Gambar halaman
PDF
ePub

But whatever inherent copyright might have been supposed to subsist by the common law, the statute 8 Ann. c. 19. (amended by stat. 15 Geo. III. c. 53.) hath now declared that the author and his assigns shall have the sole liberty of printing and reprinting his works for the term of fourteen years, and no longer; (i) and hath also protected that property by additional penalties and forfeitures: directing farther, that if, at the end of that term, the author himself be living, the right shall then return to him for another term of the same duration and a similar privilege is extended to the inventors of prints and engravings, for the term of eight-and-twenty years, by the statutes 8 Geo. II. c. 13. and 7 Geo. III. c. 38. besides an action for damages, with double costs, by statute 17 Geo. III. c. 57. 15 All which parliamentary protections appear to have been suggested by the exception in the statute of monopolies, 21 Jac. I. c. 3. which allows a royal patent of privilege to be granted for fourteen years to any inventor

16

:

i By statute 15 Geo. III. c. 53. some additional privileges in this respect are granted to the universities, and certain other learned societies.

tial and corporeal objects, and this difference has led some to deny its existence as property; but whether it is sui generis, or under whatever denomination of rights it may more properly be classed, it seems founded upon the same principle of general utility to society, which is the basis of all other moral rights and obligations.

Thus considered, an author's copyright ought to be esteemed an inviolable right, established in sound reason and abstract morality.

per

No less than eight of the twelve judges were of opinion that this was a right allowed and petuated by the common law of England; but six heid, that the enjoyment of it was abridged by the statute of queen Anne, and that all remedy for the violation of it was taken away after the expiration of the terms specified in the act; and agreeable to that opinion was the final judgment of the lords.

See the arguments at length of the judges of the king's bench, and the opinions of the rest, in 4 Burr. 2303.

Before the union of Great Britain and Ireland in 1801, no statute existed to protect copyright in Ireland. But now, by the stat. 41 Geo. III. (U. K.) c. 107. provisions similar to those in the statute of Anne are re-enacted, and extended to the whole of the united kingdom: these provisions are also enforced by additional remedies and increased penalties, and an action on the case for damages is specifically given to the party injured. Previous to this act, men of genius and learning in Ireland were stimulated only by the incentive which lord Camden splendidly described in the conclusion of his argument against literary property. "Glory is the reward of science, and those who deserve it score all meaner views. I speak not of the scribblers for bread, who tease the press with their wretched productions. Fourteen years are too long a privilege for their perishable trash. It was not for gain that Bacon, Newton, Milton, Locke, instructed and delighted the world. When the bookseller offered Milton five pounds for his Paradise Lost, he did not reject it; and commit his poem to the flames, nor did he accept the miserable pittance as the reward of his labour; he knew that the real price of his work was immortality, and that posterity would pay it." Christian.

(15) The principal differences in these three statutes concerning prints seem to be these: the 8 Geo. II. gives an exclusive privilege of publishing to those who invent or design any print, for fourteen years only; the 7 Geo. III. extends the term to twenty-eight years absolutely, to all who either invent the design, or make a print from another's design or picture; and those who copy such prints within that time forfeit all their copies, to be destroyed, and 5s. for each copy; the 17 Geo. III. gives the proprietor an action to recover damages and double costs for the injury he has sustained by the violation of his right. See 7 T. R. 625.

(16) As to patents in general, see 2 Chitty's Com. L. 191 to 213. and Godson on Patents. Bul. N. P. 76. The patent is granted upon condition that the invention is new, or new in this country; and that the patentee shall deliver a specification of his invention, containing such a description, plan, or model of the machine or article, as to be intelligible to every artist conversant in the same trade or manufactory.

The invention must be so described that the public may at the end of fourteen years have the use of it in as cheap and beneficial a manner as the patentee himself uses it. Hence, if the specification be in any part materially false, defective, obscure, or give directions which tend to mislead the public, the patent is against law, and cannot be supported. The specifications are preserved in an office for public inspection. Some patents, in very valuable manufactures, have been declared void, on account of the obscurity of the specification. 1 T. R. 602. The following are the principal modern cases on the subject.

General Rules-In order to establish the validity of a patent, for improvement or discovery, it should state in substance, what is set out in detail in the specification; and, if it be taken out for

of a new manufacture, for the sole working or' making of the same; by virture whereof it is held, that a temporary property therein becomes vested in the king's patentee. (k)

CHAP. XXVII.

OF TITLE BY PREROGATIVE AND

FORFEITURE.

A SECOND method of acquiring property in personal chattels is by the king's prerogative; whereby a right may accrue either to the crown itself, or to such as claim under the title of the crown, as by the king's grant, or by prescription, which supposes an ancient grant.

Such in the first place are all tributes, taxes, and customs, whether constitutionally inherent in the crown, as flowers of the prerogative and

k 1 Vern. 62.

more than is strictly the inventor's own addition or improvement, or for discovery, when it is merely addition or improvement, it is bad; and such invention must be both new and useful, and the discovery not confined to the knowledge of the party making it, and must be accurately described in the specification, which if it seek to cover more than is actually new and useful, vitiates the patent. 2 Moore, 424. 3 Merivale, 624. 11 East, 109, n. A patent may be granted for an addition to another invention. 8 T. R. 95. But there cannot be a patent for a philosophical principle only, neither organized, nor capable of being so. 2 B & A. 345. 8 T. R. 98. 2 H. B. 463. If, previously to the patent being granted, the article has been publicly vended, though only for four months, and by the patentee himself, the patent is void. i Holt, C. N. P. 58. 1 Chit. 24. b. So, if the patentee say that by one process he can produce three things, and he fail in any one of them. I T. R. 607. So, if the specification direct the same thing to be produced several ways, or by several different ingredients, and any one of them fail. Ib. So, if the patent be for several distinct inventions, and there is no novelty in some one of them. 4 B. & A. 550. A patent for a machine, each part of which was in use before, but in which the combination of the different parts is new, and a new result produced, is good. 4 B. & A. 550. But if the inventor produce a machine, &c., as a ship's anchor, by the union of two parts (instead of three which was the former practice) and the method employed to unite the two parts, was in use before in making pickaxes &c. but had never been applied to the manufacture of the same kind of machines, &c. a patent for the same (it seems) is invalid. 4 B. & A. 550. Where a patent was obtained for "a new and improved method of making and manufacturing double canvas and sail-cloth, with hemp and flax, without any starch whatever," and the specification described the invention to consist in an improved texture or mode of twisting the threads, to be applied to the making of unstarched cloth; on its being proved at the trial, that the exclusion of starch had been before sdoped, held that such patent was void, as being taken out for more than the patentee had really discovered. 3 Bro. & Bing. 5. 6 Moore, 71. S. C. So where a patent was obtained for a mode of making a medicine by a particular combination of three known substances, and the specification did not describe those substances by their known names, but pointed out particular methods of producing them, it was held bad, on the grounds that those methods were not essential to the combination, nor did they form part of the invention. 1 Ry. & Mood. 1.

Injunction. In order to obtain an injunction against the violation of a patent, the party must swear as to his belief, at the time of applying, that he is the original inventor. 3 Merivale, 624.

Where there has been an exclusive enjoyment under a patent, the court (of chancery) will grant an injunction in the first instance, without previously putting the party to establish his right by an action at law; but where the patent is recent, and the injunction is opposed, by endeavouring to shew that there is no good specification, or is otherwise defective, the court will send the patentee to establish the validity of his patent in a court of law, before it will grant him an injunction. 3 Merivale, 624. Chitty. (1) See in general, Com. Dig.; Bac. Ab.; Vin. Ab. Prerogative; Chitty Jun. Prerogatives of the Crown.

2

branches of the census regalus or ancient royal revenue, or whether they be occasionally created by authority of parliament; of both which species of revenue we treated largely in the former volume. In these the king acquires and the subject loses a property, the instant they become due: if paid, they are a chose in possession; if unpaid, a chose in action. Hither also may be referred all forfeitures, fines, and amercements due to the king, which accrue by virtue of his ancient prerogative, or by particular modern statutes: which revenues created by statute do always assimilate, or take the same nature, with the ancient revenues; and may therefore be looked upon as arising from a kind of artificial or secondary prerogative. And, in either case, the owner of the thing forfeited, and the person fined or amerced, lose and part with the property of the forfeiture, fine, or amercement, the instant the king or his grantee acquires it.

In these several methods of acquiring property by prerogative there is also this peculiar quality, that the king cannot have a joint property with any person in one entire chattel, 3 or such a one as is not capable of division or separation; but where the titles of the king and a subject [409] concur, the king shall have the whole: in like manner as the king cannot, either by grant or contract, become a joint-tenant of a chattel real with another person; (a) but by such grant or contract shall become entitled to the whole in severalty. Thus, if a horse be given to the king and a private person, the king shall have the sole property: if a bond be made to the king and a subject, the king shall have the whole penalty; the debt or duty being one single chattel: (b) and so, if two persons have the property of a horse between them, or have a joint debt owing them on bond, and one of them assigns his part to the king, or is attainted, whereby his moiety is forfeited to the crown; the king shall have the entire horse, and entire debt. (c) For, as it is not consistent with the dignity of the crown to be partner with a subject, so neither does the king ever lose his right in any instance; but where they interfere, his is always preferred to that of another person; (d) from which two principles it is a necessary consequence, that the innocent though unfortunate partner must lose his share in both the debt and the horse, or in any other chattel in the same circumstances.

4

This doctrine has no opportunity to take place in certain other instances of title by prerogative, that remain to be mentioned; as the chattels thereby vested are originally and solely vested in the crown, without any transfer or derivative assignment either by deed or law from any former proprietor. Such is the acquisition of property in wreck, in treasure-trove, in waifs, in estrays, in royal fish, in swans, and the like; which are not trans

a See pag. 184.

b Fitzh. Abr. t. dette, 38. Plowd. 243. c Cro. Eliz. 263. Plowd. 323. Finch. Law. 173. 10 Mod. 245.

d Co. Litt. 50.

(2) In general for arrear of house and window tax, the goods of a third person on the premises may be seised and sold, under 43 Geo. III. c. 161. 1 M. & S. 601.

(3) Chitty Jun. Prerog. Cr. 241. 287.

(4) If a joint-tenant of any chattel interest commit suicide, the right to the whole chattel becomes vested in the king. This was decided after much solemn and subtle argument in 3 Eliz. The case is reported by Plowd. 262. Eng. ed. Sir James Hales, a judge of the common pleas, and his wife were joint-tenants of a term for years; sir James drowned himself, and was found felo de se; and it was held that the term did not survive to the wife, but that sir James's interest was forfeited to the king by the felony, and that it consequently drew the wife's interest along with it. But in favour of commercial interests it has been recently holden, that on an extent, or extent in aid, against one of several partners, only the beneficial interest of that one can be taken. 1 Wightw, 50. Chitty J. Prerog. C. 287.

[410] ferred to the sovereign from any former owner, but are originally inherent in him by the rules of law, and are derived to particular subjects, as royal franchises, by his bounty. These are ascribed to him, partly upon the particular reasons mentioned in the eighth chapter of the former book; and partly upon the general principle of their being bona vacantia, and therefore vested in the king, as well to preserve the peace of the public, as in trust to employ them for the safety and ornament of the commonwealth.

There is also a kind of prerogative copyright subsisting in certain books, which is held to be vested in the crown upon different reasons. Thus, 1. The king, as the executive magistrate, has the right of promulgating to the people all acts of state and government. This gives him the exclusive privilege of printing, at his own press, or that of his grantees, all acts of parliament, proclamations, and orders of council. 2. As supreme head of the church, he hath a right to the publication of all liturgies and books of divine service. 3. He is also said to have a right by purchase to the copies of such law-books, grammars, and other compositions, as were compiled or translated at the expense of the crown. And upon these two last principles, combined, the exclusive right of printing the translation of the Bible is founded.

There still remains another species of prerogative property, founded upon a very different principle from any that have been mentioned before; the property of such animals ferae naturae, as are known by the denomi

nation of game, with the right of pursuing, taking, and destroying [411] them which is vested in the king alone, and from him derived to

such of his subjects as have received the grants of a chase, a park, a free warren, or free fishery. This may lead us into an inquiry concerning the original of these franchises, or royalties, on which we touched a little in a former chapter: (f) the right itself being an incorporeal hereditament, though the fruits and profits of it are of a personal nature.

7

In the first place then we have already shewn, and indeed it cannot be denied, that by the law of nature every man, from the prince to the peasant, has an equal right of pursuing, and taking to his own use, all such creatures as are ferae naturae, and therefore the property of nobody, but liable to be seised by the first occupant. And so it was held by the imperial law, even so late as Justinian's time: "Ferae igitur bestiae, et volucres, et om"nia animalia quae mari, cælo, et terra nascuntur, simul atque ab aliquo "capta fuerint, jure gentium statim illius esse incipiunt. Quod enim nul"lius est, id naturali ratione occupanti conceditur." (g) But it follows from the very end and constitution of society, that this natural right, as well as many others belonging to man as an individual, may be restrained by positive laws enacted for reasons of state, or for the supposed benefit of the community. This restriction may be either with respect to the place in which this right may or may not be exercised; with respect to the animals that are the subject of this right; or with respect to the persons allowed or forbidden to exercise it. And, in consequence of this authority, we find

f pp. 38, 39.

(5) See in general, Godson on Patents, 316, &c.

g Inst. 2. 1. 12.

(6) As to game in general, see Com. Dig. Biens; Manwood's Forest Law; Christian on Game Laws; Chitty on G. L. vols. 1, 2, & 3.; and see an Essay by the same author, suggesting improvements therein.

(7) This could only exist when land was wholly unappropriated, for when the land was rested in the king or a subject, no other person could have a natural right to trespass thereon to kill animals feræ naturæ, or game.

that the municipal laws of many nations have exerted such power of restraint; have in general forbidden the entering on another man's grounds, for any cause, without the owner's leave; have extended their protection to such particular animals as are usually the objects of pursuit ; and have invested the prerogative of hunting and taking such animals in the sovereign of the state only, and such as he shall authorize. (h) Many reasons have concurred for making these constitutions: as, 1. For the encouragement of agriculture and improvement of lands, by giving every man an exclusive dominion over his own soil. 2. For pre- [412] servation of the several species of these animals, which would soon be extirpated by general liberty. 3. For prevention of idleness and dissipation in husbandmen, artificers, and others of lower rank;_ which would be the unavoidable consequence of universal licence. 4. For prevention of popular insurrections and resistance to the government, by disarming the bulk of the people: (i) which last is a reason oftener meant than avowed by the makers of forest or game laws. Nor, certainly, in these prohibitions is there any natural injustice, as some have weakly enough supposed; since, as Puffendorff observes, the law does not hereby take from any man his present property, or what was already his own, but barely abridges him of one means of acquiring a future property, that of occupancy; which indeed the law of nature would allow him, but of which the laws of society have in most instances very justly and reasonably deprived him.

8

Yet, however defensible these provisions in general may be, on the footing of reason, or justice, or civil policy, we must notwithstanding acknowledge that, in their present shape, they owe their immediate original to slavery. It is not till after the irruption of the northern nations into the Roman empire, that we read of any other prohibitions, than that natural one of not sporting on any private grounds without the owner's leave; and another of a more spiritual nature, which was rather a rule of ecclesiastical discipline, than a branch of municipal law. The Roman or civil law, though it knew no restriction as to persons or animals, so far regarded the article of place, that it allowed no man to hunt or sport upon another's ground, but by consent of the owner of the soil. "Qui alienum fundum ingreditur, venandi "aut aucupandi gratiâ, potest a domino prohiberi ne ingrediatur." (k) For if there can, by the law of nature, be any inchoate imperfect property supposed in wild animals before they are taken, it seems most reasonable to fix it in him upon whose land they are found. And as to the other restriction, which relates to persons and not to place, the pontifical or canon law (1) interdicts" venationes, et sylvaticas vagationes cum canibus et accipitribus," to all clergymen without distinction; grounded on a saying of St. Jerome, (m) that it never is recorded that these diversions [413] were used by the saints, or primitive fathers. And the canons of our Saxon church, published in the reign of king Edgar, (n) concur in the same prohibition: though our secular laws, at least after the conquest, did, even in the times of popery, dispense with this canonical impediment : and spiritual persons were allowed by the common law to hunt for their recreation, in order to render them fitter for the performance of their duty:

b Puff. L. N. 1. 4. c. 6. § 5.

i Warburton's Alliance, 324.
a cap. 64.

k Inst. 2.1. § 12 1 Decretal. l. 5. tit. 24. c. 2. m Decret. part. 1. dist. 34. l, 1.

(8) Mr. Christian here gives the following note:-I am inclined to think that this reason did not operate upon the minds of those who framed the game laws of this country; for in several ancient statutes the avowed object is to encourage the use of the long-bow, the most effective ar mour then in use; and even since the modern practice of killing game with a gun has prevailed, every one is at liberty to keep or carry a gun, if he does not use it for the destruction of game. VOL. I.

89

« SebelumnyaLanjutkan »