Rex & Regina v Kempe

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

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

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Trin. Term 7 Will. 3.

49

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Rex & Regina vers. Kempe.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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.)

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.”

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

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.

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[*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).

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(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.

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

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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.