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protection had been admitted, before the enactment in England of the first law that does nearly adequate

because the elder literature of our own country is a free mine of wealth to the bookseller and of delight to ourselves, that we are unable to understand the claim of our contemporaries to a beneficial interest in their works. Because genius by a genial necessity communicates so much, we cannot conceive it as retaining anything for its possessor. There is a sense, indeed, in which the poets on earth have made us heirs of truth and pure delight in heavenly lays;' and it is because of the greatness of this very boon - because their thoughts become our thoughts, and their phrases unconsciously enrich our daily language because their works, harmonious by the law of their own nature, suggest to us the rules of composition by which their imitators should be guided — because to them we can resort, and in our golden urns draw light,' that we cannot fancy them apart from ourselves, or admit that they have any property except in our praise. And our gratitude is shown not only in leaving their descendants without portion in the pecuniary benefits derived from their works, but in permitting their fame to be frittered away in abridgments, and polluted by base intermixtures, and denying to their children even the cold privilege of watching over and protecting it!

"There is something, sir, peculiarly unjust in bounding the term of an author's property by his natural life, if he should survive so short a period as twenty-eight years. It denies to age and experience the probable reward it permits to youth -to youth, sufficiently full of hope and joy, to slight its promises. It

gives a bounty to haste, and informs the laborious student, who would wear away his strength to complete some work which the world will not willingly let die,' that the more of his life he devotes to its perfection, the more limited shall be his interest in its fruits. It stops the progress of remuneration at the moment it is most needed, and when the benignity of nature would extract from her last calamity a means of support and comfort to survivors. At the season when the author's name is invested with the solemn interest of mortality - when his eccentricities or frailties excite a smile or a sneer no longer-when the last seal is set upon his earthly course, and his works assume their place among the classics of his country, your law declares that his works shall become your property, and you requite him by seizing the patrimony of his children. We blame the errors and excesses of genius, and we leave them-justly leave them for the most part, to the consequences of their strangely-blended nature. But if genius, in assertion of its diviner alliances, produces large returns when the earthly course of its frail possessor is past, why is the public to insult his descendants with their alms and their pity? What right have we to moralize over the excesses of a Burns, and insult his memory by charitable honors, while we are taking the benefit of his premature death, in the expiration of his copyright and the vaunted cheapness of his works? Or, to advert to a case in which the highest intellectual powers were associated with the noblest moral excellence, what right have we to take credit to ourselves

justice to authors, is indeed surprising. Addison is said to have been concerned in procuring the act of

for a paltry and ineffectual subscription to rescue Abbotsford for the family of its great author (Abbotsford, his romance in stone and mortar, but not more individually his than those hundred fabrics, not made with hands, which he has raised, and peopled for the delight of mankind,) while we insist on appropriating now the profits of his earlier poems, and anticipate the time when, in a few years, his novels will be ours without rent-charge to enjoy and any one's to copy, to emasculate, and to garble? This is the case of one whom kings and people delighted to honor. But look on another picture that of a man of genius and integrity, who has received all the insult and injury from his contemporaries, and obtains nothing from posterity but a name. Look at Daniel De Foe; recollect him pilloried, bankrupt, wearing away his life to pay his creditors in full, and dying in the struggle!

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and his works live, imitated, corrupted, yet casting off the stains, not by protection of law, but by their own pure essence. Had every school-boy, whose young imagination has been prompted by his great work, and whose heart has learned to throb in the strange yet familiar solitude he created, given even the halfpenny of the statute of Anne, there would have been no want of a provision for his children, no need of a subscription for a statue to his memory!

"The term allowed by the existing law is curiously adapted to encourage the lightest works, and to leave the noblest unprotected. Its little span is ample for authors who seek only to amuse; who, to beguile the time, look like the time;' who

lend to frivolity or corruption 'lighter wings to fly;' who sparkle, blaze, and expire. These may delight for a season-glisten as the fire-flies on the heaving sea of public opinion-the airy proofs of the intellectual activity of the age; - yet surely it is not just to legislate for those alone, and deny all reward to that literature which aspires to endure. Let us suppose an author, of true original genius, disgusted with the inane phraseology which had usurped the place of poetry, and devoting himself from youth to its service; disdaining the gauds which attract the careless, and unskilled in the moving accidents of fortune not seeking his triumph in the tempest of the passions, but in the serenity which lies above them,

whose works shall be scoffed at whose name made a by-wordand yet who shall persevere in his high and holy course, gradually impressing thoughtful minds with the sense of truth made visible in the severest forms of beauty, until he shall create the taste by which he shall be appreciated — influence, one after another, the master-spirits of his age-be felt pervading every part of the national literature, softening, raising, and enriching it; and when at last he shall find his confidence in his own aspirations justified, and the name which once was the scorn admitted to be the glory of his age — he shall look forward to the close of his earthly career, as the event that shall consecrate his fame and deprive his children of the opening harvest he is beginning to reap. As soon as his copyright becomes valuable, it is gone! This is no imaginary case -I refer to one who 'in this setting

Anne to be passed. From his time to the present reign, authors, as a class, seem to have had little influence in parliament.' Upon nearly all occasions, when their claims have been brought to the attention of the legislature, they have been so much entangled with the interests of booksellers and publishers, in whose hands the great mass of literary property, existing at the time, has generally been found, that they have had to encounter all the national prejudice against monopolies. Gradually, however, the true merits of the question have worked themselves free from irrelevant issues, and the present reign has become distinguished by a measure, of which it was well said, in advance, by a venerable poet and peti

part of time' has opened a vein of the deepest sentiment and thought before unknown — who has supplied the noblest antidote to the freezing effects of the scientific spirit of the age-who, while he has detected that poetry which is the essence of the greatest things, has cast a glory around the lowliest conditions of humanity, and traced out the subtle links by which they are connected with the highest-of one whose name will now find an echo, not only in the heart of the secluded student, but in that of the busiest of those who are fevered by political controversy of William Wordsworth. Ought we not to requite such a poet, while yet we may, for the injustice of our boyhood! For those works which are now insensibly quoted by our most popular writers, the spirit of which now mingles with our intellectual atmosphere, he probably has not received

through the long life he has devoted to his art, until lately, as much as the same labor, with moderate talent, might justly produce in a single year. Shall the law, whose term has been amply sufficient to his scorners, now afford him no protection, because he has outlasted their scoffs - because his fame has been fostered amidst the storms, and is now the growth of years? (Three Speeches delivered in the house of commons in favor of a measure for an extension of Copyright. By T. N. Talfourd, Serjeant-at-Law. London. 1840.) In 1838 and 1839 he made similar efforts, and the measure was finally carried in 1842.

The petitions of the authors of England to the house of commons, in favor of Mr. Serjeant Talfourd's bill, form a body of interesting documents, to be found in the tract from which the above extract is taken.

tioner, "that in this, as in all other cases, justice is capable of working out its own expediency.”

"1

In America, since the adoption of the constitution of the United States, the protection of literary property depends upon the laws passed by congress pursuant to the power granted in that instrument. Whether there was any common law right of authors, in published works, in any of the states of this Union, before the adoption of the constitution, is a question not free from difficulty.

The fundamental principle of American law, in relation to common law rights, is, that the colonists brought with them into each colony all the body of the common law of England which was applicable to their situation, or, as it is sometimes said, which was suited to their circumstances and condition.2 The existence of a common law right of authors, in any one of the American colonies, depends, of course, upon its existence in England, when the colony was

1 Mr. Wordsworth.

21 Story's Commentaries on the Constitution, 137-140. Vanness v. Packard, 2 Peters S. C. R. 144. Wheaton v. Peters, 8 Ib. 591. Parsons, C. J. in Commonwealth v. Knowlton, 2 Mass. R 534, stated

the doctrine thus: "Our ancestors, when they came into this new world, claimed the common law as their birthright, and brought it with them, except such parts as were judged inapplicable to their new state and condition."

settled, and also upon the fact of its having been brought by the colonists, as part of the body of the common law, not unsuited to their circumstances and condition. That this was the case, seems to have been denied by a majority of the supreme court of the United States, the question having arisen, whether there was any copyright at common law, in relation to printed books, in the state of Pennsylvania.1

We have seen, if the historical account given in the foregoing pages be correct, that the position cannot be maintained, that there existed in England no common law right of authors, previous to the settlement of the American colonies. It is clear, that there was such a thing as literary property in England, before the reign of Queen Anne; and it is equally clear that in the years 1769 and 1774, in the cases of Millar v. Taylor, and Donaldson v. Becket, this property was ascertained and declared to have been a right at common law, and consequently it must have existed ever since the introduction of printing into England. The last of these cases, if the answers of the judges are the proper criteria of the decision, decides only that the common law right had been taken away by the statute of Anne.

Wheaton v. Peters, 8 Peters S. C. R. 591. The opinion of the court was delivered by Mr. Justice McLean. Mr. Justice Thompson and Mr. Justice Baldwin dissented, the former in an able and instructive

opinion, in which he reviewed the authorities showing that the common law right existed in England prior to the statute of Anne, and affirmed that this right formed part of the common law of Pennsylvania.

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