author of any book or literary composition had the sole right of first printing and publishing the same for sale, and might bring an action against any person who printed, published and sold the same without his consent; and one judge was of the contrary opinion. Three judges were of opinion that the law took away the right after publication, so that any person could, without leave of the author, print and publish a book which the author had once published; and eight were of the contrary opinion. Six judges were of opinion that the statute of Anne took away the action at common law, and that an author had no remedy except upon the foundation of that statute; and five were of the contrary opinion. Seven judges were of opinion that the author of any book or literary composition, and his assigns, had the sole right of printing and publishing the same, in perpetuity, by the common law; and four were of the contrary opinion. Six judges were of opinion that this right in perpetuity is impeached, restrained and taken away by the statute of Anne; and five were of opinion that it is not.1 Lord Mansfield, being a peer, did not deliver any opinion; but it was notorious, that he adhered to the judgment which he had delivered on all these questions; and thus, of the twelve judges, the great 2 1 17 Parl. Hist. 971 et seq.; 4 Burr. R. 2408, et seq. 2 Sir James Burrow says it was notorious that Lord Mansfield ad weight of authority and numbers was in favor of the perpetuity at common law; and upon the question, whether such right was taken away by the statute, the judges were equally divided.' In this posture of the case, Lord Camden came forward to move the judgment of their lordships, and delivered an elaborate argument against the common law right of property, which turned the scale. His speech was able and ingenious, but sarcastic, sophistical, and not altogether fair towards the other side of the question. It was chiefly devoted to answering the judgment of Lord Mansfield in Millar v. Taylor.2 hered to his opinion; but it being very unusual (from reasons of delicacy) for a peer to support his own judgment, he did not speak. 4 Burr. 2417. He was afterwards much blamed in the house of commons for not speaking. This was on the occasion of an application by the booksellers for an extension of the term of copyright, they having, as it was shown, laid out great sums, on the authority of the decision in the king's bench. It was even said, that had Lord Mansfield defended his judgment, in the house of lords, the then pending bill would never have been brought in. 17 Parl. Hist. 1090. The leading argument, adverse to the right of perpetuity, among the judges, was that delivered by De Grey, Lord Ch. Justice of the common pleas. He thus disposes of the question as to the effect of publication: "But it is said, that the sale of a printed copy is a qualified or conditional sale, and that the purchaser may make all the uses he pleases of his work, except that one of reprinting it; but where is the evidence of this extraordinary bargain? or where the analogy of law to support the supposition. In all other cases of purchase, payment transfers the whole and absolute property to the buyer; there is no instance where a legal right is otherwise transferred by sale, an example of such a speculative right remaining in the seller. It is a new and metaphysical refinement upon the law; and laws, like some manufactures, may be drawn so fine as at last to lose their strength with their solidity." 17 Parl. Hist. 990. As an American, I am bound to hold the memory of Lord Camden, the statesman, in the highest honor. But to a lawyer, the cause of truth, in all that concerns the science of human rights, is cosmopolitan. It is impossible to read this speech of Lord Camden's, with the book of history open before us, without perceiving that there were secret causes of bias operating upon his judgment. He spoke sincerely, without doubt. He was too great and too The passage of declamation in which he argued that glory and not profit is or should be the reward of men of letters, has been often quoted, and is now the most familiar portion of the speech. He declared that there was no foundation for literary property in the common law, and none in the principles of sound policy, or good sense. He denounced the perpetuity contended for, as odious and selfish, deserving of reprobation, and likely to become intolerable.1 He good a man, not to say too great a lawyer, to have purposely misled the judicial action of the house of lords. But it cannot be doubted, that he was predisposed to encounters with Lord Mansfield; and, that his opinions were thus influenced by a rivalry in which he was prone to indulge, is but too apparent in the speech itself. It is, without direct allusion, a running answer to Lord Mansfield's judgment in Millar v. Taylor. He handles the same topics, follows in the same track, and turns or seeks to turn the positions of the illustrious chief of the king's bench and of his associates who agreed with him. The truth is, these great men for a long time time contended for the supremacy as law lords in the upper house. It appears that when Lord Camden first entered that assembly, "Lord Mansfield instinctively dreaded a contest for the supremacy which he had enjoyed there since the death of Lord Hardwicke ; "(Lord Campbell's Lives of the Chancellors, V. 252,) and although when he and Lord Camden sat together at the hearing of appeals, they conducted with great decorum, and rarely differed in opinion, when settling together the law in the last resort, there were other occasions when they attacked each other in debate so sharply as almost to render it necessary for the house to interfere. In one scene, which occurred about four years before the discussion of the question of literary property, they had a personal controversy of a very disagreeable character, in which Lord Camden seems to have triumphed by the exhibition of more nerve than belonged to "the silvertongued Murray." (Campbell, ut sup. p. 295.) Alas, that history should be obliged to chronicle the foibles of the great, who demand and receive the reverence of posterity. "If, then, there be no foundation of right for this perpetuity by the positive laws of the land, it will I believe find as little claim to encouragement upon public principles of sound policy, or good sense. If there be anything in the world common to all mankind, science and learning are in their nature publici juris, and they ought to be as free and general as air or water. They forget their Creator, as well as their fellow creatures, who wish to monopolize his noblest gifts and greatest benefits. Why did we enter into society at all, but to enlighten one another's minds, and improve our faculties, for the common welfare of the species? Those great was answered, it is said, very ingeniously, by Lord Littleton, a lay peer, who spoke in favor of au men, those favored mortals, those sublime spirits, who share that ray of divinity which we call genius, are intrusted by Providence with the delegated power of imparting to their fellow-creatures that instruction which heaven meant for universal benefit; they must not be niggards to the world, or hoard up for themselves the common stock. We know what was the punishment of him who hid his talent, and Providence has taken care that there shall not be wanting the noblest motives and incentives for men of genius to communicate to the world those truths and discoveries which are nothing if uncommunicated. Knowledge has no value or use for the solitary owner: to be enjoyed it must be communicated. • Scire tuum nihil est, nisi te scire hoc sciat alter.' Glory is the reward of science, and those who deserve it, scorn all meaner views: I speak not of the scribblers for bread, who tease the press with their wretched productions; fourteen years is too long a privilege for their perishable trash. It was not for gain, that Bacon, Newton, Milton, Locke, instructed and delighted the world; it would be unworthy such men to traffic with a dirty bookseller for so much a sheet of a letter press. When the bookseller offered Milton five pound for his Paradise Lost, he did not reject it, and commit his poem to the flames, nor did he accept the miserable pittance as the reward of his labor; he knew that the real price of his work was immortality, and that posterity would pay it. Some authors are as careless about profit as others are rapacious of it; and what a situation would the public be in with regard to literature, if there were no means of compelling a second impression of a useful work to be put forth, or wait till a wife or children are to be provided for by the sale of an edition? All our learning will be locked up in the hands of the Tonsons and the Lintons of the age, who will set what price upon it their avarice chooses to demand, till the public become as much their slaves, as their own hackney compilers are." 17 Parl. Hist. 999, 1000. As Lord Camden cites the example of Milton, to show that he placed no value upon the right of property in his great poem, it may be well to repeat the authentic facts concerning the sale of that copyright. Milton sold his copy to Samuel Simmons in 1667, for an immediate payment of five pounds. But the agreement entitled him to a conditional payment of five pounds more when thirteen hundred copies should be sold of the first edition; of the like sum after the same number of the second edition; and of another five pounds after the same sale of the third edition. The number of each edition was not to exceed fifteen hundred copies. In two years, the sale gave the poet a right to his second payment, for which he signed a receipt on the 26th of April, 1669. The second edition was not printed till 1674, and Milton did not live to receive the payment stipulated for this impression. The third edition was published in 1678; and his widow, to whom the copy was then to devolve, agreed with Simmons, the printer, to receive eight pounds for her right, according to her receipt, dated December 21, 1680; and she gave him a general release, dated April 29, 1681. Simmons sold the thors. Their lordships divided, twenty-two for reversing the decree, and eleven for confirming it. Thus the right of authors in their publications, as a right at the common law of England, affirmed by a majority of the judges to have previously existed, was lost forever. Lord Camden's argument, on this occasion, went the length of maintaining that publication is an abandonment to the public of all the author's previous right over his own productions. Admitting that every man has a right to his thoughts while they continue his, he contends that they become publici juris, as soon as he has published them; that the common law had never recognized ideas as subjects of property, and had never declared whether right to Brabason Aylmer, a bookseller, for twenty-five pounds, and Aylmer sold it to Jacob Tonson, one moiety in August, 1683, and the other moiety in March, 1690, at a price considerably advanced. (Todd's Life of Milton, 193-195, Lond. 1826.) It thus appears that the poet was very careful to assert his full right of property, as he and others understood it at the time, and to make it available to his family. The amount which he chose to receive, compared with the real value of the poem, or measured by a modern standard, seems very trifling. But as such rights were estimated then, and considering that the poem gained slowly upon the attention of his own age, it was not a grossly inadequate price. When it had been published fourteen years and upwards, the copyright between one bookseller and another, brought only twenty-five pounds. Yet its value could not have been affected by any apprehension, at the time of this sale, that it was not protected by the common law. Such a notion had not then arisen; and long after, viz. in 1739, Lord Hardwicke protected by injunction the title of Tonson, derived under the assignment made by the poet in 1667. (Ante, p. 47,) Doubtless Milton did not write his great poem for money; but we have seen that he supposed the right of exclusive property in authors was acknowledged by the law of his country, and he took pains practically to assert the right in his own case. It seems to me by no means a wild conjecture, that he did this for the sake of example, as well as in order to preserve his reputation, by keeping the control of the text of his poem. 1 Thomas, second Lord Littleton. |