'It would seem, that Lord Eldon's remarks in the case of Southey v. Sherwood, must be very imperfectly reported. He is reported to have made the following observations at the time of the hearing: "If this publication is an innocent one, I apprehend that I am authorized, by decided cases, to say that, whether the author did or did not intend to make a profit by its publication, he has a right to an injunction to prevent any other person from publishing it. If, on the other hand, this is not an innocent publication, in such a sense as that an action would not lie in case of its having been published by the author and subsequently pirated, I apprehend that this court will not grant an injunction. The court does not interfere in the way of injunction to punish or to prevent injuries done to the character of individuals; but it leaves the party to his remedy at law. It is to prevent the use of that which is the exclusive property of another, that an injunction is granted. There is, however, a difference between the case of an actual publication by the author, which all the world may pirate, and that of a man who, having composed a work, of which he afterwards repents, wishes to withhold it from the public. I will not say that a principle might not be found which would apply to such a case as that; but then it is necessary to take all the circumstances of the case into consideration. The circumstances of the present case are very extraordinary. I will assume that the work is of such a nature that the sending it forth into the world might have been treated as a criminal act. In that view of the circumstances, I

have no jurisdiction to consider its criminality. The work was composed so long ago as the year 1794. The plaintiff's affidavit admits that, in that year, there was a serious intention of publishing it. It was sent by the plaintiff to Mr. Ridgeway, and is supposed to have been delivered by him to Symonds. The affidavit goes on to state that it was afterwards determined not to publish it. I will suppose that it was not thought worth while to publish it, in a pecuniary view. Mr. Ridgeway gives no account how it passed out of his hands; and all that is alleged concerning the subsequent disposal of it is, that Mr. Southey, living in the country, forgot it. If the work be such a one as it has been described to be, it is extraordinary that, with the change alleged to have taken place in Mr. Southey's opinions, there should be nothing stated to account for its having been left by him in Mr. Ridgeway's hands to the present time, but that Mr. Southey forgot it. It is impossible that Mr. Southey could have forgotten it. There must have been some other reason. If a man leaves a book of this description in the hands of a publisher, without assigning any satisfactory reason for doing so, and has not inquired about it during twenty-three years, he surely can have no right to complain of its being published at the end of that period.'

It is obvious, that the case for which his lordship would not say, that "a principle might not be found," was the very case before him. Mr. Southey had sworn in his affidavit, that he had forgotten having left the MS. in the hands of

Ridgeway, with whom in fact he had originally deposited it; that he was very desirous it should not be published; and his counsel rested his application upon the right of an author to control his own MSS. Yet his lordship, if correctly reported, not only felt authorized to say, "it is impossible that Mr. Southey could have forgotten it," (there was no counter affidavit); but proceeded afterwards to decide the cause without finding the principle which he intimates might have been found for the case actually made by the application. With regard to his lordship's dictum, contained in the last sentence of the passage above cited, it seems scarcely necessary to say, that nothing short of a license, or an assignment of copyright, can deprive an author of the right to complain of the publication of his own MS. Whether the fact of his having left it without inquiry for threeand-twenty years, explained by his affidavit that he had forgotten it, would be presumptive evidence of a license or an assignment, may admit of much doubt. On a subsequent day, his lordship delivered judgment as follows: "I have looked into all the affidavits, and have read the book itself. The bill goes the length of stating, that the work was composed by Mr. Southey in the year 1794; that it is his own production, and that it has been published by the defendants without his sanction or authority; therefore seeking an account of the profits which have arisen from, and an injunction to restrain, the publication. I have examined the cases that I have been able to meet with, containing precedents for injunctions of this nature, and I find that they all

proceed upon the ground of a title to the property in the plaintiff. On this head a distinction has been taken, to which a considerable weight of authority attaches, supported, as it is, by the opinion of Lord Chief Justice Eyre, who has expressly laid it down, that a person cannot recover in damages for a work which is in its nature calculated to do injury to the public. Upon the same principle, this court refused an injunction, in the case of Walcot v. Walker, inasmuch as he could not have recovered damages in an action. After the fullest consideration, I remain of the same opinion as that which I entertained in deciding the case referred to. It is very true that, in some cases, it may operate so as to multiply copies of mischievous publications by the refusal of the court to interfere by restraining them; but to this my answer is, that sitting here as a judge upon a mere question of property, I have nothing to do with the nature of the property, nor with the conduct of the parties except as it relates to their civil interests; and if the publication be mischievous, either on the part of the author, or of the bookseller, it is not my business to interfere with it. In the case now before the court, the application made by the plaintiff is on the ground only of his civil interest; and this is the proper place for such an application. I shall say nothing as to the nature of the book itself, because the grounds upon which I am about to declare my opinion render it unnecessary that I should do so. [His lordship here recapitulated the circumstances already detailed, of the original intention to publish, the subsequent abandonment of that intention, the

length of time during which the plaintiff had suffered the work to remain out of his possession without inquiry, and its recent publication by the defendants.] Taking all these circumstances into my consideration, and after having consulted all the cases which I could find at all regarding the question, entertaining also the same opinion with Lord Chief Justice Eyre as to the point above noticed, — it appears to me that I cannot grant this injunction until after Mr. Southey shall have established his right to the property by an action."

From this it would seem that his lordship really refused the injunction, partly upon the ground that he was not satisfied that Mr. Southey had not parted with his right, and partly upon the ground that the work was one with which the court could not interfere. Upon both grounds, the decision is very unsatisfactory.

Hime v. Dale, 2 Campb. 27, n. This was an action for pirating the words of a song called "Abraham Newland," published on a single sheet of paper. Garrow, for the defendant, contended, that the song was of such a description that it could not receive the protection of the law in whatever shape it appeared. It professed to be a panegyric upon money; but was in reality a gross and nefarious libel upon the solemn administration of British justice. The object of this composition was, not to satirize folly, or

Though Justice, 't is known,
Can see through a millstone,

She can't see thro' Abraham Newland !""

Lord Ellenborough. "If the composition appeared on the face of it to be a libel so gross as to affect the public morals, I should advise the jury to give no damages. I know the court of chancery on such an occasion would grant no injunction. But I think the present case is not to be considered one of that kind."

Lawrence, J. "The argument used by Mr. Garrow on this fugitive piece as being a libel, would as forcibly apply to The Beggar's Opera, where the language and allusions are sufficiently derogatory to the administration of public justice." It is certainly not easy to see the seditious tendency of the stanza quoted by the learned counsel.