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.”