most celebrated work of the poet Thomson, to present the case upon which the doctrine of perpetual property was to be adjudged in the court of king's bench, before it was finally overthrown in another cause, which went to the house of lords from the court of chancery.

"The Seasons, by James Thomson," was first published by him, for his own use and benefit as proprietor, at several times between the beginning of the year 1727 and the end of the year 1729. In the latter year he sold the work to Andrew Millar, who entered it at stationers' hall, and continued to publish it down to the time of the poet's death, which occurred in August, 1748, and from thence until the year 1763, when Robert Taylor put forth an edition of the poem, without the license or consent of Millar. The term of years secured by the statute of Anne had expired; and the action brought by Millar in the king's bench, in 1766, proceeded upon the claim of a perpetual property at common law in the author and his assigns.'

The special verdict in this case found that before the reign of Queen Anne, it was usual to purchase from authors the perpetual copyright of their books, and to assign the same from hand to hand for valuable considerations, and to make the same the subject of family settlements, &c. The verdict also found the by-laws of the stationers' company, passed in 1681 and in 1694, which have already been cited.2 * Ante, pp. 36, 37.

'Millar v. Taylor, 4 Burr. 2303.

The cause was twice argued before a full bench, Lord Mansfield presiding, and judgment was finally rendered for the plaintiff in 1769, Yates, J. dissenting.1

The great men concerned in this cause, the ability with which it was argued, and the deliberation attending the decision, must forever give it a high value in the estimation of every lawyer. It was argued and adjudged with consummate learning and ability; Lord Mansfield's judgment was worthy of his great name, and he was assisted by two of his brethren in a manner that reflects upon them and him the highest honor. A writ of error was afterwards brought, but it was never prosecuted; and the lords commissioners, after Trinity term, 1770, granted an injunction.

In estimating this celebrated decision, it is necessary for the historical inquirer to notice by what

'The first argument was by Mr. Dunning for the plaintiff, and Mr. Thurlow for the defendant; the second by Mr. Blackstone for the plaintiff, and Mr. Murphy for the defendant. The judges concurring in the judgment were Lord Mansfield, C. J., Willes J. and Aston J.; Yates J. dissented. The case first arose in the court of chancery, and was sent to the king's bench for a decision of the general question of property, at the time when the case of Tonson v. Collins hung in that court under an appearance of doubt. In the court of chancery, in July, 1765, in the case of Millar v. Donaldson, reported 2 Eden's Ch. R. 327, Lord Chancellor Northington

dissolved an injunction that had been obtained, because the general question had never been determined, and directed an action at law to try the right. In consequence of this, the question was afterwards brought forward in the shape of a special verdict, as it now appears in Millar v. Taylor, 4 Burr. Lord Mansfield in this case took notice of the circumstances under which the case had been sent before him, and said that "there never had been a doubt in the court of chancery, until a doubt was raised there from decency, upon a supposed doubt in this court in the case of Tonson v. Collins." 4 Burr. 2400.

standard the right of the plaintiff, as a right at common law, was tried. Printing was introduced into England within the time of legal memory, that is, since the reign of Richard II. It was therefore out of the question to found the right of perpetual literary property upon immemorial usage or precedent. But a right may exist at the common law of England upon principles of natural justice, moral fitness, and public convenience; which, when applied to a new subject, make common law without a precedent; and if the alleged right has been received by usage, it is still stronger. The argument therefore divided itself into two great branches. Under the first head, the inquiry was directed to the legislative and the judicial, as well as the common opinion of the country, to ascertain whether this right had been generally received and treated as a right of property; and, under the second head, the justice, fitness, and convenience of the doctrine furnished the grounds on which the adjudication was in part rested.1

1 M. Renouard has put the question, with great pertinency, "What were the provisions of the common law in England, before the statute of Anne? Had the author any right of copy? Has the statute of Anne given a right which the common law did not confer, or has it on the contrary restrained a right which the common law did confer?" (Traité des Droits D'Auteurs, Par Augustin-Charles Renouard, Conseiller a La Cour de Cassation. Paris, 1838, tom. 1, p. 233.) It is difficult to escape from the answer

that must be given to these questions, after a survey of the historical part of the argument. An author in England either had some right to enjoy the profits of his publication, before the statute, or he had none. If he had any right at all, it is difficult to see what restrained it to a right short of a perpetuity. I have never met with the argument which denies the existence of all right whatever, except that which goes the length of inferring an abandonment or surrender to the public by the act of publication.

One great struggle in this, and the preceding case of Tonson v. Collins was, to show that by the act of publication, the author abandoned or surrendered any right of property which he might have had in his ideas, or in the form in which they were expressed. But this was answered conclusively by the court. From the doctrine, that the author had by the common law of England, as had always been admitted, a property before publication, the court declared that there could be no just distinction founded on the mere fact of publication. If the property exists, while the work is still in manuscript, before publication, there is nothing in the mere act of publication which shows an intention to abandon or give away that property. If the author does not mean to abandon or give it away, then the question resolves itself into this, whether it is agreeable to natural principles, moral justice and fitness, to allow him the copy after publication, as well as before? Of this question, said Lord Mansfield, "the general consent of the kingdom for ages is on the affirmative side;" and he, as well as the judges who concurred with him, deduced that consent from the whole judicial and legislative opinion that had preceded the statute.

Having thus deduced the right of literary property, the question remained to be disposed of, whether the statute of Anne had abridged it, so that the owner could claim only the exclusive right for a term of years. Upon this question, the court held, that the statute had not taken away the property of authors

at common law; but was merely intended to give, for a term of years, a more efficient protection, where the entry and the other provisions of the act should have been complied with.1

But this decision was not long acquiesced in.

A cause had been for some time pending in the court of chancery, in which a Mr. Becket complained of a publication by the Messrs. Donaldson of a book belonging to him. After the decision in Millar v. Taylor, Lord Chancellor Apsley granted an injunction, as of course, in favor of Mr. Becket, pursuant to the decision of the general question in the court of king's bench, and an appeal from this decree was taken to the house of lords. This appeal came on to be heard in 1774, and was argued by Thurlow, attorney-general, and Sir John Dalrymple against the right at common law, and by Wedderburn, solicitor-general, and Dunning, in favor of it. The judges were ordered to deliver their opinions. Ten of the judges were of opinion that at common law an

1 Yates, J. dissented upon this question also.

2 Apsley is the proper title of this chancellor to the year 1775, though he was afterwards Lord Bathurst, and is called by the latter title by Lord Campbell, through the whole of his chancellorship. I have followed the reporters, but he is usually styled Lord Bathurst in modern times. He professed to have made this decree as of course, because the point had been so decided in the king's bench, (17 Parl. Hist. 1001.) If he had said he had followed Lord

Mansfield, he would probably have given a reason of great significance with him. Lord Campbell represents him as a weak person, accustomed to lean upon the chief justice. But when he came to speak to this question in the house of lords, he seems to have emancipated himself from the authority of Lord Mansfield, and declaring himself impartial, went the other way, (17 Parl. Hist. 1001.) See his Life, in Lord Campbell's Chancellors, vol. v. pp. 432-472.