away.

But these decrees and proceedings were not the sources of the right of property; they were merely protective in their character; and it can therefore admit of little doubt, that the understanding of the parliament was, that the property existed at common law, in the "owners" whom they chose to protect, otherwise this provision in their ordinance could only have contemplated" owners" by letterspatent.1

There is, however, a contemporary testimony, which places this matter in a very clear light. In November, 1644, Milton published his great tract for the liberty of unlicensed printing, against this ordinance, addressed to the parliament by whom it had been passed. His vigorous and manly denunciation was directed solely against the system of licensing. He expressly excepts from his censure that part of the ordinance which was designed for the protection of the rights of property in authors, and distinctly affirms that one of the "glossing colours" used, to make the ordinance pass, was "the just retaining of each man his several copy, which God forbid should be gainsaid." 2

Selden sat in the parliament

which passed this ordinance.

2 Milton's "Speech for the Liberty of Unlicensed Printing, to the parliament of England." He had previously said, "For that part which preserves justly every man's copy to himself, or provides for the poor, I touch not; only wish they be not made pretences to abuse and perse

cute honest and painful men, who offend not in either of these particulars. But that other clause of licensing books, which we thought had died with his brother quadragesimal and matrimonial when the prelates expired. I shall now attend with such a homily, as shall lay before ye," &c.

The testimony of Milton must be allowed to have some weight upon this question. He knew the state of the literature of England, if any man knew it, and he cannot be supposed to have thus recorded the general recognition of the rights of authors, and to have thus expressly admitted what the ordinance was intended, by the provision in question, to protect, without knowing of what he affirmed.1 Many of the arguments used by him against the licensing system also show, incidentally, that the ordinance, when it spoke of "owners," must have contemplated proprietors of books, of which the public might demand successive editions; for his arguments show — as indeed, we know without resorting to them,

1 Milton spoke upon this occasion in the name and at the solicitation of the scholars of England. "I might say, if without envy, that he whom an honest quæstorship had endeared to the Sicilians, was not more by them importuned against Verres, than the favorable opinion I had among many who honor ye, and are known and respected by ye, loaded me with entreaties and persuasions, that I would not despair to lay together that which just reason should bring into my mind, toward the removal of an undeserved thraldom upon learning. That this is not, therefore, the disburdening of a particular fancy, but the common grievance of all those who had prepared their minds and studies above the vulgar pitch to advance truth in others, and from others to entertain it, thus much may satisfy. And in their name I shall, for neither friend nor foe, conceal what the general murmur is."

Lord Mansfield has said, that "the single opinion of Milton, speaking after much consideration to what had been the general consent of the kingdom for ages, is stronger than any inferences that can be drawn from gathering acorns or seizing on a vacant piece of ground." 4 Burr. 2399. It is curious that, in nearly a century after Milton's opinion was thus recorded, his own Paradise Lost, in the hands of the assigns to whom the sum of £5 had passed it from him and his heirs forever, was to come before the chancellor of England, to claim successfully for its then owners their right in their "several copy." But his great authority does not seem to have been alluded to upon that occasion. Tonson v. Walker, before Lord Hardwicke, in 1739. Cited 4 Burr. 2325, and 3 Swanst. 673.

that such books were then proportionally not more rare in the literature of England than they now are.1

In 1649, the long parliament made an ordinance, which forbids printing any book legally granted, or book entered, without consent of the owner, upon pain of forfeiture, &c.

any

In 1662, the licensing act of 13 and 14 Car. II. was passed, prohibiting the printing of any book unless first licensed and entered in the register of the stationers' company, and prohibiting also the printing without consent of the owner, upon pain of forfeiting the book and 6s. 8d. for each copy, half to the king, half to the owner; to be sued for by the owner in six months.

It is remarkable that there had been thus far no legislation in England, which grants, creates, or establishes the property of an author in his own works. The liberty of publishing, and sometimes the presses which he should employ, had been subjected to

"And what if the author shall be one so copious of fancy, as to have many things well worth the adding come into his mind after licensing, while the book is yet under the press, which not seldom happens to the best and diligentest writers; and that perhaps a dozen times in one book Nay,

which is more lamentable, if the work of any deceased author, though never so famous in his lifetime, and even to this day, comes to their hands for licence to be printed, or reprinted, if there be found in his book one sentence of a venturous edge, uttered in the height of zeal,

(and who knows whether it might not be the dictate of a divine spirit?) yet not suiting with every low decrepit humour of their own, though it were Knox himself, the reformer of a kingdom, that spake it, they will not pardon him their dash; the sense of that great man shall to all posterity be lost, for the fearfulness, or the presumptuous rashness of a perfunctory licenser. And to what an author this violence hath been lately done, and in what book of greatest consequence to be faithfully published, I could now instance, but shall forbear to a more convenient season.

regulation and control; but from the introduction of printing to the fourteenth year of the reign of Charles II. it had been assumed that the author of a book has a property in his copy, and successive parliaments had provided for his protection as an "owner," without undertaking to confer that character upon him. The state of the literature of England in 1662 will show that when parliament provided for the protection of "owners," they could not have intended merely the royal patentees, passing by the whole existing body of literature then known by every intelligent Englishman, at least by name. The legislators of that day may also be presumed at least to have known that there were living authors then writing and publishing, not without fame and honor in the land.

The licensing act of Charles II. was continued by several acts of parliament, but expired on the 9th of May, 1679.1 In 1681, all legislative protection having ceased, the stationers' company adopted an ordinance or by-law, which recites that several members of the company have great part of their estates in copies; that by ancient usage of the company, when any book or copy is duly entered in their register to any member, such person hath always been reputed and taken to be proprietor of such book or copy, and ought to have the sole printing thereof. The

In this year, an action on the case was brought in the king's bench, for printing the Pilgrim's Progress, of which the plaintiff al

leged himself to be the true proprietor. Ponder v. Bradyl, Lilly's Entries, 67. But it does not appear whether the action was proceeded in.

ordinance then further recites that this privilege and interest had of late been often violated and abused; and then it provides a penalty against such violation by any member or members of the company, where the copy had been duly entered in their register. The true view of this ordinance would seem to be, that the members of the stationers' company, finding their estates in copies, which belonged to them by the common law, no longer under the protection of the licensing act, the repeal of which had incidentally withdrawn the protection that had always been inserted in it, though it had necessarily no connection with the system of licensing, undertook to provide for the failure of legislation, as far as they could, by an ordinance applicable of course to their own members only. The ordinance is not to be cited as any other proof of what the common law right was, than as it shows, in connection with other historical proofs, how it was then supposed to be. Now I do not understand this ordinance to rest the exclusive right upon entry in the register book, or upon their usage to respect each other's rights as derived merely from entry. It declares, as a separate and distinct inducement, that "several members of this company have great part of their estates in copies." By "estates" must have been meant their capital; and "copies" they must have intended to use in the ancient technical sense of the sole right to print particular books. This right existed, if at all, by the law of England, and not by the usage of the station