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How far this portion of the common law was part of the common law of any American colony, depends not upon the fact of the colonists having or not having had occasion to claim and act upon it, on their arrival, but upon the fact of there being or not being anything in their situation, during their early colonial history, so inconsistent with it, as to preclude the idea of its having been brought by them along with the rest of the body of the common law. The presumption is, that the whole of the common law, as it then existed, not inapplicable to the state and condition of the colonists, was brought by them from England. If there were any books published, in any of the colonies, at any time before they legislated on the subject, as there certainly were in many of them, there was nothing in their circumstances and situation unsuited to such a right, or inconsistent with its being claimed and recognized as part of the common law. There were objects to which the right could a tach, and any author could claim it as a right at the common law of England. Undoubtedly, the right lay dormant in all the colonies for a long period of time; and afterwards, when books began to be printed, the right was here, as in England, tacitly assumed and acted upon. There is some evidence, however, that it had been regarded as a common law right in several of the states, before the adoption of the constitution of the United States.1

So far as the decision in Whea of the common law right of authors ton v. Peters negatives the adoption in the colony of Pennsylvania, I do

In March, 1783, the legislature of Massachusetts. passed" an act for the purpose of securing to authors the exclusive right and benefit of publishing their literary productions, for twenty-one years." This act was preceded by the following remarkable preamble: "Whereas the improvement of knowledge, the progress of civilization, the public weal of the community, and the advancement of human happiness, greatly depend on the efforts of learned and ingenious persons in the various arts and sciences : As the principal encouragement such persons can have to make great and beneficial exertions of this nature must exist in the legal security of the fruits of their study and industry to themselves; and as such security is one of the natural rights of all men, there being no property more peculiarly a man's own than that which is produced by the labor of his mind : therefore, to encourage learned and ingenious persons to write useful books for the benefit of mankind, Be it enacted," &c.1

not feel authorized to criticize it, although I have made some suggestions in the text to show that a different view may be taken of that question. But that part of the decision, which denies the existence of the common law right in England, I must dissent from. The learned judge who pronounced the opinion of the majority, said, "the question was involved in great doubt and perplexity; and a little more than a century ago it was decided by the highest judicial court in England, that the right of authors could

not be asserted at common law, but under the statute." (8 Peters, 660.) This is true; but if Donaldson v. Becket, the case referred to, decides anything, it is that the common law right existed anterior to the statute of Anne, and was taken away by that statute. Upon the existence of the common law right before the statute, the judges stood seven to four; and if the known opinion of Lord Mansfield is added, eight of the twelve judges affirmed the existence of the right.

21 Mass. Laws, 94, (edit. 1801.)

This preamble has been justly thought to recognize a right already understood to exist, and it seems manifestly to have been the purpose of the act to provide for the right additional security, and not to create it de novo.1

Soon after this act was passed, on the 27th May, 1783, a report was made in the old congress by Mr. Madison, on sundry papers and memorials on the subject of literary property, and the following resolution was passed.

"Resolved, That it be recommended to the several states, to secure to the authors or publishers of any new books not heretofore printed, being citizens of the United States, and to their executors, administrators and assigns, the copyright of such books for a certain time, not less than fourteen years from the first publication; and to secure to the said authors, if they shall survive the term first mentioned, and to their executors, administrators and assigns, the copyright of such books for another term, or time, not less than fourteen years; such copy or exclusive right of printing, publishing, and vending the same, to be secured to the original authors or publishers,

It expresses more comprehensively than any other piece of legislation in the language, on the same subject, the principles of public policy and private right, on which literary property must always depend. The state of Connecticut had previously, in January, 1783, passed an act with the following preamble: "Whereas it is perfectly agreeable

to the principles of natural justice and equity, that every author should be secured in receiving the profits that may arise from the sale of his works; and such security may encourage men of learning and genius to publish their writings, which may do honor to their country and service to mankind." (Cited 8 Peters S. C. R. 683.)

their executors, administrators and assigns, by such laws and such restrictions as to the several states may seem proper.'

1

Pursuant to this recommendation, several states passed laws, with preambles similar to those of the Massachusetts and Connecticut acts, all designed to "secure" to authors the profits arising from the sale of their works. This studied phraseology, which had not been employed in the English statutes, evinces some intention to protect and secure a preexisting right. The necessity for state legislation was soon afterwards superseded by the constitution. of the United States, (art. 1, § 8,) which conferred upon congress power "to promote the progress of science and the useful arts, by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries." As the states could not separately make effectual provision for these objects, the power was wisely granted to the national government.3

The first act passed to carry this provision into effect, so far as it related to authors, was the act of May 31st, 1790, chap. xv. entitled "An act for the encouragement of learning, by securing the copies

18 Cong. Journ. 257. 8 Peters S. C. R. 681.

Cited 8 Peters S. C. R. 683, 684. Authors who aimed at national reputation entered their works in each of the states which had passed such laws. A copy of a popular work published in Massachusetts is

before me, which was entered in New York, Pennsylvania and South Carolina, under the respective laws of those states, in the year 1787.

33 Story's Com. on the Constitution, p. 48, et seq. The Federalist, No. 43.

of maps, charts and books, to the authors and proprietors of such copies, during the times therein mentioned." The Supreme Court of the United States have held that this act, instead of sanctioning an existing perpetual right in an author in his works, created the right secured for a limited time; and that the word secure, in the constitution, does not mean the protection of an acknowledged legal right, but is used in reference to a future right to be created.1

If this decision is to be understood as declaring that the constitution and the act of 1790 created copyright throughout the United States, it may be readily assented to. We find the states, at the time of the establishment of the constitution, conferring upon the national legislature the power to "secure" the rights of authors and inventors. Each of the states, at that time, possessed the power to secure these rights within its own limits, as part of its sovereignty. But no state legislature could provide securities for the rights of authors which should operate over the whole country, and make a copyright of a book written and published in Massachusetts of equal validity in Pennsylvania. In order, however, to obviate this inconvenience, the state laws, passed before the adoption of the federal constitution, generally contained a proviso, that the benefit of the law was not to extend to authors, in

1 Wheaton v. Peters, 8 Peters S. C. R. 591.

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