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Easter week; and they to have warning given them by the serjeant, then to attend and bring in their patent; and the committee for petitions to sit then for that matter specially, and after for all other of like nature, as the time will serve.
“ May 4 (p. 472). Sir Edwin Sands report eth the business of the patent of glass.
* The question only whether this a patent of monopoly, or a patent of privilege.
" That resolved by the committee, that the King's calling in the patent of J. Bowes and Salter just.
“That offered by the merchants that if all these patents might be called in which now are for making glasses, that should be sold here (by importation for 3d.ob.) which now costeth 16d.
* Mr. Francis Moore - Leather, stockings, brushes, glasses.
“That all their pretences public good, their ends private gain. Not to be new inventors of the means, but of the thing. The time for privilege not infinite ; that to him and his heirs; so no apprentice or servants to take fruit of it; but first rogues and then whipped.
“ Ordered, upon the question, that this a patent of monopoly.
“2. That this patent be brought in upon Friday next, sedente curia.
"Friday, May 6 (p. 475). The patent of glass brought in by Mr. Kellaway, and delivered; but with protestation, that they have done it in obedience to the order of the house, and to be left bere as belonging in right to the said patentees."
No further proceedings connected with this patent are reported for seven years, when the fol. lowing occurs :
“ 16th May, A.D. 1621, 19 Jac. 1 (p. 622). Sir Edward Coke reporteth the patent for glasses. 1. The consideration failetb;' for no new in. vention, as proved by certificates from divers countries, and by three witnesses vivá voce in the affirmative ; so as expressio falsi and suppressio teri. 2dly. That the new invention only of making new furnaces; not power thereby for the sole making of glass; therefore this invention not to exclude making of glass by wood, but only by sea coal. 3dly. That restraint of importation hindereth trade, shipping, merchants, &c. 4thly, The time of twenty-one years too long.
“For the execution; doubtful whether the glass Dow as good as before. That Inigo Jones, the surveyor, said the glass not now so good as in ancient times. The price also doubtful, whether now dearer than before the patent.
« This also condemned as a grievance last convention in parliament; yet Sir Robert Mansell presently after procured this new patent. That 1,000l. per annum reserved to the King, yet none paid.
“Upon question, this patent a grievance, both in the creation and execution.”
The preceding extracts, and the recitals and
clauses of the letters patent, illustrate each other. "Several of the objections recorded in the journals to the letters patent of the 19th of January, 12 Jac., are removed in the present grant; the period is shortened, the importation of foreign glass is not prohibited, and no rent is reserved to the Crown. This patent was before the House of Commons during their deliberation on the bill of monopolies, and the journals record as follows (p. 696):
"1 May, 22 Jac. 1, A.D. 1624. Sir Edward Coke reporteth about the monopoly bills—some provisoes—that they have affirmed none of them to be good, nor condemned any of them to be ill. Šubpæna office; patent of glasses; writings of the King's grants to the great seal. Though the present patentees be excepted, yet in future none can have them. Resolved, if the Lords shall add a proviso, to exempt them out of the act, and leave them as they be, the committee thinketh it fit to consent, not in love to these patents, but to the passage of the bill.
“The glass patent to be heard on Monday, whether it be a grievance or not.
“13 May, 22 Jac. 1, a. D. 1624 (p. 703). Sir Edward Coke reporteth from the conference about the bill of monopolies; for the exemption of the subpæna office, writing to the great seal, and glasses; to leave these as before at common law."
“24 May (p. 710). The amendments and provisoes in the bill of monopolies twice read, and committed.
“ 25 May (p. 711). Bill passed."
Objections at Common Law.-The preceding extracts show the various objections which may be raised to grants of this nature, and the principles by which their validity is to be tried."
The objection to the subject-matter, that it must not be for the means, but for the thing, has not succeeded in any reported cases, with the exception of Bircot's (as to which, post 31, n.p.); and it may reasonably be suggested, that glass made in a different manner, or iron made with a new fuel, ante 16, n. is substantially and really a new thing; that each of these is a new manufacture.
The failure of the consideration clearly renders the grant void; this was acted on both in the smalt and glass patents, and the principle has been recognised in many subsequent cases. Post 41.
The objection on the ground of the length of the term, applies to the smalt as well as to the glass patent, and would probably be a valid objection at common law..
The utility of the invention in respect of the quality of the article made, and the price at which it was sold, appears both from the recital of the several letters patent, and the preceding extracts, to have been a practical test of the validity of the grant: the failure of the execution, as it is termed above, is clearly such a failure of consideration as would avoid the grant. See post 42, n.
STATUTES ON LETTERS PATENT.
18 H. 6, c. 1.
18 H. 6, c. 1. For regulating Patents by the King (a). [Enacts that letters patent should bear the date of the King's warrant delivered into Chancery.]
6 H. 8, c. 15. An act avoiding second Letters Patent granted by the King (6).
27 H. 8, c. 11. 27 H. 8, c. 11. An act concerning Clerks of the Signet and Privy Seal (c).
[The King's grants to be brought to the secretary or to a clerk of the signet. A warrant by a clerk of the signet to the lord keeper of the privy seal. A warrant from the privy seal to the great seal, &c. But the lord chancellor may dispense with the fees.]
3 and 4 Ed. 6, c. 4. 3 & 4 Ed. 6,c.4, An act concerning Grants and Gifts, made by Patentees out of explained by Letters Patent (1).
13 El. c. 6. An act that the exemplification or constat of Letters Patent,
shall be as good and available as the Letters Patent themselves.
43 El. c. 11.
43 El. c. 11. An act for the Confirmation of Grants made to the Queen's Ma
jesty, and of Letters Patent made by her Highness to others.
(a) This and the subsequent statutes here cited, are printed in my Law and Practice, with notes and observations on their applicability to letters patent for inventions as at present granted.
(b) The practice of granting successive let. ters patent for the same subject-matter, appears from Baker's and Mansell's patents. Ante.
(c) Further regulated (57 G. 3, c. 63), and the office to be abolished (2 W. 4, c. 49).
(5) Some doubt being entertained whether this statute applied to patentees themselves, as well as those claiming under them, it was erplained and amended by 13 Eliz. c. 6.
21 Jac. 1, c. 3.
Passed 25 May, 22 Jac. 1, A.D. 1624 (g).
Laws, and the Forfeitures thereof.
“ Forasmuch as your Most Excellent Majesty, in your royal All monopolies judgment, and of your blessed disposition to the weal and quiet &c.; sh of your subjects, did, in the year of our Lord God one thousand six hundred and ten, publish in print (h) to the whole realm, and to all posterity, that all grants of monopolies and of the benefit of any penal laws, or of power to dispense with the law, or to compound for the forfeiture (i), are contrary to your Majesty's laws, which your Majesty's declaration is truly consonant and agreeable to the ancient and fundamental laws of this realm (k): And whereas your Majesty was further graciously pleased expressly to command that no suitor should presume to move your Majesty for matters of that nature; yet nevertheless upon misinformations and untrue pretences of public good, many such grants have been unduly obtained, and unlawfully put in execution, to the great grievance and inconvenience of your Majesty's subjects, contrary to the laws of this your realm, and contrary to your Majesty's most royal and blessed intention so published as aforesaid.” For avoiding whereof, and preventing the like in time to come, may it please your Excellent Majesty, at the humble suit of the Lords Spiritual and Temporal, and the Commons, in this present parliament assembled, that it may be declared (l) and enacted by authority of this present parliament, that all monopolies and all commissions, grants, licenses, charters, and letters patent, heretofore made or granted, or hereafter to be made or granted, to any person or persons, bodies politic or corporate whatsoever, of or for the sole (m)
(2) Every act of parliament previous to the 33 G. 3, c. 13, was considered as passed, and relates back to the first day of the session, unless otherwise provided for by the act. 4 Inst. 25.
This must be borne in mind, otherwise Mansell's patent (ante) excepted in the act (post) would appear to bear date subsequent to the date of the act 21 Jac. 1.
(h) This publication was entitled, “A declaration of his Majesty's pleasure, &c." It was published a. D. 1610, out of the king's zeal to law and justice, and states, that monopolies are things against the laws of this realm, and there. fore expressly commands that no suitor presume to move the king to grant any of them. 11 Rep. 88 b. The judgment in the case of monopolies (Darcy's case, ante) was the principal motive for publishing this book, and that book was a great
motive of obtaining the royal assent to this statute. 3 Inst. 182. For the definition of monopoly, ante 5.
(i) As to these, see notes to the Statutes in Law and Practice.
(k) See case of monopolies, ante.
(1) This act is simply declaratory of the common law.
(m) The word sole, according to the observation of Sir E. Coke, is here applied to five several things, whereof four are special, and the fifth
sole using,' is so general, that no monopoly can be raised but will be within the reach of this statute, and yet for more caution the words “ or of any other monopolies,” are added, and by reason of these words “sole using,” divers provisions are made by this act. The words also “ of any thing" are of so large an extent, as to cause some exceptions in the subsequent clauses. 3 Inst. 187.
21 Jac. 1, c. 3. buying, selling, making, working, or using of any thing within
this realm or the dominion of Wales, or of any other monopolies, or of power, liberty, or faculty to dispense with any others, or to give license or toleration to do, use, or exercise any thing against the tenor or purport of any law or statute, or to give or make any warrant for any such dispensation, license, or toleration to be had or made ; or to agree or compound with any others for any penalty or forfeitures limited by any statute; or of any grant or promise of the benefit, profit, or commodity of any forfeiture, penalty, or sum of money, that is or shall be due by any statute, before judgment thereupon had; and whatsoever any way tending to the instituting, erecting, strengthening, furthering, or countenancing of the same, or any of them, are altogether contrary to the laws of this realm, and so are and shall be utterly void and of none effect, and in nowise to be put
in use or execution. Monopolies, II. And be it further declared and enacted by the authority &c.; shall be aforesaid, that all monopolies, and all such commissions, grants, tried by the common laws of licenses, charters, letters patent, proclamations, inhibitions, rethis realm.
straints, warrants of assistance, and all other matters and things tending as aforesaid, and the force and validity of them and of every of them, ought to be and shall be for ever hereafter examined, heard, tried and determined, by and according to the common laws of this realm, and not otherwise (n).
V. Provided nevertheless, and be it declared and enacted, heretofore that any declaration before-mentioned shall not extend to any granted for twenty-one letters patent and grants of privilege for the term of one-andyears, to use
twenty years or under, heretofore made, of the sole working or new manufactures, saved. making of any manner of new manufacture, within this realm,
to the first and true inventor or inventors of such manufactures, which others at the time of the making of such letters patent and grants, did not use, so they be not contrary to the law, nor mischievous to the state, by raising of the prices of commodities at home, or hurt to trade, or generally inconvenient, but that the same shall be of such force as they were or should be if this act had not been made, and of none other: and if the same were made for more than one-and-twenty years, that then the same, for the term of one-and-twenty years only, to be
(n) This act having in the preceding section declared all monopolies, &c., to be void by the common law, has provided by this that they shall be examined, heard, tried, and determined, in the courts of common law, according to the common law, and not at the council table, star chamber, chancery exchequer chamber, or any other court of like nature, but only according to the common laws of the realm, and not otherwise. For (according to Sir E. Coke) such boldness the monopolists took, that often at the council
table, star chamber, chancery and exchequer chamber, petitions, informations, and bills, were preferred, pretending a contempt for not obeying the commandments and clauses of the said grant of monopolies and of the proclamations concerning the same. 3 Inst. 182, 183.
The court of the star chamber considered all infringements of patents and grants of the crown as contempt of royal authority, and on that principle supported any patent the crown thought fit to grant.
for new manu
accounted from the date of the first letters patent and grants 21 Jac. 1, c. 3. thereof made, shall be of such force as they were or should have been if the same had been made but for the term of one-andtwenty years only, and as if this act had never been had or made, and of none other (o).
VI. Provided also, and be it declared and enacted, that any Letters patent declaration, before-mentioned, shall not extend to any letters bere
granted for patent and grants of privilege for the term of fourteen years, or fourteen years, under, hereafter to be made, of the sole working or making of to
10 working of making 0 factures, saved. any manner of new manufactures within this realm, to the true and first inventor and inventors of such manufactures, which others at the time of making such letters patent and grants shall not use, so as also they be not contrary to the law, nor mischievous to the state, by raising prices of commodities at home, or hurt of trade, or generally inconvenient. The said fourteen years to be accounted from the date of the first letters patent or grants of such privilege hereafter to be made, but that the same shall be of such force as they should be, if this act had never been made, and of none other (p).
(6) See post, note p.
(p) The following commentary on these sec tions is given by Sir E. Coke, 3 Inst. 181.
"There be in this act concerning monopolies, or sole buying, &c., many provisoes. The first is, that this act shall not extend to any letters patent or grants of privilege, heretofore made, of the sole working or making of any manner of new manufacture. But that new manufacture must have seven properties. First, it must be for twenty-one years or under. Secondly, it must be granted to the first and true inventor. Thirdly, it must be of such manufactures, which any other at the making of such letters patent did not use; for albeit it were newly invented, yet if any other did use it at the making of the letters patent, or grant of the privilege, it is declared and enacted to be void by this act. Fourthly, the privilege must not be contrary to law. Such a privilege as is consonant to law, must be substantially and essentially newly invented; but if the substance was in esse before, and a new addition ibereunto, though that addition made the former more profitable, yet is it not a new manufacture in law. And so it was resolved in the Exchequer Chamber (E. T. 15, E. 4), in Bircot's case, for a privilege concerning the preparing and melting &c. of lead ore; for there it was said, that that was to put but a new button to an old coat, and it is much easier to add than to invent. And there it was also resolved, that if the new manufacture be substantially invented according to law, yet no old manufacture in use before can be prohibited. Fifthly, nor mischievous to the state, by raising the prices of commodities at home. In every such new manufacture that deserves a privilege, there must be urgens necessitas et evi. dens utilitas. Sixthly, nor to the hurt of trade. This is very material and evident. Seventhly, por generally inconvenient. There was a new
invention found out heretofore, that bonnets and caps might be thickened in a fulling mill, by which means more might be thickened and fulled in one day, than by the labour of fourscore men who got their livings by it: it was ordained, that bonnets and caps should be thickened and fulled by the strength of men, and not in a fulling mill; for it was holden inconvenient to turn so many labouring men to idleness. If any of these seven qualities fail, the privilege is declared and enacted to be void, by this act; and yet this act, if they have all these properties, set them in no better case than they were before this act.
“The second proviso concerneth the privilege of new manufactures, hereafter to be granted. And this also must have seven properties. First, it must be for the term of fourteen years, or under. The other six properties must be such as are aforesaid, and yet this act maketh them no better than they should have been if this act had never been made, but only exempts them out of the purview and penalty of this law.
“ The cause wherefore the privileges of new manufactures, either before this act granted, or which after this act should be granted, having these seven properties, were not declared to be good, was, for that the reason wherefore such a privilege is good in law is, because the inventor bringeth to and for the commonwealth a new manufacture, by his invention, costs and charges, and, therefore, it is reason that he should have a privilege for his reward (and the encouragement of others in the like) for a convenient time; but it was thought that the times limited by this act were too long for the private, before the commonwealth should be partaker thereof; and such as served such privileged persons by the space of seven years, in making or working of the new manufacture (which is the time limited by law of apprenticehood), must be apprentices or servants