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great submission, I am obliged to differ from the reasoning employed by his lordship in this case.

But where such an action does not lie, I do not apprehend that it is according to the course of the court to grant an injunction to protect the copyright. Now this publication, if it is one intended to vilify and bring into discredit that portion of scripture history to which it relates, is a publication, with reference to which, if the principles on which that case at Warwick (Dr. Priestley's case) was decided, be just principles of law, the party could not recover any damages in respect of a piracy of it. This court has no criminal jurisdiction; it cannot look on anything as an offence; but in those cases it only administers justice for the protection of the civil rights of those who possess them, in consequence of being able to maintain an action. You have alluded to Milton's immortal work; it did happen in the course of last long vacation, I read that work from beginning to end; it is therefore quite fresh in my memory, and it appears to me that the great object of its author was to promote the cause of Christianity; there are, undoubtedly a great many passages in it, of which, if that were not its object, it would be very improper by law to vindicate the publication; but, taking it altogether, it is clear that the object and effect were not to bring into disrepute, but to promote, the reverence of our religion. Now the real question is, looking at the work before me, its preface, the poem, its manner of treating the subject, particularly with reference to the fall and the atonement - whether its intent be as innocent as that of the other with which you have compared it; whether it be to traduce and bring into discredit that portion of sacred history.

This question I have no right to try, because it has been settled, after great difference of opinion among the learned, that it is for a jury to determine that point; and where, therefore, a reasonable doubt is entertained as to the character of the work, (and it is impossible for me to say I have not a doubt I hope it is a reasonable one,) another course must be taken for determining what is its true nature and character.

"There is a great difficulty in these cases, because it appears a strange thing to permit the multiplication of copies, by way of preventing the circulation of a mischievous work, (which I do not presume to determine that this is,) but that I cannot help; and the singularity of the case, in this instance, is more obvious, because here is a defendant who has multiplied his work by piracy, and does not think proper to appear. If the work be of that character which a court of common law would consider criminal, it is pretty clear why he does not appear, because he would come confitens reus, and for the same reason the question may, perhaps, not be tried by an action at law; and if it turns out to be the case, I shall be bound to give my own opinion. That opinion I express no further now than to say, that after having read the work, I cannot grant the injunction until you show me that you can maintain an action for it. If you cannot maintain an action, there is no pretence for granting an injunction; if you should not be able to try the question at law with the defendant, I cannot be charged with impropriety if I then give my opinion upon it. "It is true that this

Without entering into the question of criticism raised by comparing the poem with Paradise Lost, upon which a great critic and poet held a very different opinion from that expressed by Lord Eldon'-and admitting that an injunction before a trial at law should not be granted in a palpable case of malicious attack upon the scriptures or the doctrines of revealed religion, it is yet quite too strict to say, that because a poem admits of a suspicion of improper intentions, the author's copyright is not to be protected until he has purged himself of that suspicion. The boldness and license of poetry admit of a latitude which would not be allowed in didactic prose; and where the line is to be drawn closely, the court may not only mistake the tendency and intention of the work, but may, as Lord Eldon did on this occasion, apply its own views of doctrinal subjects to determine the innocence of the author's intention, instead of judging it by that broad, liberal and catholic spirit in which the intent of all poetry is to be judged. If canons of criticism are to be applied in this manner, and a publication, which falls under the

mode of dealing with the work, if it be calculated to produce mischievous effects, opens a door for its wide dissemination; but the duty of stopping the work does not belong to a court of equity, which has no criminal jurisdiction, and cannot punish or check the offence. If the character of the work is such, that the publication of it amounts to a temporal offence, there is another way of proceeding, and the publication of it should be

proceeded against directly as an offence; but whether this or any other work should be so dealt with, it would be very improper for me to form or intimate an opinion." Petersdorff Abr. 558-9.)

(6

'Sir Walter Scott; Letter to John Murray, Esq. accepting the dedication of Cain. Lockhart's Life of Scott, VI. 424, 2d edition.

2 See the Letter above cited.

doubts engendered by such criticism, is to be refused protection in the first instance, there can be no safe literary property in the higher works of imagination, which deal with such subjects as man's future destiny or the events of scripture history; for the refusal of a court of equity to grant an injunction in such cases, would be only a signal to invite more piracies than the courts of law could check. It would be a far more sound rule, to hold that unless a malicious intent or mischievous tendency be apparent on its face, every work is prima facie entitled to protection, until the bad intent and tendency are established by those who rely upon them.1

In another case, Lord Eldon refused to continue an injunction to restrain a pirated edition of certain lectures delivered by Mr. Lawrence at the college of surgeons, on "Physiology, Zoology and the Natural History of Man." He doubted whether many particular parts of the work did not lead to a disbelief in the immortality of the soul-one of the doctrines of the scriptures. He therefore dissolved the injunction, and left the plaintiff to bring an action at law. In this case, his lordship said that

1 See Hime v. Dale, 2 Campb. 29, note. 11 East, 244, note.

* Lawrence v. Smith, Jacob's R. 471.

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It seems not to have occurred to Lord Eldon-or if it did, he gave no heed to the consideration that the mere rumor of the dissolution of an injunction upon such doubts as he expressed in this case, would place the author in a most

unequal position with a piratical publisher in a court of law, if it should be worth his while to go there; for both court and jury would know that the plaintiff came before them after he had been turned away from the court of chancery, upon the belief or doubt raised in the mind of the first magistrate in the realm that his book was not entitled to the protection of the law.

"he was bound to look, not only to the tenor, but also to particular passages unconnected with the general tenor; for if there were any parts of it which denied the truth of scripture, or which furnished a doubt as to whether a court of law would not decide that they had denied the truth of scripture, he was bound to look at them and decide accordingly.”1

If this is to be regarded as the statement of a rule by which to determine the validity of a copyright, it is quite unsound. It seems, however, to be only a statement of the rule that should govern a court of equity, in determining whether an injunction shall be granted before the right of property has been established at law. But even in this view, the doctrine is not satisfactory; and in announcing it, Lord Eldon is inconsistent with himself. In the previous case, in refusing an injunction to protect Lord Byron's Cain, he had said of Paradise Lost, that there are undoubtedly a great many passages in it, of which, if the promotion of Christianity were not its object, it would be very improper by law to vindicate the publication; but that, taking it altogether, it is clear that the object and effect were not to bring into discredit, but to promote the reverence of our religion. Here, his lordship assumed as the criterion the general tenor of the work; and it is not very apparent why the same rule should not have been applied to Dr. Lawrence's Lectures. In the

2

Lawrence v. Smith, Jacob's R. 471. Murray v. Benbow.

one case, the good general object of the work excuses from censure the passages which would be otherwise inexcusable. In the other case, the alleged bad character of certain detached portions, it is said, renders the general tenor of the work wholly immaterial.1

3. Works injurious to the public peace. The general principle of the law of England on this subject is, that there can be no right of property in publications which tend to disturb the public peace, to be injurious to the good government of the state, or to bring into contempt the administration of justice. This principle has, however, sometimes been applied without due discrimination.

There is a dictum of Lord Chief Justice Eyre, reported traditionally, upon which a great deal more has been built than is consistent with principle. Dr. Priestley brought an action against the hundred for damages sustained by him in consequence of the riotous proceedings of a mob at Birmingham; and, among other property alleged to have been destroyed, claimed compensation for the loss of certain unpublished manuscripts, offering to produce booksellers to prove that they would have given considerable sums for them. On behalf of the hundred, it was alleged that the plaintiff was in the habit of publish

We may ask, also, what his lordship means by "parts which deny the truth of scripture"? If an author introduce into his book a passage denying the truth of any

part of scripture, is his copyright thereby vitiated? Or is it the general truth of scripture, that must not be denied?

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