University of Virginia Library

The Court of Chancery

Year after year Partridge's work as a maker of almanacs had been following the pattern usual among his kind. The astrologer prepared an annual pamphlet for the Company of Stationers, receiving a flat fee for his copy, and after the material had been allowed by the representatives of the Church the Company proceeded under royal prerogative to arrange for printing and distribution at a profit. The sales of almanacs and certain kinds of books accounted for most of the Company's revenue, which was used for the expenses of the corporation, charities, and excellent dividends.[5] In 1709 Partridge attempted to negotiate with the Stationers for an increase in his fee but received no satisfaction from that shrewd organization. He then withheld the Merlinus Liberatus from its normal and legal publication and sold the text of his 1710 compilation to John Darby, a member of the Company who had printed some of his early almanacs. No doubt under this arrangement Partridge received a sum greater than the amount expected from the Stationers.

When Partridge and Darby decided to become independent of the authority of the Company, it quickly sought justice for its special privileges and initiated a suit in the Court of Chancery.[6] At a private meeting on 7 July 1709 the Court of Assistants of the Stationers' Company, the governing body of the corporation, considered "some matters in Difference between the Company and Dr. Partridge Concerning his Almanack for the Year Ensueing," and a committee was ordered to meet with Partridge as soon as possible "to Accomodate

and end the said matter in Dispute." On Saturday the 24th a letter from Partridge (presumably a statement of hopes and plans) to Mr. Churchill, a member of the committee, was read by the Court, and a larger committee was appointed to meet on the following Tuesday at two o'clock to examine the question. About this time the Company apparently made its decision to prosecute Partridge and Darby, and to act speedily. On 30 July upon petition of the Stationers as plaintiffs to the Master of the Rolls the two defendants were ordered to appear and answer the bill of complaint. Two days later the Court of the Company "Ordered that the Master and Wardens and whom else they shall think fitt do goe into such printing houses as they have reason to Suspect are printing any of the Companyes Coppyes or Almanacks to See whether they are printing any of the Companys Coppy's." Meanwhile the bill had been prepared in the customary repetitive detail.[7]

This important document cited first the privilege granted by the Crown in letters patent, notwithstanding which "within these Two Months last past He the sd. John Partridge hath fframed & Compiled & the sd. John Darby . . . hath Printed or Caused to be Printed or they or one of them are now Printing or Causeing to be Printed wth.in the Realme of Great Brittaine & diverse Parts beyond the Seas upon their or one of their Account" great quantities of an almanac for 1710 by Partridge and other almanacs by Fowle and Turner. Such a printing at home or abroad by individual members of the Company on their own account and without the authority of the Company was against the letters patent; authorized printing should be carried out by printers appointed or approved by officers of the Company, "managed & Carryed on by a Comon Stock deposited by the sd. membrs. who were to have answerable propor&c.ilde;ons of Advantage over & besides wt. was so as aforesd. limitted for the poor of ye. sd. Company." The plaintiffs offer "not to take the Advantage of any Penalty whatsoever" but desire complete information on all the transactions of the confederates concerning their fraudulent almanacs. They say that unless the complainants are supported the privilege and interests granted by the Crown "must otherwise be Defeated & not only the sd. poor Widows & Orphans must perish but others." They ask that the defendants and their "Confederates their Jorneymen Workemen Servts. & Agents may be Injoyned

. . . from Printing Importing binding Selling Publishing Vending uttering & Bartering away all such Books Almanacks Sheet Almanacks & all other Bookes Sheets or Papers wherein shalbe Inserted or Contained the Callendr. of & belonging to your Oratrs. granted to them & their Predecessors" by the letters patent. On the 5th of August counsel for the Company repeated the substance of the bill, gave in evidence the letter Partridge had written to Churchill, and prayed that an injunction be issued to prevent the publication of Partridge's almanac until he should answer the bill and the court make other order to the contrary, and the court agreed (P.R.O., C. 33/312/363).

In the record of Company disbursements an entry of 8 August states that the Master and Warden (or Wardens) went to search Darby's house at the Oxford Arms, spending three shillings on the expedition, and that eight shillings threepence were consumed at the Queen's Head "on Patridges Affair." In the next two months no orders or decrees were issued save those to force the defendants to answer the bill of complaint (P.R.O., C. 33/ 312/ 469, 438-438v; 25 August, 10 September 1709). But with the approach of the season for the sale of almanacs the Company thought fit to publish an advertisement concerning the injunction, and on 3 October 1709 a notice was approved for printing in the newspapers. It appeared in the Post Boy, stating the fact of the prohibition by the Lord Chancellor and warning that the Company was "resolv'd to prosecute all such Persons that shall do any Act in Contempt thereof."[8] The advertisement ended with a notice of the days of publication for the forthcoming authorized almanacs.

By this time the quarrel had got into the public domain. A minor periodical called the Whisperer, conceived in imitation of the Tatler and written by Bickerstaff's sister Jenny Distaff, took note of the affair. At the end of the first and probably only essay an incident is recorded of a man who escaped from his own wedding; the disappointed bride comes to Jenny for advice, and Jenny asks her what person can give a solution. Jenny goes on —

After some delay the Court of Chancery received the answer of Partridge and Darby (P.R.O., C. 33/ 312/ 448, 458; 13, 22 October 1709. C. 7/ 299/ 3; 27 October 1709), wherein it was admitted that before the exhibiting of the bill of the complainants Partridge had sold the copy of his 1710 Merlinus Liberatus to Darby and had granted him the right of printing the same for his own advantage, and that Darby had printed part of this almanac but not yet the whole of it. The defendants objected that the letters patent, so important to the plaintiffs' case, were not "sufficient in Law" to give the Company the right to exclude from the defendants their own publishing rights. They further claimed that their almanac had not been allowed by the Archbishop of Canterbury or the Bishop of London and therefore that the authority of the Stationers, by their own showing, to publish such almanacs as had been allowed by the church officials did not apply to the pamphlet in question. Partridge and Darby then humbly prayed "to be hence dismis't with their reasonable Costs and charges in this behalf wrongfully sustained."

The case appeared in the Court of Chancery twice in the month of November (P.R.O., C. 33/ 314/ 9v, 30; 5, 28 November 1709). The defendants asked that they be permitted to print and sell the offending almanac under proper accounting during the period of legal delay, but it was ordered instead that the case be argued more promptly. The great hearing took place on 6 December 1709 before the Right Honorable the Lord High Chancellor, William Lord Cowper.[10] The arguments repeated much that had already been said and written. The validity of the letters patent was the principal point at issue, and it had great force and convenience. In the end his Lordship held with the accepted doctrine and ordered that the demurrer of the defendants be overruled.

The decision for the Company of Stationers received immediate

but brief and matter-of-fact reporting in the Supplement, Post Boy, and British Apollo, and was entered by Narcissus Luttrell in his private Relation.[11] But the most detailed account, and the only one with a turn of wit the time could relish, was that of Abel Boyer in his own Post Boy, which read in part as follows:

Partridge made public his own views in A Letter to a Member of Parliament from Mr. John Partridge, touching his Almanack for the Year 1710. and the Injunction, whereby the Publishing of it is staid for the present, a four-page, folio pamphlet dated 10 December 1709. This polemical epistle begins with a reassurance that the writer is not dead, "as you have been told in Print by a merry witty Gentleman under a feign'd Name," and that the "Injunction was not granted upon the Suggestion of my being dead, as some have foolishly imagin'd." The writer proceeds to give the historical background of the dispute and to reproduce and answer various arguments of the Company: the way people could be misinformed in almanacs written by ignorant men, the use of the Church Calendar, and the "mischievous consequence to the State" of prognostications by ill-affected astrologers. Partridge more than once makes plain his adherence to the principles of the Glorious Revolution and contends with much logic "That the Legislative Power of this Kingdom is not in the Crown (alone) but in the Crown, Lords and Commons" and that printers should not be restrained by a royal prerogative. All of this is clearly an appeal to Parliamentary authority against monopolistic privileges granted at the time of James I, "when Patents were growing in, and Parliaments growing out of fashion." The whole presentation is carefully reasoned, strongly and succinctly stated, and entirely different from the astrological

works of Dr. John Partridge. Perhaps counsel wrote the pamphlet for him, but it appeared as if prepared by the defendant in the current suit and so must be associated with his name as a worthy document in the history of the liberty of the press.[12]

With the new calendar year of 1710 Partridge and Darby submitted a further answer to the charges, repeating some of the points in the Letter and claiming that any pretended right of the plaintiffs was "a Matter cognizable and determinable at the Common Law." They denied that they had imported any almanacs, admitted they had had no license from the Company to print or sell almanacs, and protested that they were being prohibited "from the exercise of their lawfull Employmts. for the maintenance and support of themselves & their familys and for the enabling them to pay what is and shall be assessed and laid on them for and towards the publick taxes" (P.R.O., C. 7/ 299/ 3; 23 January 1710). The case reappeared in Chancery for several legalistic maneuvers, but the injunction remained operative (P.R.O., C. 33/ 314/ 213, 145v, 176, 295v; 23 January, 1, 9, February, 27 May 1710).

On 22 February 1711 the whole business was thoroughly reviewed before the Lord Keeper of the Great Seal, whereupon he ordered that a case be made upon the letters patent and two questions be stated — whether the grant given to the plaintiffs be general or restrained as to which almanacs must be allowed by the Church, and whether the Crown has the prerogative to grant exclusive power. The case would be referred to the Queen's Bench for opinions, which would be considered by the Lord Chancellor, who then would "proceed to give his finall Judgmt. in this Case" (P.R.O., C. 33/ 316/ 525-525v. Cf. C. 33/ 318/ 129v; 7 January 1712). And there the matter rested for more than sixty years — a period of delay beyond what might reasonably be expected of Chancery proceedings. In 1769 the great Lord Mansfield after a full study of the case commented as follows:

The rights and liberty of the British subject were not truly vindicated in the publication of almanacs until Thomas Carnan in 1775 won from the Court of Common Pleas the answers to the two questions propounded in 1711 — that the royal grant applied only to ecclesiastically approved almanacs and that the Crown had no power to grant exclusive rights.[14]

In such a manner did a quack astrologer who wanted more money for his famous-infamous almanac pose the problem of an author's choice to publish his work wherever he pleased and not of necessity through the Stationers' Company, which had long been enjoying the profits of a monopoly awarded by a monarch with no concurrence by his legislature. Whatever the intention or status of Partridge he served as unwilling victim of an old inequity, and the suit against him has an interesting place in the history of legal challenge to official privilege. Though this suit was never determined and the liberty which Partridge claimed was not sustained until three score years after his actual death, it raised a pertinent issue and stated distinctly its central questions. By not being allowed to publish an almanac Partridge helped in a small way to create a better position for his successors.

This official circumstance in Partridge's career has never received comprehensive study. A persistent and dogmatic error has prevailed that the Stationers struck the name of Partridge from their rolls, with perhaps the implication that the poor fellow was thereby forced out of employment. The Stationers have furthermore been credited with assuming Partridge to be dead or acting on that assumption by others. The more fanciful interpreters have maintained a kind of competition in artlessness, so that it becomes almost a sport to discover the best misunderstanding. For example, "The Stationers' Company gravely walked into the trap, and officially forbade the publication of further Almanacks bearing Partridge's name, because no one had a right to misuse the name of a dead writer." Or another: "In October 1708, the Stationers' Company published Partridge's almanack for 1709, in which also appeared a denial, but after this actually refused to issue any more of his almanacs on the ground that he was dead!"[15]

This of course is nonsense. The Stationers had a patent to publish almanacs, which it was their wish, need, and habit to protect. When one of their most popular writers decided to withhold his work from their authority, they sought to prohibit him; if he successfully defied the organization, the Stationers would lose the profits of his annual publication and might lose also their power over other almanac makers. The Company did not strike Partridge from its roll of members — he was not a member and so could not be expelled; and the Stationers certainly were not striking him from their roll of astrologers but rather were trying to retain his almanac over their own imprimatur. The Stationers were not primarily interested in a hoax by a pseudonymous prankster or in a continuance of the joke by the town jesters, and they did not for a moment "assume" him dead. The Stationers were hardheaded men of business concerned with their own monetary matters, and they would hardly request an injunction against a ghost.

A few people who were naïve or somber or ready to believe anything they read or heard doubtless accepted Partridge's "death" no matter what the source of the news. But in actuality the Bickerstaff predictions and the prominence Partridge received therefrom had no necessary connection with the legal action of the Company, unless we may suppose that Partridge thought the publicity he had been getting made his services more valuable. The groundless affirmations about Partridge and the Stationers in sober works by prominent scholars present a better than normal example of adherence to received legend and reluctance to consult solid sources. The story of Partridge in Chancery and his relation to the Stationers is interesting enough without recourse to scholarly romancing.