All these injunctions were submitted to; and Lord Mansfield said of them, that, although they were not granted upon a final hearing, yet he looked upon them as equal to any final decree, "for the judicial opinions of the great men who granted these injunctions, in cases clearly not within the statute, uncontradicted by any book, judgment, or saying, must weigh in any question of law; much more, in a question of mere theory and speculation as to what is agreeable or repugnant to natural principles."

2. The cases of injunctions against printing surreptitiously from unpublished manuscripts proceeded upon the admitted doctrine that every author has a property in his own writings before publication; and it is difficult to say, that the argument, which proves a property before publication, does not equally prove a property in the same writing after publication. But without considering at present the ques

Lord Hardwicke say what Mr. Justice Willes has quoted, as to these arguments from property in support of the king's right necessarily inferring an author's." (4 Burr. 2403.) He also pointed out, that at the time when Lord Hardwicke used this argument, the question was depending in the king's bench in a case sent there by him for determination. This was the case of Baskett v. The University of Cambridge, (1 Black. R. 105,) sent from the court of chancery in 1743; but it lay dormant for inany years, and the judges certificate was not granted until 1758. It was a question between rival patentees of the crown, with regard to printing acts of parlia

ment, &c. The court of king's bench held that the right was concurrent in the plaintiff and the university, exclusive of all other persons. The case is a full authority for the position that the king's copy continues after publication, at common law; and we have seen that the great effort always was to make the king's copy depend upon property like that of the subject. See Lord Mansfield's remarks in 4 Burr. 2401, 2404. See also Baskett v. Cuningham, 1 Black. R. 370; 2 Eden, 137.

14 Burr. 2399.

2 Lord Mansfield rejected the idea of any distinction. See 4 Burr. 2397.

tion, whether publication is a dedication or abandonment to the public of an author's property in his own work, it is important here to state historically the jurisdiction that was exercised in the period now under consideration, with regard to manuscripts.

In 1732, Sir Joseph Jekyll, on a bill filed by the son of Mr. Webb, a conveyancer, granted an injunction against a person who was intending, without authority, to print the draughts left by Mr. Webb in manuscript. The injunction was acquiesced in.

In 1741, in Forrester v. Waller, there was another injunction granted against printing the plaintiff's notes, obtained surreptitiously, without his consent.2

In the same year, also, in the case of Pope v. Curll, known to literary history, Lord Hardwicke granted an injunction against printing Pope's Letters to Swift. The injunction was submitted to.

1 Webb v. Rose, cited 4 Burr. 2330. 2 Bro. P. C. 138.

2 Forrester v. Waller, cited ut

supra.

32 Atk. 342. Dr. Johnson believed this case to have been got up by Pope himself, in order to create for himself an opportunity to publish his letters as if in self-defence.

"One of the passages of Pope's life, which seems to deserve some inquiry, was a publication of letters between him and many of his friends, which falling into the hands of Curll, a rapacious bookseller, of no good fame, were by him printed and sold. This volume, containing some letters from noblemen, Pope incited a prosecution against him in the house of lords for a breach of privilege, and attended himself to

stimulate the resentment of his friends. Curll appeared at the bar, and, knowing himself in no great danger, spoke of Pope with very little reverence: 'He has,' said Curll, a knack at versifying, but in prose I think myself a match for him.' When the orders of the house were examined, none of them appeared to have been infringed; Curl went away triumphant, and Pope was left to seek some other remedy.

"Curll's account was, that one evening a man in a clergyman's gown, but with a lawyers band, brought and offered for sale a number of printed volumes, which he found to be Pope's Epistolary Correspondence; that he asked no name and was told none, but gave the

In 1755, in the case of Manley v. Owen, a bill was filed by some printers, who had bought of the lordmayor the copy of the Sessions paper of trials, to enjoin the defendants from printing it. The injunction was granted, upon the ground that the property passed by the lord-mayor's grant to the plaintiffs.' This injunction was acquiesced in.

In 1758, the Duke of Queensborough, as the representative of Edward, Earl of Clarendon, filed a bill to restrain the defendants from printing, publishing, or disposing of Lord Clarendon's History of the reign of Charles the Second. The bill stated, that Henry, late Earl of Clarendon,3 was at his death possessed of a manuscript copy of this history, in the handwriting of Edward, Earl of Clarendon, to the

price demanded, and thought himself authorized to use his purchase to his own advantage.

"That Curll gave a true account of the transaction, it is reasonable to believe, because no falsehood was ever detected; and when, some years afterwards, I mentioned it to Lintot, the son of Bernard, he declared his opinion to be, that Pope knew better than anybody else how Curll obtained the copies, because another parcel was at the same time sent to himself, for which no price had ever been demanded, as he made known his resolution not to pay a porter, and consequently not to deal with a nameless agent.

"Such care had been taken to make them public, that they were sent at once to two booksellers; to Curll, who was likely to seize them as a prey; and to Lintot, who might be expected to give Pope information of the seeming injury. Lintot,

I believe, did nothing; and Curll did what was expected. That to make them public was the only reason, may be reasonably supposed, because the numbers, offered to sale by the private messengers, showed that the hope of gain could not have been the motive of the impression.

"It seems that Pope, being desirous of printing his letters, and not knowing how to do, without imputation of vanity, what has in this country been done very rarely, contrived an appearance of compulsion, that, when he could complain that his letters were surreptitiously published, he might decently and defensively publish them himself." Johnson's Life of Pope.

1 Manley v. Owen, cited 4 Burr. 2329, 2404.

2 Edward, first Earl of Clarendon, the lord chancellor.

3

Henry, second Earl of Clarendon, son of the lord chancellor.

sole property whereof the plaintiff, as administrator to the late earl, became entitled. The defendant, Shebbeare, by his answer, stated, that the defendant, Gwynne, from whom he received the manuscript copy, told him that Henry, Earl of Clarendon, thirty-three years before, delivered to his (Gwynne's) father the original manuscript of the history, that he might take a copy of it, and make use of the copy as he should think fit; and that a copy was accordingly taken. The court was of opinion, that it was not to be presumed that when Lord Clarendon, the son, gave the elder Gwynne a copy of his father's manuscript, he intended that he should have the right to print it; that Mr. Gwynne might make every use of it, except that. The injunction was granted, and was acquiesced under; and Shebbeare afterwards recovered against Gwynne, before Lord Mansfield, large damages, for representing that he had a right to print.

Thus stood the law of England upon this subject until the year 1761, when the action of Tonson v. Collins, upon the copyright of the Spectator, was brought in the court of king's bench. The plaintiffs were the representatives and assigns of Jacob Tonson, who purchased the work of Mr. Addison and Sir R. Steele, in 1712. Of course, this copy was not within the statute of Anne, the term of protection

'Duke of Queensbury v. Shebbeare, 2 Eden's Ch. R. 329, cited 4 Burr. R. 2330, 2397.

* 4 Burr. 2330, 2397.

given by that act having long passed before the commencement of the action. The case was twice solemnly argued in the king's bench, and was then, by direction of Lord Mansfield, adjourned into the exchequer chamber, to be argued before all the twelve judges.' This reference was not made from any difference of opinion or difficulty among the judges. of the king's bench; but they suspected collusion, and thinking that there might be no writ of error brought, they chose to take the opinion of all the judges. The court were afterwards clearly informed that it was a case of collusion between the parties, though it had been argued bona fide by the counsel, and the case therefore fell to the ground.2

In this manner passed away the first opportunity for the establishment, in a court of law, of a doctrine of the highest interest and importance to letters and literary men. But few years, however, could elapse before the question must have been again presented, in a serious contest between parties litigating actual interests. The literature of England embraced so many standard works in the latter part of the last century, out of which the question must necessarily arise whether all the rights of the author or his assigns were lost at the expiration of the period of protection fixed by the statute of Anne, that it is remarkable that the decision was deferred to so late a period as the year 1769. It was reserved for the

Tonson v. Collins, 1 W. Black. R. 301, 321, 345.

See 4 Burr. 2400, statement of Lord Mansfield.