this right is inherent in every possession vested in an individual by the rules of natural or positive law. It enables the owner of a literary composition to declare the purposes for which he grants it to others, in the same manner as it enables the owner of a piece of merchandise to declare that he grants the full property, or only a qualified use thereof, when he gives the possession of it to another. In both cases, the principles of justice require that this right of the original owner should be respected in the same manner as his original possession; for if it would be a violation of justice to deprive him of all his rights, when he has reserved them all, it is equally so to deprive him of a part of them, which he reserved, when he granted another part.

The right of literary property commences, therefore, from a full and exclusive intellectual possession of his ideas, by the author, coupled with the physical possession of the combination of characters representing those ideas, which he has traced upon paper or other material. As soon as publication takes place, it is no longer his object or intention to retain. to himself the intellectual appropriation and enjoyment of the ideas themselves. What he does seekto reserve is, the exclusive multiplication of copies of that particular combination of characters, which exhibits to the eye of another the ideas that he intends shall be received. His power to do this depends upon his exclusive title to his invention, and upon the fact that each copy constitutes a valuable

commodity, which he can exchange for other posses

sions.

The author's exclusive title is not only theoretically perfect, but it is practically acknowledged by mankind, since in every civilized society men are willing to give him valuable possessions in exchange for the opportunity to read what he has written. This opportunity men will purchase, if they cannot have it without purchase. It is in the power of the author to say, that they must purchase it, because he is the absolute owner of the copy which they desire to peruse. In the contract of sale which thus takes place, the owner of the literary composition may, of course, annex to the transfer any conditions that he pleases; and the question therefore next arises, whether he does not tacitly annex the condition, that other copies shall not be multiplied from the copy that he sells, and whether the purchaser does not take the copy burthened with this restriction.

The fair construction of a contract of sale requires, that the implied rights, which are supposed to be conferred by the seller upon the purchaser, should be determined by the apparent objects of the sale, and the price paid for the thing, when there are no express stipulations made. The delivery of a piece of merchandise for a price ordinarily held to be the measure of value for all the rights in it enjoyed by the owner, implies that the full right of property passes, including the right to use the thing in every

form of which it is capable. But if A. is found to have in his possession a chattel formerly known to belong to B., and the consideration paid by A. is sufficient only to cover the value of the possession for a restricted use, and is far less than the full value of the entire and absolute dominion over the chattel, a fair presumption arises in natural equity, that the parties contemplated in the transaction the sale and purchase of a right to use the chattel for a limited purpose.

When the purchaser of a single copy of a book pays for it whatever may be the current price set by the author, if he can, by the rules of natural law, be supposed to acquire thereby all the uses of which the copy is capable, including the faculty of indefinite multiplication, he purchases for a grossly inadequate consideration what is perhaps a mine of wealth. The profits which may be derived from the indefinite multiplication of copies justly belong to some one. The author has created the opportunity of reaping them, and is the sole owner of the original copy from which all others must be taken. This opportunity or faculty of receiving what the public will certainly and freely give, in exchange for copies of a literary production, is therefore a franchise to which no one can show so good a title as the author, who has created it. To hold that he intends to sell it, when he parts with a single copy of his composition for a price implying, if it implies anything, a

reservation of it, is wholly inconsistent with the rules of natural justice.1

But there is still another proof that the author reserves to himself the sole right of multiplying copies of his works, when he exposes single copies to sale. The object and purpose of publication are to put into the hands of the purchaser of a copy the means of becoming acquainted with the author's thoughts. What proof is there that the author contemplates anything more? If it is supposed that he intends to forego the profits which may be derived from his work, then the consequence also follows that he intends to abandon to others the reproduction of copies, without exercising any care for his own reputation, or any supervision over the manner in which the copies shall be reproduced. If this last supposition prevails, then the author himself defeats the object of publication, since he cannot make it certain to the reader or himself, that his thoughts will continue to be accurately represented. But the interests of the author are far too great to admit of any mere hypothesis as to his intentions, inconsistent with those interests. If he has not expressly or by necessary implication granted or abandoned his

1 Puffendorff states succinctly the rule of natural equity concerning the equality of contracts. Since contracts are necessary for my obtaining those things which I had no right to claim; and since it is presumed that a man gives nothing gratis, which he parts with upon contract; we cannot therefore think

that any one designs to give away, by contract, more than he supposes he receives; and consequently a contract can give a right to another man's goods no further than as they are equivalent to something which that other man receives." Puffendorf's Law of Nature, &c. by Barbeyrac. B. v. ch. iii. § 1.

rights, it must be presumed that he has reserved them to himself, since it is not ordinarily consistent with human motives, for men to throw away vast interests, which touch both their fortunes and their fame.

That there is no such presumption against the author's reservation, is proved by the practice and consent of mankind. Every civilized nation, of any literary rank, has some law recognizing the property of authors in their works. This universal legislation is founded in a conviction that such property exists in natural justice; for although the protection thus afforded by positive law is generally temporary, and embodies, as I shall hereafter suggest, a compromise between the strict rights of the author and the demands of society, yet it proves the existence of those rights, by undertaking to reconcile them with the wants and interests of the public at large. There is no other hypothesis to account for the careful legislation of so many countries.

Such being the nature of the author's claim, and such the right upon the exercise of which it depends, it is in the nature of property, because there is in possession an invention capable of being made a source of profit, and which will certainly produce profit to the proprietor, if society does not permit

For a view of the legislation of different countries, on the rights of authors, see the work of M. Charles Renouard, Traité des Droits D'Auteurs, Paris, 1838, t. 1. He gives the legislation of England, France,

the United States of America, Holland and Belgium, the different States of Germany, Denmark, Russia, the Kingdom of the two Sicilies, and Sardinia.