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trusted by the public to conduct the investigation. This strange enigma, and the no very suitable means for solving it, taken in connexion with other cases, suggest the question whether there ought not to be in this country a tribunal analogous to the French Court of Cassation, to correct the errors of our criminal courts. There may be prisoners in whose fate the public may not be roused to take an interest, and who may die unjustly because no popular appeal has been made to the Secretary of State for them. Moreover, an appeal to the Secretary of State is too difficult; as a tribunal of review he is too inaccessible. His modes of obtaining information are irregular, and the information on which he decides is not published. He is, too, overwhelmed with other work, and cannot readily afford time to investigate a matter so mysterious and complicated as that in which the guilt or innocence of Mrs. Maclachlan is involved. Of course we do not suggest the creation of a Scotch Court of Cassation. The Scotch High Court of Justiciary (there being no appeal from it to the House of Lords) is the most inconsistent in its decisions of any court of last resort in the three kingdoms-three judges one Monday deciding one thing, and another three on another Monday deciding the very opposite. If we are to have a Court of Cassation it would require to be a British Court, set high above the provincial prejudices of Edinburgh, Glasgow, and Dublin, and having no less authority, we think, than that of Her Majesty's Privy Council. It is a melancholy reflection, that the consideration of a famous trial may suggest improvements in the law, but can bring little or no help to the evils of the case itself. The mismanagement and unintentional injustice, the imperfect sifting of facts, which have been too characteristic of the Glasgow trial, can no more be recalled than the words in which Lord Deas expounded to the jury his startling philosophical proposition that "circumstances cannot lie." Whether circumstances can lie or not; or whether they have been made to lie and affirm as a fact what is but at most a suspicion, is the question which Sir
George Grey, in default of a more regular tribunal, is called on to decide, and will decide finally, perhaps, while these sheets are passing through the press. What the issue may be we cannot predict. On the day this ineffectual article is given to the world, the poor woman whose mysterious story has been discussed in it, may be sent by the hands of man into another world. Against the rashness of the verdict we are bound to protest after repeated and most anxious deliberation upon all the facts as yet disclosed, and in that deliberation we have been actuated solely by a love of justice and truth. If she were guilty of murder and guilty beyond a doubt, we say that she ought certainly to suffer death if the last penalty of the law is ever to be exacted at all; but we cannot think that she is guilty beyond a doubt; we cannot say that this mystery is unsolved; and we greatly fear, if no new light is thrown upon it, and the sentence of the law is carried out, that this double tragedy may be remembered for many generations, and remembered most vividly as a blunder in the administration of the law, as a stroke struck by the sword of blind vengeance, and struck in the dark.
ART. VII.-THE PATENT LAW.
IT is probable that within two or three years we shall see a
considerable change in the administration of our law of patents, if not in the actual framework of the law itself. For some time past the subject has been discussed in the House of Commons, in the two great Associations which represent the educated opinion of the country on questions of scientific legislation, and in various other public assemblies; and it is notorious that in all these places, and among the many discordant views that have been propounded, a unanimous verdict of dissatisfaction with the present system has been recorded; indeed, we hardly know any one practically ac
quainted with the working of the patent law, whether lawyer, manufacturer, man of science, or patent agent, who does not admit grave defects in its present condition, and has not his own device for the remedies. Such a state of things demands inquiry, and the more so as we might otherwise fall into the evil of precipitate and mistaken legislation; and the Government have wisely complied with the expression of feeling in the House of Commons, by issuing a Royal Commission to investigate into the subject and report thereon.* It may not be inapposite at the present moment to offer a few remarks on some portions of that wide field of inquiry on which the commissioners are about to enter.
Whatever opinion may be entertained on the abstract question of the right of an inventor to property in an invention, the product of his own brain, the general consent of civilised communities has recognised the policy of such rights, and of the enactment of laws to enforce them. Up to a certain point, indeed, the privilege is of natural law; for of all acquired rights, that of an inventor to his own creation may be most truly called his own; so long as he keeps it to himself he possesses that property which the first occupant by common consent of mankind possesses in the subject of his occupancy; he may enjoy it in secret or he may give it when he chooses to the public.
The analogy of property in inventions and in other things is complete up to this stage, but when the inventor or the author has given his invention or his book to the public, the right to restrain others from copying that invention or book, from applying the elements of matter equally within his direction, as of the inventor to the same or similar objects, is matter of positive law and of municipal regulation. In speaking of the rights of inventors, or of patent right, it is desirable
* The names of the commissioners are as follows:-Lord Stanley; Lord Overstone; Sir William Erle; Sir W. Page Wood; Sir Hugh Cairns, Q.C., M.P.; Horatio Waddington, Esq.; W. R. Grove, Esq., Q.C.; W. M. Hindmarsh, Esq., Q.C.; W. E. Foster, Esq., M.P.; William Fairbairn, Esq., F.R.S.
that the distinction above adverted to should be kept in mind, as disregard of this distinction has led to some confusion on the subject.
For instance, discussions have from time to time arisen on the question whether the grant of a patent for an invention is debito justitiæ, or in other words, whether the inventor has a right to demand such grant, or whether it is to be regarded as an act of grace and favour on the part of the Crown to the subject. The latter would appear to be the true view of the case according to the law of the United Kingdom, the power in the Crown in making such grants being limited by the Legislature. It follows from these principles, and is undoubtedly true in theory, that the Crown has a perfect right to refuse any such grant, or to make it on certain or such conditions as it may think fit; and that if those conditions are not complied with, the subject has no just ground of complaint.
The Patent Law Amendment Act, 1854, exhibits this theory in its true light. The applicant for letters patent represents that he has made a certain invention, which to the best of his belief is new and useful, and thereupon he prays for a grant of letters patent for the same. The application is referred to the law officer, as the adviser of the Crown, and the grant is made or not, according to his report; and will be withheld, notwithstanding his report in its favour, should the Lord Chancellor see good reason for refusing to affix the great seal to the grant.
The proceedings above referred to are in the control of the Commissioners of Patents, who have the power of interposing such conditions in the nature of an inquiry by the law officers, or other competent persons, as they may see fit; and it is only fair to the authors of the existing patent law to say, that in their opinion the powers already conferred on the Commissioners by Parliament are sufficient to remedy most of the evils complained of, were those powers exercised with energy and in the right direction. It has been stated by Mr. Thomas Webster, than whom no man is more competent
to pronounce an opinion, that the alterations in the present system recommended by the Committee of the Social Science Association might all have been thus carried out without need of further legislation. This may possibly be too sanguine a view, but it is one worth consideration, and we will therefore proceed to detail what the views of the committee are, and what class of evils they were designed to remedy. We will premise that no body of men could be found whose judgment is likely to carry more weight with the public; it was in reality a joint committee of the British Association for the Advancement of Science, and the Social Science Association; the chairman was Lord Stanley; Mr. Joseph Napier, General Sabine, Mr. Grove, Mr. Webster, Mr. Heywood, and other eminent men, were among its active members; its report was prepared with great care, and was based on resolutions carried after anxious inquiry and discussion. We bear this willing testimony to the worth and labours of the committee, though we are not prepared unreservedly to endorse their recommendations.
These recommendations were shortly as follows:
That all application for grants of letters patent should be subjected to a preliminary investigation before a special public tribunal, which should have power to decide on the granting of patents, though it should be open to inventors to renew their application notwithstanding previous refusal.
That the tribunal should be formed by a permanent salaried judge, assisted when necessary by the advice of scientific assessors, five in number, to be chosen from a panel nominated by the commissioners, for the adjudication upon facts, when deemed necessary by the judge, or demanded by either of the parties.
That the jurisdiction of the tribunal should extend to the trial of all questions of copyright and registration of design, and be conclusive, subject to the right of appeal to either of the Courts of Exchequer Chamber, with a final appeal to the House of Lords.
VOL. XIV.NO. XXVII.