right of the crown by analogy to the right of the subject; and the courts not only recognized the analogy, but wherever the particular publication afforded the least color for the claim as a claim of property, they always took care to rest the king's copy upon the same grounds that would have established the right in a private person. Fictions were resorted to, as in the case of the Latin Grammar, in order that the right of the king might stand upon property. All this shows that there existed at that time a right of property in copies, growing out of authorship, so well settled, so universally received and acted upon, and so thoroughly established in the notions of the profession and the public, that the crown was forced to borrow the aid of its analogies, and to claim upon the same title, as that which protected a sermon or a poem. The proprietors of copies applied to parliament in 1709, for an act more effectually to secure their property forever, by what they thought a more adequate remedy than any that had then been used. It seems, that no one had then supposed that a bill would lie for an injunction and relief in equity.1 But the common law remedy of an action was understood, though it was justly regarded as totally inadequate, both because of the difficulty of proving all the actual damages, and because "the defendant was always a pauper. The petitioners therefore prayed, that con 2 1 Millar v. Taylor, 4 Burr. 2317, 2405. Vern. 220, 275. 2 So assigned in the petition of the booksellers. 4 Burr. 2318. Al FISCATION of the counterfeit copies might be made one of the penalties. This led to the Statute 8 Anne, c. 19, passed in 1709.1 The preamble of this act is worthy of attention. It is as follows: "Whereas printers, booksellers, and other persons have of late frequently taken the liberty of printing, reprinting, and publishing, or causing to be printed, reprinted and published books and other writings without the consent of the authors or proprietors of such books and writings to their very great detriment, and too often to the ruin of them and their families; for preventing therefore such practices for the future, and for the encouragement of learned men to compose and write useful books; be it enacted," &c. The first section of the act then provides, that after the 10th of April, 1710, the authors of books already printed, who have not transferred their rights, and the booksellers, &c. who have purchased copies, shall have the sole right of printing them for the term of twenty-one years; and the authors of books already composed and not printed, or thereafter to be composed, and their assigns, shall have the sole right of printing the same for fourteen years; with a penalty and forfeiture for printing without consent of the proprietor.3 The though there was no precedent of a 1 See Appendix, p. 1. 2 Act for the encouragement of learn- second section declares that the books, the property of which is intended to be "secured" by this act are such as shall, before publication, have been entered at Stationers' Hall. It is now necessary to trace the history of the subject in the courts, after the passage of this act, until the year 1769; in order to see whether this statute was considered as the source of literary property, or whether in fact literary property was held to depend upon principles of the common law known and received before and independent of the statute. There are two classes of cases, within the period now under consideration, both of which have proceeded upon the author's right of property independent of the statute. The first class is that of books or other writings after publication; the second class embraces manuscripts before publication. 1. The question as to the common law right, with reference to old copies, after publication, could only arise after the full term of the act of Anne had passed, that is, at the end of twenty-one years from the tenth of April, 1710, or after the tenth of April, 1731. From this time until the case of Tonson v. Collins, in the king's bench in 1761, the court of chancery exercised a jurisdiction by injunction, in which the antecedent right of property must have been the right to which the court granted its protection. The first case was one before Sir Joseph Jekyll, as master of the rolls, in 1735, in which he granted an injunction against printing the Whole Duty of Man. This book first appeared in 1657, and the statutory term had passed. The right of the plaintiff therefore could only have been the general right of property. In the same year also, (1735) Lord Talbot granted an injunction against printing Pope's and Swift's Miscellanies, many of which were originally published before the statute.2 In 1736, Sir Joseph Jekyll granted a third injunction against printing Nelson's Festivals and Fasts, a book first published in 1703.3 In 1739, Lord Hardwicke granted a fourth injunction against printing Milton's Paradise Lost, the title to which the plaintiffs derived under an assignment made by the poet in 1667.* The bill In 1751, Milton's poem again came before Lord Hardwicke, in an application for an injunction to restrain the defendant's printing an edition of the poem with the notes of Dr. Newton and other commentators, all of which belonged to the plaintiffs. derived a title to the poem by the author's assignment in 1667, to the life by Fenton, published in 1727, to Bentley's Notes, published in 1732, and to Dr. Newton's Notes, published in 1749. The defendants put in an answer immediately, and set up notes of their own, of which it appeared there were twenty-eight; while the notes of the other commentators belonging to the plaintiffs, and included in the defendant's edition, numbered fifteen hundred. Lord Hardwicke gave judgment in 1752, and held that the plaintiff's notes were within the protection of the statute; and as to the poem, although he said that the general question had never been determined and there was a doubt, yet he granted an injunction until the hearing against printing the poem, the life, and all the notes that had been combined by Dr. Newton.' When the authority of this case came to be afterwards considered in the king's bench, in the time of Lord Mansfield, his lordship, and the rest of the judges who concurred with him, had no doubt as to the real opinion of Lord Hardwicke, and they attributed his suggestion of a doubt to his great decency and prudence in not acting decisively upon a question of law, on which a doubt had been raised, and which had not been settled in a court of common law since the statute.2 1 Tonson v. Walker, 3 Swanst. 673. 2 Millar v. Taylor, 4 Burr. 2327, 2403, 2404. There is very little reason to doubt what Lord Hardwicke's opinion was, if the report of what fell from him, (in the case of Tonson v. Walker, in 3 Swanst.) be correct, and there is good reason to believe it to be so. He granted the injunction as to the poem until the matter could be considered at the hearing, because there was a 66 probability of right in the plaintiffs; " and he then went on to say that in the cases of crown copies the general argument had been, that the books were made at the expense of the crown, and therefore the property is in the crown; and that these cases are used as tending to prove a general right in the author. (3 Swanst. 680.) Willes, J. in Millar v. Taylor, quoted Lord Hardwicke as saying, "these arguments being allowed to support that right [of the crown] infer such a property existing." (4 Burr. 2327.) Lord Mansfield added, "I heard |