Articles of Union. If there was any doubt as to this, the arguments ab incommodo are unanswerable. As to what is said, that this art is kept secret in England, the truth is, that manufactures, especially in the chemical way, are kept secret as much as possible even after a patent.

"[He might have illustrated this by the case of Roebuck's own works, where, notwithstanding the patent and specification, the secret of the process is carefully preserved.]

"Lord Justice-Clerk.-I would repel the first and second objection; but the third is irresistible. As to what is said, that this business is kept a secret, it is notoriously known, that many of the most valuable manufactures in England, whether with patent or without, are conducted with all imaginable secrecy. The words publicum exercitium, though in the patent, are not in the statute. I should be sorry that we adopted this rule of decision, holding that a patent would be good against establishing manufactures in Scotland, which are practised in England; this destroys the evidence from the King's patent, that Roebuck was the original inventor. The law of monopolies is general, with the exception of the first inventor.

"Lord Gardenston.-In the case of Clark against Laycock, decided in the King's Bench, Clark had a patent for both kingdoms; his patent was set aside upon the evidence of Scots witnesses, that the art had been practised in Scotland before the date of Clark's patent.

"Lord Monboddo.-I regard not arguments ab incommodo; we must judge according to law, not conveniency. If there are such evil consequences from patents, why, let the King grant none such, or let the Legislature regulate them. (He misunderstood me. I endeavoured to shew from the consequences that that could not be law which necessarily produced such effects.)

"On the 4th March 1774, the Lords found it proved, 'That the method of making oil of vitriol in vessels of lead, was practised in England before the date of Messrs. Roebuck and Company's patent; and, therefore, found the letters orderly proceeded.' Act.-J. M'Laurin, A. Lockhart. Alt.-A. Crosbie, H. Dundas. Reporter, Justice-Clerk. Diss. Kaimes, Pitfour,

Monboddo.

Having thus given the arguments on both sides, the narrative of the proceedings is resumed.

The cause came on for argument before their Lordships, on Thursday the 24th February, 1842. The Attorney-General and Mr. Biggs Andrews appeared as counsel for the appellant, and Mr. Kelly and Mr. Godson for the respondents. The Lord Chancellor presided, assisted by Lords Brougham and Campbell.

The Attorney-General opened the appellant's case, by shortly stating the relative positions of the parties, and the nature of the contest between them; after which, he read, from the printed case, the issues, and bill of exceptions, and the interlocutors on which the appeal arose. He then proceeded as follows:

"The question to be considered by your Lordships, is an extremely short one. It is,-Whether, according to the laws of England, Scotland, and Ireland, as they now stand, with regard to letters-patent for inventions, the condition of novelty, inserted in the grants, extends beyond those parts of the United Kingdom,

respectively, for which the grants are made; that is, whether it is not sufficient, that the invention be new quoad the country for which the grant is made?

"The arguments for the appellant are extremely short. All grants of this kind proceed from the prerogative. The statute of James, regulating English patents, was merely restrictive. These also, (I mean English patents,) as well as Scotch, derive their force solely from the prerogative, and not from any statute laws. The only difference is, that in England there is a restraining statute, in Scotland there is none; each country is perfectly distinct."

The Lord Brougham.-" But if, before the statute, a person represented to the Crown, that his invention was new, and not before used in these kingdoms, would not the grant have been equally void for misrepresentation?"

The Attorney-General." That might be." He then read the form of the Scotch patent, as given in the appendix to the appellant's case; the recital of the petition; and the proviso upon which it is declared to be liable to be made void; and proceeded :-" It is the same in England, and in the Irish patent also; the proviso regulates the extent of novelty in each—mutatis mutandis. It is no ground, therefore, to set aside the patent, because it might have been used in some other part. I contend, that the Crown has the same right to grant patents in Scotland as it had before the Union of the two kingdoms. The act of James has no force whatever in Scotland. The Crown may annex what condition it pleases to its grants. They proceed solely from the prerogative. This prerogative is restrained in England, but it is not so in Scotland."

The Lord Campbell." But it has always been considered, that the 6th article of the Union has made the law of Scotland the same as in England, with reference to patents."

The Lord Brougham.-" Yes, all English cases are cited in Scotch patent cases, just as in England. Turner and Winter, Boulton and Bull, and all the leading cases are cited as law there as much as here."

The Attorney-General." It is immaterial to me whether the statute of James applies or not. My argument is independent of that entirely. Assuming that to be so, still the Crown of Scotland is in the same situation, as respects granting patents, as the. Crown of England."

The Lord Chancellor.-" What are the words of the statute of James-the restraining clause I mean?"

The Attorney-General read the 6th section of the statute of James.

The Lord Chancellor and The Lord Brougham.

Then you

must contend, that any person importing an invention into Scotland from England, is equally entitled to a patent as if he brought it from beyond seas.

The Attorney-General.-"I do. Scotland is a foreign country, as to England, for this purpose."

The Lord Brougham.- -"But do you consider a man has the same merit who brings over a foreign invention from beyond seas as if he merely brought it across the Tweed-from Berwick for instance ?"

The Attorney-General.-"I contend he is quoad hoc the inHe may either call himself the inventor, or he may state the fact of his having first introduced the invention.

ventor.

"The question then is this:-Is not the Crown entitled to grant a patent to an inventor, inventing or bringing an invention into Scotland, just the same as it can to an inventor in England?"

The Lord Brougham.-" The word 'realm,' in the statute of James, of course meant England only, at that time.”

The Attorney-General.—“ Yes, and still must mean the same; and, if it is to be subsequently applied to Scotland, it must mean the realm of Scotland only."

The Lord Brougham." That does not get rid of my difficulty. The petitioner states, in his application, that his invention has not been before used in 'hæc regna'-these kingdoms,―he deceives the Crown, and the grant would be void, independently of the statute.'

The Lord Chancellor.-" If the word 'realm' means the United Kingdom, then the proviso, in all English patents, is illegal, and the consequence would be, that every English patent would be void."

The Attorney-General." It would be so if such is the right construction. I will show, therefore, that each country must still be considered distinct for these purposes."

(At this period of the argument, the case was adjourned until the

following day.)

On Friday, 25th February, 1842, the Attorney-General resumed his argument, as follows:

:

The Attorney-General." I proceed now to state the authority upon which the Court below has decided. I admit, that if this decision (Roebuck and Stirling I mean, mentioned in the printed cases) is to stand good, I have not another word to say in support of the present appeal."

The Lord Chancellor." There is no doubt, I suppose, that the invention was known in England before the date of the Scotch patent."

The Attorney-General.-"Oh, certainly. But the patentee, bonâ fide, took out his patent without knowing that. He was certainly the original inventor in Scotland, -that was not disputed. (Mr. Godson dissented from this.) Now there has been one uniform practice as to these matters, ever since the Union. There is no single case, or trace of anything on the point, in any single book, English or Scotch.-I undertake to speak positively as to English books. It is the opinion also of all Westminster Hall, without one dissentient voice, (and several most eminent opinions have been taken,) that looking at the language of the patent and of the statute, the condition of novelty only applies to the country for which the patent is granted."

The Lord Chancellor." The words of the proviso are decisive, if they are justified by the statute. They are the same, I suppose, in English and Irish patents. How is it in the West Indies? -a patent for the Colonies I mean."

The Lord Campbell explained how these were granted, either by including them in the English patent, or by an order in council, extending the grant to certain colonies.

The Lord Chancellor.-" How is the practice as to getting the Scotch patents? Are they got simultaneously, or afterwards?"

The Attorney-General explained this, and admitted " that an extension of time to inrol the specification was given, when a Scotch patent was applied for, as well as one for England."

The Lord Brougham.-" What are the words of the proviso?" [His Lordship read them from the latin in the appendix to the appellant's case. e.]

The Lord Chancellor.-" It seems to me to turn on the construction of the act. The Crown can only grant a patent for what is new. The question is where new? You have evidence of the construction of the act, in a long course of usage. I mean, in the form of the proviso.'

The Lord Campbell." But how can you apply 'hæc regna,' in the recital, to Scotland only?"

The Attorney-General." That phrase might well be used, as the Sovereign speaks in the plural, 'We, &c.'

The Lord Brougham.-"Was it not, do you think, ‘hoc regnum,' before the Union?"

The Lord Chancellor." It would be a monstrous thing, if an invention having full publicity in one part of the United Kingdom, could be made the subject of a patent in another part of it."

The Lord Campbell." If the Crown were made aware of that fact, the grant would be refused."

The Attorney-General.-" Is a uniform practice of 200 years

to be upset by a legal decision? It will be very doubtful, if it be decided that the proviso is too limited, whether any patent is good."

The Lord Chancellor." It is a restrictive proviso, less than the act authorises, no doubt, if we hold the act is to be so construed."

The Attorney-General." Then, if the proviso is bad, very great and serious doubt will arise, if the patent is not bad altogether. The real question is, whether a practical construction of the act shall be set aside, merely by a legal decision, or whether it should not be by an act of the legislature, to be brought in for the express purpose, particularly considering the vast interests grown up under the supposed state of the law. I proceed now to refer to the decision upon which the Court below proceeded." [Reads the judgment of the House of Lords in the case of Roebuck v. Stirling, in 1774.]

The Lord Brougham.-" As well as for the reason therein,— that is, in the interlocutors."

The Attorney-General.-" No doubt I must admit, that refers to the reason assigned in the interlocutor,"

The Lord Chancellor read the interlocutor in that case, and observed," This is a decision on the subject-matter."

The Attorney-General.- "I dont know if I may resort to the Scotch law of disuetude in this case. The statute has been entirely disused, in this respect, for above 70 years."

The Lords consulted together, and referred to the printed cases of Roebuck and Stirling, and to the Journals of the House of Lords.

The Lord Chancellor." If we are to take that according to the letter, it is a distinct decision on the very point. It appears that Lord Mansfield was present, as well as Lord Thurlow, when the judgment was given."

The Attorney-General." It is singular enough that the respondents, in that case, never put their case on this point; so little did they expect to succeed on this point, that they scarcely mentioned it in their reasons.'

The Lord Brougham." It is quite clear, that Lord Mansfield was there on purpose to take part in the case. He was not there on the day before, or on the day after."

The Lord Campbell." The second reason raised the question distinctly."-(Reads it.)

The Lord Brougham.-" Mr. Attorney only not put their case on this ground exclusively. clusively are rather inconsistent."

says,' they did

At all and ex