The Attorney-General.-" Not exclusively, I meant. I have only lately had opportunity of access to the papers."

The Lords read on, and consulted again.

The Lord Chancellor.-"I can readily understand why this form of letters-patent was so framed before the Union; and it has not been altered since, as it should have been."

The Attorney-General.-"I was right in stating, that counsel for the respondents, in that case of Roebuck and Stirling, never sought to take this view of the case."-(Referred again to the reasons in the respondents' cases.)

The Lord Chancellor read again the second reason.

The Lord Brougham." They having taken two points; the House says 'we form our affirmation on that ground, as well as others.'

The Attorney-General." One word then only more.-To what extent are judgments of this House to be held binding?— Of course the House has the same power to review its judgments as the Courts below have."

The Lord Chancellor." They are binding on all inferior jurisdictions, but not absolutely binding on this House; but it would require strong reasons for us to set aside a decision on the very point."

The Attorney-General." The true rule I take to be, whether the decision is binding beyond the strict necessity of the case. If it be found applicable on other grounds, it is open to question. The reasons assigned form no part of the judgment. The decision does not make the reasons assigned law. If the judgment be right and clearly maintainable on other grounds, then it is open to me to re-argue the other points."

The Lord Chancellor." This is part of the judgment of the House itself; [Reads] the reason is made an essential part of the judgment. It is not the opinion of any single Lord on which he founded his judgment, but of the whole House."

The Attorney-General.-"It is clear, that there was prior usage there by the party himself, in Scotland. That was quite a sufficient ground, therefore, to set aside the patent, and support the judgment. Another circumstance is, that no costs appear to be given. This is evidence that the decision was not given on the ground taken. I come back to the circumstance, that the practice has been uniform, the other way, for above 200 years. This, I contend, is a practical construction of the Act of Parliament, during all that period."

The Lord Campbell puts a suppositious case:-"That an English patent might remain good with the old form of proviso,

notwithstanding the Union, although a Scotch patent might not be so. I do not mean to say that that is so. The Crown would then be deceived in its grant, and the patent would be void on that account."

The Attorney-General.-" No decision could be more inconvenient than that. That an English patent is not vitiated by prior use in Scotland, although a Scotch one would be if used in England. This would not be putting the subjects of both countries on an equality. But the 6th article of the Union dont, in fact, apply to this case. It has nothing on earth to do with monopolies for inventions. There was a patent law in Scotland long before. It was precisely the same as in England, no statute before or since the Union in any way affecting it."

The Lord Chancellor." What is a form of a patent for a foreign communication? If an inventor stated he has imported an invention from England, not before used in Scotland, would he get a patent for it?"

The Attorney-General read a passage from Mr. Godson's Book as to imported inventions, and added: "I very much doubt, if it appears on the face of the patent that the invention was imported from abroad, if it would not be void. It was not formerly usual to state the fact of having imported it, but the applicant was called the inventor. I believe they have lately put in the petition that he has brought the invention from abroad."

The Lord Chancellor." There is a case of Clarke v. Laycock referred to in the respondents' case, and some other cases,― the King v. Arkwright, and Tennants' patent."

The Lord Brougham.-"I was in that case of Tennants', in Scotland, and they treated the cases in England as express authorities to govern their decisions."

The Attorney-General read the Scotch report of the case of Laycock v. Clarke, in Morrison, 5045.

Mr. Godson quoted it from the judgment of the Court of Session, in Roebuck and Stirling, as reported in Lord Hailes' decisions.

The Attorney-General objected to the accuracy of Lord Gardenston's quotation of it.

The Lord Brougham, having called for a Scotch patent for a foreign invention, which was handed to him, read several passages from it." This is very different to a patent for an original invention. It is not called his invention. It states the fact of his having received it from a certain foreigner residing abroad, and the proviso is different."

The Attorney-General objected to this patent being referred

to as any authority, as it had been granted since the present question was raised.

The Lord Chancellor enquired where the respondents' counsel got the statements as to Clarke and Laycock, contained in his

case.

Mr. Godson referred to Lord Hailes' reports, and to an office copy of the roll, in the cause in the King's Bench.

The Lord Chancellor.-" That cannot state on what ground it was decided, or what witnesses were examined. How do you know Lord Mansfield decided it?"

Mr. Godson read part of the postea, which showed that fact.

The Lord Chancellor intimated, that he did not think the respondents' counsel justified in stating the effect of that case as he has. There is nothing whatever to show that any evidence of the use of the invention in Scotland was given.

The Attorney-General.-" The question comes back to this:Has the Crown power to grant a patent in this form or not? Did the Crown lose, by the Act of Union, the power to grant a patent for one kingdom, separately from another, as before? If it be a good patent, the proviso makes it clear, that no prior usage, except in Scotland, will vacate it. Every patent, both English and Scotch, is in jeopardy if this is not right. At least it will be extremely questionable, whether a patent, granted in a form not warranted by the act, would not be set aside on scire facias."

The Attorney-General then concluded his address by hoping their Lordships would not overturn so long established an usage.

Mr. Biggs Andrews followed on the same side. The respondents claim, as of right, to controul the prerogative. They say the patent ought to have an additional or more restrictive proviso.

The Lord Chancellor." If the proviso is made more extensive than the law authorises, it would, no doubt, be void by the statute."

Mr. Andrews." These are bargains between the subject and the Crown."

The Lord Chancellor.-" But the Crown cannot make a bargain contrary to law."

Mr. Andrews." But if the Crown had the power, before the Union, as part of its prerogative, it is well established, that such prerogative could not be taken away, except by express Act of Parliament."

The Lord Chancellor.-" No doubt the Crown had much greater powers, as respects letters-patent, formerly, before the statute of James took it away."

6

Mr. Andrews.-"Yes, it was restrictive of the prerogative and declaratory. I am willing to take it upon that. What effect is fairly to be put upon that restriction? By the old Common Law, the Crown clearly had a power to grant patents without restrictions. (Cites Noy, p. 182.) What then says the statute? It limits the Crown's power to 14 years, and confines it to new inventions. The question then is, what is the meaning of the words, which others at the time shall not use?' Clearly others within the country for which the patent was to be granted. Within the realm, whether actually invented or brought into it. (Cites Edgeberry and Stevens.) In English patents, until very recently, no distinction was made between foreign and native inventions. The grantee was equally called the inventor. this was the correct way of describing him. I doubt if any other be legal." (Cites Clayton and Corbet, to show, that in pleading he could only be called the inventor.)

And

The Lord Brougham." Have you any case you know to be a foreign invention, where the common form is used?"

Mr. Andrews." I have not; but I can find no other form in any book on patents, (names several,) until the last edition of Godson's, where, in a note, at page 2, of the appendix, he, for the first time, mentions a difference in the form."

Mr. Andrews resumed his argument." This statute refers only to England. There was no statute for Scotland whatever. The act of 1641, which has been alluded to, does not apply to patents for invention at all. (Refers to patents before the Union alluded to in the case, where there were grants for 21 years, notwithstanding the statute of James in England.) It is admitted, by the respondents, that before the Union, the Crown had the power to have made this grant; and any conditions in the patent must necessarily have reference to Scotland only. Then my argument is brought down to the consideration of the effect of the Union. If it be conceded, that the Crown had the power before contended for, how is the prerogative taken away ? It is a maxim, that it can only be taken away by express Act of Parliament."

The Lord Brougham disputed this as too general, and referred to the Crown's prerogative of issuing writs to summon members to Parliament, at discretion, taken away by the effect of the And many other instances, where the prerogative has been abridged inferentially.

The Lord Chancellor read also the recitals of the act of James, which have especial reference to the prerogative, and speaks of the inconvenience of it.

Mr. Andrews.—"The effect of the Union was merely to extend a mutuality of rights,-to apply the statute of James to Scotland, as if it had been passed in Scotland before the Union.

In that view, 'realm' will mean in England as before, and in Scotland the realm of Scotland."

The Lord Chancellor alludes again to a colonies patent.Suppose the invention is found not to be new in the colonies,it would be void because they are part of the realm. All became one realm at the Union,-England, Scotland, and the colonies."

The Lord Campbell." There is no separate patent for the colonies. It may be extended to the colonies, as part of the realm."

Mr. Andrews." The articles, relied upon, are the 6th and 18th. By them, it is argued, the two countries are to be made one, as to patents."

The Lord Brougham." There are other general words,— 'incorporating Union.""

Mr. Andrews." But if so, the Great Seal would be used for Scotch patents. (Reads clause 24 of the Act of Union.) If patents are public matters, then they clearly should pass under the Great Seal of England; if private, then they are expressly exempted from the operation of the act. They always have been sealed under the seal of Scotland, therefore they must be private matters; if not, one patent would run over both countries; but, in practice, each is confined to the country it issues from."

The Lord Chancellor." But patent rights surely affect the public. They may be given for part or for the whole realm. For England, for instance, without the colonies. The sealing has only reference to the form of the grant, or the officer who is to superintend the issuing of it."

The Lord Brougham.-" There might be a patent for one county only."

The Lord Chancellor." If a patent were granted for England and Jamaica, how would it be if it was found not new in Jamaica? Would it not be wholly void?"

Mr. Andrews." It would, no doubt, be wholly void."

The Lord Chancellor." If for England only, and it was not new in Jamaica, it would be equally void, because Jamaica is part of the realm.”

Mr. Andrews." If so, the subjects of both countries would not be under one prohibition, &c., unless all patents extended to the whole realm. Every English patent would then be void. It cannot be one realm for one purpose and not for another."

The Lord Chancellor." The party is at liberty to take his patent for the whole realm, or for part of it, as he chooses; or