I think that the restrictions are, with one or two unimportant exceptions, of the first class.

I will grant at once that the prohibition of laws imposing religious tests or disabilities, and the provision requiring that offenders against Commonwealth law shall on indictment be tried by jury, and in the State where the offence was committed, support his case. But the other limitations to which he calls attention, in trade, in finance, and in defining the exercise of certain functions by the two Houses of Parliament, are no more than are required to secure the attainment of the objects of the union.

The principal purpose of the union is freedom of trade amongst the States, and accordingly freedom is established by the Constitution; Parliament is to have power to regulate trade under that governing principle; and, for better security, Commonwealth and State Parliaments are forbidden to do anything in derogation of freedom. In matters of finance, the adjustment of obligations between the parties was in Canada and Australia alike the principal practical difficulty in effecting union; and common prudence would insist upon securities against the diversion of the assets of one State to meet the burdens of another, and for equality of treatment. Here of course each Colony was concerned to make the best bargain it could; and it would be reasonable that the financial arrangements should be protected from alteration, not merely by Parliament, but by the Commonwealth itself. This, in fact, is what is done in Canada, where the Dominion contribution to the provinces is unalterable save by the Imperial Parliament. But in Australia the Commonwealth Parliament has a freedom of action which is remarkable. For section 87, providing for the return to the States of three-fourths of the revenue raised from customs and excise, which Mr. Lefroy (p. 291) regards as fettering the power of Parliament and indicative of distrust, is limited to a period of ten years; and by section 94,' after five years from the imposition of uniform duties of customs, the Parliament may provide on such basis as it deems fair for the monthly payment to the several States of all surplus revenue of the Commonwealth.'

Mr. Lefroy (p. 285) calls special attention to the terms in which the powers of direct taxation are conferred upon the Parliament, as illustrating the intention of the Constitution to control legislative discretion. The history of that very power illustrates in the best possible way my criticism that such restrictions are-unlike so many constitutional limitations in America-imposed merely for federal and not for national purposes, as part of the bargain between the States, and not for the protection of the citizen against the Government. The power in question is to make laws with

respect to taxation, but so as not to discriminate between States or parts of States.' Mr. Lefroy compares this with the provision in the United States Constitution relating to duties, customs and excise, and declaring that they shall be uniform throughout the United States; and, as a matter of fact, the power in the earlier drafts was in the same terms as are in the United States Constitution. But it was pointed out that 'uniform throughout the Commonwealth' was more than a geographical limitation, that it did more than protect the States against discrimination, and required that individuals should be taxed on the same basis, so that probably Parliament would be prevented from imposing a graduated system of taxation (see the Income Tax Case-Pollock v. Farmers' Loan and Trust Company, 157 U. S. p. 429). The restriction went beyond what federalism required, and it was accordingly altered into the form in which it at present stands.

The provisions of the Constitution requiring that separate taxation proposals should be presented in separate bills, and that bills appropriating revenue should be separated from taxation bills, are equally to be attributed to the federal character of the instrument. They are intended merely to secure that the Senate, the House of the States, shall be free to exercise its power of rejecting any financial proposal without fear of 'tacking' by the Lower House.

In the Federal Constitution, safeguards are set up for the protection of the States where it is thought likely that they may be attacked. Certainly the Canadian Constitution is no exception to the rule. In all its essential points it is under the guarantee of the Imperial Parliament, by whom alone it can be altered. The rights of nationalities are guarded in the B. N. A. Act, 1867, by the provision of section 133, that either the French or English language may be used in the Legislature and in judicial proceedings, and that Acts of the Dominion Parliament and the Legislature of Quebec shall be printed in both languages. The rights of religions in matters of education are protected by the elaborate provisions of section 93; while State rights and professional rights are alike respected in sections 97 and 98, under which the judges in each province are to be appointed from the bar of that province.

Finally, it must be observed that for signs of distrust we should look to the restrictions upon State Legislatures as well as to those on the Central Legislature. In Canada such distrust was manifested by the fundamental provision that the Provincial Legislatures should be entrusted only with specific matters, and should even in those matters be subject to Dominion control. In the United States the State Legislatures are limited in every direction

by the United States Constitution and the State Constitution. In Australia the State Parliament will enjoy a fullness of legislative power unknown in either the United States or Canada. It has the residuary power, and it is subject to no control from the Commonwealth authorities.

Privileges of Parliament.-Mr. Lefroy incidentally mentions (p. 284) that the restriction on the power of the Canadian Legislature to define its own privileges has never been satisfactorily explained. The restriction in the B. N. A. Act, 1867, § 18, no doubt comes from the Victorian Constitution Act of 1855, § 36 of which contains a proviso that no such privileges, immunities or powers shall exceed those now held, enjoyed and exercised by the Commons House of Parliament, or the members thereof.' The substance of that restriction is contained in the Draft Bill of the Legislative Council of Victoria, by which it was provided that all the privileges, immunities and powers now held, enjoyed and exercised,' &c., should be enjoyed by the Legislative Council and Assembly in Victoria and their members. The South Australian Act of 1855-6 copied the Victorian section; and just as the Australian Constitutions of 1855 borrowed in many respects from the Canadian Constitution of 1841, it is reasonable to suppose that the framers of the Act of 1867 turned to the Australian Constitutions. As I have been speaking in this article of distrust of Legislatures, I may observe here that the one power of the Legislatures which does appear to arouse some popular dislike in Australia is their privilege.

W. HARRISON MOORE.

THE HISTORY OF THE PATENT SYSTEM UNDER THE PREROGATIVE AND AT COMMON LAW.

W

A SEQUEL.

ITH the present essay the tale of the Elizabethan monopoly patents is resumed and completed. Apart from their industrial value, a twofold interest attaches to these grants. In the first place, so far as this country is concerned, they are indubitably primae impressionis, for no such licences are recorded on the Patent Rolls of an earlier age. In the second place, the general policy of the monopolies is found to conform strictly to the type recognized as admissible by the common law, of which the Statute of Monopolies conveys a condensed and imperfect summary. In other words, the effect of the statute is essentially to confirm the practice of the Crown during the period A.D. 1561-1603.

In a former article we endeavoured to establish a connexion between the mediaeval policy of the encouragement of new industries and these early grants of Elizabeth. To this analysis we have now to add that the monopoly clauses, by which the latter system is distinguished from its forerunner, appear to. have been borrowed from continental precedents, where the industrial privileges followed close upon the heels of the printer's copyrights'. Unlike the continental system, however, the Elizabethan monopolies are broadly based upon considerations of the value of industry to the realm.

To qualify for this privilege the applicant undertakes to introduce at his own cost a new manufacture, the knowledge of which he has attained either by the procurement of foreign workmen, by travel, or by experimental research. The grants here chronicled have been annotated chiefly from the standpoint of their constitutional merits. The motives moving the Crown, the rents reserved, the powers conveyed to the grantee, and the history of the use and abuse of these powers are briefly set forth. For convenience of reference and for statistical purposes, patents of reissue have been treated under the date of the original grant, and are counted as forming a single grant.

1 The earliest industrial monopolies are to be found in Venice circa 1500. The system was carried thence by refugees from that state to the Netherlands and England.

No. XXIII. 1568. Oct. 14. Grant to Peter Backe to collect madder in Ireland and dye skins of animals [for 21

years].

Backe was a native of Brabant-a province noted for its dyers. The English dyers, on the other hand, bore an evil reputation. 'No man almost wyll meddle with any colours of cloth touching wodde and mader, unlesse it beare the name of French and Flaunders dyes, for reason of the deceits practised by the English and the ignorance of the principles of their craft (Camden Miscellany). The grant (which should have been included in the list of grants A.D. 1561-70') covers all parts of Ireland, with special reference to specified counties. Infringement is punishable by one year's imprisonment. Probably the first Irish monopoly grant.

No. XXIV. 1571. July 5. Grant to Sir Thos. Goldinge for an engine for land drainage and water supply [for 20 years].

The grant recites the condition of the lowlands and the need of a proper system of water supply for municipal and industrial purposes. The engines, once erected, will continue working without men's labour. The grant is void if the engine be not erected within two years or fails to work efficiently as set forth. The petition appears in S. P. Dom. vol. 127, under the incorrect date 1578.

No. XXV. 1571. July 30. Grant to Rd. Mathewe to make 'Turkye haftes' for knives, &c. [for 6 years].

The grantee obtained his information by residence abroad. The patent was contested successfully by the London cutlers (Matthey's case), apparently on the ground of 'general inconvenience' of patents of improvements in an existing trade. The text and history of the grant will be found in Edmunds, 2nd ed., p. 885.

No. XXVI. 1571. Sept. 1. Grant to Rd. Dyer to make earthen pots to hold fire for seething meat [for 7 years].

According to Howes the grantee learned the art of making 'earthen furnaces, firepots, and ovens transportable' when a prisoner of the Spaniards (Portuguese ?). The grant covers London and a three-mile radius. The industry was carried on ' at London without Moorgate,' and the patent was extended for seven years on January 28, 1579.

No. XXVII.

1573.

June 13.

Grant to John Payne for mills for grinding corn [for 21 years].

The grant is for modified forms of hand and treadmills, examples of which had already been erected at Glastonbury. The petition addressed to Burghley with a plat of my worke, the fyrst I ever made,' is preserved in the Lansd. MSS. Prior rights of millowners reserved. This is undoubtedly a native invention of considerable merit. As in some other cases, protection is sought in view of threatened unauthorized imitation of the invention.

1 LAW QUARTERLY REVIEW, Xii, pp. 145-150.