This preamble has been justly thought to recognize a right already understood to exist, and it seems manifestly to have been the purpose of the act to provide for the right additional security, and not to create it de novo.1

Soon after this act was passed, on the 27th May, 1783, a report was made in the old congress by Mr. Madison, on sundry papers and memorials on the subject of literary property, and the following resolution was passed.

"Resolved, That it be recommended to the several states, to secure to the authors or publishers of any new books not heretofore printed, being citizens of the United States, and to their executors, administrators and assigns, the copyright of such books for a certain time, not less than fourteen years from the first publication; and to secure to the said authors, if they shall survive the term first mentioned, and to their executors, administrators and assigns, the copyright of such books for another term, or time, not less than fourteen years; such copy or exclusive right of printing, publishing, and vending the same, to be secured to the original authors or publishers,

1

It expresses more comprehensively than any other piece of legislation in the language, on the same subject, the principles of public policy and private right, on which literary property must always depend. The state of Connecticut had previously, in January, 1783, passed an act with the following preamble: "Whereas it is perfectly agreeable

to the principles of natural justice and equity, that every author should be secured in receiving the profits that may arise from the sale of his works; and such security may encourage men of learning and genius to publish their writings, which may do honor to their country and service to mankind." (Cited 8 Peters S. C. R. 683.)

their executors, administrators and assigns, by such laws and such restrictions as to the several states may seem proper."

2

Pursuant to this recommendation, several states passed laws, with preambles similar to those of the Massachusetts and Connecticut acts, all designed to "secure" to authors the profits arising from the sale of their works. This studied phraseology, which had not been employed in the English statutes, evinces some intention to protect and secure a preexisting right. The necessity for state legislation was soon afterwards superseded by the constitution of the United States, (art. 1, § 8,) which conferred upon congress power "to promote the progress of science and the useful arts, by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries." As the states could not separately make effectual provision for these objects, the power was wisely granted to the national government.3

The first act passed to carry this provision into effect, so far as it related to authors, was the act of May 31st, 1790, chap. xv. entitled "An act for the encouragement of learning, by securing the copies

18 Cong. Journ. 257. 8 Peters S. C. R. 681.

2 Cited 8 Peters S. C. R. 683, 684. Authors who aimed at national reputation entered their works in each of the states which had passed such laws. A copy of a popular work published in Massachusetts is

before me, which was entered in New York, Pennsylvania and South Carolina, under the respective laws of those states, in the year 1787.

33 Story's Com. on the Constitution, p. 48, et seq. The Federalist, No. 43.

of maps, charts and books, to the authors and proprietors of such copies, during the times therein mentioned." The Supreme Court of the United States have held that this act, instead of sanctioning an existing perpetual right in an author in his works, created the right secured for a limited time; and that the word secure, in the constitution, does not mean the protection of an acknowledged legal right, but is used in reference to a future right to be created.1

If this decision is to be understood as declaring that the constitution and the act of 1790 created copyright throughout the United States, it may be readily assented to. We find the states, at the time of the establishment of the constitution, conferring upon the national legislature the power to "secure" the rights of authors and inventors. Each of the states, at that time, possessed the power to secure these rights within its own limits, as part of its sovereignty. But no state legislature could provide securities for the rights of authors which s hould operate over the whole country, and make a copyright of a book written and published in Massachusetts of equal validity in Pennsylvania. In order, however, to obviate this inconvenience, the state laws, passed before the adoption of the federal constitution, generally contained a proviso, that the benefit of the law was not to extend to authors, in

1 Wheaton v. Peters, 8 Peters S. C. R. 591.

habitants of, or residing in other states, until such states should have passed similar laws.'

These provisions show that the rights of authors in their published works existed by statute, in some of the states, before the constitution of the United States was formed; and there cannot be much doubt that they also existed, in the older states, at common law. What, then, were the rights of authors, to be "secured," under the power granted to the national legislature? The object to be gained by this grant of power will aid in determining the meaning of the language employed. The object clearly was to enable the general government to make laws which should secure the proceeds of a book in all the states to an author residing and publishing in any one of the states. The old congress had this object in view, when they recommended to the states to pass laws for this purpose; and it was distinctly urged, by the advocates for the adoption of the federal constitution, as the main reason for the provision.3

It would seem, therefore, that the rights of authors to be "secured" by congress, under this clause of the constitution, were exclusive rights to take the profits of their own publications throughout the United States. In this view, the constitution and the act of 1790 created a right which did not

1 1 Mass. Laws, 94, (edit. 1801.) Wheaton v. Peters, 8 Peters S. C. R. 6-1, 662, 683.

* Ante, p. 78.

The Federalist, No. 43.

exist before; and this may account for the use of the word "secure." Whether this power is exclusive, so that the states cannot now legislate for the protection of authors within their own limits, is one of the grave questions of our complex system of gov

ernment.'

The act of 1790 was followed by a supplementary act, passed April 29th, 1802, which extended the benefits of the former statute to engravers.2

By an act passed February 3d, 1831, the former laws were consolidated and revised, and this act constitutes the existing copyright law of the United States.3

I See Story's Com. on the Constitution, § 1149.

See Appendix, 2 U. S. Statutes at large, 171.

See Appendix, 4 U. S. Statutes at large, 436.