lows the prayer for the grant of the letters patent: Intra illam A.D. 1842. The statute referred to in the petition is the English Statute of Monopolies (21 Jac. 1, c. 3); but no conclusion can be drawn from this circumstance inconsistent with the appellant's argument as to the foundation of the law of patents in Scotland; for in the dispositive or granting clause, as well as in the tenendum, the limitation is simply "pro et durante spatio quatuordecim annorum a dato præsentium," without any reference to the statute; whereas, in the form of letters patent for England, the tenendum contains there also the words "according to the statute in such case made and provided" (g); whether with reference to the term of years only, or generally to the authority on which the grant proceeds, may be doubted; but the latter construction, if the true one, affords a strong illustration of the difference between an English and a Scotch patent, in regard to the foundation of the authority of the crown in the two cases (h). The insertion of the words intra hæ regna, so far as applicable to other portions of the United Kingdom different from Scotland, though perfectly consistent with the fact as regards the knowledge and belief of the appellant at the time, is superfluous and immaterial. And it appears on searching the register of patents, granted for Scotland during the last two years, the pe (g) See Law and Practice, Pr. F., XIII. (h) The force and import of these words, and the reason of their insertion in the English, and their omission in the Scotch letters patent, are, it is conceived, obvious. Before the statute of monopolies, the letters patent for England were for various terms, as of twenty-one years, and longer periods. The effect of the statute was to impose the two following conditions-viz. that the grantee must be the true and first inventor, and that the term must not exceed fourteen years; and even that limited period Sir E. Coke appears to have considered as too long; ante 31, n. The letters patent subsequent to the statute consequently express, on the face of them, that the grant in both these respects is in accordance with the conditions imposed by the statute. The insertion of these words has nothing whatever to do with the authority of the crown to make grants of this nature; such authority being part of the common law prerogative of the crown, declared and defined, but not created, by any statute. Prior to the union, the terms granted by the Scotch patents were for periods both longer and shorter than fourteen years, ante 34, n. ; but since the union, the crown of England, in the exercise of the common law prerogative of the crown of Scotland, has adopted the same period of fourteen years for all its grants. The insertion of the words" according to the statute" in a petition presented by the petitioner, is not a circumstance on which any argument can be founded; but having been inserted in the petition, their appearance in the letters patent, which recite the petition, follows necessarily. Appellant's case. tition states the invention not to have been used in Scotland, accordingly to the petitioner's knowledge and belief. And the proviso declares the grant to be void, in case it shall not be new within Scotland. The court below has found, that the simple fact of the invention having been used before in England is sufficient in law to render the grant void; there is no statement as to any previous use in Scotland; had this existed, the question would have arisen, as to how far a misrepresentation in the petition in this particular would vitiate a grant, even supposing the invention to have been first introduced into Scotland by the party obtaining the grant (i). But this question does not arise. The first condition of validity contained in the proviso is, that the said invention be new as to the public use and exercise thereof within that part of the United Kingdom called Scotland. Now without relying on the words "public use and exercise,” it is clear that a thing invented in Scotland is a new invention in that country, although it had been previously invented and used in England. Under these circumstances, the invention in Scotland, though not absolutely with reference to all the world the first invention, yet with reference to Scotland is a new invention. And this completely satisfies the condition of the patent, which only requires that the invention should be a new invention in Scotland. This view is supported by the words of the statute of James, which declares, that patents shall be valid "of the sole working or making of any manner of new manufacture within this realm to the true and first inventor or inventors of such manufactures, which others at the time of making such letters patent and grant shall not use;" upon which it was held, in an early case (k), that letters patent for a thing practised in foreign parts, but granted to the person who introduced it into England, was valid. The second requisite in the proviso is, that the said invention shall have been invented by the said Brown. But if truly invented by him, which fact is not brought into dispute, the fact of its having been previously invented by another in England, is clearly irrelevant. The same thing may have been found out by two persons in different countries simultaneously, or at different times, or an art formerly practised may have been lost, or a machine well known and used in another country wholly unknown here; surely any person who, by the application of the powers of his own mind, shall restore the one or invent the other, is not the less entitled to the character of an inventor, than he would have been if the art referred to had never been before known, or the machine used elsewhere. And the advantages resulting to the inhabitants of Scotland from the invention are not (i) It is perfectly clear, that any statement false in fact, and which may form part of the consideration of the grant, is ground for avoiding a patent. (k) Edgebury v. Steplens, ante 35; see also ante 126, n. lessened by the circumstance of its having been practised else- A.D. 1842. where before. The court below were influenced in their decision by the case of Roebuck & Garbett v. Stirling & Son (1), for when the bill of exceptions came to be advised nothing more was said by any of the judges, than that the case was a direct precedent, and that they were bound to decide accordingly. But that case differed from the present in various essential particulars: for the evidence was sufficient to establish the fact of previous user in Scotland; and this user was strongly insisted on: also it was admitted that the invention had been practised by the patentees in secret many years before the patent, which circumstance was alone sufficient to vitiate the patent. The House of Lords in that case did not proceed on the one ground of the manufacture having been previously known and practised in England (m). case. The respondents' case stated evidence of the prior public use Respondents' of a manufacture or machine in England, to be admissible to establish the invalidity of a patent in Scotland for the same manufacture or machine, on the following grounds: The appellant obtained his patent on the statement that he was the first and true inventor of his alleged improvements, and that the same had not been used by any other person at the time of making the letters patent (n). The Scotch statute (0) and the declaratory act of James (p) settled the law as to the extent of the royal prerogative, and since the union of the two kingdoms the same law in regard to trade and patents has prevailed in both (q). For by the 6th article of the Treaty of Union it is expressly declared, "That all parts of the United Kingdom for ever from and after the union shall have the same allowances, encouragements, and drawbacks, and be under the same prohibitions, restrictions, and regulations of trade, and liable to the same customs and duties on import and export: and that the allowances, encouragements, and drawbacks, prohibitions and restrictions and regulations of trade, and the customs and duties on import and export, settled in England when the union commences, shall, from and after the union, take place throughout the whole United Kingdom" (r). And by the 25th article it is enacted and declared, "that all laws and statutes in either kingdom, so far as they were contrary to the articles of (1) Ante 45. In the House of Lords, 27 May, 1774. (m) See Interlocutor and Judgment, ante 48, and observations thereon. (n) The words "within these realms to the best of his knowledge and belief" should follow the above, to make the statement of the petition perfectly correct. The words, within these realms, or intra hæ regna, will appear hereafter to have been most material. (0) Acts of Charles, A. D. 1641, ante 33. (p) Statute of Monopolies, 21 Jac. 1, c.3, ante 29. (4) The practice as to Scotch patents has been guided by the practice as to English patents, and the same general principles of law are common to both realms. Ante 49. (r) The latter part of this article would seem to explain the former, and to show that the regulations spoken of are of a fiscal nature. See per Lord Eldon, L.C., ante 48, n., as to the meaning of this article. Respondents' case. union, were to cease and become void” (s). Thus there can now be no monopoly in relation to trade in England which would not operate also as a monopoly in relation to trade in Scotland. The laws regulating the trade of Great Britain are the same, and though when exclusive privileges are granted by the sovereign the forms necessary to be adopted in the two portions of the United Kingdom may vary, the law is nevertheless the same in both. And the prior use of a manufacture in any part of the United Kingdom must, therefore, render the exclusive privilege meant to be conferred by a patent of no avail any where within the limits of the United Realm, or Kingdom. Since the union there is but one realm, Great Britain-one sovereign, to whom alone the subjects of Great Britain owe allegiance, though the oath of allegiance may by law still be administered before the ancient judicial tribunals of the two kingdoms, and in matters relating to the encouragements, prohibitions, restrictions, and regulations of trade, there is but one law (t). The English statute of James is as much part and parcel of the law of Scotland as the act ratifying the Treaty of Union (u). A different interpretation would lead to the most injurious and anomalous results. On one side of the Tweed a particular plough may have been long in common use, and not on the other; is it consistent with the spirit or letter of the Treaty of Union that the lieges on both sides of the Tweed should not have the same protection in the use of the plough (v)? England and Scotland are no longer foreign countries to each other, in any sense of the term; they are divided by no sea. And to the argument of the appellant in the court below, that Scotland is a foreign country in regard to England in relation to patents, because a patent which had passed the seal in one country would not be thereby good in the other, there is this irresistible answer, that by the union of the two kingdoms the English laws in force at the period of the union, both as to revenue and trade, were communicated to Scotland (x). The com (s) The power of granting of letters patent both in England and Scotland is part of the common law of the crown in those countries, respectively, and not given by any statute. (t) How are any of the preceding terms applicable to letters patent? The exclusive right thereby granted cannot be thus described. The letters patent confer no privileges as to trading; the article, the sole working or making of which is protected by them, may or may not be the subject of certain fiscal regulations or arrangements, prohibitions, and restrictions. The right of sale or of trading, in the subject-matter of the letters patent, is not prohibited, except when used as a cloak for something else. See ante 7, n. (u) The statute of 21 Jac. 1, c. 3, was simply declaratory of the common law of the realm, that is to say, England and the dominion of Wales. The question is, what effect has the act of union on the prerogative of the crown in Scotland as to matters of grant. See ante 49, n. the use. (v) It is not the use of the plough which is the subject of the letters patent, but the sole working or making of such plough, and the consequel! right of sale. It may be suggested that these are in effect the same; that he who had the right to make might refuse to sell, and thus monopolize This may be a defect in the law, but it does not, in fact, exist as a practical evil. The use of the said plough might lead to very great improvements in agriculture, and be productive of the greatest advantages; would not he who made the invention known to his countrymen, or who introduced it from the other side of the Tweed, be entitled to some reward? It is the policy and principle of the patent law that he should. (r) How are the laws regulating letters patent laws of revenue and trade? See supra, note t munication of these laws was no difficult matter, but the mode of A. D. 1842. administering them, or any change in the courts or peculiar forms by which they were administered, was a different and more difficult matter. The nature of the land-rights of Scotland, and many other obstacles, rendered an absolute union of the two kingdoms next to impossible, and therefore the existence of separate judicatories and forms was indispensable. It might as well be said, that the law regarding the revenue and trade in the two kingdoms was different, because there are separate courts of Exchequer, and separate boards of excise and customs, and for stamps and taxes (y). The law relating to patents is only a part and parcel of the law by which the trade of the United Kingdom is regulated, restrained, or encouraged, though the execution of the law may be by the means of different courts in the two ends of the island (z). If an invention be disclosed and made public in either part of the United Kingdom before both patents are sealed, neither is available. And accordingly, in practice, in order to enable a party to obtain a patent for both parts of the kingdom before the specification becomes due in either, and the necessity for the publication of the invention arises, the period of enrolling the specification is enlarged (a). A further argument against Scotland being considered a foreign country to England in respect of patents, arises from the fact, that a patent would not be granted on the application of an individual importing an invention from Scotland, not even from a foreigner residing in Scotland; nor from a native of Scotland residing in France, because he would not be a foreigner (b). Lastly, the case of Roebuck v. Stirling is precisely in point; and no adverse judgment of any of the courts in either country has been discovered (c). The practice of the legislature in extending letters patent for England for the renewed term to (y) The act of union declares, that the laws relating to the revenue and trade shall be the same. See article XVIII., and post 453. (2) Throughout the whole of the respondents' argument, it is essential to assume that the laws relating to patents are laws relating to trade, which it is submitted they clearly are not in the sense in which that term is used in the act of union. Every thing that may be bought and sold is in some sense the subject of trade. See post 453. (a) The time is enlarged from two months to six when the applicant declares it to be his intention to obtain a patent for Scotland and Ireland as well as England; see ante 49; and Law & Practice, Pr. F., II., n. h. But the enrolment of the specification relates back to the date of the letters patent; unless, therefore, the patents in all the countries be sealed on the same day, a prior publication in law must exist in one or more of the three countries. (b) This would not appear in the petition or declaration, nor, consequently, in the letters patent. The usual statement in a petition, in the case of an imported invention, is, that in consequence of a communication from abroad, the party is in pos session of an invention, &c. See Law & Practice, Pr. F., I. It may be questioned how far this form is correct; whether the words of the statute should not be strictly pursued. (c) The respondents referred also to the King v. Arkwright, as a case in which evidence of the prior use of the machine in Scotland was given without objection; but the witness is there speaking of a variety of persons for whom he had made the machine in question; one of whom resided in Scotland. Printed case, 184; Dav. Pat. C. 134. This, therefore, is no authority. The respondents referred also to Tennant's case, ante 125, in which one of the grounds of nonsuit was, that a chemist at Glasgow had suggested to the plaintiff a material part of the process. Also to a case before Lord Mansfield, 25 April, 1776, of Clark v. Laycock. It was referred to in Roebuck v. Stirling, as a case of an English patent set aside on the evidence of Scotch witnesses, of the art having been practised in Scotland before the date of the patent. But it is extremely doubtful whether any such evidence was given in that case; and Mr. Shearman informs me, that from a subsequent perusal of the memorials, &c., in |