Having now brought the history of private copyright down to the Revolution of 1688, it is necessary here to turn back to survey a collateral and important branch of the subject, the prerogative copies.

From the first introduction of printing, it was considered to be a matter of state. The reasons upon which it was so regarded were various. It was held to be a matter of a public nature; that it was a new art introduced by the king, and therefore he had a prerogative right to prescribe the persons who should exercise it; and that the unrestrained liberty of printing was dangerous. These reasons were from time to time advanced as the foundation for that control exercised over the press from its first introduction to the year 1688.1 But there were also certain other special reasons assigned for the exclusive right claimed by the crown in certain publications, and granted to individuals by letters-patent, which have been justly supposed to proceed upon the notion of property. At the same time it must be admitted, that with the idea of property was also advanced the claim of naked prerogative, resting upon reasons of state; and it is not very easy to distinguish, upon the earlier authorities, what the precise grounds were, on which the courts intended to rest the title to the various prerogative copies. In the main, however, this class of cases undoubtedly does show that the crown sometimes claimed a property in copies

1 Bacon's Abridgment, tit. Pre- 75. Skin. 234. Vern. 275. rogative, F. 5. Carter, 90. 3 Mod.

entirely analogous to that belonging to private individuals.

The works that have been at different times claimed as belonging to the crown, are all law books, including the Reports and the Statutes, Almanacs, the Latin Grammar, the Book of Common Prayer, and the English translation of the Bible. The earliest case, of which we have any distinct account, was between a Colonel Atkyns and certain members of the stationers' company, in the 18th Charles II. Atkyns, as the law-patentee, claimed the right to print all law books; the defendants had printed Rolle's AbridgA bill was brought for an injunction, which the lord chancellor granted against all the members of the stationers' company. An appeal was taken to the house of lords, and it was there argued upon the footing of the king's property in law books, because he pays the judges who pronounced the law; and the decree of the lords, affirming the decree below, has always been cited as a recognition of the copyright in the king, though of course the claim, in its full extent, has been since exploded.1

ment.

The next case was that of Roper v. Streater, in the 22d-24th Charles II. Roper bought of the executors of Mr. Justice Croke the third part of his Reports. Streater was law-patentee, and printed these Reports "over Roper," who brought an action of debt against him on the licensing act of 13th and 14th Charles II. Streater pleaded the king's grant,

1 Carter, 89. Bacon's Abridg. Prerogative, F. 5. 4 Burr. 2315.

and the demurrer therefore presented the question between the crown and a purchaser of the author. In short, the question was, whether the king or the plaintiff was the "owner" of these Reports, in the sense of the statute. In the king's bench, judgment was for the plaintiff and against the king's patent; the court considering the plaintiff as owner of the copy at common law by purchase of the executors of the author.1 This judgment was reversed in the house of lords, upon the ground that the king was the owner of the copy, and therefore that the executors of the author could convey nothing.2

The case of the Stationers' Company v. Seymour, in the 29th Charles II. was a question between certain grantees of the crown and certain other persons who had printed Gadsbury's Almanac. The court put their decision, in part, upon the fact, that an almanac has no certain author, and that the property of such books is in the king. The defendants claimed to have added "prognostications" to the old almanac; but the court said "these additions did not alter the case, no more than if a man should claim a property in another man's copy, by reason of some inconsiderable additions of his own." The reason was also assigned that the defendant's almanac was the same as that printed before the book of

1 Skinner, 234. 1 Mod. 257. Bac. Abr. Prerog. F. 5. 4 Burr. 2316.

2 Ibid. It seems, however, that reasons of state were also assigned.

See Bacon, ut sup. and the report in Skinner, 234.

1 Mod. 256. Bacon's Abridg. Prerog. F. 5. 4 Burr. 2317.

common prayer, which regulates the feasts of the church, and therefore it trenched upon that part of the prerogative which concerns the government of the church.1

2

There was also a case of the Stationers' Company v. Parker, in 1 Jac. 2. It does not appear what the book in controversy was, but the question was between concurrent patentees, and whether the plaintiff's patent excluded the defendant's. Holt, arguing for the defendant, agreed that the king had power to grant the printing of books concerning law or religion, and admitted it to be an interest, but not a sole interest. The court inclined for the defendant, but reserved the question for advisement.3

There is no case in the books concerning the Latin Grammar, but the right of the king was grounded on the allegation, that he paid for compiling and publishing it. Nor is there any reported case prior to the Revolution concerning the Bible, but that was vested in part upon the ground that the king paid the translators; and with regard to the Year Books, it was said, that the crown was at the expense of taking the notes. The further history of the pre

11 Mod. 256. Bacon's Abridg. Prerog. F. 5. 4 Burr. 2317.

2 The work was undoubtedly a law book.

3 Stationers' Co. v. Parker, Skinner, 233.

4 Burr. 2329. This notion is now of course abandoned.

5 4 Burr. 2329, 2401. Blackstone

says, that the exclusive right of printing the translation of the Bible is founded upon these two principles, combined, viz. 1. That the king is the supreme head of the church; and 2. That it was translated at the expense of the crown. 2 Black. Com. 410.

rogative copies will be pursued in their connection with the general course of the subject.1

The cases which have now been cited, have been considered by very great authorities as proofs that the right of the crown, in certain copies, was regarded as a right of property of the same kind as that of authors. But if they do not show, that the right of the crown was a right of property merely, and if the high notions of prerogative entertained at the time entered into these decisions and affected them with reasons of religion or state, as is quite probable, then there is an argument to be drawn from them of great weight in favor of the existence of a common law right of property in authors, as a right understood at the times when these decisions were made. These cases were decided before the Revolution, at which it seems obviously proper to pause as at a stage in the inquiry. Notions of power and prerogative were then held and acted upon, such as could not be breathed at the present day in Westminster Hall, and the press had long been under the almost absolute control of the crown. Yet, in such a period, it was felt to be necessary to argue in support of the

See post, ch. 2.

Per Lord Mansfield Ch. J. and Willes, J. in Millar v. Taylor, 4 Burr. 2317,2401. Lord Mansfield's remarks upon these cases are very cogent. He considered that " crown copies are, as in the case of an author, civil property; which is deduced, as in the case of an author, from the king's right of original pub

lication. The kind of property in the crown, or a patentee from the crown, is just the same; incorporeal, incapable of violation but by a civil injury, and only to be vindicated by the same remedy, as an action upon the case, or a bill in equity." Yates J. in the same case, who dissented, held, that the crown copies were founded on reasons of state or religion.