SOUTHERN LITERARY MESSENGER.

APRIL, 1844.

REPLY TO E. D. AND MR. SIMMS. | He insinuates that those who uphold this enormity have very imperfect notions of moral honesty, and,

questions.

We regret exceedingly that we are constrained to divide the “reply ;” but this will only affect the reader's impatience to peruse the whole, and net at all the force of the argument. [ED. MESS.

Though our own views as to the benefits of an International to evince his abhorrence of such monstrous offenCopyright coincide with those of Mr. Simms, yet we cheer-ders in still stronger terms, declares that they fally invite attention to the following very able and gentle | should be hung up (under the authority, I suppose, manly communication, from a writer well known to our of the second article of war) like other pirates to readers. The object of the Messenger is the advancement of Truth and the real interests of AMERICAN LITERATURE; the yard-arm. Not satisfied with denouncing our and it will always promote the liberal discussion of important moral delinquency in this particular, he seems so thoroughly imbued with the prejudices of Smith, Carlyle and Dickens, that he charges a 66 want of faith" as our national characteristic, and broadly intimates, that repudiation, breach of trust and enbezzlement are looked on in this country as mere fashionable peccadillos—as the indications of superior genius, venial at least, if not laudable. These are hard terms and bitter reproaches which E. D. has applied so unsparingly to his countrymen, and, if true, justify to the fullest extent all the ribaldry and abuse lavished on us by the scribbling tourists of Europe. Should any American presume, hereafter, to accuse these veracious travellers of ca

dently appeal to this testimony of a native writer as conclusive proof of their candor-as the strongest confirmation of their vile imputations on our national character.

TO THE EDITOR OF THE SOU. LIT. MESSENGER. Sir:-From two articles in your last January number on the subject of International Copyright I discover, that some of your correspondents are strenuous advocates of that measure, and defend its justice and policy by arguments similar to those which have been so clamorously reiterated by interested English authors. I should not have ven-lumny and misrepresentation, they could confitured to mingle in the controversy, had not the partizans of this legislative novelty, in a spirit of wholesale defamation, charged the American people with an obliquity of moral perception and criminal indifference to the sacred rights of property, because they have been slow to embrace a scheme fraught with the most disastrous consequences to the cause of popular education and to the interests of the American publisher. Had we been assailed only by the hungry writers and pensioned libellers of England, I should have been content to pass by such illiberal invectives as the harmless effusion of foreign ignorance, prejudice, or malice; but when a native citizen, whose accuracy and impartiality might be deemed unimpeachable, joins in the hiss of reproach, and condescends to endorse these aspersions, silence might, perhaps, be construed into an acknowledgment of guilt.

Your correspondent, E. D., does not scruple to assert, that the cheap republication of foreign books this country is "founded in fraud and supported by injustice;" that it is a species of "robbery ;" that it is a system of piracy and plunder, a violation of the laws of national courtesy and honor."

VOL. X-25

It is apparent that E. D. is a scholar and a gentleman; and I am the more astonished, therefore, that he should have disfigured his pages with such odious charges and "base comparisons." Yet, in justice to your correspondent, I am persuaded that he does not intend to be understood, as his language would import, to allege a general depravity of moral sentiment in the American people, and his gross vituperation should be received rather as the rhetorical declamation of an advocate striving to sustain his cause, than as the deliberate censure of a calm and dispassionate inquirer. The refusal or failure of some of the States to provide for the payment of their public debt, the frequent instances of peculation and embezzlement among us during a few past years would seem, indeed, to substantiate one part of his indictment against the honor and good faith of Americans. No one laments more than I do these disgraceful occurrences, or has beheld them with sensations of deeper mortifi

can genius, by ceding to the enemy the stronghold of a monopoly in our own literary market.

cation. They have been the consequence of a forcibly depicted by your eloquent correspondent, period of unbridled speculation and unexampled would, on the contrary, place British writers on the pecuniary pressure, which, in all countries, have vantage-ground in their fancied warfare on Ameribeen the fruitful parents of fraud and crime. Witness the relaxation of morals which pervaded England after the South Sea scheme, and France after the explosion of Law's Mississippi project. On such occasions the designing are unmasked and the weak perverted by the force of strong temptation, while the great mass of society remains untouched by the prevailing contagion. The corruption is only superficial and temporary, and will be speedily cleansed and healed by the native vigor of our moral constitution. Your correspondent will surely allow, that the great body of our people are sound and detest, as much as he does, these shameful examples of public and private profligacy. In the sequel we shall see whether E. D. is warranted, either by reason or justice, in denouncing the people of the United States as false to the claims of honor and good faith, because they have not surrendered to the taunts and importunities of English writers the boon of International Copyright. For myself, I shall not be deterred by the argument of epithet" from vindicating our government in its determination to be neither bullied nor cajoled into the adoption of a system, the policy of which, to say the best of it, is problematical.

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The conspiracy of English authors against our mental independence, which your correspondent professes to have detected, is, I am sure, a mere figment of the imagination. Mr. Simms is a poet, and exercises the usual license of his craft in "giving to airy nothing a local habitation and a name." In the prosecution of such a design as he imputes to the writers of England, concerted action among so great a multitude would be totally impractica ble, and that very difficulty must demonstrate, that a scheme so preposterous would never be undertaken. It were a strange method, indeed, "to suppress thinking, to paralyze the original energies of American genius" by supplying us with the best treatises on every possible subject, with the finest specimens of poetry and fiction, with the purest models of human composition. Such a plan could only succeed on the hypothesis, that education weakens the understanding; that cultivation corrupts the taste; that the most effectual mode of destroying thought is to supply abundant materials for thinking. We can conceive of no motive for so singular a project but to establish a political The temper of E. D. and your other correspon- ascendancy, and for such purposes it would be ut dent, Mr. Simms, in their animadversions on the terly futile. As well tie Sampson with a thread, conduct of our people towards foreign authors, as hope to fetter the infant giant of America with though they evidently coincide in their general these slender and fantastic ligaments. Our history, conclusions, is widely different. Indeed the latter, since the revolution, exhibits no indication of an in his elegant essay, manifests a spirit so exclu- abject reverence for British maxims. Instead of sively national, that he deems our political enfran- halting with cautious timidity in the rear of Eurochisement but half accomplished so long as we pean precedent, we have advanced with a daring are dependent on Britain for our literary nourish- and confident step in the career of improvement, ment, and insists that we shall remain in a state of acknowledging no guide but reason, and discussing mental vassalage, scarcely less galling than colo- the lessons of past times as well as the example of nial subjection, until we succeed in building up a other nations in a spirit of bold and liberal inquiry. domestic literature, peculiar and distinctive. He Let this phantom then, which, if it were real, is seems to apprehend, that British books will cor- powerless for mischief, no longer haunt Mr. Simms' rupt our taste and poison the fountains of public imagination. The American mind is not of that sentiment to imagine, that the constant dissemina- texture to be daunted, or subdued by mere paper tion of her numerous publications among us is the artillery. That a gentleman of Mr. Simms' sagaresult of a systematic scheme in the mother coun- city should have been betrayed into so wild a theory try to "make us a subject people, to suppress think- is a fact, which I can only account for by the proing, to throw every impediment in the way of know- pensity of all speculative minds to disdain what is ledge, and to perpetuate her tyranny over Ameri- obvious, and to refer to some deep and recondite can industry by paralyzing the original energies of cause the solution of the most ordinary phenomena. American genius." I confess I cannot perceive When Mr. Simms insists so strenuously on the what bearing these propositions, admitting their importance of native literature as a means of effecttruth, or the other facts and reasonings advanced ing our complete intellectual emancipation, I infer by Mr. Simms, have upon the question of Interna- from the tenor of his remarks, that he desires it to tional Copyright; though their connexion with assume a peculiar anomalous character, specifically that subject will, probably, be explained in his pro- distinguished from that of every other nation. If mised inquiry into the causes of the present lan- this be his meaning, I must be permitted to dissent guishing state of our literature. On the first im- from such a view of the subject. Is there not pression I would conclude, that International Copy-danger, should we venture upon a new and untried right, so far from being a panacea for the evils so path, that, as we deviate from the great English

models, we shall depart from nature and good to the cherished offspring of their genius, since it taste? In striving to be original may we not pro- gave a foretaste of that posthumous reputation duce an uncouth monster, half woman, half fish; which was the ultimate goal of their ambition. an object not of admiration but of derision and dis- They felt like Milton, when he sold the Copyright gust? But if, on the other hand, he wishes Ame- of Paradise Lost for the paltry sum of twenty rican literature to receive its form and pressure pounds, that fame should not be weighed against from English classics, to imbibe their spirit and pecuniary emolument; that the noblest recompense reflect their image, while I readily subscribe to the of intellectual effort consists in the contemplation reasonableness of such a sentiment, I must avow of its beneficent effects, and in the grateful apmy utter inability to comprehend the source of his plauses of mankind. In this calculating age, litemorbid jealousy of British dictation. I shall not rary ambition has assumed an opposite direction. deny that the creation of an American literature is Quærenda pecunia primum, fama post nummos is a great desideratum, and I devoutly believe that, in now the prevailing maxim. Men of the first abilithe fullness of time, that literature is destined to ties, content with a transient popularity, expend attain a glorious maturity, even though cheap books their great powers on the production of ephemera, should continue to multiply, and International Copy-destined, like insects, to perish in the passing hour. right be consigned with other crude projects to the Haste and prolixity-formerly condemned as faults, gulf of oblivion. It does not follow, because we are held in the highest esteem at a time, when the waste the midnight oil in the study of those ex- desideratum is to produce in the shortest space quisite specimens of human genius furnished by the largest quantity of light, flimsy, fugitive stuff, the mother country in our common tongue, that we which, brought to the alembic of just criticism, are yet in mental leading strings, or that the Ame- would dwindle to the most insignificant dimensions, rican mind is dormant, because in the turmoil of yielding scarce a pennyworth of useful thought to business we have not time to compose books. As this enormous bulk of materials. In truth, bookthe wilderness is subdued, cities grow up, wealth making has been converted into a trade, a manuand population are augmented, more men will have facture, in which quantity is regarded more than leisure to write, and many will be driven by the quality, and profit more than fame. It was natural, competition in other pursuits to devote themselves therefore, that your correspondent, E. D. should be to science and letters as a means of subsistence. struck with a resemblance between the productions This revolution has already begun, and the day-of mind and the humble efforts of a butcher or spring of American literature is now dawning with every prospect of a brilliant meridian.

tailor, since, now-a-days, the operatives in these opposite departments are governed by the same principles of action.

By tracing the course of the discussion in reference to International Copyright, the motives The notion, that the rights of authors, as dewhich have kindled such a fiery and intolerant zeal fined by the new school of Dickens and Carlyle, among its trans-Atlantic advocates, may be easily rest on the same principles of natural right with decyphered. The unexampled growth of our coun- property in general, and should in justice be placed try in wealth and population, the general spread of upon the same footing, has never been recognized education among our people, and their insatiable by any government in practice, and, if pursued to appetite for new publications, amounting almost to its legitimate results, involves the most startling a mania, have given birth to the greatest literary conclusions; though E. D. contends that, to deny market in the world. The cupidity of English it, would be "to strike at the root of all intellectual writers has been awakened by the prospect of labor, and to make the very existence of Copyright engrossing this vast market, and hence their ani- a continued injustice." A book, or a manuscript, mosity against every man who has the hardihood to which an individual has printed, or written, unquestion the validity of their claims to such a lucra- doubtedly belongs to him, and he may refuse to tive monopoly, their furious denunciation of the publish, or impart it in any form, till he has been cheap republication of their works in this country paid his price; and this was the only ownership 38 another, and more aggravated form of literary which the ancients asserted in their works, when piracy, and their labored efforts to assimilate the they sold copies to be transcribed or recited. When rights of anthors to other forms of property. This they had been recited, or published, and were thus clamor is of recent date. The great writers of incorporated into the mass of general knowledge, the last generation, though the demand here for the ancients claimed no further property in their foreign books was even then immense, raised no contents, nor considered it any breach of right in such question-uttered no complaint, because we those who had heard, or read them, to appropriate had not found it convenient, or politic to admit them their thoughts or language. Modern governments to the privileges of Copyright. The gains of lite- have gone a step farther, and secured to authors a rary labor were to them a secondary and subordi- temporary and exclusive property, not only in the nate consideration; and they were justly flattered original copy of their writings, but, to some extent, by the homage of a distant and enlightened nation in the words and ideas they contain; and this

they were recorded in books, or imparted in public speeches, or private discourse. In whatever form they were embodied, they would still remain the subject of an absolute, unqualified ownership, which it would be criminal to invade, or violate, and which it would be, not only the province, but the imperative duty of civil government to protect. A man would be entitled, on this hypothesis, not only

limited right is to continue even after publication. it would be a matter of perfect indifference whether The position of the friends of International Copyright is, that this artificial ownership, thus cautiously limited, is not a mere contrivance of policy, but is analogous in all its features and incidents to other descriptions of property, and founded like them in the paramount laws of nature and justice. Property in things tangible, in the fruits of bodily labor is not, according to the theory of the best writers on natural jurisprudence, a mere conven- to the immediate usufruct of his own conceptions, tional arrangement. It results from the very con- but to every remote and incidental advantage to be stitution of human nature, and must have apper- derived from them. They are his by a title as tained to man in all conditions, whether antecedent, certain and indubitable as his horse, his land, or or subsequent to the formation of civil society. As any tangible possession; and no one has a right cupidity is one of the strongest passions of man- to use these for any purpose without his consent. kind, this right, more than other natural rights, Such are the attributes of all other property, and, would have been peculiarly liable to the assaults of if Copyright belongs to the same category, it must rapacious violence, because it would have presented partake of the same qualities and incidents. If irresistible temptations to lawless and unprincipled this doctrine be well-founded, then plagiarism should marauders, prone to indulge their covetous and in- be stigmatized as felony, and even to use, or repeat dolent propensities at the expense of the weak the thoughts of another without any improper deand defenceless; and hence the desire to secure it sign should expose the person so offending to a must have formed the principal inducement to the civil action for the recovery of damages. Innofirst establishment of regular government. Being cence of intention would avail nothing in the defounded on those immutable principles of justice, fence of such an action, because, to appropriate acknowledged by the whole human race, the State was bound to guaranty its undisturbed enjoyment, to shield the possession of the owner against the encroachments of fraud, or force. In all civilized communities, therefore, property has been fenced round with every legal sanction, and fortified by jury. Neither could the defendant in such a case the terrors of punishment. If Copyright derives be allowed to plead, that he had made the plaintiff's its origin from the same source, it is entitled to the same ample securities. To seize on and appropriate it by stealth, or violence, without the consent of the owner, would be moral theft, or robbery, and should be visited by the same infamous chastisement. And yet such a crime is unknown to any penal code, and, so far as I know, not even hinted at as a hypothetical improvement in the speculations of Beccaria, or the codifications of Bentham.

the property of our neighbor to our own convenience, or profit, for a single instant, knowing it to be his and without his permission, is, in strictness, a breach of his rights, and he is entitled to reparation commensurate to the extent of the in

thoughts his own by clothing them in new language and enforcing them by original illustrations; for he would be told that no disguise could change the intrinsic nature of the thing—that a thought, however transformed by the artifices of diction, or enveloped in rhetorical ornament, continues the property of the first inventor till divested by his own voluntary alienation.

But it may be alleged that, before the author of any new idea can complain of its wrongful approThose who affirm that an author has an inhe- priation by others, or reclaim it as his individual rent property in his writings at all times and in all property, he must announce his title to the world, places, do not mean to confine that property to the and fix his mark upon it by some unequivocal act, mere paper and packthread, the gilt letters and such as the publication of a book; that, otherwise, Russia leather; for no one disputes his title to these the first comer may seize it as a waif and apply it visible objects, when they are either the work of to his own use without the imputation of fraud, or his own industry, or purchased with his own re-injustice. Is it not manifest from this very dissources. The proposition is, doubtless, intended tinction, that the supposed analogy between the to have a much wider signification. It is designed productions of mental labor and other property is to embrace the language, and, more especially, the wholly illusory? Under what system of law does thoughts, without which words are mere sound the security of human possessions depend on either and fury signifying nothing." These, the fruit of a formal, or constructive proclamation of title to patient research and meditation, give a distinctive the wrong doer? And is not the fraudulent approcharacter to every book and constitute its chief priation of the goods of another, with a felonious value as a source of amusement, or instruction. intent, theft in the eye of reason and by the prinThe essence then, the substratum of all literary ciples of every penal code, though the owner of property consists in the thoughts of an author, and, the stolen property be unknown? But if thoughts if these could naturally be converted into property, be property, surely that property can be asserted

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and made known in some other mode, than by the was solemnly adjudged, as far back as 1774, by publication of a book. When a new idea is im- the highest legal tribunal of that country in the parted either in public or private discourse, what case of Donaldson vs. Becket, that, at common law, hinders its author, at the very moment of its utte- an unwritten code, professing to embody the prinrance, from making continual claim to the exclu- ciples of natural justice and reason so far as those sive use and benefit of the conception, from pro- principles can be reconciled to the artificial constitesting against any implied waiver of his rights in tution of society, an author has no exclusive Copybehalf of his audience? Such a notification would right in his writings, and holds only a temporary be less liable to misconstruction than even the act interest in them under the authority of statutes. of printing, and would effectually repel the pre- Had an opposite principle been decided in that mesumption of an abandonment of title. On the prin-morable case, it would have followed, that by the eiples of those who maintain the resemblance be- common law of England and of this country, tween Copyright and other kinds of property, it is which is essentially the same system, Copyright a necessary deduction, that this right, thus pro-was perpetual; that it must be subject to the same claimed and insisted on, is as clearly founded in rules and guarded by the same sanctions with other natural justice and as much entitled to the protec- property. No statute would have been required to tion of the civil magistrate, as the vaunted claim establish, or protect the rights of authors, either of an author to the profits of his writings. foreign or domestic; for, the moment that the comLet us examine the soundness of this new-found common law recognized them as property, that beanalogy between Copyright and the other forms of neficent and comprehensive code would have exproperty by another test. It is contended, that tended its ample shield over them in all places and the rights of authors originate in the same abstract provided adequate remedies to prevent, or compenprinciples of justice with other human possessions-sate their infraction. Yet, if those rights rested, that, therefore, governments are under the same in truth, on the same original principles with profundamental obligation to recognize and protect perty in general, the decision in Donaldson vs. them—and that the indelible stigma of fraud and Becket was undoubtedly erroneous and subverdishonesty is branded upon those who neglect, sive of natural right and justice. or refuse to fulfil this paramount duty. It follows from these premises, that they should be held by the same tenure, governed by the same rules with other property-that they should be modified or abridged by no considerations of expediency-divested only by the voluntary alienation of the owner-not even forfeited on the overruling plea of state necessity without adequate compensation. Concede that they derive their validity from the same source with other human possessions, and you are bound to ensure their perpetuity; for justice is inflexible, and will not be content with a partial satisfaction. In this view, to secure the rights of authors for ten, or twenty years, for any limited period of time, falls infinitely short of their equitable claims, and, to parody one of E. D.'s graphic illustrations, a state, acting on this niggard policy, resembles one of those courteous robbers, who, after stripping the unfortunate traveller of his all, generously refunds a sufficiency to defray the expenses of his journey.

If the right of men to the exclusive use and application of their own conceptions had, in the origin of society, been placed on the same footing, in point of security and duration, with property in the fruits of bodily labor, and in tangible possessions, it is obvious, that such a system would have fettered the energies of the human mind, and interposed insuperable barriers to the progress of knowledge. Every great achievement of intellect has been the result of combined effort, of the united resources of many minds coöperating in the accomplishment of the same enterprize. Trace the history of any valuable improvement in art, or science, and you will find that it was not a sudden inspiration, an intuitive perception, a mere accident; but that the author was conducted progressively to the point of discovery by the vestiges of previous adventurers in the same path of speculation; that the obscurity in which some important truth was involved had been gradually dispelled by successive flashes of intellectual light, until the electric spark of geIn every country with whose history I am ac- nius had at length revealed it in the blaze of perquainted, where literary property has a legal exis- fect day. It is because mental acquisitions have tence, that existence is restrained to a space of been regarded in all ages as a common fund for the time, longer, or shorter, according to the caprice, benefit of our race, that philosophic research has or the policy of the legislator. Nowhere has it penetrated so deeply the hidden secrets of nature, been admitted as a claim of right, or put upon the and guided benevolent effort to such brilliant trisame footing, in point of character, or extent, with umphs in the career of moral and social reform. other possessions. And yet, who has been heard Let the domain of thought be parcelled out and to complain of this statutory limitation as an act of appropriated, and you confine each individual withimperfect justice? to insist that the duration of in his own narrow circle; you throw him back on Copyright should be perpetual? Even in England, his own scanty resources, unaided by the exhaustwhere his claim of right has been first set up, it less stores of knowledge accumulated by the la