The argument turns in a circle. "The copy is made 66 common, because the law does not protect it: and "the law can not protect it, because it is made common.' The author does not mean to make it common and if : the law says he ought to have the copy after publica"tion," it is a several property, easily protected, ascertained, and secured. THE WHOLE then must finally resolve in this question, whether it is agreeable to natural principles, moral "justice and fitness, to allow him the copy, after pub"lication, as well as before." The general consent of this kingdom, for ages, is on the affirmative side. The legislative authority has taken it for granted; and interposed penalties to protect it for a time. The single opinion of such a man as Milton, speaking, after much consideration, upon the very point is stronger than any inferences from gathering acorns and seizing a vacant piece of ground; when the writers, so far from thinking of the very point, speak of an imaginary state of nature before the invention of letters. The judicial opinions of those eminent lawyers and great men who granted or continued INJUNCTIONS, in cases after publication, not within 8 Queen Ann; uncontradicted by any book, judgment, or saying; must weigh in any question of law; much more, in a question of mere theory and speculation as to what is agreeable or repugnant to natural principles. I look upon these injunctions, as equal to any final decree.. 1769. MILLAR V. TAYLOR. Whoever has attended the court of chancery, knows that if an injunction in the nature of an injunction to stay [ 2400 ] waste, is granted upon motion, or continued after answer, it is in vain to go to hearing. For, such an injunction never is granted upon motion, unless the legal property of the plaintiff be made out, nor continued after answer, unless it still remains clear, allowing all the defendant has said. In such a case, the defendant is always advised, either to acquiesce, or appeal: for, he never can make a [6 Ves. 695. better defence than is stated upon his own answer. 698.702.] This case is not sent hither from the Court of Chancery, upon any doubt of theirs. There never was a doubt in the Court of Chancery, till a doubt was raised there from decency, upon a supposed doubt in this Court, in the case of Tonson and Collins. There is not an instance of an injunction refused, till it was refused upon the grounds of that doubt. The Court of Chancery never grant injunctions in cases of this kind, where there is any doubt. 1769. Therefore they refused it, when they thought there was a doubt. That case was argued twice, with solemnity: MILLAR and after the second argument, it was referred to the Exchequer-Chamber, to be argued before all the judges. V. TAYLOR. [2401 2d Admission. Mich. 1758. 32 G. 2. V. ante, p. 661. That reference did not arise from any difference of opinion, or difficulty among us. On the contrary, we suspected collusion; and that if we gave judgment for the plaintiff, there certainly would be no writ of ERROR. We wished to take the opinion of all the judges. We were afterwards clearly informed of the truth of the collusion and therefore the cause proceeded no further. But while it hung under this appearance of difficulty, there was sufficient ground for the court of chancery to say, "the property was doubtful." They did not send it to law they left the party to follow his legal remedy. A doubtful legal title must be tried at law, before it can be made the ground of an injunction. Injunctions of this kind are rightly and properly refused. In a doubtful case, it would be iniquity to grant them; because, if it should come out that the plaintiff has no legal title," the defendant is injured by the injunction, and can have no reparation. IF it is agreeable to natural principles, to allow the copy after publication, I am warranted by the admission which allows it before publication, to say, "this is com66 mon law." There is another admission equally conclusive. It is, and has all along been admitted, "that by the common law, the KING'S copy continues after publi❝cation; and that the unanimous judgment of this Court, "in the case of Baskett and The University of Cam• "bridge*, is right.” The king has no property in the art of printing. The ridiculous conceit of Atkins was exploded at the time. The king has no authority to restrain the press, on ac count of the subject-matter upon which the author writes, or his manner of treating it. The king can not, by law, grant an exclusive privilege to print any book which does not belong to himself. Crown-copies are, as in the case of an author, civil property which is deduced, as in the case of an author, from the king's right of original publication. The kind of property in the crown or a patentee from the crown, is just the same; incorporeal, incapable of violation but by a civil injury, and only to be vindicated by the same remedy, an action upon the case, or a bill in equity. There were no questions in Westminster-Hall, before the restoration, as to crown copies. The reason is very obvious it will occur to every one that hears me. The fact, however, is so there were none, before the restoration. 1769. MILLAR V. Upon every patent which has been litigated since, the counsel for the patentee, (whatever else might be thrown. out, or whatever encouragement they might have, between TAYLOR. the restoration and revolution, to throw out notions of power and prerogative,) have tortured their invention, to stand upon PROPERTY. Upon Rolle's Abridgement, they argued from the YearBooks, which are there abridged," that the Year-Books "having been compiled at the King's expence, were the "King's property, and therefore the printing of them "belonged to his patentee." Upon Croke's Reports, they contended, "that the king "paid the judges who made the decisions: Ergo, the "decisions were his." The judges of Westminster-Hall thought, they belonged to the author; that is, to the purchaser from, or the executor of the author: but, so far the controversy turned upon property. In Seymour's case, I Mod. 256. (who printed Gadbury's Almanac, without leave of the Stationers Company, who had a patent for the sole printing of Almanacs,) Pemberton [ 2102 ] resorted to property. He argued (besides arguing from the prerogative,) that an Almanac has no certain author: "therefore the king has the property; and by consequence, may grant his property." It was far fetched and it is truly said, "that the consequence did not follow." For, if there was no certain author, the property would not be the king's, but common. Pemberton was a very able lawyer; and saw the necessity of getting at property, if he could make it out. 166 All the decrees in Chancery, and the judgments at common law upon Almanacs, are now out of the case, and all the doctrine of prerogative rejected, by what was done in the case of The Stationers Company and Partridge. It came on, in the year 1709, before Lord Cowper, on continuing the injunction. There is no report of it, I believe, in print: at least, I have not seen any. I have read the bill and answer. The bill puts it upon all the prerogative notions of power; and insists, that the king's patentee had a sole exclusive right of printing Almanacs. The answer insists, that these were extravagant illegal notions; that they were taken up at times when the prerogative ran high, and when the dispensing power was allowed and it insists, that the question ought, since the revolution, to be argued upon proper principles, consistent with the rights and privileges of the subject. The defendants denied the authority of all the cases stated by VOL. IV. 2 G 1769. TAYLOR. the bill, as far as they went upon prerogative right. Lord Cowper continued the injunction till hearing. I have MILLAR office-copies of all the orders and pleas that were cited: I dare say, I have thirty or forty of them. It appears, that these decrees were all read; and that the judgment of the House of Lords was read and gone through. Lord Harcourt afterwards heard the cause. He did not choose, in a case about Almanacs, to decide upon prerogative. He therefore made a case of it, for the opinion of this court; Lord Parker being then chief justice. This court, so far as it went, inclined against the right of the crown in Almanacs. But, to this hour, it has never been determined and the injunction granted by Lord Cowper still continues. [ 2403 ] : I have Salkeld's manuscript report (and have had it many years) of what passed in this Court in the course of the argument of this case of The Company of Stationers against Partridge. I do not know whether it is got into priut I have not seen it in print. Mr. York had a copy of it, when he argued the case of The University of Cambridge and Baskett. Mr. Salkeld argued for the defendant Partridge: Sir Peter King, for the plaintiffs. I will state to you, so far as is material to the argnment, how they put it, and the only grounds that they thought tenable. Mr. Salkeld, after positively and expressly denying any prerogative in the crown over the press, or any power to grant any exclusive privilege, says, "I take "the rule, in all these cases, to be, that where the crown "has a property or right of copy, the King may grant "it. The crown may grant the sole printing of Bibles "in the English Translation; because it was made at "the King's charge. The same reason holds, as to the "Statutes, Year-Books, and Common-Prayer-Books." Sir Peter King, for the plaintiffs, argues thus-(throwing out, at the same time, the things that I have already mentioned; though he don't seem to be very serious in it-) "I argue, that if the crown has a right to the "Common-Prayer-Book, it has a right to every part of "it. And the Calendar is a part of the Common-Prayer"Book. And an Almanac is the same thing with the "Calendar, &c. PARKER, Chief Justice, speaks to nothing said at the bar, but only "whether the Calendar is part of the Com"mon-Prayer-Book." And as to that, he goes back as far as to the council of Nice; and doubts whether it is, or rather indeed thinks that it is not part of it: he says, it may be an index, but is no part of it. Mr. Justice PowELL says you must distinguish And he "this from the common cases of monopolies; by shew- To which, Lord PARKER replied, "that he never "heard of such a thing as a trial by Almanac." They leave it upon this. It stood over, for another argument, to see if they could make it like the case of the Common-Prayer-Book. I don't know what happened afterwards but there never was any judgment; and though I have made strict inquiry, I don't find that there was ever any opinion given. I heard Lord HARDWICKE say what Mr. Justice WILLES has quoted, as to these arguments from property in support of the King's right, necessarily inferring an author's. 1769. MILLAR V. TAYLOR. The case of Baskett and the University of Cambridge [2404 ] was then depending in this court, when Lord HARDWICKE made use of that expression or argument: it has, since, been determined. We had no idea of any prerogative in the crown over the press; or of any power to restrain it by exclusive privileges, or of any power to control the subject-matter on which a man might write, or the manner in which he might treat it. We rested upon property from the King's right of original publi. cation. Acts of Parliament are the works of the legislature: and the publication of them has always belonged to the King, as the executive part, and as the head and sovereign. The art of printing has only varied the mode. And, though printing be within legal memory, we thought the usage since the invention of printing, very material. Whoever looks into Mr. Yorke's argument, upon which the opinion of the court in that case in a great measure went, (I do not say throughout, but in a great measure,) will see the great pains he takes to shew the original property in the crown. Though the King may grant a concurrent right; (for, in that case the grant was of a concurrent right, and he might grant it to ten thousand; he might grant it to every member of the Stationers Company; he might grant it to every bookseller ;) we had no idea "that the first edition of Acts of Parliament made the copy com"mon." And yet any man may transcribe an Act of Parliament, or a record: and any person may make laborious searches and abstracts from records, and have a right to print them. |