trary power and prerogative most flourished, when the crown exercised powers founded in scarcely any discretion but that of policy and of the exigencies of state, must, in the eye of juridical history, be deemed of great value. If it happens, as is really the case with regard to the present subject, that the private right, thus recognized and assumed to exist by the supreme power in the state, was one that in no way conflicted with the supposed rights or actual policy of the crown, and if the crown itself asserted and enforced rights of its own of a similar character and depending upon similar principles, the testimony in favor of the doctrine upon which the right is founded is as clear and unexceptionable, as the nature of such an historical inquiry can admit.

As early as the year 1556, decrees and ordinances of the star-chamber regulated the manner of printing and the number of presses throughout the kingdom, and prohibited all printing against the force and meaning of any of the statutes or laws of the realm, or of any injunction, letters-patent, or ordinances set forth or to be set forth by the grant, commission, or authority of the crown. The rights of owners of copies were not here expressly recognized, as they afterwards were, except so far as they are implied in the prohibition against violating letters patent.2

14 Burr. R. 2312.

It will be seen hereafter, that the letters patent here referred to were not grants to authors, of property in their own works, but grants

of the right to print books the sole printing of which belonged to the crown, either by naked prerogative, or by the title of property. Upon which of these two titles the right

By another decree of the star-chamber, of the 23d of June, 1585,1 every book was required to be licensed; and any one was forbidden to print "against the form or meaning of any restraint contained in any statute or laws of the realm, or the true intent and meaning of any letters-patent, commissions or prohibitions under the great seal, or contrary to any allowed ordinance set down for the good government of the stationers' company." That this decree was intended to recognize and did recognize some rights. of literary property, of some kind, is manifest from what took place in the next reign. In the 21st of James I. a proclamation of the 25th September, 1623, recited the above decree of the 28th of Elizabeth, and declared that the same had been evaded, amongst other ways, " by printing beyond seas such allowed books, works or writings as have been imprinted within the realm by such to whom the sole printing thereof by letters patent, or lawful ordinance or authority, doth appertain ;" and then the proclamation enforced the decree referred to.2

Now, that the crown did not interfere in this manner simply for the purpose of restraining the press, or of asserting its own rights, is manifest from both the decree and the proclamation. Private rights and private property are protected in both. The kinds of private property thus protected must have included more than the rights derived by grant from the

of the crown is supposed to depend, will also be stated.

128 Eliz. See 4 Burr. R. 2312. 2 4 Burr. 2312.

crown, because the words of the decree and the proclamation embrace other rights of "sole printing," as well as rights which depended on letters-patent. Books, of which the copyright was recognized by ordinance of the stationers' company, were included, and there is a fair implication that books otherwise appertaining to their owners by the "laws" of the realm were also included, and the sole right of printing such books depended on the property of the author, and not on grant from the crown. But even in cases of letters-patent, the argument which deduces the right from property in the crown, is, as we shall see, far stronger than any other view of it that can be taken.

There was another decree of the star-chamber, of the 11th July, 1637, which should here be cited, and by which "no person was to print or import (printed abroad) any book or copy which the which the company of stationers, or any other person hath or shall, by any letters-patent, order or entrance in their register-book, or otherwise, have the right, privilege, authority, or allowance solely to print." "

1

There are one or two remarks now to be made with reference to the whole period from 1556 to 1640, at which time the star-chamber was abolished. The judicial proceedings of that tribunal are supposen to be chiefly lost or destroyed, and prosecutions for printing or pirating another man's copy, or other

14 Burr. 2312.

wise printing unlawfully, cannot now be found. But it is obvious that no man could print another man's copy, because he could not obtain a license so to do, for two reasons. In the first place, the literature of England was not then so extensive, that the officers of the crown, whose duty it was to license publications, would not, generally, know to whom the copyright of any work belonged, which any applicant might find it worth while to reprint. There was, therefore, little danger that licenses would be incautiously granted. In the second place, the decree of 28th Elizabeth prohibited all printing "contrary to any allowed ordinance set down for the good government of the stationers' company." Now, although we know of no ordinance or by-law of the company relative to copies, until after the year 1640, yet from 1558 to 1582 there are, it is said, entries in the records of the company which show that copies were entered as property, and that pirating was punished.1 This shows the contemporary opinion as to this species of property, and renders it highly probable that no license could have been obtained for printing another man's copy, because it would have been asking for an authority to do what was then held to be immoral, dishonest, and unjust. It is a just inference, that what was so held by the stationers' com

14 Burr. 2313. In 1583, two printers, Wolf, and Ward, insisted upon a right of printing all books, even where there were copyrights existing. Stowe, 223, tit. Station

ers' Company. But commissioners, appointed by the crown, willed them to desist. See Wedderburn's Argument in Tonson v. Collins, 1 W. Black. R. 304.

pany, in that age a recipient of royal favor and of extraordinary powers from the crown, would have been so held by the crown itself.1

In 1640, the star-chamber was abolished, and all regulations of the press and decrees against printing, as well as all the charter powers given to the stationers' company, were abolished. But the licentiousness that ensued led the two houses of parliament to pass a new ordinance, which prohibited printing unless the book had been first licensed and entered in the register of the stationers' company; and it also prohibited printing without consent of the owner, or importing (if printed abroad,) upon pain of forfeiting the same to the owner or owners of the copies of the said books, &c.2

There could be no owners of copies in England at the time when this ordinance took effect, except those who held the right to print certain books by letters-patent, or those whose title was that of authors or proprietors at common law. It is not very probable that the parliament of that day passed this part of the ordinance for the purpose of protecting grants of the crown; and as to all other books, the whole foundation of literary property, if it depended upon former decrees of the star-chamber or proceedings of the stationers' company, had been swept

It would seem, therefore, that down to the year 1610, (as has been well remarked by Willes, J. in Millar v. Taylor,) "copies were protected and secured from piracy by a

much speedier and more effectual remedy than actions at law or bills in equity."

* Passed in 1643. 4 Burr. 2314. 4 Black. Com. 152, note.