habitants of, or residing in other states, until such states should have passed similar laws.'

These provisions show that the rights of authors in their published works existed by statute, in some of the states, before the constitution of the United States was formed; and there cannot be much doubt that they also existed, in the older states, at common law. What, then, were the rights of authors, to be "secured," under the power granted to the national legislature? The object to be gained by this grant of power will aid in determining the meaning of the language employed. The object clearly was to enable the general government to make laws which should secure the proceeds of a book in all the states to an author residing and publishing in any one of the states. The old congress had this object in view, when they recommended to the states to pass laws for this purpose; and it was distinctly urged, by the advocates for the adoption of the federal constitution, as the main reason for the provision.3

It would seem, therefore, that the rights of authors to be secured" by congress, under this clause of the constitution, were exclusive rights to take the profits of their own publications throughout the United States. In this view, the constitution and the act of 1790 created a right which did not

11 Mass. Laws, 94, (edit. 1801.) Wheaton v. Peters, 8 Peters S. C. R. 681, 662, 683.

2

Ante, p. 78.
The Federalist, No. 43.

exist before; and this may account for the use of the word "secure." Whether this power is exclusive, so that the states cannot now legislate for the protection of authors within their own limits, is one of the grave questions of our complex system of gov

ernment.'

The act of 1790 was followed by a supplementary act, passed April 29th, 1802, which extended the benefits of the former statute to engravers.2

By an act passed February 3d, 1831, the former laws were consolidated and revised, and this act constitutes the existing copyright law of the United States.3

1 See Story's Com. on the Constitution, § 1149.

See Appendix, 2 U. S. Statutes at large, 171.

See Appendix, 4 U. S. Statutes at large, 436.

CHAPTER II.

OF THE SUBJECTS OF LITERARY PROPERTY, BEFORE AND AFTER PUBLICATION.

IN the following chapter, the various subjects of literary property, both before and after publication, will be considered in detail.

I. And first, with regard to that class of writings, to which rights and remedies have been applied, bearing a close analogy to those applicable to copyrights, viz. writings existing in manuscript and unpublished. We have already seen that in general, the author or owner of an unpublished manuscript possesses a property therein, which consists in the right to appropriate it to such uses as he shall please.' This is a right at common law, and is of course wholly independent of the statutes which create a property after publication, consisting in the exclusive right to the profits of publication. The existence of such a property has been repeatedly recognized with regard to many sorts of compositions, and it is now perfectly well settled, that the author or proprietor of an unpublished man

1 Ante, p. 49-52.

uscript may obtain the interference of a court of equity, to prevent its unauthorized publication.1

This right of property rests upon one of the ultimate foundations which sustain property in general; namely, the right which every man has to the exclusive possession and control of the products of his own labor. In the great case of Millar v. Taylor, in which the principles on which this right depends were so fully examined, Lord Mansfield declared that the source from which the common law is drawn, in respect of a copy before publication, is this "Because it is just, that an author should reap the pecuniary profits of his own ingenuity and labor. It is just that another should not use his name without his consent. It is fit, that he should judge when to publish, or whether he ever will publish. It is fit, he should not only choose the time, but the manner of publication; how many — what volume what print. It is fit, he should choose to whose care he will trust the accuracy and correctness of the impression; to whose honesty he will confide, not to foist in additions.” 2

Webb v. Rose, cited 4 Burr. 2330; 2 Bro. P. C. 138; Forrester v. Walker, cited ut supra. Pope v. Curl, 2 Atk. 342; Manley v. Owen, cited 4 Burr. 2320, 2490. Duke of Queensbury v. Shebbeare, 2 Eden's Ch. R. 329; Southey v. Sherwood, 2 Meriv. 434; Macklin v. Richardson, Amb. 694; Donaldson v. Becket, 4 Burr. 2408; Wheaton v. Peters, 8 Peters S. C. R. 591, 661; 2 Story's Eq. Jurisp. § 943; Eden on Inj. ch. 13, p. 275, 276.

The incorporeal right in an unpublished manuscript belongs exclusively to the author, and cannot be seized by creditors, to the effect of entitling them to publish it.1

after publication; and that as the
common law recognizes and protects
the former, it follows that the latter
is equally a right at common law,
unless the act of publication is to be
taken as an abandonment of the
right, which he denies. Sir W. D.
Evans seems to think that, as the
house of lords in Donaldson v. Beck-
et, overthrew the decision in Millar
. Taylor, and declared that there
is no perpetual right at common
law in published works, the reason-
ing of Lord Mansfield on the subject
of a copy in manuscripts is also proba-
bly overruled. He closes some ex-
tended remarks with the following
observation: "Lord Mansfield, to
support the perpetual right to works
published, argues that an unpub-
lished manuscript cannot be distin-
guished from them; and may not
that argument now be applied to the
ultimate decision of the house of
lords against a perpetual common
law right of publications, and ex-
tended to manuscripts?" 2 Evans's
Statutes, 20, note [14]. See also
his edition of Lord Mansfield's
decisions, vol. i. p. 386, note (n).
The learned commentator seems
not to have carefully considered
the points actually decided in Do-
naldson v. Becket. An analysis of
the questions put to the judges,
and of their answers, exhibits the
force of that decision. Eleven
judges attended, and gave their
Ten were of opinion
that at common law, an author of
any literary composition had the
sole right of first printing and pub-
lishing the same for sale, and might

answers.

bring an action against any person who printed, published and sold the same without his consent; eight were of opinion that the law did not take away his right, upon his printing and publishing such book or literary composition, and four were of the contrary opinion. Six were of opinion that the author's right of action at common law, after he had published, is taken away by the statute 8 Anne, and that he has no remedy except on the foundation of that statute; while five were of opinion that the statute did not take away the common law right of action. It is manifest, therefore, that this decision confirms, in the most solemn manner, the doctrine of a sole right before publication, as part of the common law; that it negatives the position that publication alone takes away the right, but that it decides, by a bare majority of the judges who spoke, that the sole right at common law to multiply copies, after publication, is taken away by the statute, and depends wholly upon the terms and conditions of the act. See ante, p. 58, 59.

1 Mr. Bell says, "The right at common law can exist only while the composition remains unpublished. But the property of unpublished literary compositions is not within the reach of creditors, to the effect of entitling them to publish them. No man can be forced, by any operation of the law, to publish his thoughts, even for the benefit of his creditors. And his right of withholding the publication will continue till the very moment his book