But how is possession to be taken, or any act of occupancy to be asserted, on mere intellectual ideas? all writers agree, that no act of occupancy can be asserted on a bare idea of the mind Some act of appropriation must be exerted, to take the thing out of the state of being common, to denote the accession of a proprieter: for, otherwise, how should other persons be apprized they are not to use it? these are acts that must be exercised upon something. The occupancy of a thought would be a new kind of occupancy indeed. By what outward mark must the property denote appropriation? and if these are void of that which the act of occupancy requires, it is a proof to me they cannot be the object of property.

1769:

MILLAR

V.

TAYLOR.

Here another doubt arises, which I cannot, I acknow- [ 2358 ] ledge, answer" at what time, and by what act, does the "author's common law property attach ?"

The Statute of Queen Ann very properly obviated this, by fixing the commencement of his property from the time of publication; first, entering it at Stationers Hall. And in the case of a mechanical invention, it commences from the date of the patent.

But if authors derive their right from common law, (a law which has existed from time immemorial, and therefore long before the Stationers Company existed, and can have no dependance on the Stationers Company,) the author's right will be the same, whether he enters it in that book, or not.

When therefore does this idea of the author's property attach 2 in other cases, as where the heir has a right to any species of property, it commences from his taking possession. An author is fully possessed of his ideas, when they arise in his mind: and therefore from the time these ideas occur to him; or from the time he writes them down, they are his property. Then if another man has the same ideas as an author, he must not presume to publish them: he may be told these ideas were pre-occupied, and thereby became private property.

It would be strange indeed, if the very act of publication can be deemed the commencement of private property. Even after publication, many thousands may never set their eyes upon the book: yet would not these have a right to choose the same subject? and may they not have the same ideas upon it?

The improbability of their hitting upon those ideas is not to the point. If they should occur to the author; he has a right to publish them. Of this, I think, there can hardly be a doubt. Yet property, says Pufendorf, is a right by which the very substance of a thing belongs to one person, so that it cannot, in the whole, nor after the same

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1769.

manner, become another's. And the Digests speak to the like effect. Sentiments are free and open to all; and many MILLAR people may have the same ideas upon the same subject. In that case, every one of these persons to whom they inTAYLOR, dependently occur, is equally possessed and equally master of all these ideas; and has an equal right to then as his own. Is it possible then that any one individual can have a sole and exclusive property in these?

2359]

But there is one ground more upon which the plaintiff's counsel contended this claim of right; and which, at first sight, appears the most specious of all. They endeavoured to enforce this copy-right of authors, as a moral and equitable right; and to support it by arguments calculated to prove that it is so.

For this purpose, Mr. Blackstone observed that the labours of the mind and productions of the brain are as justly intitled to the benefit and emoluments that may arise from them, as the labours of the body are; and that literary compositions, being the produce of the author's own labour and abilities, he has a moral and equitable right to the profits they produce; and is fairly intitled to these profits for ever; and that if others usurp or encroach upon these moral rights, they are evidently guilty of injustice, in pirating the profits of another's labour, and reaping where they have not sown.

This argument has indeed a captivating sound; it strikes the passions with a winning address: but it will be found as fallacious as the rest, and equally begs the very question in dispute. For, the injustice it suggests, depends upon the extent and duration of the author's property; as it is the violation of that property that must alone constitute the injury. If therefore his property be determined, no injury is done him. The question, therefore, is "whether ALL the property of the author "did not cease, and the work become open, by his own "act of PUBLICATION." In that case, the defendant cannot be charged with any injustice; but has merely exercised a legal right. And however we may lean to literary merit, the property of authors must be subject to the same rule of law, as the property of other men is governed by. It is, therefore, as capable of being laid open, as any other invention of any other man's: and if, by publication, it becomes common, (as I shall observe by and by,) can the author complain of the loss? Can he complain of losing the bird he has himself voluntarily turned out?

But it is insisted, "that it conscientiously belongs to "the author hin.self, and his assigns, for ever; as being "the fruits of his own labour."

1769.

MILLAR

V.

TAYLOR.

"That every man is intitled to the fruits of his own labour," I readily admit. But he can only be intitled to this, according to the fixed constitution of things; and subject to the general rights of mankind, and the general rules of property. He must not expect that these fruits shall be eternal; that he is to monopolize them to infinity; that every vegetation and increase shall be con- [ 2360 ] fined to himself alone, and never revert to the common mass. In that case, the injustice would lie on the side of the monopolist, who would thus exclude all the rest of mankind from enjoying their natural and social rights.

The labours of an author have certainly a right to a reward: but it does not from thence follow, that his reward is to be infinite, and never to have an end. Here, it is ascertained." The legislature have fixed the extent of his property: they have allowed him twenty-eight years; and have expressly declared, he shall have it no longer. Have the legislature been guilty of injustice? Little cause has an author to complain of injustice, after he has enjoyed a monopoly for twenty-eight years, and the manuscript still remains his own property. It has happened in the present case, that the author and his assig nee together, have enjoyed the emolument of this work between thirty and forty years: and the plaintiff still has the manuscript.

If a stranger had taken his manuscript from him, or had surreptitiously obtained a copy of his work and printed it before him, he might then complain of injustice. And here lies the fallacy of this specious argument: it was put as if the author was totally robbed of the profit of his labour; as if all his emolument was forestalled, without suffering him to reap any emolument whatever.

In that case, it would be the highest injustice. But when no such intrusion has been made upon his property; when he and his assigns have enjoyed the whole produce of his labour for twenty-eight years together and upwards, what ground can remain for accusing the defendant of immorality; or for the author or his assigns to say "he "is robbed of the fruits of his labout?"

If an author is permitted to enjoy his property according to the nature of it, he can have no injustice done him: and if his situation is such, that he can only dispose of it as other people can of their goods; or if he can only dis pose of it for the first publication; can the author murmur, because he can dispose of it only as other people can of their property? Shall an author's claim continue, without bounds of limitation; and for ever restrain all the rest of mankind from their natural rights, by an endless mono

i

1769.

MILLAR

V. TAYLOR.

[2361 ]

poly? Yet such is the claim that is now made; a claim to an exclusive right of publication, for ever: for, nothing less is demanded as a reward and fruit of the author's labour, than an absolute perpetuity.

EXAMPLES might be mentioned, of as great an exertion of natural faculties, and of as meritorious labour in the mechanical inventions, as in the case of authors. We have a recent instance, in Mr. HARRISON's time-piece; which is said to have cost him twenty years application: and might not he insist upon the same arguments, the same chain of reasoning, the same foundation of moral right, for property in his invention, as an author can for his?

If the public should rival him in his invention, as soon as it comes out, might not he as well exclaim, as an author, "that they have robbed him of his production, "and have iniquitously reaped where they have not "sown?" And yet we all know, whenever a MACHINE is published, (be it ever so useful and ingenious,) the inventor has no right to it, but only by PATENT; which can only give him a temporary privilege.

As therefore, this charge of injustice depends upon the EXTENT of the author's property; (for if no right is invaded, no injury is done ;)-let us now consider the general rules concerning PROPERTY; and see whether this claim will coincide with any one of them.

THE CLAIM is to the STYLE AND IDEAS of the author's composition. And it is And it is a well-known and established maxim, (which I apprehend holds as true now, as it did 2000 years ago,) "that nothing can be an object of property, which has not a CORPOREAL substance."

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There may be many different rights, and particular distinct interests, in the same subject; and the several persons intitled to these rights may be said to have an interest in them but the objects of them all, the principal subject to which they relate, or in which they enjoy, must he corporeal. And this, I apprehend, is no arbitrary illfounded position: but a position which arises from the necessary nature of all property. For, property has some certain, distinct and separate possession: the object of it, therefore, must be something visible. I am speaking now, of the object to which all rights are confined. There must be something visible; which has bounds to define it, and some marks to distinguish it. And that is the reason why these great marks are laid down by all writersIt must be something that is visibly and distinctly enjoyed; that which is capable of all the rights and accidents and qualities incident to property: and this requires a sub stance to sustain them.

But the property here claimed is all ideal; a set of ideas which have no bounds or marks whatever, nothing that is capable of a visible possession, nothing that can sustain any one of the qualities or incidents of property. Their whole existence is in the mind alone; incapable of any other modes of acquisition or enjoyment, than by mental possession or apprehension; safe and invulnerable, from their own immateriality: no trespass can reach them; no tort affect them; no fraud or violence diminish or damage them. Yet these are the phantoms which the author would grasp and confine to himself: and these are what the defendant is charged with having robbed the plaintiff of.

In answer to these objections, it was alledged for the plaintiff," that there are many other instances of incor"poreal rights; such as all the various kinds of pre66 scriptive rights and partial claims."

But the fallacy lies in the equivocal use of the word "property;" which sometimes denotes the right of the person; (as when we say, "such a one has this estate, or that piece of goods;") sometimes, the object itself.

Here, the question is upon the object itself, not the person. I readily admit that the rights of persons may be incorporeal.

But the question is now, "whether any thing can be "the object of proprietary right, which is not the object "of corporeal substance." And, for my own part, I know not of any one instance of any one right which has not respect to corporeal substance. Every prescriptive inheritance, every title whatever has respect to the lands in which they are exercised. No right can exist, without a substance to retain it, and to which it is confined: it would, otherwise, be a right without any existence.

To get over this, it was said, the profits of publication, till they are received, are uncertain and casual, and cannot in themselves be an object of property: they are also incidental, arising entirely from the matter which is published. The composition therefore is the principal_object of property; upon which, all the profits depend, and which alone can intitle the author to those profits: for, these, like the profits of an estate, depend upon the property in that person to whom they arise.

If the author will pretend to a perpetual right in those, he must prove he has a perpetual right to the ideas which produced them.

66

Then the question returns again, "whether, after publication, the work continues solely the author's for $ ever."

1769.

MILLAR

V..

TAYLOR.

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