By William E. A. Axon, f.r.s.l.

IN all ages men have attributed a special sanctity to certain localities, usually those devoted to the purposes of worship, and this sentiment has in many lands been utilised in the interests of mercy by exempting those within the precincts from arrest for some, or even all, crimes and offences. In the earlier stages of development, the punishment of crime was not regarded as a duty of the community, but as an obligation, or privilege of the injured or of those nearest to him in blood or social relationship. Thus the son of a murdered man had the right to murder the murderer. The general principle of the earlier forms of justice is the lex talionis, but the infliction of the penalty was mostly in the discretion of the avenger. He might be afraid to attempt to slay a strong or powerful homicide, and be willing to pardon the offence for a money consideration. A criminal who took refuge in a sacred place secured at least a breathing time in which his friends might effect a compromise with his adversary. Greece had its famous asyla, but the custom of our own country was probably influenced from Hebrew rather than classical sources. In the narrative of the death of Joab, the hesitation of Benaiah shows that it was unusual to slay one who had taken hold of the horns of the altar. The six Cities of Refuge were appointed as places of safety for involuntary homicides, where they were protected from the avenger of blood. Amongst our Anglo-Saxon ancestors, the Church exerted a moderating influence. Every consecrated church had the right to shelter the fugitive from justice for seven days, and when the building was needed, he might be placed in a house provided for that purpose by the church, which was not to have more doors than the church itself. If the criminal was dragged forth from his refuge, the violators of the sanctuary were fined in varying degrees according to the rank of the ecclesiastical edifice. In addition to the inherent right of each church, special privileges were conferred on certain places by the exercise of the royal prerogative. In 1378, it was decided that the property of fraudulent debtors who had taken sanctuary should be liable for the satisfaction of the claims of their creditors. In 1486, Pope Innocent VIII. issued a bull relating to English sanctuaries, by which it was provided that when the refugee left his asylum, he lost his right of protection, even though he subsequently returned to the sanctuary. At the same time, the king was empowered to appoint keepers to look after those who having been accused of treason, had taken sanctuary.

Great changes were made in the law during the reign of Henry VIII. Traitors were wholly exempted from the privilege; those abjuring the realm were not actually banished, but were to remain throughout life in the sanctuary, and if they left it and committed any offence, they might then be brought to trial. All inmates were to wear a badge twenty inches in length and breadth, were forbidden the use of weapons, and were not to leave their lodgings between sunrise and sunset. In 1538, the right of sanctuary was further restricted, and Wells, Manchester, Northampton, York, Derby, and Launceston were declared sanctuaries. Manchester found this privilege to be of such doubtful value that two years later it was transferred to Chester, and afterwards to Stafford. In the reign of James I., the right of sanctuary was abolished almost everywhere. The Palatine Counties had their special sanctuaries. In Cheshire, Hoole Heath, Overmarsh, and Rudheath were such places of refuge. The abbey of Vale Royal had also a grant. But generally the County Palatine of Chester was a place of resort for those who had come into conflict with the law in other parts of the kingdom, and it was not until the reign of Charles II. that the king’s writ ran in the palatinates and other privileged places. Many privileged places in London, Westminster, and Southwark were brought within the regular jurisdiction in the reign of William III. and George II.

We have an instructive picture of the working of the sanctuary system in the case of Manchester. The Act of 32 Hen. VIII., c. 8, abolished the right of refuge in all places except, and the exception is a considerable one—churches, hospitals, and churchyards. Perhaps a more important exception was that sanctuary was to be denied to those guilty of murder, rape, highway robbery, burglary, house-burning, or sacrilege. Whilst abolishing many sanctuaries, certain additional places were named as cities of refuge for minor offenders. One of these was Manchester. A year later the town petitioned to be relieved from this distinction. The inhabitants set forth that Manchester had a great trade in the bleaching of linen yarn, and in the making of linen and woollen cloths and dressing of cotton, and that the influx of dissolute persons to the sanctuary had caused serious damage to the prospects of the town, which, having no mayor, sheriff, or bailiff, and no jail, was badly circumstanced for dealing with these lawless invaders. The request was granted, and the sanctuary removed from Manchester to Chester. But the city of the Deva found it desirable to obtain relief, and a further removal was made to Stafford.

The fridstool at Hexham still remains, although nearly everything else of the Saxon foundation has perished. This “chair of peace” was the central point of the sanctuary, which extended a mile around. A Durham example of the working of the law may be cited.

“Memorandum: That on the 13th day of the month of May, a.d. 1464, one Colson, of Wolsyngham, Durham, who had been detected in a theft, and therefore put and detained in gaol, at length contrived to escape, and fled to the Cathedral Church of Durham, in order to avail himself of its immunities, and whilst he was there standing near the bier of St. Cuthbert, prayed, that a Coroner might be assigned to him. Upon John Raket, Coroner of the Ward of Chester in Strata (sic) coming to him, the same Colson confessed the felony, making upon the spot the corporeal oath that he abjured the realm of England, and would withdraw from it as soon as he could conveniently, and would never return thither, and which oath he took at the bier of St. Cuthbert in the presence of Master George Cornworth, Sacristan of the Cathedral Church of Durham; Ralph Bows, Knight and Sheriff of Durham; John Raket (the Coroner); Robert Thrylkett, Deputy Sheriff; Hugh Holand, and Nicholas Dixson, and of many others; by reason of which renunciation and oath all the dress of the said Colson belonged to the said Sacristan and his office; wherefore the said Colston was enjoined to take off to his shirt all his garments, and deliver them to the aforesaid Sacristan, and he did so, placing them all into his possession, the Sacristan gave up and delivered to him again, gratuitously, all his dress that he had up to this occasion been clothed in; and after that Colstone withdrew from the Church, and was handed over to the nearest constable by the aforesaid sheriff, and so on from constables to constables, holding a white cross made of wood as a fugitive, and so he was to be conducted to the nearest seaport to take vessel as one never to return. This was done on the day, month, and year aforesaid.”

The system was one that led to gross abuse. It was held that the right did not extend to others than those whose offences entailed forfeiture of life and limb, but in practice knavish debtors, fraudulent executors, etc., availed themselves of the protection. There was plenty of scope for dispute as to jurisdiction. In 1427, the Abbot of Beaulieu was required to give proof of his right to shelter William Wawe, who is described as a heretic, traitor, common highwayman and public robber. “Wille Wawe was hanged,” is the sum of the matter as recorded by Stowe. Between 1478 and 1539, at Durham, 283 persons took refuge who were, as principals or accessories, accused of homicide. There were sixteen debtors, four horse-stealers, nine cattle-stealers, and four house-breakers. One had been charged with rape, and seven with theft. One had been backward in his accounts, one had harboured a thief, and one had failed to prosecute. Sir John Holland, in revenge for the death of his esquire, killed the son and heir of Hugh, second Earl of Stafford, and then took sanctuary at Beverley. The murderer, in this case, was the half-brother of Richard II., but it was with great difficulty that the king was induced to grant a pardon.

The church of St. John of Beverley had a charter from Athelstan, and near the altar was the Fridstool, or chair of peace, “to which what criminal soever flies hath full protection.” The privilege extended for a radius of about a mile round the minster, and the limits were marked by stone crosses. Infraction of the right of sanctuary was punishable by severe penalties, and to take a refugee from the Fridstool was to incur both secular and ecclesiastical penalties, the latter extending to excommunication.

The widow of Edward IV. fled with her younger children for safety to the sanctuary of Westminster after her eldest son had fallen into the keeping of the Duke of Gloucester. Sir Thomas More reports the discussion in the Council of the Protector, and the arguments used by Cardinal Bourchier, which induced the queen to give up the Duke of York. The boy king, who was never crowned, and his brother were murdered in the Tower. It is noteworthy that this unfortunate monarch was born in the sanctuary of Westminster when his father was in exile. Skelton, the poet, died in this same sanctuary.

The privileges of the sanctuary were not always respected. When Geoffrey, Archbishop of York, took refuge in St. Martin’s Priory, Dover, he was dragged from the altar in his pontifical robes by order of the bishop of Ely, who was then Chancellor of the Kingdom. But this arbitrary proceeding was not the least of the causes of the downfall of William of Longchamp. When William Longbeard, who had been condemned to death, took sanctuary at St. Mary-le-Bow, Hubert de Burgh ordered the church tower to be set on fire to compel him to come forth. Longbeard abandoned his place of refuge, and was dragged to Tyburn, and there hanged. But although de Burgh was Archbishop of Canterbury and Justiciary of the Kingdom, and the Church was his own peculiar, his violation of sanctuary led to the loss of his great secular dignity. Later, when he had himself to seek refuge, a great debate arose as to his having been forcibly taken from a sanctuary, and he was restored to its protection, and escaped to Wales.

Whilst the same rights of sanctuary existed in Ireland and in Wales, they were apparently not made use of to any great extent. In Scotland, the churches of Wedale, near Galashiels, and of Lesmahagow, near Lanark, were the most famous of the religious sanctuaries. The latter had also a royal charter from David I. These sanctuaries ended with the Reformation. The abbey of Holyrood and its precincts, which include Arthur’s Seat and the Queen’s Park, gave protection to debtors until, by the abolition of imprisonment for debt, its privileges ceased to have any meaning. One of those who thus sought refuge at Holyrood during a part of his career was Thomas de Quincey.

Sanctuaries probably served a useful purpose in ages when the law was harsh and indiscriminate in its punishment of offenders. The limited protection afforded by the Church sanctuaries at least gave an opportunity for the first heat of revengeful feeling to subside, and the greater sanctuaries protected not merely vulgar offenders, but those whom the stormy tide of politics had placed at the mercy of their enemies. As the law became stronger, and the course of justice more certain, the need for these refuges ended, and those that continued were public nuisances, and mere centres of crime and anarchy, such as Scott has described for us in his picture of Alsatia. We may be thankful that sanctuaries are now merely objects of antiquarian interest and speculation.

This is a suggested Seven Step Strategy for conducting preliminary searches of U.S. patents and published applications using free online resources of the USPTO and its bi-lateral partner EPO (European Patent Office).  Patent and Trademark Resource Centers (PTRCs) (www.uspto.gov/ptrc) are available nationwide to provide training on this Seven Step Strategy.

PTRCs provide online access to the PatFT (Patents Full-Text and Image) and AppFT (Applications Full-Text and Image) databases on the USPTO website and the Espacenet Worldwide Database on the EPO website. In addition, most PTRCs provide access to additional USPTO patent databases available through PubWEST (Public version of the Web-based Examiners Search Tool) and PubEAST (Public version of the Examiners Assisted Search Tool). Always call your nearest PTRC to make an appointment before visiting to make the best use of your time.

The use of patent classification in searching U.S. patents and published applications usually results in a more comprehensive search than one done by word and phrases (keyword searching). Because keyword searching must anticipate the often technical language of patents, it serves best as a supplement to a classification search. Accordingly, patent classification searching is the focus of the Seven Step Strategy.

The USPTO has transitioned from using the over 100 year old U.S. Patent Classification (USPC) system to Cooperative Patent Classification (CPC), a new classification system jointly developed with the European Patent Office (EPO). The USPTO currently only uses CPC for classifying new utility patent documents; however, it will continue to use U.S. Patent Classification for classifying design and plant patents. This version of the Seven Step Strategy reflects this transition to the primary use of Cooperative Patent Classification in utility patent publication searching.

The Seven Steps in a Preliminary Search of U.S. Patents and Published Patent Applications

1. Brainstorm terms to describe your invention based on its purpose, composition and use.
2. Use these terms to find initial relevant Cooperative Patent Classification using the USPTO website’s Site Search box(www.uspto.gov). In the Site search box found in the top right hand corner of the home page enter “CPC Scheme [plus keywords(s) describing invention]”; for example, if you were trying to find CPC Classifications for patents related to umbrellas, you would enter “CPC Scheme umbrella”. Scan the resulting classification’s Class Scheme (class schedules) to determine the most relevant classification to your invention. If you get zero results in your Site Search, consider substituting the word(s) you are using to describe your invention with synonyms, such as the alternative terms you came up with in Step 1. For example, if you find searching for “CPC Scheme car mirror” is getting unsatisfactory results, try searching instead with “CPC Scheme vehicle mirror.” (If you continue to be disappointed with the CPC Classification search results, look for your search word in the International Patent Classification Catchword Index https://web2.wipo.int/ipcpub/#¬ion=cw; CPC is based on International Patent Classification).

3. Verify the relevancy of CPC classification you found by reviewing the CPC Classification Definitionlinked to it (if there is one).
4. Retrieve U.S. patent documents with the CPC classification you selected in the PatFT (Patents Full-Text and Image) database (https://patft.uspto.gov). Review and narrow down the most relevant patent publications by initially focusing on the front page information of abstract and representative drawings.
5. Using this selected set of most relevant patent publications, review each one in-depth for similarity to your own invention, paying close attention to the additional drawings pages, the specification and especially the claims. References cited by the applicant and/or patent examiner may lead you to additional relevant patents.
6. Retrieve U.S. published patent applications with the CPC classification you selected in Step 3 in the AppFT (Applications Full-Text and Image) database (https://appft.uspto.gov). Use the same search approach used in Step 4 of first narrowing down your results to the most relevant patent applications by studying the abstract and representative drawings of each on its front page. Then examine the selected published patent applications closely, paying close attention to the additional drawings pages, the specifications and especially the claims.
7.  Broaden your search to find additional U.S. patent publications using keyword searching in PatFT or AppFT databases, classification searching of non-U.S. patents on the European Patent Office’s Worldwide Espacenet patent database (https://worldwide.espacenet.com and searching non-patent literature disclosures of inventions using the free electronic and print resources of your nearest Patent and Trademark Resource Center (https://www.uspto.gov/ptrc).

For more information email me badawy@badawy.ca

Like most western democracies, Canada has an all-powerful supreme court sitting at the top of its judicial hierarchy with the power to overrule all lower-ranking courts, and even Parliament itself. Consisting of nine elderly and experienced judges, the Supreme Court only hears appeal cases which it deems to present an important constitutional question that deserves clarification. Most commonly, these are cases in which an accused Canadian believes an existing law, of which he has been found guilty, should not be a law at all, because it contradicts some fundamental human right protected by the Charter of Rights and Freedoms.

The ability to overturn laws of Parliament is a very dramatic power, and the Supreme Court is one of the most powerful political institutions in Canada for this reason. Rulings of the Supreme Court are closely watched and covered by the Canadian media and can often generate enormous controversy. For example:

• In the case of The Queen v. Morgentaler (1988), the Court ruled the government cannot prevent Canadian women from having access to an abortion.
• In the case of The Queen v. Keegstra (1990), the Court ruled that Canadians can be legally punished for making “hate speech.”
• In the case of Rodriguez v. British Columbia (1993), the Court ruled it’s illegal to help a sick person commit suicide.

In recent years, it has also become commonplace for the federal government to ask the Supreme Court of Canada to occasionally rule on things without the pretext of a trial. Such requests are known as Supreme Court “references.” They’re non-binding, but still help clarify the law. For instance:

• In Reference re: secession of Quebec (1998), the Court ruled that the province of Quebec could not legally separate from Canada without the approval of the Canadian government.
• In Reference re: same-sex marriage (2004), the Court ruled that marriage between two men or two women was constitutional.
• In Reference re: Senate reform (2014), the Court set out the constitutional rules for reforming the Senate of Canada.

The nine judges of the Supreme Court are appointed by the prime minister, and serve until age 75, so at any given time the Supreme Court is a medley of many different appointments of many different administrations. Traditionally, prime ministers put a great deal of effort into ensuring the court always maintains a fair geographic balance, with at least one justice for each major region of Canada.

Though Canada is now fully independent from Britain, British Common Law still applies, as it does in the United States and other former British colonies. Common Law is basically the idea that precedent matters, and that decisions and definitions set down by courts in earlier times still apply to everyone today.

Though Canadian judges now have more than enough independent Canadian legal precedent to help them make decisions, it’s not entirely uncommon for judges, when faced with a particularly thorny legal question, to refer back to the judgments of British judges in the colonial period, or even earlier, in order to provide historical context for the purpose of laws or understanding, say, what “libel” is supposed to mean. The famed Magna Carta of 1215, for instance, which first outlined basic principles of English justice, is still considered one of the foundational documents of Canadian Common Law.