must, of course, not be forgotten that in this case there was evidence that violence was intended, if it were necessary to effect the common purpose, and in spite of the words "or any other felony," the concluding words "all who are parties to that violence" would appear to indicate that the direction was really applied to felonious violence.

The case which affords the greatest ground for the principle is that of Regina v. Horsey.1 The prisoner had wilfully set fire to a stack of straw, close to an outhouse or barn, in an enclosure not adjoining a dwelling-house. The deceased had been burnt to death, either in the outhouse, or on, or by, the side of the stack. In directing the jury, Bramwell, J., stated that although the law might appear unreasonable, yet if a person in the course of committing a felony, caused the death of a human being, that was murder. It was held that the prisoner was not guilty of murder, unless the person was there when the prisoner set fire to the stack. In sentencing the prisoner for the arson, the learned judge said he should make no difference in the sentence on account of the death of which the prisoner's act had been unhappily, though unintentionally the cause. It should also be noted that the judge laid considerable stress upon the statement that the prisoner was not answerable except for the natural and probable result of his act.

The Members of the Royal Commission of 1879 comment upon the construction placed upon the word "malice." They observe that the question as to whether malice can be implied from an intent to commit a felony, is a question open to doubt. They quote Foster. They then go on to say, "It seems to us that the law upon this subject ought to be freed from the elements of fiction introduced into it by the expression malice aforethought,' although the

1 3 F. & F. 287. See also Rex v. Evans [1812], 3 Russ. Cr. 12; R. v. Pitts [1842], C. & Mar. 284; Rex v. Hickman [1831], 5 C. & P. 151. Curley's Case, C. C. A. R. 2, 109.

principle that murder may under certain circumstances be committed in the absence of an actual intention to cause death, ought to be maintained." In the Draft Criminal Code itself they omit the case of a felony unlikely to cause death, and limit the application of the rule to acts known by the offender to be likely to cause death.

The case which is now generally quoted and relied upon, by those who believe that the rule as originally stated was too wide and based upon little, if any authority, is that of Regina v. Serné and another. In this case the prisoners, Leon Serné and John Henry Goldfinch, were indicted for the murder of a boy Serné, the son of Serné the prisoner. It was alleged that they wilfully set on fire a house and shop, by which act the death of the boy had been caused. Stephen, J., in directing the jury in that case said, whilst commenting upon the construction placed upon the phrase "malice aforethought," "that the words had to be construed, according to a long series of decided cases which have given them meanings different from those which might be supposed. One of those meanings is the killing of another person by an act done with an intent to commit a felony. Another meaning is, an act done with the knowledge that the act will probably cause the death of some person. . . . I will say a word or two upon one part of this definition, because it is capable of being applied very harshly in certain cases, and also because, though I take the law as I find it, I very much doubt whether the definition which I have given, although it is the common definition, is not somewhat too wide. Now, when it is said that murder means killing a man by an act done in the commission of a felony, the mere words cover a case like this, that is to say, a case where a man gives another a push with an intention of stealing his watch, and the person so pushed, having a weak heart, dies I very much doubt, however, whether that is

1 [1811], 16 Cox 311.

really the law, or whether the Court for the consideration of Crown Cases Reserved would hold it to be so. .. I think that instead of saying that any act done with intent to commit a felony, and which causes death, amounts to murder, it would be reasonable to say, that any act known to be dangerous to life, and likely in itself to cause death, done for the purpose of committing a felony which caused death, should be murder."

In Regina v. Whitmarsh,1 so recently as 1898, where death had resulted from an illegal operation, Bigham, J., told the jury that if they could think that, though the prisoner had committed the act, yet he had not contemplated that his act could result in death, he was only guilty of the lesser crime of manslaughter. It was necessary, said his Lordship, that the prisoner should have contemplated the possibility of death for it to be murder. In his address to the Grand Jury, at Chester, in 1899, Darling, J., advised the jury in a case of death resulting from an illegal operation, that if they were of the opinion that the operation was performed without any intent or desire to kill, they ought not to return a true bill for murder.

In May, 1903, the case of Regina v. Whitmarsh was followed in two instances. In one of the cases Lawrence, J., told the jury that they might return a verdict of manslaughter, as the possibility of death resulting from the act committed had not been contemplated by the prisoner.

Thus, there is no doubt, eliminating any question as to the insufficiency of the original authority, that the trend of modern judicial opinion and dicta have been toward a limitation of the rule to those felonious acts which are intrinsically likely to cause death. The present unsatisfactory condition of the law upon the question is much to be deprecated. It embarrasses judges in their directions to juries; it may in 1 62 J. P. 711. 8 2 Regina v. Upton, The Times, March 11, 1899. Supra. 4 Rex v. Pearson, Manchester Assizes, May, 1903. Rex v. Bottomley, Liverpool Assizes, May, 1903.

certain cases result in a guilty person being acquitted, if the alternative verdict of manslaughter is not open to the jury. A prisoner may be acquitted of a greater, because he cannot be convicted of a lesser offence. No doubt, when the question arises in the Court of Criminal Appeal, some definite principle will be laid down which may not indicate so greatly the divergence of judicial opinion, the inconsistency of our Case law, and the great weight given to legal writers whose names appear in the text-books as the old authorities.

W. F. WYNDHAM BROWN.

VIII. CURRENT NOTES ON INTERNATIONAL

THE

LAW.

Patents Worked Abroad.

'HE decision of Parker, J., in In re Hatschek's Patents (L. R. [1909], 2 C. 68), in which his lordship lays down a variety of rules as to what constitutes “adequate " manufacturing of a patented article, and "satisfactory" reason for not manufacturing it in the United Kingdom, is clearly one which should be subject to appeal. It is evidently the policy of the executive to subtract disputes from the decision of the Courts, and to substitute, as far as may be, the decisions of officials. Lord Alverstone has recently observed in strong, but not too strong, terms, on this tendency to put the rights of the subject under the control of the bureaucracy. It is a tendency which showed itself very powerful in the matter of public education. The Board of Education is entrusted with summary powers of decision which go far to oust the jurisdiction of the Courts. The Patents Act does, indeed, concede an appeal from the Controller; but it is limited to a single judge, and his ruling is final. No better judge than Parker, J., could be desired.

But the enormous importance and difficulty of defining what is the scope of the statute, is such that the duty ought not to be entrusted to any single judicial person.

In the particular case, Hatschek, a foreigner, patented in 1900 a process for manufacturing thin stone slabs. It was never worked in this country, but in 1908, the patentee advertised his willingness to enter into arrangements for that purpose. Since 1906 it had been worked in Belgium, and simultaneously the patentee had precluded himself from granting anyone a licence to work it in the United Kingdom. Parker, J., revoking the patent, laid down various canons which themselves are by no means free from ambiguity. The section (27) of the Act of 1907 which enables revocation if a patent is not "adequately" worked in this country, and no "satisfactory" explanation given, only applies where the manufacture takes place wholly or "mainly" abroad. Although his lordship was willing to admit that an article was not necessarily "mainly" manufactured abroad simply because more than half the output was so manufactured, and although he laid it down that there must be a great preponderance of manufacture abroad, to bring the statute into play, yet he declined to measure that preponderance by any reference to the wants of the English market. The sole question apparently must be, Was the quantum of manufacture in Great Britain "reasonably" extensive? Here we are landed again in the realm of pure arbitrary conjecture. Is it reasonable to expect a patentee to lay down plant to manufacture his patent simultaneously in all countries under the sun? And if not, is it fair to expect that he will give a preference to England? He must do so, in effect, says Sir R. J. Parker: he must use at least as great efforts to develop his manufacturing business in England as elsewhere. It is evident how great a handicap this puts on industry. Where a single factory would be economically adequate, the unfortunate patentee is to set up factories all