No. I. 21 Jac. I. c. 3. X. Provided also and be it enacted, That this Act or any declaration provision disablement penalty forfeiture or other thing before-mentioned shall not extend to any letters patents or grants of privilege heretofore made or hereafter to be made of for or concerning printing, nor to any commission grant or letters patents heretofore made or hereafter to be made of for or concerning the digging making or compounding of salt-petre or gun- Letters Patent powder or the casting or making of ordnance or shot for ordnance, nor to that concern Printing, Saltpetre, Gunpowder, great Ordnance, Shot or Offices, saved. Another mode of redress against the infraction of patents is by bill in equity for an injunction. Formerly an injunction was not granted, if the validity of the patent was disputed, without a previous trial at law.-An. 1 Vern. 120. [The case related to the validity of a patent for the sale of bibles, and not to any patent founded upon the exception in the statute, 21 Jac. but I apprehend, that the principle would be the same.] Tottells v. University of Cambridge, 1 Vern. 275.; and the same was held by Lord Clare, as Chancellor of Ireland, in Grierson v. Jackson, Irish T. R. 304. But more modern cases have taken a different course. In Bolton v. Bull, 3 Vesey, 140. an injunction was obtained, that the question of the validity of the patent might be tried at law, and the judges of the Common Pleas having been equally divided in the case so often cited in the present note, the Lord Chancellor said, that he could not put the patentees upon the acceptance of terms, that, upon collateral reasons, they may think disadvantageous to the exercise of the right of which they are in possession; neither can I put them out of possession, upon the difference of opinion of the court. I will not put them to compensation-I will not disturb the possession of their specific right. It is of notoriety, that this fire-engine has been erected in many parts of the country with great advantage. And this doctrine was confirmed by Lord Eldon, in the case of the Universities of Oxford and Cambridge v. Rich ardson, 6 Vesey, 629; and in Harmer v. Playne, 14 Vesey, 130. when his lordship said, "When the Crown, on behalf of the public, grants letters patent, the grantee entering into a contract with the Crown, the benefit of which contract the pub lic are to have, and the public have permitted a reasonably long and undisputed possession under colour of the patent, the court has thought, upon the fact of that possession proved against the public, that there is less inconvenience in granting the injunction until the legal question can be tried, than in dissolving it at the hazard that the grant of the Crown may in the result prove to have been valid." I cannot help feeling, that there is something unsatisfactory in the principles which have been just mentioned. The analogy between the actual and manifest possession of a corporeal subject, and the supposed possession of a patentee, is apparently a very fallacious one. In the first instance, there is, from the nature of the subject, a right of possession and property somewhere, and the fair presumption is in favour of the actual specific possession, which, in general, could not have been obtained against those having the right without an immediate resistance; whereas, with respect to monopolies, the presumption is in favour of the general liberty of the community to apply their talents and industry according to their own discretion, subject, under particular circumstances of a peculiar nature, to restraint, on behalf of favoured individuals-but that restraint is the exception, which, in the nature of the thing, requires to be supported by full and absolute proof. The idea of a contract by the Crown in favour of the public appears rather of a fanciful nature. There is no absolute contract on the part of the grantee —no stipulation on his part, which he is under any positive obligation to perform, but a mere condition attached to the right conferred, and the subsistence of which condition is essential to the validity of the right. The Crown, in granting the right with the condition attached, assumes nothing as to the subsistence or non-subsistence of the condition, which is entirely matter of proof on the part of the grantee, and of proof in the nature of a condition precedent, as completely as if it had been expressed in terms, that in case the grantee should prove the requisites prescribed, he should be entitled to the benefit conferred-and in this view of the subject no material detriment can arise from the patent being admitted to pass upon the ex parte representation of the party applying for it as a matter of official routine, without any judicial contest with the parties interested in opposing it, and which contest could not, from the nature of the case, be carried on with any beneficial effect; he takes the proof of the validity on himself, and there is no harm done—but if, in substance and effect, the mere grant itself carries a presumption in favour of its validity, an injury is committed to the public, by the effectual operation of the grant during the period that a legal question on the right can be kept in suspense, and the cases in substance and effect confer that right for that period, however repugnant to the restrictions of the statute. If the right of the patentee is infringed, he has a claim to redress by damages at law or an account in equity, upon establishing his right, although not so full and adequate a remedy as by injunction; but if, by an unfounded grant of monopoly, the general rights of the community are restrained during the period of inquiry, all redress or compensation to those whose general liberty is improperly restrained is, from the na ture of the thing, entirely out of the question. The supposed possession against the public is the mere assertion by the party of a right, which right depends upon his establishing, by positive proof, the existence of facts, of which the existence or non-existence is, à priori, equally uncertain; and nothing can be more completely vague and indefinite than the additional requisite of "a reasonably No. I. 21 Jac. I. c. 3. This Act shall not extend to Commissioners for Allum Mines. any grant or letters patents heretofore made or hereafter to be made of any office or offices heretofore erected made or ordained and now in being and put in execution other than such offices as have been decried by any his Majesty's proclamation or proclamations: but that all and every the same grants commissions and letters patents and all other matters and things tending to the maintaining strengthening and furtherance of the same or any of them shall be and remain of the like force and effect and no other, and as free from the declarations provisions penalties and forfeitures contained in this Act as if this Act had never been had nor made and not otherwise. XI. Provided also and be it enacted, That this Act or any declaration provision disablement penalty forfeiture or other thing before-mentioned shall not extend to any commission grant letters patents or privilege heretofore made or hereafter to be made of for or concerning the digging compounding or making of allum or allum mines, but that all and every the same commissions grants letters patents and privileges shall be and remain of the like force and effect and no other and as free from the declarations provisions penalties and forfeitures contained in this Act as if this Act had never been had nor made and not otherwise. XII. [Nor to the liberties of Newcastle-upon-Tyne nor to licences of keeping taverns.] XIII. [Nor to letters patents granted to Sir Robert Mansel, Knt. or to James Maxwell, Esq.] XIV. [Nor to those granted to Abraham Baker or Lord Dudley.] long and undisputed possession." It is observable, that while the courts of equity sustain the patents upon the supposed presumption of validity, which arises from the mere circumstance of their having been granted, they decline entering into any actual examination of the question upon which such validity depends. To the support of patents on account of the supposed bargain with the Crown, on behalf of the public, an answer appears to arise from the statute itself, which was so far from regarding the Crown in the character of a trustee for the public benefit, that the gross and flagrant abuses arising from the assumed prerogative of the Crown, for the benefit of particular favourites, in opposition to the general interests of the public, was the object and foundation of the interposition of the legislature; and when the prerogative, of which it was a primary object to check the abuse, was permitted to be returned, under certain conditions and modifications, it can hardly be supposed to have been intended, that the mere act assumed to be done should be in any degree regarded as evidence of the subsistence of the conditions upon which a particular exception was 8 Anne, c. 19. See the Case of Miller v. Taylor, in 4 Bur. 2303 to 2418. allowed, to the general restriction intended to be imposed. I cannot quit this subject without adverting to the observation of Lord Loughborough, as to the notoriety of the particular patent, which was immediately before him. The excellence and notoriety of an invention can never be a proper matter of judicial knowledge; the legal objections to the patent of Bolton and Watt arose from the very circumstance which constituted the greatest excellence of the invention; viz. that the discovery was of a general principle, and not of a particular organized machine.-The hardship that the discoverer of a principle of such manifest and extensive utility should be deprived, upon a technical objection, of the fruit of his ingenuity, would naturally excite a considerable disposition in his favour, and might possibly give a greater effect to the legal arguments in support of his right, than such arguments could have received, if resting upon their own intrinsic merits, and applied to a less favourable subject; but the views which may be thus excited, by a particular cause, are followed by a general effect. [ No. II. ] 8 Anne, c. 19.-An Act for the Encouragement of Learning, by vesting the Copies of printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned. WHEREAS printers booksellers and other persons have of late frequently taken the liberty of printing reprinting and publishing or causing to be printed reprinted and published books and other writings without the consent of the authors or proprietors of such books and writings to their very great detriment and too often to the ruin of them and their families:' For preventing therefore such practices for the future and for the encouragement of learned men to compose and write useful books; May it please your Majesty that it may be enacted; and be No. II. 8 Anne, c. 19. &c. who have it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal and Commons in this present Parliament assembled, and by the authority of the same, That from and after the tenth day of April one thousand seven hundred and ten the author of any book or books already printed who hath not transferred to any other the copy or copies of such book or books share or After 10 shares thereof, or the bookseller or booksellers printer or printers or other April 1710, the person or persons who hath or have purchased or acquired the copy or Authors of copies of any book or books in order to print or reprint the same shall Books already have the sole right and liberty of printing such book and books for the printed, who term of one-and-twenty years to commence from the said tenth day of have not trans April and no longer; and that the author of any book or books already ferred their composed and not printed and published or that shall hereafter be com- Rights, and the posed and his assignee or assigns shall have the sole liberty of printing and Booksellers, reprinting such book and books for the term of fourteen years to commence from the day of the first publishing the same and no longer; and that if purchased Copies, shall any other bookseller printer or other person whatsoever from and after have the sole the tenth day of April one thousand seven hundred and ten, within the Right of print times granted and limited by this Act as aforesaid, shall print reprint or ing them for import or cause to be printed reprinted or imported any such book or the Term of books without the consent of the proprietor or proprietors thereof first 21 Years. had and obtained in writing signed in the presence of two or more credible And the Auwitnesses; or knowing the same to be so printed or reprinted without the thors of Books consent of the proprietors, shall sell publish or expose to sale or cause to not printed to be sold published or exposed to sale any such book or books without such have the sole consent first had and obtained as aforesaid: then such offender or of Right of printfenders shall forfeit such book or books and all and every sheet or sheets ing for Fourteen being part of such book or books to the proprietor or proprietors of the Years. copy thereof who shall forthwith damask and make waste paper of them; Punishment of and further, that every such offender or offenders shall forfeit one penny Bookseller, &c. for every sheet which shall be found in his her or their custody either printing without printed or printing published or exposed to sale contrary to the true in- Consent of the tent and meaning of this Act; the one moiety thereof to the Queen's Proprietor. most excellent Majesty her heirs and successors, and the other moiety thereof to any person or persons that shall sue for the same, to be recovered in any of her Majesty's courts of record at Westminster by action of debt bill plaint or iuformation in which no wager of law essoign privilege or protection or more than one imparlance shall be allowed. every before Publication in the Re gister Book of the Company of Stationers; which may be inspected at any Time with II. And whereas many persons may through ignorance offend against Copies of Books this Act, unless some provision be made whereby the property in to be entered * such book as is intended by this Act to be secured to the proprietor or <proprietors thereof may be ascertained, as likewise the consent of such proprietor or proprietors for the printing or reprinting of such book or books may from time to time be known;' Be it therefore further enacted by the authority aforesaid, That nothing in this Act contained shall be construed to extend to subject any bookseller printer or other person whatsoever to the forfeitures or penalties (1.) therein mentioned for or by reason of the printing or reprinting of any book or books without such consent as afore- out Fee. said, unless the title to the copy of such book or books hereafter published shall, before such publication, be entered in the register book of the Company of Stationers in such manner as hath been usual, which register book shall at all times be kept at the hall of the said company, and unless such consent of the proprietor or proprietors be in like manner entered as aforesaid, for every of which several entries six pence shall be paid and no more; which said register-book may at all seasonable and convenient times be resorted to and inspected by any bookseller printer or other person for the purposes before-mentioned without any fee or reward; and the clerk of the said Company of Stationers shall when and as often as thereunto required give a certificate under his hand of such entry or entries and for every such certificate may take a fee not exceeding six pence. (1) An action on the Case may be maintained without an entry at Stationers' Hall.-Beckford v Hood, 7 T. R. 620. No. II. 8 Anne, c. 19. Penalty of the After 25 March, the Archbishop the Prices of Books, upon Complaint made that they are unreasonable. III. Provided nevertheless, That if the clerk of the said Company of Stationers for the time being shall refuse or neglect to register or make such entry or entries or to give such certificate, being thereunto required by the author or proprietor of such copy or copies in the presence of two or more credible witnesses, that then such person and persons so refusing, notice being first duly given of such refusal by an advertisement in the Gazette, shall have the like benefit as if such entry or entries certificate or certificates had been duly made and given; and that the clerks so refusing shall for any such offence forfeit to the proprietor of such copy or copies the sum of twenty pounds, to be recovered in any of her Majesty's courts of record at Westminster by action of debt bill plaint or information, in which no wager of law essoign privilege or protection or more than one imparlance shall be allowed. IV. Provided nevertheless and it is hereby further enacted by the authority aforesaid, That if any bookseller or booksellers printer or of Canterbury, printers shall after the said five-and-twentieth day of March one thousand &c. to settle seven hundred and ten set a price upon or sell or expose to sale any book or books at such a price or rate as shall be conceived by any person or persons to be too high and unreasonable; it shall and may be lawful for any person or persons to make complaint thereof to the Lord Archbishop of Canterbury for the time being the Lord Chancellor or Lord Keeper of the great seal of Great Britain for the time being the Lord Bishop of London for the time being the Lord Chief Justice of the court of Queen's Bench the Lord Chief Justice of the court of Common Pleas the Lord Chief Baron of the Court of Exchequer for the time being the ViceChancellors of the two universities for the time being in that part of Great Britain called England the Lord President of the sessions for the time being the Lord Justice General for the time being the Lord Chief Baron of the Exchequer for the time being the Rector of the college of Edinburgh for the time being in that part of Great Britain called Scotland; who or any one of them shall and have hereby full power and authority from time to time to send for summon or call before him or them such bookseller or booksellers printer or printers and to examine and inquire of the reason of the dearness and enhancement of the price or value of such book or books by him or them so sold or exposed to sale; and if upon such inquiry and examination it shall be found that the price of such book or books is enhanced or any wise too high or unreasonable, then and in such case the said Archbishop of Canterbury Lord Chancellor or Lord Keeper Bishop of London two Chief Justices Chief Baron Vice-Chancellors of the universities in that part of Great Britain called England and the said Lord President of the sessions Lord Justice General Lord Chief Baron and Rector of the college of Edinburgh in that part of Great Britain called Scotland, or any one or more of them so inquiring and examining have hereby full power and authority to reform and redress the same and to limit and settle the price of every such printed book and books from time to time according to the best of their judgments and as to them shall seem just and reasonable; and in case of alteration of the rate or price from what was set or demanded by such bookseller or booksellers printer or printers to award and order such bookseller and booksellers printer and printers to pay all the costs and charges that the person or persons so complaining shall be put unto by reason of such complaint and of the causing such rate or price to be so limited and settled; all which shall be done by the said Party complain- Archbishop of Canterbury Lord Chancellor or Lord Keeper Bishop of and if altered from the Price the Bookseller set, may order him to pay Costs to the ing. Penalty on Booksellers selling at higher Rates. This Clause re London two Chief Justices Chief Baron Vice-Chancellors of the two universities in that part of Great Britain called England and the said Lord President of the sessions Lord Justice General Lord Chief Baron and Rector of the college of Edinburgh in that part of Great Britain called Scotland or any one of them by writing under their hands and seals, and thereof publick notice shall be forthwith given by the said bookseller or booksellers printer or printers by an advertisement in the Gazette; and if any bookseller or booksellers printer or printers shall after such settlement made of the said rate and price sell or expose to sale any book or books at a higher or greater price than what shall have been so limited No. II. 8 Anne, c. 19. and settled as aforesaid, then and in every such case such bookseller and V. Provided always and it is hereby enacted, That nine copies of each After 10 April, book or books upon the best paper that from and after the said tenth day Nine Copies of of April one thousand seven hundred and ten shall be printed and pub- each Book shall lished as aforesaid (2.) or reprinted and published with additions shall by be delivered to the printer and printers thereof be delivered to the warehouse-keeper of the Warehousethe said Company of Stationers for the time being at the hall of the said keeper of the company before such publication made, for the use of the royal library Company of the libraries of the universities of Orford and Cambridge the libraries of Stationers, for the four universities in Scotland the library of Sion College in London and the Use of the the library commonly called the library belonging to the Faculty of Advo- University Licates at Edinburgh respectively; which said warehouse-keeper is hereby braries, &c. required within ten days after demand by the keepers of the respective Warehouselibraries or any person or persons by them or any of them authorised to keeper to delidemand the said copy to deliver the same for the use of the aforesaid ver the Books Ten Days after libraries; and if any proprietor bookseller or printer or the warehouse- Demand. keeper of the said Company of Stationers shall not observe the direction of this Act therein, that then he and they so making default in not de- Penalty of Prolivering the said printed copies as aforesaid shall forfeit, besides the value of the said printed copies, the sum of five pounds for every copy not so delivered as also the value of the said printed copy not so delivered; the same to be recovered by the Queen's Majesty her heirs and successors and by the chancellor masters and scholars of any of the said universities and by the president and fellows of Sion College and the said Faculty of Advocates at Edinburgh, with their full costs respectively. prietor, &c. not observing the Directions of this Act. VI. Provided always and be it further enacted, That if any person or Penalties in persons incur the penalties contained in this Act in that part of Great Scotland how Britain called Scotland they shall be recoverable by any action before the recoverable. court of session there. VII. Provided, That nothing in this Act contained do extend or shall This Act not to be construed to extend to prohibit the importation vending or selling hinder the Imof any books in Greek Latin or any other foreign language printed be- portation, &c. yond the seas; any thing in this Act contained to the contrary notwith- of Books in standing. Greek, &c. printed beyond Sea, &c. VIII. And be it further enacted by the authority aforesaid, That if any General Issue. action or suit shall be commenced or brought against any person or persons whatsoever for doing or causing to be done any thing in pursuance of this Act, the defendants in such action may plead the general issue and give the special matter in evidence; and if upon such action a verdict be (2.) It was ruled in the case of the University of Cambridge v. Bryer, E. 317. that the right to their copies attached to all books published, although . the work be not entered at Stationers' Hall; and notwithstanding that it seems to be taken for granted, in 15 Geo. 3. c. 54. 41 Geo. 3. c. 137. post, that the provisions only extended to works so entered. The following observations, made in that case, are of great importance and very general application. Lord Ellenborough "Certainly there is some difficulty in the construction arising out of these statutes-but I think the construction, as it is to be collected from these Acts of the legislature, at subsequent periods, is not sufficiently strong and cogent to overturn what I understand to be the clear distinct sense of the statute of Anne, in which there is nothing ambiguous.” Le Blanc, J.-" As the construction of the statute of Anne appears to be clear, I am of opinion, that we ought to abide by it, without being con trolled by that misconstruction of it which in latter times seemed to have prevailed. I admit the force of the observations-but here it is to be remembered, that this is not a positive interpretation of a former Act imposed by the Legislature in a subsequent Act, but only by the provisions which the Legislature have made they seem to have apprehended that such was the construction of the statute of Anne.”—See Stat, 54 Geo. 3. 156. post. |