs and successors, all trees of the diameter of twenty-for inches, and upwards of twelve inches from the ground, growing upon any soil or tract of land within our said province or territory, not heretofore granted to any private persons: And we do restrain and forbid all persons whatsoever from felling, cutting or destroying any such trees without the royal license of us, our heirs and successors, first had and obtained; upon penalty of forfeiting one hundred pounds sterling unto us, our heirs and successors, for every such tree so felled, cut or destroyed, without such license had or obtained in that behalf: Any thing in these presents contained to the contrary in any wise notwithstanding.

In witness whereof, we have caused these our letters to be made patent. Witness ourselves at Westminster, the seventh day of October, in the third year of our reign.

By writ of privy seal.

PIGOT.

Monday, September 11, 2017

Scire Facias to Repeal a Patent, involving Demurrer
Sir Oliver Butler's Case, 1680.

Sir Oliver Butler's Case (High Court of Chancery, 1684) is a case of a scire facias action to repeal letters patent granting a market. Here the defendant demurred, making the issue an issue in law.

Source: The Reports of Sir Peyton Ventris, Volume II (London, Charles Harper and Jacob Tonson, 1701), page 344.


Page 344, Cases Adjudged in the Court of Chancery, Vol II.

Termino Sancti Hillarij, Anno 31 & 32 Car. II.
In Cancellaria.

Upon a Scire facias to Repeal a Patent granted by this King to Sir Oliver Butler, for a Market to be kept at Chatham; reciting, That there was an Ancient Market long before kept at Rochester, within half a Mile of Chatham, and that there was an Ad quod damnum taken out before the New Patent; and the Inquest thereupon taken, found it not to be to the Damage of any, and that it was Executed by Surprize and without Notice; and that notwithstanding it was to the great Damage of the former Market &c.

To this Scire facias Sir Oliver Butler Demurred.

And it was Argued by his Counsel, That this Patent could not be Repealed, because it was preceded by a Writ of Ad quod damnum; whereupon it was found to be to no Bodies damage, and that should conclude all; or at least, the King could not bring a Scire facias to Repeal his own Patent.

But the Lord Chancellor Fynch (assisted by Lord Chief Justice of the Common-Pleas, and Justice Jones) gave Judgment for Repealing of the Patent: for the Return of the Writ of Ad quod damnum was not Conclusive, and here by the Demurrer it is confessed to be to the Damage of the former Market. And where a Patent is granted to the prejudice of the Subject, the King of Right is to permit him, upon his Petition, to use his Name for the Repeal of it in a Scire facias at the King's Suit, and to hinder multiplicity of Actions upon the Case; for such Action will lye notwithstanding such void Patent.

Massachusetts Act against Monopolies, 1641

Source:
The Charters and General Laws of the Colony and Province of Massachusetts Bay. Carefully Collected from the Publick Records and Ancient Printed Books. To which is Added an Appendix, Tending to Explain the Spirit, Progress and History of the Jurisprudence of the State; Especially in a Moral and Political View. Published by Order of the General Court (T.B. Wait and Co., 1814), p. 170

These charters and general laws were collected by a committee consisting of Nathan Dane, William Prescott and Joseph Story.


CHAPTER LXXI

AN ACT AGAINST MONOPOLIES.

It is ordered, decreed, and by this court declared, that there shall be no monopolies granted or allowed amongst us, but of such new inventions that are profitable to the country, and that for a short time. [1641.]

Sunday, September 10, 2017

Bynner v. The Queen, Court of Queen's Bench, in the Exchequer Chamber, 1846

Source: The Law Journal Reports for the Year 1846, Volume 15, Part II, page 414


[IN THE EXCHEQUER CHAMBER]
1846. Feb 2; June 13.
BYNNER v. THE QUEEN.

Patent, Scire Facias to repeal—Judgment; where to be signed—Queen's Bench—Chancery.

The record of a judgment on a scire facias to repeal letters patent for an invention, stated that the Lord Chancellor had delivered into the Court of Queen's Bench “a record had before the Queen in her Chancery in these words,” setting out the original writ of scire facias issuing out of Chancery and returnable there, which called on B, the patentee, to shew why the letters patent therein set forth, and the inrolment thereof, should not be cancelled, vacated, and disallowed, and the letters patent restored into Chancery, there to be cancelled. It then set out the pleas in bar, the issues in fact joined thereon, and the proceeding to trial, and the postea returned into the Queen's Bench. It then concluded with final judgment given by the Queen's Bench “that the said letters patent be cancelled, vacated, disallowed, annulled, made void and invalid, and be altogether had and held for nothing, and also that the enrolment thereof be cancelled, and that the said letters patent be restored into her said Majesty's Court of Chancery at Westminster aforesaid, there to be cancelled. And the tenor of the said record so delivered by the said Lord High Chancellor into the said court of our said Lady the Queen before the Queen herself, and of all things had thereupon in the same court, is remanded into the said Chancery of our said Lady the Queen.”

Held, upon writ of error, that the Court of Queen's Bench had power to give such judgment.



Error from the Court of Queen's Bench, upon a judgment of that court on a scire facias to repeal letters patent.

The record was, in so far as is material to the present question, as follows:—Placitum of Hilary term, 5 Vict.: amongst the pleas of the Queen, Roll 2. England to wit.—Be it remembered, that the Right. Hon. John Singleton Baron Lyndhurst, Lord High Chancellor of Great Britain, on the 15th day of April, in this same term, before our sovereign Lady the Queen, at Westminster, hath delivered here into court, with his own proper hand, a record laid before our said Lady the Queen, in her Chancery, in these words:—The writ of scire facias was then set out, which recited certain letters patent, granted to Jeremiah Bynner, for certain improvements in the manufacture of lamps, containing the usual proviso for making them void, in case the said grant was contrary to law, or prejudicial, or inconvenient in general, or the said invention was not new; this recital concluded—as by the said letters patent, inrolled in our said Court of Chancery, amongst other things, will more fully and at large appear.” The scire facias then set out several counts or issues “by means of which said several premises the said letters patent, so as aforesaid granted to the said J. B., are and ought to be void and of no effect in law.” The writ then called upon the said J. B. “that he be before us in our Chancery on the 15th day of April, wheresoever it shall then be, to shew cause if he hath or knoweth of anything to say for himself why the said letters patent, so granted to him as aforesaid, and the inrolment of the same, for the reasons aforesaid, ought not to be cancelled, vacated, and disallowed, and those letters patent restored into our said Chancery, there to be cancelled, and further to do and receive those things which our said Chancery shall consider in this behalf.” The record then set forth the return of the sheriff to the writ of non est inventus. “And the said J. B., being solemnly demanded by, &c., his attorney comes; whereupon Sir F. Pollock, knight, Attorney General for our said Lady the Queen in this behalf, being present here in court in his proper person, prays that the said letters patent, so granted to the said J. B. as aforesaid, and the inrolment of the same, may be cancelled, vacated, and disallowed, and the said letters patent restored into her said Majesty's Chancery, there to be cancelled. And the said J. B. says &c. (setting out several pleas, concluding the country, whereupon issues are joined). Therefore, to try the several issues above joined, the sheriff is commanded that he cause to come before our said Lady the Queen on, &c., wheresoever she shall be in England, twelve, &c. (setting out the venire), at which time, to wit, on \&c., before our said Lady the Queen at Westminster, come, &c. (setting out the distringasjuratores), at which time, to wit, on, &c. (setting out he postea), “whereupon all and singular the premises being seen and fully understood by the court of our said Lady the Queen, before the Queen herself, how here, and mature deliberation being thereupon had, it is considered by the same Court here, that the said letters patent of our said Lady the Queen, so granted to the said J. B. as aforesaid, be revoked, cancelled, vacated, disallowed, annulled, void and invalid, and be altogether had and held for nothing; and also that the inrolment thereof be cancelled, quashed, and annulled, and that the said letters patent be restored into her said Majesty's Court of Chancery at Westminster aforesaid, there to be cancelled. And the tenor of the said record, so delivered by the Lord High Chancellor into the said court of our said Lady the Queen, before the Queen herself, and of all things had thereupon in the same court of our said Lady the Queen, before the queen herself, is remanded into the said Chancery of our said Lady the Queen.”

A writ of error was brought on the above judgment, upon which several errors were assigned, which were in substance, that the Court of Queen's Bench ought not to have given judgment upon this record, that the letters patent and inrolment should be cancelled; but that the record ought to have been returned and remanded into the Court of Chancery, that judgment might there be given upon the record, which Court alone had authority to pronounce the judgment. Joinder in error.

It was (Feb. 2, 1846) argued by—

Webster, for the plaintiff in error.—This writ of error is brought for the purpose of settling a doubt which exists between the crown office and the petty bag office, as to the right practice in signing final judgment on a scire facias to repeal letters patent. There have occurred by three cases where such a judgment has been signed upon letters patent for inventions. The Queen v. Nickells (1) is the first in order of date. There a bill of exceptions was tendered to the ruling of the Judge. Judgment was signed in the petty bag office in Easter term 1842, to cancel the letters patent, and a writ of error sued out to the House of Lords by special original out of the petty bag office, but the case was afterwards compromised. The present is the second instance, and here judgment was signed in the crown office on the authority of Jefreson v. Morton (2). The Queen v. Newton (3) is the last, and in that alone the proceedings were complete. There the Crown had a verdict, and final judgment was afterwards signed in the petty bag office; and on a motion to the Lord Chancellor, he, assisted by the Master of the Rolls, cancelled the letters patent. The judgment of the Queen's Bench in the present case is, that the letters patent be revoked, void and invalid, and be altogether had and held for nothing, and that the inrolment thereof be cancelled, quashed, and annulled, and that the said letters patent be restored into her Majesty's Court of Chancery, there to be cancelled, and then the record is remanded into Chancery. There may be some cases where the Queen's Bench might give such a judgment to revoke a grant by the Crown, but that is where the whole record is removed into the Queen's Bench; but here part of the record remained in the Chancery. It is suggested that The Queen v. Newton is distinguishable, inasmuch as it is there called a “transcript” of a record, whereas here the “record itself” is said to be sent; but the Court of Queen's Bench has decided that the invariable practice is to call it a “record” (4). It is submitted that the present judgment is erroneous, and that the correct course is to send the record back to Chancery, in order that judgment may be there given. Jeffreson v. Morton, on which the present case rests, proves too much; as it is clear that something still remains to be done in Chancery, for by the judgment itself the letters patent are to be remanded into the Chancery to be cancelled there. The Queen's Bench have no power to cancel the Queen's grant: that appertains solely to the Lord Chancellor virtute officii, who may, notwithstanding this judgment, refuse to cancel the letters. At common law the judgment of the Queen's Bench, that the patent was void for want of novelty, was final; but by 5 & 6 Will. 4. c. 83. s. 11. the patentee may now cure a defect in his specification by disclaimer, and the patent would not then be wholly void; this may be done after judgment is given on the sci. fa.; and it would be an injustice if, in such cases, the Queen's Bench could repeal the patent, which, after all, the Lord Chancellor might refuse to carry into full effect. The former practice was to memorialize the Crown before issuing the sci. fa.—2 Richardson, C. P. Pract. p. 391, 398, 1 Wms. Saund. Rep. p. 72, u, x. This is now altered, and the sci. fa. issued on a fiat of the Attorney General, and a bond being given for the costs, which remains in the petty bag office. Jeffreson v. Morton was a sci. fa. on a recognizance in Chancery, and there being issues of law and of fact raised in the record, the whole record was delivered by the Chancellor into the King's Bench for the purpose of trying the issues in fact; and it was held, that judgment must be there given, and that the record should not be remanded to Chancery. That case is perfectly true wherever the whole record goes to the Queen's Bench, as it did there, and where the adjournment of the cause adjourns everything, and gives all the jurisdiction to that court. But it is inapplicable if there is any part of the proceedings which the Queen's Bench are not competent to do. The Bishop of Lichfield and Coventry's case, there cited (p. 27), appears to be wrongly quoted. On reference to the Year Book, 24 Edw. 3. 73, b. pl. 91. the sci. fa. was not brought “on a recognizance which was sent into the court;” “record of nonsuit” seems to be a mistake for “recognizance.” Per Bassett, “The record of the recognizance and of the plea is remander here as entirely as it was there:” that case therefore falls within the same distinction.

[MAULE J.—There is no mistake. The sci. fa. was brought in the King's Bench on the record there, which began with the recognizance out of Chancery; the counsel who used it in argument, in Jeffreson v. Morton, supposed that it did not. “Record of nonsuit” must mean the record in which the nonsuit was.]

In Digge's case (5) the Court of Queen's Bench had power to carry out the whole of the judgment which they pronounced. As to the adjournment of the cause, he referred to 6 Vin. Abr. ‘Court of King's Bench,’ (G) p. 5, Bro. Abr. ‘Record,’ pl. 79, ‘Conusance,’ pl. 61, Keilway 98, a, as exceptions to the rule in Jeffreson v. Morton, that a record once in the King's Bench must always remain there.

[TINDAL, C.J.—You admit the rule to be strictly true, if you understand by the record the whole record.]

And adding the condition that the Queen's Bench have entire jurisdiction over the subject-matter of the judgment. In a traverse on an inquisition de lunatico inquirendo, sent to the Queen's Bench, the record goes back to the Chancery. He cited also 4 Inst. 80, Sackvile College case (6), 1 Roll. Abridg. tit. ‘Courts,’ 1, G, ‘Bank le Roy,’ Jenkins, 3 Cent. 133, pl. 71, Mark Steward's case (7), Sarnfield's case, cited in Prince's case (8). The Mayor and Burgesses of Liverpool v. the Chancellor of the County Palatine of Lancaster, B. R. Trin. 12 Ann. (9). shews that the jurisdiction to cancel pleas flows from the custody of the Great Seal, and the practice has been always to deal with such cases in Chancery. Hunt v. Coffin (10). Bro. Abr. tit. ‘Bar,’ fol. 45. In 4 Inst. 88. it is said that the Chancellor, by his ordinary power, may hold plea of scire facias, to repeal the King's letters patents, under the Great Seal, being always inrolled in this court. And Lord Coke states the judgment to be “quod prædictæ literæ patentes dicti domini regis revocentur, concellentur, evacuentur, adnullentur, et vacuæ et invalidæ, pro nullo penitus habeantur et teneantur; ac etiam quo irrotulamentum eorundem cancelletur, cassetur et adnihiletur:” that is the precise form of the present judgment. The authority in 4 Inst. 72 that a sci. fa. to repeal a patent may be in the King's Bench, is founded on 3 Hen. 4. c. 29. erroneously cited 3 Hen. 4. c. 7. It is also cited as 3 Hen. 4. 6. in Bro. Abr. tit. ‘Brief,’ pl. 104, with a quære, and only decides that there may be several writs of scire facias issued. Bro. Abr. tit. ‘Petition,’ pl. 11, citing 21 Edw. 3. fol. 47, seems to be the key to all the cases. There it is said that the right to repeal a patent is only in the Chancery; and the principle is established in The King v. Butler (11). Brewster v. Weld (12) was a writ returnable in the Queen's Bench, not, as here, in Chancery. The object of the writ is to get the inrolment cancelled—Lilley's Entries, p. 419. The power delegated to the Queen's Bench is to do what the Court of Chancery cannot do, viz., to try the issues. the judgment is also erroneous, as it omits to notice that the seventh issue was found for the defendant.

Hugh Hill, for the Crown.—It is admitted that judgment might be given in Chancery; all that is contended for is, that, under the circumstances, the Queen's Bench may do so also. Both courts are one, coram regeGilbert's Hist. and Practice of Chancery, p. 12, 3 Black. Comm. p. 48, Tidd's Pract. 9th edit. p. 1095, citing Blaxton's case (13), 1 Eq. Ca. Abr. 128, Anon. 21 Hen. 7. fol. 35, Bro. Abr. ‘Judgment,’ pl. 135, Staunforth, ‘Prerogative,’ 77, b.. Where issues in law are joined, or the defendant does not appear, the Court in Chancery gives judgment; but where there are issues of fact, it may be given by the Queen's Bench. In the report of Jefferson v. Dawson (14), where issues in law and of fact were raised, the difficulty was urged that there would be two judgments, if the whole record were sent, it being assumed that the Queen's Bench was to give judgment on the issues of fact.—He cited The Queen v. Aires (15), The King v. Holland (16), Fitzh. Abr. ‘Petition,’ last pl. citing 13 Hen. 3. fol. 59, b, cited in Magdalen College case (17). This is a strong case to shew that a charter may be repealed in the King's Bench. the Court of Queen's Bench have decided that whenever issues are joind in fact, on a sci. fa. to repeal letters patent, the record delivered into the Queen's Bench is one on which the Court has power to give judgment, although the record in Chancery may be the original record, and that in the Queen's Bench may be called a transcript. The record, mentioned in Jenkins, 3 Cent. case 74, cited on the other side, is the record of the patent. There are many precedents of judgment given in the Court of Queen's Bench to repeal letters patent and charters, the records of which are still remaining in the Queen's Bench: one has been found in the Tower (18). a scire facias, by the abbot of Cirencester, to repeal a charter, and judgment was given by the Queen's Bench, “quod charta prædicta adnulletur,” &c.; attached is a certiorari, which issued out of Chancery, to the Queen's Bench. What Lord Hale says, in the Sackvile College case, is merely an obiter dictum, no judgment being given, and the real point was one in no way bearing on the present case. In Arkwright's Case (19) it is stated that the Court of Queen's Bench gave judgment to cancel the patent. There are cases in the Year Books, in which a sci. fa. issued in Chancery, returnable into the Queen's Bench, Mic. 11. Hen. 4. fol. 5 (a market case), Trin. 21 Hen. 3. fol. 58, b, where a form is given of sci. fa. out of Chancery, returnable into the Queen's Bench. In Mich. 3 & 4 Phil & M.roll 116, judgment was given by the Queen's Bench, and now remaining inrolled, “Quod literæ patentes revocentur, adnullentur et evacuentur,” &c. He also cited Rast. Entries, 461, Anon. 748, Mark Steward's case, Digges's case, where a special verdict was found and judgment given in the Queen's Bench; also Molineux v. Lacon (20), and The Queen v. Mason (21), as cases in which judgment was given in the Queen's Bench. The cases cited on the other side as mentioned in the margin of Dacre's case (22), to shew that the record must be remanded to Chancery, and judgment given there, cannot be found in the Year Books; and no authority is cited for ther latter part of the dictum from the 4th Inst. 80. The case of the Mayor and Burgesses of Liverpool v. the Chancellor of the County Palatine of Lancaster, only shews where the sci. fa. must issue from; and the same observation applies to the case from Bro. Abr. tit. ‘Petition,’ pl. 104; Brewster v. Weld is rather an authority in favour of this judgment. It is not necessary to consider whether a patentee can enter a disclaimer after judgment on a sci. fa.. But the true construction of the act, 5 & 6 Will. 4. c. 83, is, that any time before the sci. fa. is actually tried, the patentee may obtain leave of the Attorney or Solicitor General to enter a disclaimer as to part: and such entry shall be available after issue joined; but not on the trial of an action for an infringement commenced by the patentee before he disclaimed. Then, as to the argument, that one of the issues was found for the defendant, and that no notice of this is taken in the judgment; that is of no consequence, for no judgment is given for costs in the Queen's Bench. The remedy for costs is on the bond which is in the hands of one of the Masters of the petty bag office—Underhill v. Devereux (23). Then it is objected, that the Court of Queen's Bench had, at all events, no power to order that the inrolment of the letters patent should be cancelled. If that should be so held, then this Court will on that point give such a judgment as should have been given in the Court below; but it is submitted that the judgment is not beyond the power of the Court, for if it has power to give judgment at all, it must have power to give a complete one.

Webster, in reply.—The last part of the argument admits that the Queen's Bench cannot execute this judgment, and it was never denied that that Court had power to give some judgments. The argument on this sid as to the last point is, that the judgment on all the six issues is on such defects as could be cured by disclaimer under Lord Brougham's Act; for, if the patentee could disclaim after verdict on the action, he never ought to be defeated by this sort of proceeding.

[TINDAL, C.J.—You would, I suppose, wish, then, that the Court should suspend their judgment, if the defects are such as may be cured by disclaimer.]

All the cases cited on the other side, of writs out of Chancery returnable into the Queen's Bench, are different from the present. The cases from Rastell's Entries, Mark Steward's case and Digges's case, were all cases on inquisitions. In Sarnfield's case judgment was by default; and the prayer of the petition was, that the letters patent be cancelled; but the judgment stopped short of that.

[TINDAL, C.J.—The cases of fines bear upon it, where judgment is that a fine be cancelled.]

A sci. fa. must issue upon a record; and all the cases referred to of removal by certiorari are such cases. The case from Keilway is one of the same class. Arkwright's case is no authority either way, for it is not known what was the form of the judgment. The case of The Carmelite Friars, cited in the Magdelen College case, goes merely to shew that the mode of getting in the letters patent. Unless the whole record is adjourned the record must be remanded, otherwise each Court might give different judgments—The King v. Holland (24), per Rolle, C.J. In the case referred to from the Tower, the whole record is brought into the King's Bench by certiorari.

[MAULE, J.—If the judgment is wrong as to ordering the cancelling of the patent, is it to be reversed any further than as to the cancelling?]

If bad at all, it must be bad altogether; it is a judgment of a different kind from that which the Court of Queen's Bench can give; and the whole matter comes to this—the record is in Chancery; this is only a transcript sent from Chancery, on which no judgment can be given. The Court should have entered the verdict on the postea and sent it back. And, in all cases cited on the other side, there was either a sci. fa. returnable into the Queen's Bench, or something equivalent to an entire adjournment of the case.

Cur. adv. vult.

The judgment of the Court (25) was now (June 13) delivered by—

TINDAL, C.J.—This was a scire facias, brought to repeal certain letters patent, which had been granted to the plaintiff in error. The record before us, which is brought by writ of error from the Court of Queen's Bench, states, that the Lord Chancellor “had delivered here into court, with his own proper hands, a record had before our Lady the Queen, in her Chancery, in these words”—The record so brought into the Court of Queen's Bench contains the recital of the original writ of scire facias, issuing out of the Court of Chancery and returnable there, calling on Bynner, the plaintiff in error, to appear and shew “why the letters patent, therein set forth, and the inrolment of the same, for the reasons therein given, ought not to be cancelled, vacated, and disallowed, and those letters patent to be restored into her Majesty's Chancery, there to be cancelled;” and the record proceeds to state, also, the grounds upon which the validity of the letters patent is impeached, the appearance and pleas in bar of Bynner, and the issues in fact joined thereon, and the award of the writ of venire facias returnable in the Court of Queen's Bench, the appearance there of the Attorney General on the part of the Crown, and of Bynner by his clerk in court, and the return of the venire facias, the award of the distringas, with the usual clause of Nisi Prius, and the postea returned by Mr. Justice Coleridge, who tried the issues; and then follows the judgment of the Court of Queen's Bench in these words:—“That the said letters patent be cancelled, vacated, disallowed, annulled, made void and invalid, and be altogether had and held for nothing, and also that the inrolment thereof be cancelled, and that the said letters patent be restored into her said Majesty's Court of Chancery, at Westminster aforesaid, there to be cancelled.” And the record now before us concludes with these words, viz.—“And the tenor of the said record, so delivered by the said Lord Chancellor into the said court of our said Lady the Queen before the Queen herself, and of all things had thereupon, in the said court of Our Lady the Queen, before the Queen herself, is remanded into the said Chancery of our said Lady the Queen.” And the question raised before us upon this writ of error has been, whether the Court of Queen's Bench has the power of giving the judgment before stated. On the part of the plaintiff in error it has been contended, that no more than a transcript of the record is sent down to the Queen's Bench, for the purpose of enabling that Court to try the issues which have been raised in the Court of Chancery, and that after the trial of such issues, the record so sent to that court should be returned with the postea to the Court of Chancery, to enable that Court to give effect to the judgment of the Court of Queen's Bench, so as to make the actual cancelling of the inrolment of the letters patent the act of the Court of Chancery, as being an act which that Court alone can carry into effect. On the part of the defendant in error it has been contended, on the other hand, that the record in the action of scire facias being sent to the Court of Queen's Bench, it is the duty of that Court to pronounce the judgment, and that the tenor, that is, an exact transcript of the whole record, is then transmitted to the Court of Chancery, to enable that Court to carry the judgment into effect by cancelling the inrolment there. There are difficulties, undoubtedly, in the establishing of either of these positions with absolute certainty, and there are conflicting authorities which have been brought forward in favour of both. On the whole, however, we think the balance of the authorities is decidedly in support of the position contended for on the part of the Crown, viz., that the record is sent down to the Queen's Bench, that the Queen's Bench has authority to award the judgment, and afterwards to transmit either the record or the tenor thereof to the Court of Chancery, in order to be fully carried into execution. In the first place, the proceedings before us state, that the Chancellor “has delivered here into court, with his own proper hands, a record.” And this is not the form in this instance only, but the general form in other precedents“(see Trem. Pleas of the Crown p. 652—The King v. Stone. See also Jefferson v. Morton.) In this latter case, the great question between the parties was, whether the record itself had been properly sent down from the Court of Chancery to the King's Bench, inasmuch as upon the record there was an issue in fact and also a demurrer in law, both joined in the Court of Chancery upon the same record. And no one appears to have doubted, in that case, that where there is an issue in fact only, the record must be sent down to the Court of King's Bench, as well for the purpose of trying the issue, as also of giving jugment thereon; but the point raised by the defendant's counsel was, that where an issue in fact is joined as to part, and a demurrer to another part of the record in Chancery, and the same is transmitted to the King's Bench to be tried, after the trial of the same the record ought to be sent back into Chancery, for the Chancellor or Keeper to give judgment upon it. But the whole Court delivered their opinions seriatim, that the record of the demurrer and issue together was well and legally transmitted, and the Lord Keeper of the Great Seal was also of the same opinion. And, in the course of the argument, Digges's case and Steward's case were relied upon, where the record was transmitted into B. R., and several special verdicts found, and the Court of King's Bench retained the records, and did not send them back into Chancery, but gave judgment on the special verdicts. It was objected, that although this might be the practice where a final judgment might be given, and execution had thereon in the Court of King's Bench, yet that in this case more remained to be done in the Court of Chancery, and which could not be done elsewhere, namely, that the letters patent and the inrolment thereof, which still remained in the Court of Chancery, are directed to be cancelled. But it seems a sufficient answer to this objection, that nothing remains to be done in the Court of Chancery but a mere ministerial act by the officers of that court; and it is clear, there is no difficulty in getting an exact transcript of the record of the judgment from the Court of King's Bench to the Court of Chancery, by certiorari and mittimus. The point, however, and the only point, to be determined by us, is, whether the Court of Queen's Bench had authority to give judgment in the case in the form in which they have given it; and we think they had. Many precedents have been found of judgments given in the Court of Queen's Bench to repeal letters patent, which records are still remaining in the King's Bench. In Michaelmas term, 3 & 4 Phil. & Mar. roll 16. is a record of scire facias to repeal letters patent, returnable in the King's Bench. The judgment entered therein in that court is—“Quod literæ patentes revocentur, adnullentur et evacuentur, et quod officium in manus domini regis seiziatur.” The case brought forward in the course of the argument, the record found in the Tower, Gloucester, No. 47 5 Hen. 5, is strong to the same point. A scire facias, brought by the abbot of Cirencester against the town of Cirencester, to repeal a charter to that town, and judgment given by the King's Bench—“Quod charta prædicta adnulletur, et penitus pro nihilo habeatur;” and in that case the tenor of the judgment alone is certified by the Court of King's Bench to the Court of Chancery, a certiorari having issued, and the return beginning with “tenor cujusdam recordi,” &c.: and we are informed through an officer of the Tower, that both in the Cirencester case, and in numerous other cases, a writ of certiorari is tied or pinned to the record of the Court of King's Bench, at the head of it, with this indorsement of the Chief Justice of the King's Bench, “Executio istius brevis, &c” Without enumerating or referring to other authorities, cited in the course of the argument, we think these are abundantly sufficient to prove that the Court of Queen's Bench has the power of giving the judgment which they have given, and that the same must be affirmed.

Judgment affirmed.


(1) Not reported.

(2) 2 Saund. 23.

(3) Not reported.

(4) In Midsummer vacation last, Webster moved to amend the record of the writ of error by stating that a transcript had been delivered by the Lord Chancellor into the Queen's Bench, but the Court of Exchequer Chamber refused to interfere, as the record was good on its face, and suggested an application to the Court of Queen's Bench, who, however, declined to make the amendment, as stated in the text.

(5) 1 Rep. 157, a.

(6) Sir T. Raym. 177.

(7) Cited in 9 Rep. 99, a.

(8) 8 Ibid. 23, a.

(9) Cited 1 Str. 151.a.

(10) Dyer, 197.b.

(11) 3 Lev. 220.

(12) 6 Mod. 229.

(13) Latch. 3.

(14) 1 Mod. 29.

(15) 10 Mod. 258.

(16) 1 Roll. Abr. ‘Courts,’ G, pl. 3; s.c. Aleyn, 14. Styles. 84, 90.

(17) 11 Rep. 74, a.

(18) Gloucester, No. 47, 5 Hen. 5

(19) Webst. Pat. Ca. 56, 74

(20) Cro. Jac. 12

(21) 2 Salk. 447.

(22) 22 Edw. 3. fol. 5. cited 1 Roll. Abr. ‘Courts,' G. pl. 1.

(23) 2 Wms. Saund. 72, c, n.

(24) Styles, 95.

(25) Tindal, C.J., Pollock, C.B., Parke, B., Rolfe, B. Maule, J., Cresswell, J., and Erle, J.