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Entered according to Act of Congress, in the year 1847
By GEORGE T. Curtis, in the Clerk's Office of the District Court for the District of Massachusetts.
It was originally my intention to have treated the kindred subjects of Copyrights and Patents for Useful Inventions, in the same work. But after having made some progress in both of these topics, the fact that very different classes of persons, out of the legal profession, are interested in the two subjects, has led me to publish this portion of my labors, as a distinct treatise. It will be followed, I hope, by a work on the law of Patents.
It will be seen that in discussing the various questions involved in this branch of the subject, I have not hesitated to express my own opinion, where the doctrine of decided cases seemed to me to be objectionable. Writers of treatises, in the manner of the English bar, generally content themselves with a dry abstract of the decisions, showing barely what the law is. This is well, as far as it goes. It is not the province of any writer to make the law, and he must certainly state the law as it is, if he means to have his book respectable and respected. But while his text should exhibit clearly the actual state of the law, he should never forget that he is dealing with principles ; that it is his task, to exhibit the doctrine of the law, which is its life; and that unless he does this, his work, however accurately he may have strung the cases together, will be a mere collection of husks, the shell without the germinating principle that lies wrapt in the meat. If, then, he essays the task of eliminating the principle of a rule or a decision, tracing it in all its bearings and following it by the thread of analogy into other systems of jurisprudence, in order to ascertain whether it be really part of the general science, and not a local idea, he cannot avoid the expression of his own opinion, to some extent. The study of the law is the pursuit of truth ; and he who undertakes to express and embody such truth, must occasionally express his own convictions.
His allegiance to the science which he serves, requires him to examine critically every recorded precedent, and to dissent, if dissent be needful; not as if he were ambitious to be regarded as an authority ; but in the way of suggesting to those whose high function
it is to revise and declare the law, the means of arriving at more correct results.
With this view, I have introduced into this work a discussion on the general doctrine of the English cases in relation to abridgments, which I consider contrary to principle. Should my observations induce any tribunal to reëxamine that doctrine, they will not have been published in vain.
It did not fall within the scope of this work, to discuss the reasonableness and justice of an international copyright. As between England and the United States I do not see how there can well be two opinions upon the desirableness of such an arrangement. The injustice of the present state of things to authors, especially in my own profession, is palpable and flagrant. The materials for an argument upon this question, which will be incapable of being answered, are fast accumulating, in the numerous proofs of mutual advantages obtained by those publishers in both countries, who have effected arrangements for the exchange and sale of their respective publications. These arrangements, however, rest upon no other security than the courtesy of “the trade," and can never effectually answer the purpose of a law securing the profits on American books in England and on English books in the United States. But this is not the place to enter upon the discussion of this
interesting topic. I can only express the hope of seeing the argument at no distant day presented by some one, who will do justice to its great importance. But I could not dismiss this work from my hands, without avowing myself an advocate of an international copyright, both upon grounds of general policy, and of justice to authors.
Boston, October, 1847.