ever takes place, without being followed by retributive social evils. When, by a total neglect of the natural rights of authors, injustice is done to a class of conspicuous and important benefactors of their race, the violation of principle becomes the more glaring, and the injury to the moral sense of society more striking, from the species of ingratitude involved in the neglect. There is scarcely any civilized people, who would not be shocked by a proposal to withdraw all protection from the interests of literary property.

Public policy also requires a careful protection of the rights of authors, because literature flourishes most when it reaps the rewards consequent upon such protection. There can be no doubt that the body of literature, now extant in the English language, owes a vast deal to the acknowledgment of these rights, imperfect as it has sometimes been. Although no legislative protection existed before the reign of Queen Anne, there was a protection founded in an acknowledged common law right, and the practice of printers and booksellers, which may be traced as far back as the reign of Queen Elizabeth. The existing literature of England, of a date subsequent to that time, and the whole of that of America, have been produced under the stimulus afforded by a greater or less degree of security to the pecuniary interests of authors. It is not easy to say, with certainty, that any portion of this literature would not have been produced, if an author's exclusive right to

the proceeds of publication had never been admitted; nor is it easy to find many works, now classical in the language, or of an important character, which we know certainly were written without any view to profit, whether large or small. What we know certainly, is, that from Shakspeare to our own day, everything has been written under some state of the law, admitting an author's right, and that very few great authors have avoided or neglected all recompense for their writings, while the vast majority have written for money as well as fame.1

But it is not solely for the encouragement of genius in its transcendent displays, that it concerns the interests of society to protect the rights of authors. The great classes of compilers and scholars, whose works embody the learning of a country or an ageembracing the historian, the lexicographer, the critic and the commentator; the whole body of scientific writers, from the author of a mechanism of the heavens to the author of the last shilling arithmetic ; the various grades of writers in every department, from the higher votaries of letters to the day-laborers in the vineyard of knowledge, are all necessary to the formation of a national literature and the development of a general culture. All require that the fruits of their labor, like the fruits of other men's labor, should be under the protection of the law;

There is very little reason to doubt, that the right of authors was practically acknowledged as a com

mon law right, in the reign of Elizabeth. (See post, ch. 2.)

for like other men, they labor for subsistence and the comforts of life, and it is only when these are secured to them, that they can be expected with certainty to labor at all. Glory may be the reward of genius in solitary and irregular cases; but no man ever wrote a spelling-book or compiled an almanac for that unsubstantial and thankless commodity.

It remains to answer certain objections. In the first place, it may be asked, if the rights of authors are so clearly founded in natural justice, how is it that the law of nations, which recognizes and respects most of the rights of property, has not recognized the property of authors in their works, but has allowed them to be treated, in a foreign country, as if they were publici juris?

The law of nations is an admirable system of rules and principles, tending, more or less directly at different periods, to perfection, but not entirely complete, at present. It has long been accustomed to regard the title of movable property as sacred, wherever found; so that the real owner may pursue and reclaim it in any country with which his own is at peace. Even in the tumult of war, it exerts a searching and efficient energy, regulated by the maxims of a broad jurisprudence, to distinguish between neutral and belligerent interests; in order that nothing but the strict rights of warfare shall be allowed to divest the ownership of property. But the law of nations has not always been so careful; the time has been, when the goods of the merchant, cast

by tempestuous weather upon a foreign shore, have been accounted the lawful prey of any occupant. It is manifest, therefore, that the law of nations is a progressive system. The fact, that its principles have never been applied to a certain case, does not disprove the existence of principles, which might be made to regulate it.

At present, however, these principles have not been applied to the rights which we are now considering. The actual law of nations knows no exclusive right of an author to the proceeds of his work, except that which is enforced by the municipal law of his own country, which can operate nowhere but in its own jurisdiction. As soon as a copy of a book is landed in any foreign country, all complaint of its republication is, in the absence of a treaty, fruitless, because no means of redress exist, except under the law of the author's own country. It becomes public property, not because the justice of the case is changed, by the passage across a sea or a boundary, but because there are no means of enforcing the private right. The law of nations, being in great part a body of customary rules, depends upon the practice of nations; and what has not been practised, cannot be affirmed to be part of that law. But the real equity of the case, founded in the principles which govern other rights, requires that the author's interest in his book should be respected throughout the globe, as much as the interest of a merchant in a bale of goods. The natural justice of the case, there

fore, has between some nations led to treaty stipulations, by which alone the casus omissus of the public law can be supplied; and the example of those nations, which have thus supplied the omission, shows what consistency with the principles of justice requires.

In the next place, it may be asked, how the actual legislation of most countries, limiting the duration of an author's right, is to be reconciled with the theory which gives him, if it gives anything, a perpetuity? If the theory, which founds an author's exclusive right to the proceeds of his work in natural justice, be correct, it certainly involves as a consequence the perpetual duration of the right. The legislation of England and America, and of many other countries, has practically abridged the author's property, and reduced it to a term of years. Does it follow that society, in this course of legislation, is unjust?

The actual legislation on this subject should be regarded as a compromise. The claim of authors, resulting from the principles of natural right, involves the perpetual duration of the property. But in order that such property should be of any value, it is necessary that society should interfere actively for its protection. It can interfere by the enactment of penalties, which, in order to be effectual, must be severe; or it can interfere by prohibition, which is a stern and summary exercise of power. Society will not ordinarily be willing to apply such remedies in favor of an exclusive right, any farther than it finds such a course