thors. Their lordships divided, twenty-two for reversing the decree, and eleven for confirming it. Thus the right of authors in their publications, as a right at the common law of England, affirmed by a majority of the judges to have previously existed, was lost forever.

Lord Camden's argument, on this occasion, went the length of maintaining that publication is an abandonment to the public of all the author's previous right over his own productions. Admitting that every man has a right to his thoughts while they continue his, he contends that they become publici juris, as soon as he has published them; that the common law had never recognized ideas as subjects of property, and had never declared whether

right to Brabason Aylmer, a book-
seller, for twenty-five pounds, and
Aylmer sold it to Jacob Tonson,
one moiety in August, 1683, and
the other moiety in March, 1690,
at a price considerably advanced.
(Todd's Life of Milton, 193-195,
Lond. 1826.) It thus appears that
the poet was very careful to assert
his full right of property, as he and
others understood it at the time, and
to make it available to his family.
The amount which he chose to re-
ceive, compared with the real value
of the poem, or measured by a mod-
ern standard, seems very trifling.
But as such rights were estimated
then, and considering that the poem
gained slowly upon the attention of
his own age, it was not a grossly
inadequate price. When it had been
published fourteen years and up-
wards, the copyright between one
bookseller and another, brought only

twenty-five pounds. Yet its value could not have been affected by any apprehension, at the time of this sale, that it was not protected by the common law. Such a notion had not then arisen; and long after, viz. in 1739, Lord Hardwicke protected by injunction the title of Tonson, derived under the assignment made by the poet in 1667. (Ante, p. 47,) Doubtless Milton did not write his great poem for money; but we have seen that he supposed the right of exclusive property in authors was acknowledged by the law of his country, and he took pains practically to assert the right in his own case. It seems to me by no means a wild conjecture, that he did this for the sake of example, as well as in order to preserve his reputation, by keeping the control of the text of his poem.

Thomas, second Lord Littleton.

they were descendable, transferable or assignable. "When published," he asks, "can the purchaser lend his book to his friend? Can he let it out for hire as the circulating libraries do? Can he enter it as common stock in a literary club, as is done in the country? May he transcribe it for charity? Then what part of the work is exempt from this desultory claim? Does it lie in the sentiments, the language and style, or the paper? If in the sentiments or language, no one can translate or abridge them. Locke's Essay might, perhaps, be put into other expressions, or newly methodized, and all the original system and ideas be retained. These questions show how the argument counteracts itself, how the subject of it shifts, and becomes public in one sense, and private in another; and they are all new to the common law, which leaves us perfectly in the dark about. their solution."1

17 Parl. Hist. 998. "And how are the judges," he continues," without a rule or guide, to determine them when they arise, whose books and studies afford no more light upon the subject than the common understandings of the parties themselves? What diversity of judgments! what confusion in opinion must they fall into! without a trace or line of law to direct their determination! What a code of law yet remains for their ingenuity to furnish, and could they all agree in it, it would not be law at last, but legislation.

But it is said that it would be contrary to the ideas of private justice, moral fitness, and public con

venience, not to adopt this new system. But who has a right to decide these new cases, if there is no other rule to measure by but moral fitness and equitable right? Not the judges of the common law, I am sure. Their business is to tell the suitor how the law stands, not how it ought to be; otherwise each judge would have a distinct tribunal in his own breast, the decisions of which would be irregular and uncertain, and various, as the minds and tempers of mankind. As it is, we find they do not always agree: but what would it be, where the rule of right would always be the private opinion of the judge, as to the moral fitness and convenience of the claim? Caprice,

He denied also that there is any implied contract between the person who sells and the person who buys a printed copy, which he called a "flimsy supposition, as unmeaning in itself, as it is void of a legal foundation."1

It can scarcely be necessary, at the present day, to make any answer to some of these arguments. It is sufficient to observe that the whole bench of judges, with one exception, held that at common law an exclusive right to publish the contents of a manuscript resided in the author, and that nine of them, (including Lord Mansfield,) did not consider that publicacation made the literary composition publici juris. No one supposed then, and it has not since been contended, that the common law recognized ideas as the subject of property, in the sense which Lord Camden attributes to his opponents. No English jurist, then or since, ever supposed that the pur

self-interest, vanity, would by turns hold the scale of justice, and the law of property be indeed most vague and arbitrary. That excellent judge, Lord Chief Justice Lee, used always to ask the counsel, after his argument was over, Have you any case?' I hope judges will always copy the example, and never pretend to decide upon a claim of property, without attending to the old black letter of our law, without founding their judgment upon some solid written authority, preserved in their books, or in judicial records. In this case I know there is none such to be produced." 17 Parl. Hist. 998, 999.

1 Ibid. p. 1000. It had for ages been admitted that the proprietor of a manuscript had the sole right to publish it, and the judges had, almost unanimously, just declared this to be common law. Repeated injunctions had been granted, to restrain the publication of manuscripts without authority. Did they proceed upon anything but an implied contract on the part of the person into whose possession the manuscripts had come, not to do more than the purpose warranted for which they had come into his hands? And was this contract a “flimsy supposition?"

chaser of a printed copy of a book could not lend it, or let it out for hire to a reader, or even transcribe it for charity, without violating the alleged exclusive right of the author. The exclusive privilege of the author consists in the sole right to print a written composition and to take the profits of the sale of printed copies. In this sense, the law of England undeniably recognized a species of property in ideas, for it absolutely prohibited the printing of a written composition, still in manuscript, without the consent of the author or proprietor. Yet in the case of manuscripts, the same argument could be urged, from possession of the copy, as from possession of the copy of a printed book. If the common law recognized this incorporeal right, in the one case, it needed no other element of property to recognize it in the other. The only remaining question, after publication, is, whether the sale of a printed copy carries with it a license of publication, when the loan of a manuscript, or its delivery for a specific purpose, carries no such license, according to the common law.

The decision in the house of lords was immediately followed by an application to parliament, on behalf of the booksellers of London, representing that large sums had been invested in the purchase of ancient copyrights, not protected by the statute of Queen Anne, upon the generally prevalent opinion that that statute did not interfere with the common law right; that by the late decision of the house of

lords, such common law right of authors and their assigns had been declared to have no existence, whereby the petitioners would be very great sufferers, through their former involuntary misapprehension of the law; and praying for relief in the premises. Evidence was thereupon taken before a committee of the house of commons, and a bill was brought in, to vest the copies of old books, not protected by the act of Anne, in the purchasers of such copies from authors or their assigns, for a limited time.1 Counsel were heard at the bar for and against the bill, and a long and angry debate ensued upon the question of its passage. After a struggle at every stage of its progress, the bill finally passed the commons, on the 26th of May, 1774, by a vote of 40 to 22,2 but was afterwards thrown out in the lords, chiefly through the exertions of Lord Camden.

In this posture of things, the universities applied to parliament, and succeeded in obtaining in 1775 an act, which enabled the two universities in England,

The evidence showed that a great amount of money had been invested in such old copies.

217 Parl. Hist. 1077-1110. The whole discussion, both on the part of the counsel and the members opposed to the bill, was marked by a spirit of acrimony quite unworthy of the occasion. The appeals to prejudice against the booksellers, as a class of monopolists, were of the coarsest character. The principal persons who supported the bill were Mr. Fielde, Col. Onslow, and Mr. Burke, the latter taking that enlarged and liberal view of it

consonant to his elevated character. The interests arrayed against it were the country and the Scotch hooksellers; but letters were produced by several members from Mr. Hume, Dr. Hurd, Dr. Robertson, Dr. Beattie, and other writers of established reputation, containing the warmest wishes for the petitioners, lamenting the late decision in the house of lords, as fatal to literature, and expressing the hope that the booksellers might get speedy relief. Mr. Charles James Fox was among the opponents of the bill. Ibid.