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such a trial amount practically, in nine cases out of ten, to no more than serving as the prelude to the settlement of a special case for the consideration of the court, and which may be the subject of appeal to the Exchequer Chamber and the House of Lords. The value of property of this description is in some cases so great, and the distinctions in the application of the law to the facts are so refined, that it would be impossible to deprive either party of the right of appeal to the highest tribunal. If this be so, it is argued, why create an expensive court to do a very simple thing?—if the only function required at the preliminary stage is to eliminate and ascertain the real facts for a higher jurisdiction, what need is there for more than an ordinary trial, perhaps with the assistance of assessors; or at most for a scientific investigation before three persons, as recommended by the Manchester Patent Law Reform Association ?
These questions, and others of a like nature, will doubtless receive the careful attention of Her Majesty's Commission, whose Report we shall await with the greatest interest. The principles of Patent legislation have made great progress
for many years past; the Act of 1852 was a most salutary measure in the main, though capable of considerable improvement; and it will now be for the Government and the Legislature to take a further step in advance, guided by the experience already acquired, and enlightened by the information obtained by the Commission, and their deliberate judgment thereon. England, of all countries in the world, is most interested in obtaining a sound and beneficial patent law; her manufacturers, her merchants, her men of enterprise and genius, demand this boon from their legislators, and it will be singular indeed if, after all the labour and thought which have been devoted to the subject, the boon should not be obtained.
There is one other point on which we would add a few words. A considerable sum, generally known as “ The Inventors’ Fund,” being the surplus of fees levied on patentees beyond the necessary official expenditure, has accumulated in the hands of the Patent Commissioners, and the question has arisen, In what way can this sum, and any future surplus, be best employed ? Several projects have been advanced for this purpose, of which the following are the most noticeable :
1. The reward of meritorious inventors by the purchase of their patents.
2. The building of convenient patent offices, with a suitable museum and library.
3. The reduction of fees to such an amount as may be sufficient only for the maintenance of the patent system.
Each of these schemes has its strenuous advocates, and for each, as is universal in such cases, a good deal may be said. We should be inclined to add to the catalogue by hinting that such a fund as this might be legitimately applied to smoothing the way for any advantageous alteration in the law; as by paying part of the expense attending the creation of any new court, or in making compensation to any present recipients of fees, e.g., the law officers, whose duties and emoluments it might be found advisable to terminate. We
e can hardly close this somewhat desultory article more profitably than by quoting the opinion of Lord Stanley in reference to this part of the many-sided question we have discussed. In speaking of the surplus fund his Lordship says:
“ The fact that a considerable surplus does exist,—the certainty that it will largely increase, are both admitted. Equally indisputable is it that the taxing of inventions is an expedient never contemplated by the framers of the Act of 1852, and unjustifiable, even in the utmost pressure of financial distress. The latter point requires no argument. Inventors, therefore, demand that this tax should cease, and that patent office fees should be henceforth applicable only for patent office purposes. When once the Treasury ceases to have an interest in the amount of fees collected, the question what those fees should be, and under what limitations it may be expedient to levy them, will present fewer difficulties. The scale of fees as fixed by the Act of 1852, was a com
promise with the Chancellor of the Exchequer, Sir Charles Wood, in the uncertainty as to the number of patents that would issue ; now that experience has shown the amount which those fees may reasonably be expected to yield, the amendment of the legislation which caution dictated, and the appropriation of the surplus to inventors' patents, would be only to carry out the principles of that first instalment of reform in the patent system.”
ART. VIII.-FRANCK ON BODMERIA.
De Bodmeria secundum Jus per se,
non secundum Jus Germanicum, Hanseaticum, Borussicum, Danicum, Norvegicum, Suecicum, Batavicum, Anglicum, Russicum, Gallicum, Italicum, Hispanicum, Lusitanicum, Brasilicum, Romanumque. Scripsit CAROLUS HERMANNUS HENRICUS FRANCK, Doctor Juris Utriusque. Lubecæ: Impensis Librariæ Dittmerianæ. Londini : apud W. Maxwell.
Parisiis: apud A. Franck. 1862. The origin of the custom of lending money on bottomry is to be ascribed mainly to the prejudice and laws against usury that until recently obtained in almost every age of the world. Bottomry is also connected in principle with the doctrines of general average and salvage, as well as of in
If we consider the nature of the transaction itself, however, it will be found to be more nearly akin to partnership than to any other branch of commerce. The laws against usury could be evaded only by means of the lender becoming himself an adventurer. Insurance was unknown at the time of the first rise of this description of contracts. At present, most of the juristical relations of bottomry may be determined by the analogy of insurance law. But it is to the custom of partnerships, and the commercial usages which have in every country sanctioned almost every variety of
such associations, that bottomry, historically considered, is to be mainly ascribed. The origin, indeed, of a usage now universal is comparatively unimportant, except where it becomes necessary to trace out its juristical relations with philosophic accuracy, and a strict regard to its essential nature. The author of the treatise before us first gives an account of the relations of bottomry to the natural or moral law, and then passes on to the exposition which it has received in the various codes of the different leading States of Europe. He has not bridged the passage, so to speak, from his transcendental speculations to the dull realities of authority and case by any sketch of the rise and development of the practice of bottomry. This is the more strange, as in a subsequent part of his work he declares his opinion to be that but one description of bottomry (bodmeria voluntaria,) was known to the ancients and that bottomry incurred for the sake of the adventure (bodmeria necessaria) has been a development of comparatively modern date. It appears from Valin that some writers of the French nation had supposed that this contract was unknown to the ancients, and was peculiar to France. That author refutes this opinion, the absurdity of which, however, as also of the statement in the Guidon † to the same effect, is qualified by Emerigon's observation that it was intended to apply only to the form of the contract. Bottomry in some shape must have been coeval with the first spread of maritime commerce, although, like every other invention of social art, it probably has undergone a genetic development.
The author professes to discuss the subject matter of his treatise both according to the principles of natural justice, and the municipal laws of the leading States—et secundum Jus per se et secundum Jura civitatum majorum. The phrase Jus per se is novel. This the author admits; but does not seek to justify. He proceeds, however, to explain its signification, and its relations to municipal jurisprudence, especially as * 2 Valin Com.
† Le Guid. 18, art. 4.
regards the question of the relative authority of natural and positive law. He defines Jus per se to consist of those laws which the Deity has directly impressed upon the universeistud quod Deus ingenuit rerum universitati, cujus fons Deus est non homines. If we except physical nature, the ultimate form of expression for which is no doubt à system of laws and forces, there is no law which is not an excogitation of human reason, and, therefore, only mediately derived from the Deity. In closer harmony with the peculiar point of view from which Dr. Franck regards Jus per se, would be its definition as consisting of that portion of jurisprudence without which human society could not exist. The phrase, however, is peculiar, and therefore its philosophic explication is not very important. It is, as we have said, used by the author as a synonyme for the natural law. He then proceeds to develope his views regarding Jus per se, and bases it, in respect of its physical data, upon the marks of design perceptible throughout all created nature. “Animadvertimus," Dr. Franck observes,* “ in omnibus rebus inesse relationes.” This somewhat sententious opening reminds us of Butler's exquisite Analogy, and its postulate: “ All things are double one against another, and God has made nothing imperfect.” This description of nature, however, by no means illustrates the idea of law, which is essentially connected with causation, or a change of state. The primary notion of law is connected with morality, and denotes a right use of reason, or an exercise of active power in obedience to the moral faculty. The use of the term in respect of physical phenomena is altogether derivative and analogical, and is in fact only allowable in respect of correlative phenomena or uniform sequences of changes. To speak of a law of nature, therefore, with reference to the contemplation of any existing state of things, without regard to the succession of their phenomena in time, is to mix up the notion of active power with that of restof order in time with that of order in place. The complete
* Præfatio, p. 1.