New Bills in Parliament-Law of Patents. giving the judge power to direct a reference; and enabling the referees to discharge their duty with due effect. 39 made, the award may, at any time, be entered of record, and be of the same force as a judgment, except as to becoming a charge upon lands, &c. It is well known that actions of this kind, That the court as well before as after award may proceed by attachment, according to 9 and 10 William after they are brought into court at great exIII. Matter that may require the adjustment or pense, are necessarily referred to the decision settlement of the account of any personal estate of of arbitrators, it being impracticable, consistany testator or intestate, shall not be referred withently with the interests of public justice, to de-out the consent of the person or persons having the vote sufficient time to the investigation of the administration of such estate; and the adjustment various items of a debtor and creditor account, or settlement of the account of any real estate not to each of which might form a separate issue, to be referred without the consent of the persons be tried by the jury. chargeable in respect thereof as heirs or devisees. The difficulties in regard to the examination of witnesses, when out of the jurisdiction of the court, or unable from distance and infirmity to attend in person, have been long felt to be great hindrances in the administration of justice. They are now proposed to be removed by the provisions of the present bill, in which, however, due precautions are taken to secure the important object of the personal examination of witnesses, wherever it can be obtained. These are improvements which we consider honourable to the distinguished personage by whom they are recommended, and we trust, that, by similar means, all other defects in our judicial system will be gradually corrected; thus, facilitating the dispensation of justice, and lessening its expense. An Analysis of a Bill, intituled, "An Act for settling An Analysis of a Bill, intituled, "An Act to enable a commission for the examination of witnesses out of This bill, which was ordered on the 8th instant to be printed, recites that the determination of controversies by arbitration is often conducive to justice, and advantageous to the parties; but controversies cannot now be referred to arbitration without the consent of the several parties thereto, and such parties are sometimes deterred from submitting their differences to arbitration by reason of the want of their jurisdiction. That the courts shall have power to sufficient means to enforce the attendance of wit- compel the attendance of witnesses, and the proWitnesses entitled to exnesses and performance of the award. It is there- duction of documents. fore proposed to be enacted that, in all actions penses. That the examinations of witnesses shall wherein the matters in dispute might be made an be upon oath. Persons appointed for taking exaaction of account, or consist of pecuniary demands,minations to report to the court upon the conduct or absence of witnesses, if necessary. That the costs the court or any judge thereof may order such matters to be referred to an arbitrator. That in of the order for examination may be made costs in actions involving any question of law or matter of the cause, except otherwise directed by the court or judge. That no examination or deposition to fact, the court may order a special case or a trial of be taken by virtue of this Act shall be read in evisuch matters to be had, and refer the other matters in dispute. But without preventing a special whom the same may be offered, unless it shall apdence without the consent of the party against verdict. That, unless by special direction of the court or judge, the costs shall follow the event; pear that the examinant or deponent is beyond the but if other matters are referred by consent, the jurisdiction of the court, or dead, or unable from additional costs to be in the discretion of the arbi-permanent sickness or other permanent infirmity, to attend the trial, in all which cases the examina trator. That the arbitrator be empowered to direct a tions and depositions shall be received and read in judgment to be entered. That the court may interfere to relieve parties affected by references made with evidence, saving all just exceptions. out consent-application for such relief to be made within a limited time. That the entry of records of submissions to arbitration may be made at any time, either in term or vacation, and that the court may compel the attendance of witnesses, and the production of documents. Witnesses entitled to expenses. That arbitrators be empowered to administer oaths. That the power of the arbitrator shall not be revoked without leave of the court. That an enlargement of time may take place without rule of court. That if payment of money or delivery of possession of lands ordered by an award is not REVIEW. A Practical Treatise on the Law of Patents THE power of conferring on the inventor or reasonable time, appears to have resided in the crown at common law; and it was to correct the abuse of that power, and the mischiefs arising from the monopolies which its undue exercise had engendered, that the statute of 21 Jac. I. c. 3, was enacted. That statute has always been considered as declaratory of the common-law prerogative; it did not render any patents lawful after, which were not so before. The principal section of this Act is the sixth, which provides that no declaration before mentioned in it, shall extend to letters patent for the term of fourteen years or under, for the sole working of any new manufactures to the true and first inventor; but that the same shall be of such force as they would be, if this Act had never been made. Lord Coke was chairman to the committee on the passing of the bill, and being thus especially conversant with the measure, his opinion upon the sixth section is valuable. Mr. Holroyd has quoted it from the 3 Inst. 183, 184: it is at page 6 of the work now before us: "Letters patent to come within the proviso in the sixth section of 21 Jac. I. must have seven properties. 1. They must be for the term of fourteen years or under. "2. They must be granted to the first and true in ventor. "3. They must be of such manufactures which any other, at the making of such letters patents, did not use; for albeit it were newly invented; yet if any other did use it at the making of the letters patents, or grant of the privilege, it is declared and enacted to be void by this Act. 4. 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 thereunto, though that addition make the former more profitable, yet it is not a new manufacture in law; and so was it resolved in the Exchequer Chamber, Pasch. 15 Elizabeth, 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; bonnets and caps might be thickened in a fullingmill; by which means more might be thickened and fulled in one day, than by the labours of fourscore men who got their livings by it. It was ordained (by statutes 22 Edward IV. c. 5 and 7, Edward VI. c. 8; which were repealed by 1. Jac. I, c. 25,) that bonnets and caps should be thickened and fulled by the strength of men, and not in a fullingmill; for it was holden inconvenient to turn so many labouring men to idleness." Mr. Holroyd arranges his subject under the following heads: "1. Of the nature of the invention for which a patent may be granted. "2. Of the person to whom and for what time a patent may be granted. "3. Of the manner of passing a patent; of the caveat; and of the inrolment of the specification. "4. Of the patent, its form and provisions, and herein more particularly of the denomination of the invention in the patent, of the specification, its form, and requisites; and of the rule of construction applicable to the patent and specification. "5. Of the title of the patentee; assignment of a patent; and licences to use the invention. "6. Of enlarging the term of letters patent, and enabling the benefit of an invention to be assigned to more than five persons. "7. Of the remedies for an infringement of a patent; and what is an infringement. "8. Of the repeal and surrender of a patent." This division appears to be the natural and proper one, and it does not materially vary from that made by Mr. Godson in his Practical Treatise on the Law of Patents for Inventions, and of Copyright (a). With regard to the first head,—the nature of the invention; the sixth section of the 21 Jac. I. c. 3, contains the phrase new manufactures," and no further definition of the inventions upon which letters patent may be granted. But according to the liberal construction which this Act has received, it has been made to comprehend an immense variety of inventions in things made, and in the and it is much easier to add than to invent. And 5. Nor mischievous to the state, by raising of prices of commodities at home. In every such new manufacture that deserves a privilege, there must be urgens necessitas and evidens utilitas. 6. Nor to the hurt of trade. This is very material and evident. "7. Nor generally inconvenient." Lord Coke's notions of inconvenience are at variance with those of our political economists; for, as an instance of inconvenience, he states that "There was a new invention found out heretofore, that (a) "It has long been established that a patent may be granted for an addition or an improvement, provided it be so claimed. It would seem from the last resolution in Bircott's case, as stated by Lord Coke, as if the patent in that case had been claimed for the whole, and not for the improvement only." The true and first inventor is, 1. A person who discovers an invention, or who, under the protection of a patent, first publishes it to the world, 2. A person who brings from abroad, or has had communicated to him by a foreigner, an invention, which he first publishes in England under a patent. Thus the inventor may be a discoverer of a new thing; a publisher of an invention; or an introducer of a foreign invention. It is sometimes difficult to substantiate the pretension of being the first inventor. It was objected to Dollond's patent for making object glasses, that Dr. Hall had made the same discovery before him; but it was decided that as the doctor had not com Law of Patents. municated it to the public, Dollond was to be considered as the inventor. (a) In " Barker and Harris v. Shaw," which was tried before Mr. Justice Holroyd, at the Lancaster summer assizes, 1823, and which was an action for the infringement of a patent for an improved manner of making hats, one of the plaintiffs' men, whom they called as a witness, proved that he himself invented the improvement which was the subject of the patent, whilst employed in their workshop. The plaintiffs were therefore held not to be the inventors, and were nonsuited. (P. 60.) In the case of the King v. Arkwright, a patent had been granted for an improved air-pump, in which the patentee urged that he had embodied a principle, and reduced it to practice by means of his own discovery. The machine consisted of ten distinct parts, and it was proved that every part which was not old or had not been used for the same purpose to which it was then applied, was either not material, or not useful. A verdict was given for the crown, to repeal the patent. With regard to the manner of passing a patent; the first thing is to present a petition to the king, reciting that the inventor has discovered something (which is named) likely to be of general benefit, of which he is the true and first inventor, and that it has never before been used; and praying for letters patent to secure to himself the sole use of his invention for fourteen years. An affidavit, sworn before a master in Chancery, must support the allegations of the petition: the proceedings which then ensue are thus succinctly detailed by Mr. Holroyd, page 66: "The petition and affidavit must be taken and left at the office of the secretary of state for the home department, through whom the petition is to be presented to the king. "A few days after the answer to the petition may be had, containing a reference of it to the attorney or solicitor general, to report as to the propriety of granting its prayer. "The report of the attorney or solicitor general may be bad in a few days. The report, if in favor of the prayer of the petition, must be taken to the office of the secretary of state, for the king's warrant. This warrant is directed to the attorney or solicitor general, it is the authority for preparing a bill for the king's signature, and is to be taken to the patent office of the attorney or solicitor general for that purpose. "The bill which contains the grant, must be taken to the secretary of state's office for the king's sign manual thereto. "It must be then taken to be passed, at the office of the signet. "One of the clerks of the signet will make, in the king's name, letters of warrant under the hand of such clerk, and sealed with the king's signet, to the lord keeper of the privy seal for further process to be had therein. “And the clerk of the privy seal will make other letters of warrant, subscribed by him, to the lord (a) Per Buller, J. in Boulton v. Bull; 2 H. B. C. 470. 41 chancellor, for writing and sealing with the seal in bis custody letters patent. (b) "This last warrant must be taken to the patent office of the lord chancellor; the patent will he there prepared, and sealed with the great seal, and is thus passed." Caveats may be lodged at the offices of the lord chancellor, the attorney and solicitor general. A patent for England may be made to extend to the colonies; but does not extend to Scotland or Ireland., After the patent is passed, a specification, or particular description of the nature of the invention, and the mode of its operation, should be prepared within the time allowed for that purpose-usually two months for an English patent-acknowledged, and lodged at the inrolment office. A certificate of the inrolment, which is indorsed on the back of the specification, may be bad at the same time. The specifications are intended for the public use, and copies of them may be obtained. If the time for the inrolment has been suffered to elapse, or any other essential error has occurred in suing for the patent, it has been thought advisable to keep the invention secret, and begin proceedings de novo for a fresh patent. Our limits will not permit us to enter particularly into the remaining chapters of Mr. Holroyd's treatise. Originality in a legal treatise on a subject which has been handled by a previous writer, as this has been by Mr. Godson, is out of the question. Mr. Holroyd has, however, furnished a work solely on patents, while Mr. Godson's also embraces the law of copyright; the desideratum, therefore, of a small practical manual on the former subject, is supplied by the treatise before us. on cases relating to the subject have been brought down to the present time; there is a good index and have been done that can render the book generally an appendix of forms; and every thing appears to useful. FOR a INDIAN LAW (c). The decisions distinguished by every virtue, and exempt from long period the Hindoos were regarded as every crime. Their patience, prudence, tempelawgivers were affirmed to be giants, compared with rance, and gentleness, were taken for granted. Their the pigmies of the western world, and their sacred books were supposed to contain inestimable trea (b) There is some obscurity in this sentence: the practice is that the clerk of the lord keeper of the ford chancellor, to whose patent office it is carried, privy seal gives another warrant, directed to the and there the patent is taken out and sealed. Rev. (c) A code of Gentoo Laws, or Ordinations of the Pundits, from a Persian translation made from the original written in the Shanscrit language. [By Nathaniel Brassey Halhed,] 4to. London, 1776. Menu, according to the gloss of Cullica, comprising Institutes of Hindu Law, or the Ordinances of the Indian system of Duties, Religious and Civil. Verbally translated from the original Sanserit, with a preface by Sir William Jones, Calcutta printed, London reprinted, 1796. sures of wisdom and knowledge. Time and research have dispelled these delusions. In proportion as we have become better acquainted with the character and literature of the Hindoos, our admiration has subsided. We have found that their patience was but insensibility, their prudence but cunning of the lowest kind, their temperance the result of superstition, or of idleness, and their tenderness to the brute creation, compatible with a high degree of cruelty to the human species. Their legislators turn out to be drivelling fanatics, or juggling impostors: their men of learning proud, lazy, tyrannical mendicants, innocent of all knowledge, either useful or ornamental; and their sacred writings are discovered to be made up of the most extravagant and tasteless fables, combined with the most ridiculous trifling, and the grossest impurity. No man of healthy intellect would now refer to the attainments of the Hindoos in jurisprudence and moral science, but as a matter of curiosity, or as illustrating a chapter of the human mind. It is with this view that we advert to the subject, and cull from the sources acknowledged at the foot of our last page, some curious specimens of Indian legislation. Suppose two persons should quarrel about the right of property in certain glebe lands, or houses, or orchards, and one of them should produce a written deed, the other, after the property in dispute has been occupied for the space of sixty years by three following possessors who are now dead, is the fourth person now in possession of such property; in that case, the possession of three persons in succession is of more validity than the writing. The person who is in present possession shall obtain the property of such glebe land, or houses, or orchards, and the claim of him who produces the written deed shall not be heard." Hulhed. It is a remarkable coincidence with a part of our own law, that sixty years should be the length of possession requisite to constitute a legal title. There is no vice to which the natives of Hindostan are more addicted than that of lying. It is universal among them, and they seem to think, that speech was given to men, not to inform, but to deceive. A very intelligent Indian judge, Mr. Tytler, gives the following picture of Hindoo morality in this respect. "In nothing is the general want of principle more evident, than in the total disregard to truth which the Bengalee shews. And here no order or rank among them is to be excepted. Their religious teachers set the example, and it is most scrupulously followed by all ranks. As the Shasters declare that One of the most remarkable features in the laws, as in the character of this people, is the prevalence of trickery and cunning. If a man cannot get his money by fair means, what is he to do? Why, he must still get his money. He must have recourse to that which in our cold climate would be consi-lying is allowable in some cases, and the Bramins dered a 46 vigour beyond the law." So says the Gentoo code. Let it speak for itself. "If a man bath lent money to one of the same family, or to a man of bad principles, he shall by evasive pretences get hold of some of the debtor's goods, and by that means procure payment." Hathed. This, at any rate, is "sharp practice," and its being sanctioned and recommended by law, is a circumstance perhaps peculiar to the codes of the East. It has been urged as a reproach against some countries, that there is one law for the high, and another for the low.' The Gentoo code does not affect to conceal this; and it is worthy of remark, that the advantages of rank are extended also to learning at least, to that which, in Hindostan, is reputed learning. The combined claims of "privilege of peerage," and "benefit of clergy," are singularly beneficial to him who can urge them. “If a very rich man of weak understanding, and of a very mean tribe, from a principle of fraud and obstinacy, refuses to pay his debts, the magistrate shall oblige him to discharge the money claimed, and fine him DOUBLE THE SUM.-If a very rich man of an excellent education, and of a superior cast, from a principle of fraud and obstinacy refuses to pay his debts, and the creditor commences a suit against him, the magistrate shall cause the money in dispute to be paid, and shall fine the debtor ONE TWENTIETH OF THE SUM recovered." Hathed. The law of inheritance is "confusion worse confounded." The brain turns giddy with such a rule as the following: "If there be no grandfather's grandfather's father's brother's grandson, it goes to the grandfather's grandfather's grandfather's daughter's son. If there be but one grandfather's grandfather's grandfather's daughter's son, he shall obtain the whole; if there are several grandfather's grandfather's grandfather's daughter's sons, they shall all receive equal shares." Halhed. In India, as elsewhere, 66 points of the law. Possession is nine With have shewn that these cases may be extended, as besides it is a practice esteemed highly serviceable by all the natives, it has therefore become universal, and is no longer considered discreditable. nothing is the European more struck in the country than with this horrid vice." Tytler's Considerations on the Present Political State of India, vol. i. p. 268-9. "The want of truth is a failing very generally allowed to be prevalent among the natives; but few, except the judicial servants of the company, are acquainted with the length to which it is carried. It is said to proceed from their religion, from their education, and from their situation as inhabitants of a country ruled from time immemorial by despots. These have all their effects, and the Hindoo character is their joint product. Their religion permits of occasional falsehood: their education does not restrain them in the use of it; for, among young people, it is very generally esteemed a mark of cleverness!" lb. v ol. ii. p. 107. In every other country, as Mr. Tytler elsewhere observes, a regard for truth is the first lesson inculca'ed upon the opening mind of childhood. It is not only the first, but that which is most frequently and mest earnestly enforced. It is repeated again and again, line upon line, and precept upon precept:" but, in Hindostan, youth are trained up in falsehood, and an aptitude for lying is regarded as a gratifying proof of juvenile talent. No wonder, where such a horrible education is general, that arbitrators should receive such instructions as these. Their necessity is but too evident. "When two persons upon a quarrel refer to arbitrators, those arbitrators, at the time of examination, shall observe both plaintiff and defendant narrowly, and take notice either, and which of them, when he is speaking, hath his voice faulter in his throat, or his colour change, or his forehead sweat, or the hair of his body stand erect, or a trembling come over his limbs, or his eyes water; or if, during the trial, he cannot stand still in his place, or frequently licks and moistens his tongue, or hath his face grow dry, or in speaking to one point, wavers and shuffles Indian Law. off to another, or if any person puts a question to him he is unable to return an answer; from the circumstances of such commotions they shall distinguish the guilty party." It The law, of course, condemns false witness. does more; it furnishes us with a scale of the guilt of perjury, graduated with mathematical accuracy. "In an affair concerning kine, if any person gives false evidence, whatever guilt is incurred by the murder of ten persons, he becomes obnoxious to the punishment due to such a crime. "In an affair concerning a horse, if any person give false evidence, his guilt is as great as the guilt of murdering one hundred persons. "Besides kine and horses, in an affair concerning any other animal that hath hair on his tail, if any person give false evidence, whatever guilt is incurred by the murder of five persons, that guilt shall be imputed to him." "In an affair concerning a man, if any person give false evidence, whatever guilt is incurred by the murder of one thousand persons, he becomes amenable to the punishment of such guilt. 43 on different sides, and give a plausible and consis. tent story, the one in direct opposition to the other. Members of one and the same family will contradict each other; and though contrary to their own belief, they will, with the greatest obstinacy, persevere in maintaining any assertion which they may be paid to make; on this subject more will be found when I come to the treatment of the subject of witnesses. It is sufficient here to have mentioned their disregard of truth, and their extreme venality, as features in their characters distinguishing them from any other nation. In many nations these vices have a partial influence, but here they are unive sally prevalent." Tytler's Considerations, vol. 1, p. 288-9. "When on a trial all the witnesses tell lies, what are you to do? Is the criminal to escape, and are you to employ your time in the trial of the witnesses? In England, you would acquit the priso ner, and try the witnesses. In India, you must convict or acquit the prisoner, on the strength of that portion of truth which you can pick out of the compound mass of truth and falsehood. There is not such a thing known in Bengal as a deposition that does not blend them together." Vol. II. p. 106-7. "Our law says to a witness, You shall tell the truth, the whole truth, and nothing but the truth.' But a native witness seldom tells you the truth at all,--often tells a part only,-and often, indeed, in ten cases out of every twelve, a great deal more than the truth." P. 108-9. "In an affair concerning gold, if any person give false evidence, whatever guilt would be incurred by murdering all the men who have been born, or who shall be born in the world, shall be imputed to him. "In an affair concerning land, if any person give false evidence, whatever guilt would be incurred by the murder of all living creatures in the world, he shall be liable to the punishment of such guilt." Halhed. But to all general rules there are exceptions.ed on the same footing with witnesses in England. Perjury is, on the whole, a bad thing; but it seems to be thought that a portion of it, like a small dose of a poisonous drug, may occasionally be adminis⚫ tered with the best effects. "Wherever a true evidence would deprive a man of his life, in that case, if a false testimony would be the preservation of his life, it is allowable to give such false testimony; and for ablution of the guilt of false witness he shall perform the Poojeeh Sereshtee; but for him who has murdered a Bramin, or slain a cow, or who being of the Bramin tribe has drunken wine, or has committed any of these particularly flagrant offences, it is not allowed to give false witness in preservation of his life. "If a marriage for any person may be obtained by false witness, such falsehood may be told; as on the day of celebrating the marriage, if on that day the marriage is liable to be incomplete for want of giving certain articles, at that time if three or four falsehoods be told, it does not signify; or if on the day of marriage a man promises to give his daughter many ornaments, and is not able to give them, such falsehoods as these, if told to promote a marriage, are allowable. If a man, by the impulse of lust tells lies to a woman, or if his own life would be otherwise lost, or all the goods of his house spoiled, or if it is for the benefit of a Bramin, in all such affairs falsehood is allowable." Halhed. "In some cases a giver of false evidence from a pious motive, even though be knows the truth shall not lose a seat in heaven; such evidence wise men call the speech of the gods." Jones. It is notorious that the natives avail themselves to the full of the privilege of perjury thus conceded. The effects of these doctrines in their courts of law is pointed out by Mr. Tytler. But no where is this venality more conspicuous than in our civil courts of justice, where, in almost every cause that is tried, the witnesses (perhaps all from the villages) will range themselves "Witnesses in India cannot possibly be consider There, (I mean in England,) there is an inherent love of truth, and detestation of falsehood; there we seldom meet with instances of perjury; but here, strange as it may appear, I do not hesitate to say that there exists an almost inherent love of, or inclination to, falsehood." "In England," (says Colonel Wilks, in his report on the Mysore,) "it is customary to believe a witness till he is proved to have perjured himself; but here the reverse is the case, and a testimony is doubted until proved to be true." P. 161-2. The statement of Mr. Tytler is confirmed by the Abbe Dubois; who says, "There is no country on earth, in which the sanction of an oath is less res pected, and especially among the Brahmans." Description of the Character, Manners, and Customs, of the People of India. P. 497. As Indian witnesses are for the most part equally worthy, or rather equally unworthy, of belief, it becomes a matter of no small delicacy to decide upon their testimony. A very worthy judge was once in the habit of deciding causes by casting the dice, and it is said that fewer of his decisions were reversed than of those of his brethren. The Indians ascertain the value of testimony by numbering the witnesses, and if that will not do, they weigh them according to rules laid down in the code; and even when this fails, like Lampedo, when soul and body were divorced, "they have a remedy." “In a case where there are many witnesses, if at the time of examination most of them give their evidence for one person, and one or two of them depose in favour of the other party, the evidence of the majority is approved. If, of the whole number, half depose for one side, and half for the other, then the evidence of any one of the witnesses who is a man of science, shall be credited. If they are all men of science, the evidence of him among them who is the farthest advanced in knowledge, shall be approved: if the knowledge of all of them is equal, |