Were Letters Patent for Invention Hereditaments?

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

Consider the act of parliament of 1641 entitled

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

The text is on this website:

https://lonang.com/library/organic/1641-asc/

and on many other websites.

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

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

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

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

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

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

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

“Know ye therefore, that we, of our especial grace, certain knowledge and mere motion, have given and granted, and by these presents for us, our heirs and successors, Do give and grant unto the said A. B. his executors, administrators and assigns, our especial licence, full power, sole privilege and authority, that he the said A. B. his executors, administrators and assigns,…”

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

Scire Facias action to repeal Letters Patent, in 1383

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

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

Letter from Lord Townshend to the Lord President of the Council, dated February 11, 1775.

This is a covering letter from Lord Townshend transmitting a representation from the Lieutenant General and the rest of the Principal Officers of the Ordinance. [http://aalt.law.uh.edu/AALT7/G3/PC1no10no58-79/IMG_0124.htm]

Letter from the Office of Ordnance to Lord Townshend, dated February 7, 1775.

A contract had been finalized to supply iron cannon. But the contractors then received notice from John Wilkinson that Wilkinson had been granted a patent for the manufacture of such cannon. Regarding the affair to be “of the utmost consequence to His Majesty's Service” the Office of Ordinance judged it necessary to obtain a copy of the letters patent, and found in it the proviso authorized annulment by the king on being notified by at least six members of the Privy Council that the requisite conditions for annulment were satisfied. The letter from the Ordinance Office then pointed out that the method described in the patent had been practised under their direction at Woolwich at a time antecedent to the granting of the letters patent by Messrs. John and Peter Verbruggen. They point out that the patent, if permitted to remain in force, would not only be prejudicial to His Majesty's Subjects but also “very detrimental to the Public Service in your Lordship's Department”. Accordingly “We therefore submit to Your Lordship's Consideration the immediate necessity of taking such Steps as Your Lordship may judge proper for the Revocation of the said Patent.” [http://aalt.law.uh.edu/AALT7/G3/PC1no10no58-79/IMG_0125.htm]

John Wilkinson's Patent for “a new method of casting and boring iron cannon”.

http://aalt.law.uh.edu/AALT7/G3/PC1no10no58-79/IMG_0130.htm

Memorandum of Order in Council published in the London Gazette, dated June 16, 1779

[http://aalt.law.uh.edu/AALT7/G3/PC1no11no136-160/IMG_0090.htm]

Report of a Committee of the Privy Council, dated June 3, 1779.

The report begins with a history of the proceedings. The Attorney General and Solicitor General had examined the matter. There were affidavits in the case, and the law officers were attended by counsel and solicitors for both sides. On finding that the novelty of the claimed invention was the key consideration, they had tried to induce the patentee to sue one of the contractors, on the basis that the Solicitor for the Office of Ordinance would defend the contractor. But the patentee obtained a common injunction, and refused to commence proceedings in law, and, as a result, the committee recommended that the patent be declared void. [http://aalt.law.uh.edu/AALT7/G3/PC1no11no136-160/IMG_0099.htm

Report of the Attorney General and Solicitor General in the matter of John Wilkinson's patent, dated March 17, 1779, read and reposted June 3, 1779.

[http://aalt.law.uh.edu/AALT7/G3/PC1no11no136-160/IMG_0103.htm]

Copy of an Order in Council dated October 31, 1683, vacating a patent of invention granted to Mr. Walcot.

First in a collection of “Precedents of Patents vacated under the Hands of 6 Privy Councillors.”. The collection also memo^d Hamblin's patent and Betton's patent. [http://aalt.law.uh.edu/AALT7/G3/PC1no11no136-160/IMG_0106.htm]

Copy of an Order in Council dated July 16, 1687, vacating a patent of invention granted to Charles Corcellis.

[http://aalt.law.uh.edu/AALT7/G3/PC1no11no136-160/IMG_0109.htm]

Copy of an Order in Council dated July 30, 1687, vacating a patent of invention granted to John Chater.

[http://aalt.law.uh.edu/AALT7/G3/PC1no11no136-160/IMG_0111.htm]

Copy of an Order in Council dated January 30, 1689, vacating a patent of invention granted to James Delabadie.

[http://aalt.law.uh.edu/AALT7/G3/PC1no11no136-160/IMG_0113.htm]

Minutes of the Committee of the Privy Council, dated June 3, 1779 considering the matter of Wilkinson's Patent.

The attendees included “Sir Eardly Wilmot”. This presumably refers to Sir John Eardly Wilmot (1709–1792), who had been Chief Justice of the Common Pleas from 1766 to 1771 (see Wikipedia article). Also “Sir T. Parker” would presumably refer to Sir Thomas Parker (1695–1784), at one time a Justice of the Court of Common Pleas, and subsequently Lord Chief Baron of the Court of Exchequer from 1742 to 1772, and a member of the Privy Council from 1772 (see Wikipedia article). This committee of the Privy Council considered, at the same meeting, an appeal to the King in Council from an order or decree of the Supreme Court of Jamaica, two appeals from orders of the Court of Chancery of the Island of Jamaica, two appeals from courts in Guernsey, an appeal from a court on the Island of St. Christopher, a leave to appeal from a judgment of the Court of Common Pleas in West Florida, and progressed another appeal from Guernsey, amongst other business. [http://aalt.law.uh.edu/AALT7/G3/PC2no123/IMG_0251.htm]

Minutes recording the vacating of Wilkinson's Patent at a meeting of the Privy Council on June 16, 1779.

[http://aalt.law.uh.edu/AALT7/G3/PC2no123/IMG_0272.htm]

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

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

The petition by Walter Baker requesting annulment of Dr. James Fever Powder patent was considered by the “Committee of the Council for hearing Appeals from the Plantations &c.” on February 10, 1753, as recorded in Privy Council papers available at the AALT website at the following URL: http://aalt.law.uh.edu/AALT7/G2/PC2no103/IMG_0167_1.htm

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

A letter from the Council Office, Whitehall, dated May 21, 1753, concerning a petition by Walter Baker to have a clerk of the Privy Council attend a law court with the affidavit of Dr. James, to serve as evidence in a perjury case. This letter is to be found in Privy Council papers available at the AALT website at the following URL: http://aalt.law.uh.edu/AALT7/G2/PC2no103/IMG_0218_1.htm

The report of the law officers regarding this petition, (June 23, 1753) is to be found in Privy Council papers available at the AALT website at the following URL: http://aalt.law.uh.edu/AALT7/G2/PC1no6no32-42/IMG_0006.htm

The dismissal of Walter Baker’s petition by order of the King in Council, August 10, 1753 is recorded in Privy Council papers available at the AALT website at the following URL: http://aalt.law.uh.edu/AALT7/G2/PC2no103/IMG_0252.htm

To quote:

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

Further observations

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

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

This is extracted from Privy Council papers available at the AALT website at the following URL: http://aalt.law.uh.edu/AALT7/G2/PC2no103/IMG_0168_1.htm

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

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

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

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

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

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

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.

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

• Petition of Trinity House for revocation of Hamblin's Patent
• Report of the law officers of the Crown on the petition of Trinity House for revocation of Hamblin's Patent
• Petition of Trinity House for revocation of Hamblin's Patent (Fair copy?)
• Report of the Committee of the Privy Council charged with enquiring into the matter of the petition from Trinity House seeking revocation of the patent (20th April, 1732)
• Committee Report for vacating the patent granted to Robert Hamblin for distinguishing lights at sea.

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.