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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, 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 cheerders in still stronger terms, declares that they fully invite attention to the following very able and gentle should be hung up (under the authority, I suppose, maely 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 questions.

thoroughly imbued with the prejudices of Smith, We regret exceedingly that we are constrained to divide Carlyle and Dickens, that he charges a “want of the “ reply;" but this will only affect the reader's impatience faith” as our national characteristic, and broadly to peruse the whole, and net at all the force of the argument.

[Ed. Mess.

intimates, that repudiation, breach of trust and embezzlement are looked on in this country as mere

fashionable peccadillos-as the indications of supeTO THE EDITOR OF THE Sou. LIT. MESSENGER.

rior genius, venial at least, if not laudable. These Sir:-From two articles in your last January are hard terms and bitter reproaches which E. D. number on the subject of International Copyright has applied so unsparingly to his countrymen, and, I discover, that some of your correspondents are if true, justify to the fullest extent all the ribaldry strenuous advocates of that measure, and defend its and abuse lavished on us by the scribbling tourists justice and policy by arguments similar to those of Europe. Should any American presume, herewhich have been so clamorously reiterated by in- after, to accuse these veracious travellers of caterested English authors. I should not have ven- lumny and misrepresentation, they could confitored 10 mingle in the controversy, had not the dently appeal to this testimony of a native writer partizans of this legislative novelty, in a spirit of as conclusive proof of their candor—as the strongest wholesale defamation, charged the American peo- confirmation of their vile imputations on our national ple with an obliquity of moral perception and crimi- character. nal indifference to the sacred rights of property, It is apparent that E. D. is a scholar and a genbecause they have been slow to embrace a scheme tleman; and I am the more astonished, therefore, fraught with the most disastrous consequences to that he should have disfigured his pages with such the cause of popular education and to the interests odious charges and “ base comparisons.” Yet, in of the American publisher. Had we been assailed justice to your correspondent, I am persuaded that only by the hungry writers and pensioned libellers he does not intend to be understood, as his lanof England, I should have been content to pass by guage would import, to allege a general depravity sueh illiberal invectives as the harmless effusion of of moral sentiment in the American people, and foreign ignorance, prejudice, or malice; but when his gross vituperation should be received rather as a dative citizen, whose accuracy and impartiality the rhetorical declamation of an advocate striving might be deemed unimpeachable, joins in the hiss to sustain his cause, than as the deliberate censure of reproach, and condescends to endorse these of a calm and dispassionate inquirer. The refusal aspersions, silence might, perhaps, be construed or failure of some of the States to provide for the into an acknowledgment of guilt.

payment of their public debt, the frequent instances Your correspondent, E. D., does not scruple to of peculation and embezzlement among us during assert, that the cheap republication of foreign books a few past years would seem, indeed, to substanin this country is “founded in fraud and supported tiate one part of his indictment against the honor by injastice ;” that it is a species of "robbery;" and good faith of Americans. No one laments that " it is a system of piracy and plunder, a vio- more than I do these disgraceful occurrences, or lation of the laws of national courtesy and honor." has beheld them with sensations of deeper inortifi

VOL. X-25

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. Wit- can genius, by ceding to the enemy the stronghold ness the relaxation of morals which pervaded En- of a monopoly in our own literary market. gland after the South Sea scheme, and France The conspiracy of English authors against our after the explosion of Law's Mississippi project. mental independence, which your correspondent On such occasions the designing are unmasked professes to have detected, is, I am sure, a mere and the weak perverted by the force of strong temp- figment of the imagination. Mr. Simms is a poet, tation, while the great mass of society remains and exercises the usual license of his craft in " gisuntouched by the prevailing contagion. The cor- ing to airy nothing a local habitation and a name." ruption is only superficial and temporary, and will In the prosecution of such a design as he imputes be speedily cleansed and healed by the native vigor to the writers of England, concerted action among of our moral constitution. Your correspondent so great a multitude would be totally impracticawill surely allow, that the great body of our peo- ble, and that very difficulty must demonstrate, that ple are sound and detest, as much as he does, these a scheme so preposterous would never be undershameful examples of public and private profligacy. taken. It were a strange method, indeed, " to supIn the sequel we shall see whether E. D. is war- press thinking, to paralyze the original energies of ranted, either by reason or justice, in denouncing American genius” by supplying us with the best the people of the United States as false to the treatises on every possible subject, with the finest claims of honor and good faith, because they have specimens of poetry and fiction, with the purest not surrendered to the taunts and importunities of models of human composition. Such a plan could English writers the boon of International Copy- only succeed on the hypothesis, that education right. For myself, I shall not be deterred by the weakens the understanding; that cultivation cor“argument of epithet" from vindicating our govern- rupts the taste; that the most effectual mode of ment in its determination to be neither bullied nor destroying thought is to supply abundant materials cajoled into the adoption of a system, the policy of for thinking. We can conceive of no motive for which, to say the best of it, is problematical. 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 utdent, 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' saga. result 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. It 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 Englista

models, we shall depart from nature and good to the cherished offspring of their genius, since it taste? Io 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 forrn 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 crade 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 dermant, 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 pursnits 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 resolution has already begun, and the day of mind and the humble efforts of a butcher or spring of American literature is now dawning with tailor, since, now-a-days, the operatives in these every prospect of a brilliant meridian.

opposite departments are governed by the same By tracing the course of the discussion in refe- principles of action. rence 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 2 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 33 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 clator 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 na 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 bad not found it convenient, or politic to admit them their thoughts or language. Modern governments in 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 nale 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

limited right is to continue even after publication. it would be a matter of perfect indifference whether The position of the friends of International Copy- they were recorded in books, or imparted in public right is, that this artificial ownership, thus cau- speeches, or private discourse. In whatever form tiously limited, is not a mere contrivance of policy, they were embodied, they would still remain the but is analogous in all its features and incidents to subject of an absolute, unqualified ownership, which other descriptions of property, and founded like it would be criminal to invade, or violate, and them in the paramount laws of nature and justice. which it would be, not only the province, but the

Property in things tangible, in the fruits of bodily imperative duty of civil government to protect. A labor is not, according to the theory of the best man would be entitled, on this hypothesis, not only 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 the property of our neighbor to our own convewas bound to guaranty its undisturbed enjoyment, nience, or profit, for a single instant, knowing it to shield the possession of the owner against the to be his and without his permission, is, in strictencroachments of fraud, or force. In all civilized ness, a breach of his rights, and he is entitled to communities, therefore, property has been fenced reparation commensurate to the extent of the inround 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 10 plead, that he had made the plaintiff's its origin from the same source, it is entitled to the thoughts bis own by clothing them in new lansame ample securities. To seize on and appro- guage and enforcing them by original illustrations ; priate it by stealth, or violence, without the con- for he would be told that no disguise could change sent of the owner, would be moral theft, or robbery, the intrinsic nature of the thing—that a thought, and should be visited by the same infamous chas- however transformed by the artifices of diction, or tisement. And yet such a crime is unknown to enveloped in rhetorical ornament, continues the any penal code, and, so far as I know, not even property of the first inventor till divested by his hinted at as a hypothetical improvement in the own voluntary alienation. speculations of Beccaria, or the codifications of But it may be alleged that, before the author of Bentham.

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 opon 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 10 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 felonions 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 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 ciples 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 com

Let 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 If the right of men to the exclusive use and apfrom these premises, that they should be held by plication of their own conceptions had, in the orithe same tenure, governed by the same rules with gin of society, been placed on the same footing, in other property—that they should be modified or point of security and duration, with property in the abridged by no considerations of expediency—di- fruits of bodily labor, and in tangible possessions, vested only by the voluntary alienation of the it is obvious, that such a system would have fetterowner-not even forfeited on the overruling plea ed the energies of the human mind, and interposed of state necessity without adequate compensation. insuperable barriers to the progress of knowledge. Concede that they derive their validity from the Every great achievement of intellect has been the satne source with other human possessions, and result of combined effort, of the united resources you are bound to ensure their perpetuity ; for jus- of many minds coöperating in the accomplishment tice is inflexible, and will not be content with a of the same enterprize. Trace the history of any partial satisfaction. In this view, to secure the valuable improvement in art, or science, and you rights of authors for ten, or twenty years, for any will find that it was not a sudden inspiration, an inlimited period of time, falls infinitely short of their tuitive perception, a mere accident; but that the equitable claims, and, to parody one of E. D.'s author was conducted progressively to the point of graphic illustrations, a state, acting on this niggard discovery by the vestiges of previous adventurers policy, resembles one of those courteous robbers, in the same path of speculation ; that the obscuwho, after stripping the unfortunate traveller of rity in which some important truth was involved his all, generously refunds a sufficiency to defray had been gradually dispelled by successive flashes the expenses of his journey.

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

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