Their system is not perhaps strictly applicable to our forms of criminal procedure; but by simply changing the period of the investigation from after the trial (as in France) to before or at the trial, as above suggested, the system would work in England, and perhaps even more beneficially than the French, as it would bring forth all the facts and circumstances pro and con at the trial, and the jury would have the opportunity of considering them when finding their verdict. The peculiar circumstances of every case should be aided by the discrimination of the judges, and the scientific knowledge of the assessors on the one hand, and by the common sense of the jury on the other. The onerous duties at present imposed upon the Bench, the Bar, and juries, would thereby be lightened and more satisfactorily discharged, and the public would generally be more disposed to acquiesce in their verdicts than at present. We cannot, however, in justice to all parties concerned in the administration of our criminal law, conclude these remarks without stating that to those who happen to be present in court, and to have the same opportunities of forming an opinion as the jury, the result of the verdicts have, even under the present defective system, owing to the learning of the Bench, the talent of the Bar, and the patience of the juries, been on the whole satisfactory. We deem it only fair to say this, because a section of the public have been lately too much given to the habit of expressing their views ex cathedra as to the correctness or incorrectness of the verdicts; such views being usually derived from abridged newspaper reports, without the important test of the demeanour of the witnesses, and the various other circumstances that can be appreciated only by presence at the trial. It is sufficiently arduous for the court and jury under the pledge of their oaths, to "well and truly try" the case, without their being afterwards subjected to the annoyance of having the solemn result of their verdict and judgment placed at the mercy of every casuist and scribbler.

ART. IX.-ON THE REPORT OF THE PATENT LAW COMMISSIONERS.*

THE law gives to an author, for a term of years, and for any longer continuance of his life, the exclusive right to make copies of his book. The term of copyright is such as to provide, under a common rule, for the remuneration even of those classes of literary effort which are the most slowly productive. The range of copyright has been enlarged by the expansion of international relations. And the principle of that composition of ideas which is the subject of copyright, may be claimed and secured, under forms the most diverse, by reserving on the title-page the right of translation.

Copyright is property in a class of the products of mental labour. What is made with the hands is property by nature; what is made with the mind is appropriated by law, so far as the law gives an exclusive title to the mental basis of the material result. In copyright this mental element is appropriated unobjectionably. In the analogous privilege of patentright, the benefit of stimulating and rewarding invention is qualified by so much legal meddling with trade, that some thinking men would be glad to get rid of patents altogether.

I am asking the Society to consider the working of the patent law, by the light of the Report of Her Majesty's Patent Law Commissioners, and the evidence appended to it. Copyright and patent-right being analogous privileges, the one working well, and the other working ill, the best way to arrange my subject is to observe the differences between the two.

One difference there is which may be eliminated from the inquiry. The author creates the book; the inventor only

*A Paper read by Mr. Robert Wilson at a Meeting of the Jurisprudence Department of the National Association for the Promotion of Social Science, on Monday, March 27th, 1865.

discovers the method of producing the manufacture. There cannot be a double creation; but there may be a concurrence of discovery. While, therefore, copyright lights upon the author spontaneously, as a legal consequence of authorship, patent-right flows through an apparatus for discriminating between rival claimants of invention. The apparatus actually in use for this purpose is found to work well; the Report approves of it; and I do not propose to trouble the Society with any remarks upon it.

Confining our attention, then, to the bearing of copyright, or patent-right, upon the interests of the public, we may observe that nobody is injured by the author's acquisition of a presumptive monopoly in a literary production, without prior evidence of novelty, and irrespectively of merit. For a book does not obstruct the writing of another book, even on the same subject. But it is a different question whether a patent ought to be granted, as of course, for any composition of substances or appliances, which anybody thinks fit to define in writing and to call new. For a wrongly granted patent, like a log upon the highway, is a nuisance till removed.

It might, indeed, be harmless to presume novelty and to dispense with merit in a patented manufacture, if the subject of patent-right were as definite as the subject of copyright. But this is not so. For, whereas copyright is limited to a form of verbal expression, or its equivalent in other languages, patent-right extends, beyond the new manipulation which the inventor elaborates, to the principle of the manufacture which that manipulation exemplifies. So that many a patentee would be unable to limit with precision the scope of his patentright, even if the desire to do so were more general than it is.

Whether to ascertain the presence of merit before granting the patent, was justly treated by the Commissioners as a chief question of patent law reform:

"Have you," said Lord Stanley to Sir Francis Crossley (1,549), "considered the question, whether there ought to be a preliminary

inquiry before the granting of patents, in order to prevent a multiplication of useless or frivolous patents?"

"I think," said the witness, "that it would be very difficult for anyone appointed by the Government to decide what is a frivolous patent. I believe that a patent was taken out for simply putting india-rubber at the end of a glove, so as to make it tight round the wrist; that might have been considered a frivolous patent, but I believe it was thought to be a very good one in the trade, and it was new and useful."

Profitable, I dare say it was; but an objector might plausibly ask what the patentee had done to entitle himself to a fourteen years' monopoly. He had made a convenient sort of glove, likely to be well received by the public; being first on the field he had the prestige of introducing it; and he might fairly claim protection in the use of any distinctive name which he might think fit to give to it. But why was the free trading of the public to be suspended for fourteen years, in favour of a scrap of india-rubber in the wrist of a glove? Would the use of india-rubber in gloves have been prevented or postponed by withholding the monopoly? Scarcely so; for if the new glove was saleable, there was nothing to prevent its being made and sold without the monopoly.

India-rubber had been put into braces, trowsers, drawers, waistcoats, boots, clogs, and pretty well every other article of civilised dress, with the assumed exception of gloves. Why, then, give a fourteen years' monopoly for so obvious a consequence of things already done, as the transfer of the indiarubber to the gloves?

The exception that might be taken to the glove-patent is twofold, viz. : first, that its object was frivolous-a change in the fashion of an inconsiderable article of dress; and secondly, that its subject was frivolous-the invention, so to call it, of shifting an elastic band from one piece of dress to another.

Let us now suppose, for the sake of argument, that even under the present law the glove patent was invalid, on the

ground of a total absence of invention-who was to dispute it?

"It is," said Mr. Grove (1,018), if I may venture to apply his general remarks to a particular case, "the patentee's interest to give a very large sum to support his patent; his patent, although for a very trivial thing, may, taking the vast extent of sale, be a very lucrative affair the public is a scattered body, not one of whom has sufficient interest to meet with equal force the patentee; and that, " continued Mr. Grove, "is one of the difficulties which I should like to see my way to remedying."

From the instance of the elastic glove-wrist, we will turn for a moment to a more solid and bulky specimen of triviality.

"Nearly the whole of the patents for the boilers of steam-engines at this moment," said Mr. Scott Russell (768), "are of no practical value to inventors or to the public, but they are continually getting every man who makes a boiler into a scrape with some patentee, because almost every conceivable form of boiler, and bit of boiler, having been previously patented, one cannot make any sort of boiler without infringing some man's patent."

So much for the difficulties of engineers; from the evidence of Rear-Admiral Robinson, the Comptroller of the Navy, it would seem that obstructive patents were taken out for the special benefit of Government.

"The inconvenience," said the Admiral (2,113), "which the Duke of Somerset has mentioned, resulting from patents applied to ship-building, is so very great, that it is scarcely possible to build a ship, being a combination of wood and iron (and you always have some of each in a ship), without treading upon somebody's patent; and I am entirely of opinion that the patents are drawn up for that especial purpose, without any idea of their being practically applied for the benefit of the public, but only that the patentee may lie in wait for a colourable evasion of his patent taking place, and come upon a public department."

Even a dove will bite if you torment it; so the Admiralty has at last made out that the Crown is not bound by a patent.