tions, "the just retaining of each man his several copy; "which God forbid should be gain-said!"

So little did he, (though an enthusiast for liberty,) think that the liberty of unlicensed printing should extend to violate the property of copies! and yet, this copyright could, at that time, stand upon no other foundation, than natural justice and Common Law. Those who were for, and those who were against a licenser, all agreed that literary property was not the effect of ar"bitrary power, but of law and justice; and therefore "ought to be safe."

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

The same observations occur upon this last, as upon the former ordinance.

In 1662, the Act of 13 & 14 C. 2. (the Licensing Act) prohibits printing any book, unless first licensed, and entered in the register of the Stationers Company: it also probibits printing without the consent of the Owner, upon pain of forfeiting the book, and 6s. 8d. each copy; half to the king, and half to the OWNER; to be sued for by the owner, in six months; besides being otherwise prosecuted as an offender against the Act.

The act supposes an ownership at common law. And the right itself is particularly recognized in the latter part of the third section of the Act; where the chancellor and vice-chancellor of the Universities are forbid to meddle with any book or books, the right of printing whereof doth solely and properly belong to any particular person or persons.

The sole property of the owner is here acknowledged in express words, as a common law right: and the legisla ture who passed that Act, could never have entertained the most distant idea, "that the productions of the brain "were not a subject matter of property." To support an action on this statute, ownership must be proved; or the plaintiff could not recover: because the action is to be brought by the owner; who is to have a moiety of the penalty.

The various provisions of this Act effectually prevented piracies; WITHOUT actions at law, or bills in equity, by

owners.

But cases arose of disputed property. Some of them were between different patentees of the crown: some, "whether it belonged to the author, from his invention " and labour; or the king, from the subject matter;"

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(

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M. 18 C. 2. in parliament. Vid. Carter 89.

which occasioned these points to be agitated in Westminster Hall.

The first case on this subject was between Atkins, the law-patentee, and some members of the Stationers Company. The plaintiff claimed under the law-patent. The defendants had printed Roll's Abridgment. The bill was brought for an injunction. And the lord chancellor awarded an injunction against every member of the company. The defendants appealed to the House of Lords: and the decree was affirmed.

This was argued on the footing of a prerogative copy. right in the crown, in all law-books. It was urged, that the king pays the judges who pronounced the law-that the laws are the king's laws, &c. I do not enter into the reasons of the determination; but only cite it to show that the lords went upon this doctrine, which was not disputed "that a copy right was a thing acknowledged at common "law: and then they agreed that the king had this ❝right, and had granted it to the patentees." In this [2316] light, this case was very properly stated by Mr. Blackstone; and argued from, as being an authority in his favour.

* On 26th May, 1705.

The next case was that of Roper v. Streater, Skinner 234. and mentioned and alluded to, in 1 Mod. 257. Which came on, before this court (Lord Chief Justice Hale then presiding) about 22 C. 2. and judgment was given M. 24 C. 2. Roper had bought, from the execu tors of Mr. Justice Croke, the third part of his reports, Streater was law-patentee; and reprinted it, without the plaintiff's consent. Roper brought an action of debt, as owner, upon the Licencing Act. Streater pleaded the king's grant. Upon which, the plaintiff demurred: and it was adjudged for the plaintiff, in the Common Pleas. Which is a judicial authority in point, "that the plain tiff, by purchase from the executors of the author, was OWNER of the Copy at common law."

Nor did the reversal in the House of Lords at all shake this authority; because the reversal proceeded (as in the case of Atkyns) upon an opinion "that the copy belonged to the "king."

Besides, it appears that the judges were not asked their opinions, on this occasion: and probably they would not have concurred in the reversal; as the majority of the House of Lords, who were for reversing, refused to hear their opinions For, it is said, in the journals, that after various debate and consideration, the question was propounded "whether the judges should be heard in

this case:" and it was resolved in the negative: dissentiente Anglesey.

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In the argument of the case of the Stationers Company against Parker, in Skinner 235. it is said, "it is true, "that this action of Roper v. Streater was brought on "the Act of 14 C. 2. which is expired. But that "Statute did not give a right, but only an action of TAYLOR. "debt." [Vide Skinner, 234.]

The next case is that of the Company of Stationers v. Seymour, 29 Car. 2. in 1 Mod. 256. The plaintiffs, as grantees of the crown, brought an action of debt against the defendant, for printing Gadsbury's Almanac. Pem berton, in his argument said, when Sir Orlando Bridg man was chief justice in this court (the Common Pleas) there was a question raised concerning the validity of a grant of the sole printing of any particular book, with a prohibition to all others to print the same; "how far it should stand good against those who claim a property "PARAMOUNT the king's grant:" and opinions were divided on that point.

But (said he) the defendant, in our case, makes no title to the copy: he only pretends a nullity in our patent.

The book which this defendant hath printed has no certain author: and then, according to the rules of law, the king has the property; and, by consequence, may grant his property to the company.

The court thought that Almanacs might be prerogative copies; and said, "these additions of prognostications "do not alter the case; no more than if a man should "claim a property in another man's copy, by reason of 66 some inconsiderable additions of his own."

These were times when prerogative ran high. But still these cases prove" that the copy-right was at that "time a well-known claim;" though the overgrown rights of the crown were, in some instances, allowed and adjudged (as in this case) to over-rule them.

The Licensing Act of C. 2. was continued by several Acts of Parliament; but expired 9th May, 1679. 31 C.2. Soon after which, there is a case in Lilly's Entries, of Hilary Term 31 C. 2. B. R.* an action on the case brought for printing the Pilgrim's Progress; of which the plaintiff was and is the true proprietor; whereby he lost the profit and benefit of his copy. But I don't find, that this action was ever proceeded in.

The Licensing Act of 13 & 14 C. 2. was revived by 1 Jac. 2. c. 7; and continued by 4 W & M. c. 24; and finally expired in 1694.

For five years successively, attempts were made for a new Licensing Act. Such a bill once passed the House VOL. IV.

2 B

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Lilly's Entries 67, Ponder v. Bradyl.

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of Lords: but the attempts miscarried, upon constitutional objections to a licenser.

The proprietors of copies applied to parliament, in 1703, 1706, and 1709, for a bill to protect their copyTAYLOR. rights which had been invaded, and to secure their properties. They had so long been secured by penalties, that they thought an action at law an inadequate remedy; and had no idea a bill in equity could be entertained, but upon letters patent adjudged to be legal. A bill in equity, in any other case, had never been attempted or thought of an action upon the case was thought of in 31 C. 2 ; but was not proceeded in.

• Ponder v. Bradyl.

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In one of the cases given to the members in 1709, in support of their application for a bill, the last reason or paragraph is as follows- the liberty now set on foot of

breaking through this ancient and reasonable usage is "no way to be effectually restrained, but by an act of "parliament. For, by common law, a bookseller can "recover no more costs than he can prove damage: but "it is impossible for him to prove the tenth, nay per"haps the hundredth part of the damage he suffers; be"cause a thousand counterfeit copies may be dispersed "into as many different hands all over the kingdom, and "he not be able to prove the sale of ten. Besides, the "defendant is always a pauper: and so the plaintiff must "lose his costs of suit. (No man of substance has been "known to offend in this particular; nor will any ever "appear in it.) Therefore the only remedy by the com66 mon law, is to confine a beggar to the rules of the King's "Bench or Fleet: and there he will continue the evil prac "tice with impunity. We therefore pray, that CONFISCATION of counterfeit copies be one of the penalties "to be inflicted on offenders."

On the 11th of January 1709, pursuant to an order made upon the booksellers petition, a bill was brought in, for securing the property of copies of books to the rightful owners, &c. On the 16th of February, 1709, the bill was committed to a committee of the whole house; and reported with amendments, on the 21st of February, 1709.

I shall consider the bill as it passed into a law, and the arguments drawn from the alterations made in the course of its passing in the House of Commons, when I come to the second head or question which I proposed to speak to; and now proceed upon the fact of usage and authority since 1709.

The Court of Chancery, from that time to this day, have been in an error, if the whole right of an author in his copy depends upon this positive Act, as introduc

tive of a new law. For, it is clear, the property of no book is intended to be secured by this Act, unless it be ENTERED: nobody offends against this Act, unless the book be ENTERED. Consequently, the sole copy-right is not given by the Act, UNLESS the book be entered. Yet it is held unnecessary to the relief in Chancery, that the book should be entered.

66

66

There is also an express proviso, "that all actions, "suits, bills, &c. for any offence that shall be committed against this Act, shall be brought, sued and commen"ced within three months after such offence committed; or else, the same shall be void and of none effect." Ir all copies were open and free before, pirating is merely an offence against Statute; and can only be questioned, in any court of justice, as an offence against this Act. Yet it is not necessary that the bill in chancery should be brought within three months.

Again, IF the right vested, and the offence prohibited by this Act be new, no remedy or mode of prosecution can be pursued, besides those prescribed by the Act. But a bill in chancery is not given; and consequently could not be brought upon this Act.

There is no ground, upon which this jurisdiction has been exercised or can be supported, except the ANTECEDENT property; confirmed, and secured for a limited term, by this Act. In this light, the ENTRY of the book is a condition in respect of Statutary penalty only. So likewise the three months is a limitation in respect of the Statutary penalty only. But the remedy by an action upon the case, or a bill in chancery, is a consequence of the common law right; and is not affected by the Statutary condition or limitation.

Mr. Murphy cited and laid stress upon the case of Millar v. Kincaid et al. in the House of Lords, 11th of February 1750. In that case, the suit was brought upon the 8 Queen Ann and 12 G. 2. c. 36, by seventeen booksellers of London, plaintiffs, against twenty-four book sellers of Edinburgh and Glasgow, defendants; for having offended against these two Acts, as to many books specified; praying the penalties, and an injunction and account, by way of damages.

The plaintiffs restrained their demand to an account of profits, by way of damages, for two or three books only.

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The Court found, "that there lies no action of damages 1st Interlocu in this case."

The plaintiffs petitioned for a rehearing; and insisted that the 8 of Queen Ann gave an ADDITIONAL security by penalties, during a limited time, to a property which EXISTED BEFORE ; and therefore was declaratory of the

tor, 4th July 1746.