meaning, it may not be amiss, to give Lord Mans- I were protected, and were not viewed in the same field's definition of the technical meaning of the light as a trade, manufacture, or mechanical inword "copy," as understood at that time. In the ventions. case of Millar and Taylor, to which I shall presently refer the reader, he says: "I use the word 'copy' in the technical sense in which that name, or term, has been used for ages, to signify an incorporeal right to the sole printing and publishing of somewhat intellectual, communicated by letters." "The property in this copy is equally detached from the MS., or any physical existence whatever." And again "The property in the copy thus narrowed, may equally go down from generation to generation, and possibly continue forever, though neither the author nor his representative, should have any MS. whatsoever of the work, original, duplicate or transcript." So that Luther, Milton and Lord Mansfield, must all have been mistaken, if J. B. D.'s statement be correct, that "Copyright is in fact the mere creature of legislation, produced and fashioned exclusively with a view to the interest of the community where it is established," &c. Justice Willes also in the same celebrated case thus speaks : "The name 'copy of a book' which has been used for ages as a term to signify the sole right of printing, publishing and selling, shows this species of property to have been long known, and to have existed in fact and usage as long as the name:" (this was in 1769.) And the strongest proof of the existence of literary property under the Common Law, is afforded by the fact, that Lord Hardwicke granted an injunction against printing the Paradise Lost of Milton; the title to which was derived by an assignment from the poet himself seventy two years before; the statutory time having long run out. The existence of literary property was recognized by various decrees of the Court of Star Chamber, in the sixteenth and seventeenth centuries, and by several acts of Parliament in the seventeenth century, as we learn from the English law books; and in the entries of the "stationers' companies," there are persons fined for " printing other men's copies." (American Jurist.) his assigns in perpetuity; and it appears from the verdict I have been thus minute, I fear tediously so, as to the true nature of Copyright, because it is a matter of vital importance to the interests and the dignity of authors, that it should be placed upon the proper ground of right and justice; and not be deemed as a "bounty or gratuity," when in fact it is their own by right and law, in the enjoyment of which, so far from having been fostered by legislation, they have been wronged and despoiled; and like Sampson of old, made the "hewers of wood and drawers of water" for the benefit of their legal Philistines, who have blinded their eyes and fettered their limbs. The act of 8 Ann was intended only as declaratory of the Common Law, having been passed upon the prayer of the publishers and proprietors of Copyright, who wished for a more summary and full remedy than was attainable at Common Law, and in 1710 that act was passed, which for a long time was regarded only as declaratory of the Common Law, but which finally was adjudged to have superseded it, though this decision was in opposition to the opinion of two of the most famous English lawyers, Mansfield and Blackstone. tution, the right of literary property was recogIn our own country, under the Federal Constinized by the several States in their legislation on the subject of Copyright; most, if not all of them having passed acts to secure their Copyrights to authors and publishers, thus pre-supposing the existence of a right which they wished to secure. But the matter is not left to conjecture. Mr. Madison, who introduced a resolution, as chairman of a committee to Congress, on the 27th May, 1783, by which the several States were recommended "to secure to authors, their executors, administrators and assigns, the Copyright of their books," thus expresses his own opinion in the 43rd No. of the Federalist. "The Copyright of authors has been solemnly adjudged in Great Britain, to be a right at Common Law." Judge Story in his Commentaries, expressly "As late as 1769 in the great case in which was involved admits the Common Law right of authors. (3rd the right to print Thomson's Seasons,' (4 Burr.) one of Story, 481.) Chancellor Kent gives no positive the questions discussed was, whether at Common Law an opinion. But the most important recognition of author has the sole and exclusive Copyright in himself, or this right of property in authors, independent of of the jury in that case, that it had been the custom to pur-legislation, is to be found in the report of the comchase from authors the perpetual Copyright of their books, mittee of Congress, which accompanied the preto assign the same from hand to hand for valuable conside- sentation of the Copyright Law of 1831, (our ration, and to make the same the subject of family settle-present law on the subject.) The chairman of the ments for the provision of wives and children." (American judiciary committee, Mr., Ellsworth, made a report, Jurist.) That it is not a "monopoly" as J. B. D. calls it, and never has been so considered, is proved by the fact, that in the reigns of Elizabeth and James I., when the most bitter and unsparing war was made upon all "monopolies," "copies" of literary works a portion of which I will quote, as showing the basis of our Copyright Law and the conclusions to which a thorough examination of the subject unavoidably led them. "Upon the first principles of proprietorship in property, an author has an exclusive and perpetual right in preference to 14 The GHY other to the fruits of his labor. Though the nature of the decision is misstated, no uncommon occurrence, literary property is peculiar, it is not the less real and valua- as any one in the habit of consulting Law Reports ble. If labor and effort in producing what before was not must have had frequent occasion to observe. possessed or known, will give title, then the literary man has title, perfect and absolute, and should have his reward; real point decided in that very case is this, that by he writes and he labors as assiduously, as does the me- Common Law and universal usage, an author was chanic, or husbandman. The scholar who secludes himself entitled to his Copyright in perpetuity, but that the and wastes his life, and often his property, to enlighten statute of 8 Ann had limited and restricted the world, has the best right to the profits of those labors- exercise of that Common Law right to a certain the planter, the mechanic, the professional man, can not fixed and definite time; and even this latter point prefer a better title to what is admitted to be his own. It ean not be for the interest or honor of our country, that was decided, contrary to the opinions of Lord intellectual labor should be depreciated, and laborious Mansfield and Sir W. Blackstone, the two greatest study terminate in disappointment and poverty." lawyers England has ever known, who regarded that statute only as declaratory of the old and established Common Law right. That the committee did not report a bill for perpetual Copyright in consonance with the views expressed in the report, is easily accounted for, from the fact of the public mind not being sufficiently prepared for it; from want of due consideration of the subject, which is only brought home to the minds of the authors, who feel the injustice of -being deprived of their rightful property; and of a few literary dabblers, like myself, who have no interest in it, further than that which every honest man and good citizen should feel in promoting the cause of truth and justice. From hence it appears, that although J. B. D. has never heard of this principle having ever been adopted by any government in practice," it was in fact at the bottom of the English Law of Copyright, and was made the inducement, and motive cause of the passage of our act of 1831; and if this was considered as an act of simple justice to our authors, it should apply equally to those of other countries who reciprocate with us; unless our government is disposed to adopt the Roman policy, with whom the same word was used toʻsignify a stranger and an enemy. As the whole question of literary property was fully discussed in these English cases by the most learned and acute lawyers in the realm, I trust that courteous individual, the general reader, will forgive me, if following in the footsteps of J. B. D., I should lead him for a time from the pleasant fields of literature, into the thorny paths of law; and request his presence at the celebrated case of Millar and Taylor, (4 Burr. Rep. 2302,) tried in the Court of K. B. in 1769, at which Lord Mansfield presided, with three assistant Judges; and which was argued by such lawyers as Dunning, Thurlow and Blackstone. So far from the question being even then considered a novel one, the reporter commences with the following remarks: "This case was a revival of the old and often litigated question concerning literary property, and it was the first determination which the question ever received in this Court of King's Bench." That is, the first time it was contested, the previous proceedings being by injunction in chancery; But J. B. D." goes still further, and proceeds for as early as 1680, an injunction was had, to re to say, "No where has it been admitted as a claim of right, or put upon the same footing in point of character, or extent with other possessions." The fallacy of this statement has been already proved; but he continues as follows: strain the publication of "Bunyan's Pilgrim's Progress," whereby the proprietor lost the profit and benefit of his "copy." In this case of Millar and Taylor, the subject matter of which was the publication of "Thomson's Seasons," Lord Mansfield and two of the assistant Judges declared in the “Even in England, where his claim of right has been strongest terms, the Common Law right of an aufirst set up, it was solemnly adjudged as far back as 1774, thor to the Copyright of his own work in perpetuity, by the highest legal tribunal of that country, in the case of after as well as before publication; and Justice Donaldson vs. Becket, that at Common Law, an author has Yeates alone dissenting, delivered an opinion which no exclusive Copyright in his writings, and holds only a contains all that could be, or has since been urged temporary interest in them, under the authority of statutes. Had an opposite principle been decided in that memorable against this right; the arguments in which have ease, it would have followed that by the Common Law of since been reiterated by M. A. C. Renouard in England and of this country, which is essentially the same France; the Austrian publishers in their country, system, Copyright was perpetual; that it must be subjeet to by the cheap ones here, and recently by J. B. D. the same rules, and guarded by the same sanctions with in the columns of the Messenger. The leading other property." argument is simply this, that property can not be The conclusion he arrives at in the last sentences, predicated of thought, and that the term Literary is precisely similar to that which I have been laboring Property, ought to be banished from the language to establish; though the case, he has quoted would of the law; but that, nevertheless, the sole right of seem conclusive on the opposite side. But unfortu- multiplication ought to be bestowed upon the author nately for his cause, J. B. D. has been misled by the for a limited time, on account of his merit and the marginal note to that case, in which the real point of benefits he confers upon society! "But," as it has been well remarked in reply, "although property | And after giving a long list of reasons, thus concan not be predicated of thought, yet it can be of cludes: composition, of work, and so far from the author's "For these and many more reasons, it seems to me just abandoning his right on publication, he only then and fit to protect the 'copy' after, as well as before publifirst avails himself of the value of his property by cation. There is no peculiar objection to the property after, publishing his work. And for all civil intercourse except that the property is necessarily made common after the book is once published. The argument turns in a cirproperty is as though it had no existence, so long cle, the copy is made common because the law does not as the owner can not affix exchangeable value to it. protect it, and the law cannot protect it because it is made To say then, that a composition is the property of common?' The whole then must finally resolve into this the author, so long as he chooses to keep it in his question, whether it is agreeable to natural principles of desk, but that he forfeits the ownership as soon as moral justice, and fitness, to allow him the 'copy' after he publishes the composition, is saying, 'this is publication, as well as before?" "The general consent of this kingdom for ages is on the your property, but the act itself of availing yourself affirmative side. The legislative authority has taken it for of this property, deprives you of it!' which is ab-granted; and interposed penalties to protect it for a time, surd!" (Lieber.) This argument appears to me The single opinion of such a man as Milton, speaking after unanswerable, and is very similar to that urged by much consideration, on the very point, is stronger than any Lord Mansfield in the case above referred to, to inferences from gathering acorns, and seizing a vacant The judicial opinions of those emiwhich we will now return; keeping in mind the piece of ground, &c." nent lawyers and great men, who granted or continued intechnical meaning of the word "copy," as defined junctions in cases after publication, not within 8 Queen by Lord Mansfield, quoted in a previous part of this Ann, uncontradicted by any book, judgment or saying, must letter. weigh in any question of law." After a full hearing of the arguments on both sides, and when the inferior Judges had delivered their opinions, two being in favor of "copy" and one opposed to it, Lord Mansfield proceeded to deliver the opinion of the court, on the following questions, giving at the same time his reasons for such decision: "1st. Whether an author's property in his own literary compositions is such as will entitle him, at Common Law, to the sole right of multiplying the copies of it. 2ndly. Whether the Copyright by his own publication of the work is necessarily given away, and his consent to such gift implied by operation of law. On the third question, he says, in relation to the statute of 8 Ann, "The bill was brought in on the petition of the proprie. tors to secure their property forever by penalties, and the alteration was made in committee to restrain the perpetual into a temporary security. Had there been the least intertion to take or declare away every pretence of right at the Common Law, it would have been expressly enacted, and a different preamble from the one as it now stands." He concludes his opinion with the following impressive words: “The subject at large is exhausted, and therefore I have "3rdly. Whether it is taken away from him, or restrained not gone into it. I have had frequent opportunities to cosby the statute of 8 Queen Ann?" These are his words, sider of it. I have travelled in it for many years. Many of the precedents were tried by my advice. The accurate and elaborate investigation of the matter in this cause, and "From premises either expressly admitted, or what can in the former case of Tonson and Collins, has confirmed not be, and therefore never have been denied, conclusions me in what I always inclined to think, that the Court of follow, in my apprehension, decisive upon all the objections Chancery did right in giving relief upon the foundation of a raised to the property of an author in the copy of his own legal property in authors, independent of the entry, the term work by the Common Law." "This property is equally de-for years, and the other provisions annexed to the act." tached from the MS. or any other physical existence whatsoever. "The property of the 'copy' thus narrowed, may equally go down from generation to generation and possibly continue forever, though neither the author nor his representatives should have any MS. whatsoever of the work, original, duplicate, or transcript." Judgment was accordingly given for the Plaintiff, and an injunction issued. This was in 1770; four years afterwards the matter came before the House of Lords upon an appeal from a Decree of the Court of Chancery founded upon this judgment. He then proceeds to consider the second ques-in the case of Donaldson vs. Becket, quoted by J. tion; of course my limits compel me to give only extracts; but none have been garbled, or their meaning perverted: "All objections which hold as much to the kind of property before, as to the kind of property after publication, go for nothing; they prove too much; from what source, then, is the Common Law drawn which is admitted to be so clear in respect of the 'copy' before publication? From this argument, because it is just that an author should reap the pecuniary profits of his own ingenuity and labor: it is just that another should not use his name without his consent. It is fit that he should judge when he will publish, or if he ever will publish. It is fit that he should not only choose the time, but the manner of publication. But the same reasons hold after the author has published." B. D. Upon this appeal certain questions were propounded to the 12 Judges, to which 11 responded, Lord Mansfield giving no opinion, "it being unusual," says the reporter, "for a Peer to support his own judgment on an appeal to the House of Lords, although it was known his opinions had not changed." These questions were the same as set forth above in the case of Millar and Taylor; and on the first question 8 Judges voted in the affirmative, and but 3 in the negative. On the 2nd, 7 to 4; and, on the 3rd, 5 to 6. So that had Lord Mansfield voted, they would have been equally balanced upon the 3rd question, upon which the case was decided; the majority on the other question being decisive of their opinions, that literary property did exist under the Common Law both before and after publication. On these answers the House of Lords reversed the decree; although the highest legal authority in the realm was in its favor. The reporter goes on to say, that "The Universities were so much alarmed at the consequences of this determination that they applied for and obtained an Act of Parliament, establishing in perpetuity their right to all the copies given them heretofore, or which might hereafter be given to or acquired by them." In commenting on this decision, the late Judge Thompson, of the Supreme Court, remarks, "That the law of England has not been considered as settled in conformity with the vote on this last question is very certain; for it is the constant practice in Chancery to grant injunctions to restrain printers from publishing the works of others; which practice can only be sustained on the ground that the penalties given by the statute, are not the only remedy that can be resorted to." At the risk of being tedious, I have quoted largely from these old cases, because they contain the true doctrine of literary property, and are the fountain heads from whence correct ideas of the rights of authors are to be drawn. I do not think that I owe any apology to the reader, for giving him the lucid and powerful arguments of Lord Mansfield, in lieu of my own crude conceptions, since I am more than willing, that the advocate should be entirely overlooked, so that the glorious cause can only enlist that attention, which its importance and justice challenge at the hands of the American people, a people who need only know the right, to pursue and embrace it. There are many plausible but specious arguments adduced by J. B. D. in support of his view of the case, which I should take pleasure in answering; but being well aware that most controversies, whether laical or polemical, are far more interesting to the parties concerned than to the public at large, I fear to prolong this letter which has already far exceeded the limits to which I had intended to restrict it. laid down by J. B. D. which I can not refrain from As to the fear expressed by J. B. D., that "insuperable barriers will be opposed to the diffusion of knowledge" by according to every author the exclusive property in his own works: besides being a waiver of the question of right, it is refuted by the very nature of the property itself, since the only profitable use an author can make of his works, is by diffusing and multiplying the copies of them; for if shut up in his desk, they are perfectly valueless. The analogy which J. B. D. attempts to establish between the enjoyment of light and air, and of thought, is too subtle and ingenious to be allowed to pass without comment. A moment's reflection will suffice to show that it is far more plausible than As, however, the whole argument of J. B. D. is solid, since the enjoyment of the former is restricted predicated upon the assumption that there is no to no one place or people, but by the gift of a benesuch thing as literary property independent of posi-volent Creator is diffused throughout all space, and tive legislation, which position, I trust, has been is not created by human labor, but received as a proved fallacious, it follows that the rest of his boon from on high. While the other owes its very argument must go for nothing, since the superstruc-existence to human effort and human toil, and may tore can not stand after the foundation on which it be either promulgated or suppressed at the will of rested has been removed. the individual within whose brain it is generated and brought to light; and to say that his right is alienated by the only means he can adopt to avail himself of its use, would be to advocate a glaring and palpable injustice. So skilfully has he argued the question of expediency, that I would have devoted a few words to an answer, had J. B. D. not enlisted in this quarrel, my accomplished friend, Mr. Simms, whose superior abilities will do more justice to the subject than could have been effected by my feeble pen. There are, nevertheless, one or two positions I have but a single word more to add, and it is of regret, that one so acute as J. B. D. has proved himself to be, should be driven by the weakness of his cause to adopt the miserable, turgid fallacy of patience, I will bid him farewell, with the promise Lord Camden, "that glory alone should be the that on this subject I shall not trouble him again; reward of science, and those who deserve it should and in concluding, I can not avoid doing justice to scorn all meaner views," making the very merits the great ability and courtesy, manifested by my of authors "the whip to scourge them with," advo-respected opponent, J. B. D., who, if he has “lost cating their starvation, because no reward could be his cause, has gained his end," by proving, how given adequate to their deserts; for such is the sentiment he expresses in the following paragraph : They felt like Milton when he sold the Copyright of Paradise Lost for the paltry sum of twenty pounds, that fame was not to be weighed against pecuniary emolument; that the noblest recompense of intellectual effort consists in the contemplation of its beneficent effects, and in the Columbia, S. C., May 12, 1844, grateful applauses of mankind." much talent can strengthen a weak argument, and E. D. True! such is the noblest, but should it be the only recompense? because it is beyond price, shall it therefore command no price at all? The illustration he has chosen is a most unhappy one for his cause, for never was the world's injustice to literary men more signally displayed than in the case of Milton? Was the sale of the Copyright By the author of "Atalantis," "Southern Passages and alluded to a voluntary thing on his part, when "old, blind and poor, with darkness and with dangers compassed round;" or was that "paltry sum" the greatest he could wring from a niggard publisher, and necessary to keep him and his household from starvation? GROUPED THOUGHTS AND SCATTERED FANCIES. Pictures," &c. ADVERTISEMENT. ter reason than that they contain fourteen lines. They betI have entitled these little poems "Sonnets," for no bet ter deserve the appellation in the English, than the Italian, sense. They have grown upon me in the progress of years. position. All of them have grown out of passing suggestions, and belong to that class of occasional productions, I. Spirit that dwellest in the opening flower, And bathest in the morning's earliest dew,- It is a sad subject to be merry on, but reasoning of this kind always reminds me of Fallstaff's" solil-Some of them are of very early, and some of recent, com oquy on honor," "will it set an arm or a leg?" So might I ask, will the shadow of a distant fame an- which naturally fall from the pen of a professional author swer the poor author as a substitute for the com-in the intervals between his regular labors. The earlier forts or the necessaries of life? It did not in the poems have had the benefit of late revision. case of Camoens who perished miserably in a hospital; it did not save Cervantes from the knawing agonies of hunger; nor the thousand other martyrs of mind, to number whom would be as endless as to count the sands upon the sea-shore. Was it for glory or for bread that Shakspeare wrote his undying plays? They were written to fill the Globe Playhouse. What induced Johnson to write his Rasselas? To defray the funeral expenses of a dying mother. A thousand other instances might be cited to show that the stimulus of fame great and powerful as it is, and ever has been, has not been the sole inducement to literary production, nor its contemplated reward; and that minds of the most ethereal temper chained to gross, earthly bodies, must act with reference to their wants and cravings. Even Samuel Johnson, one of the mightiest intellects England has ever known, when in squalid poverty he wandered at midnight through the streets of London, with a friend as wretched and povertystricken as himself, gnawed by the fierce cravings of hunger and despairing wretchedness,-had the choice been then presented him, would have chosen one good substantial meal, and a happy home, instead of the loudest blast that ever echoed from the trump of fame. Fain would I, with a tenderness like thine, To her I love, of her I love, complain; For she hath beckon'd me to seek her shrine, Beholds me there, yet nothing heeds my pain. II. I will breathe music in the little bell That cups this flower, until it takes a tone For every feeling human heart has known; Though hearts their secrets may not often tell, Mine is the charm to win them: I will wake Strains, which though new to men, they shall not fail To tremble as they hear,-as an old tale, And now, having I fear sorely taxed the reader's Will with new joy the absent wanderer take, |