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grow upon his own land. Governments seem to consider literary productions somewhat in the light in which they formerly did gold and silver mines; one fifth, tenth, or twentieth part, and sometimes the whole of the product of which, was reserved to the sovereign in the old charters, still to quote America. There was some basis for these reservations, since the European governments, especially those of Roman Catholic countries, after the Pope had granted them their respective diagrams of latitude and longitude of that hemisphere, claimed the dominion and property of the soil. But to carry this doctrine of prerogative and supereminent dominion into the intellectual world, and set up an exclusive right of the public to onetenth, or five-tenths, more or less, of the profits or benefits of the literary compositions, which all subjects or citizens whatsoever might spin out of their own brains, is really a transcendent stretch of arbitrary pretension.
In the case of Tonson versus Collins, which came up in 1760, Mr. Yates was one of the counsel for the defendant, and accordingly argued against the perpetual copyright. Sir William Blackstone was one of the counsel for the plaintiff, and argued very
learnedly and ably in favour of perpetual copyright; and one readily recognises, in his remarks upon copyright, in his “ Commentaries,” the phraseology and mode of presenting the subject adopted in his argument in that case, as reported by himself. Lord Mansfield and the other judges of the King's Bench were in favour of perpetual copyright, but gave no judgment. When the last elaborate case on the question, the final decision of which, on appeal in the House of Lords, was fatal to the rights of British authors, came before the court of King's Bench, the same Mr. Yates, who had argued for Collins in the former case, was one of the judges of that court, and still adhered to his former opinion against the rights of authors, and dissented from the opinions of Lord Mansfield and the other two judges, who still maintained the perpetual right. The case occupies over one hundred pages in Burrow's "Reports," so that authors were not disfranchised without an honourable struggle. It is not our purpose to go minutely through all the arguments alleged in favour of this sweeping confiscation of literary property; it will be sufficient to state leading grounds.
The bombastic, puerile trash uttered by Lord Camden, on the occasion of the fatal decision in the House of Lords, has already been noticed. "Glory," said he, "is the reward of science. It was not for gain, that Bacon, Newton, and Milton instructed the world." Fine stuff this, to gloss a pillage.
Yates, in his argument as counsel in Tonson versus Collins, in 1760, and his argument of three hours in length, in Millar versus Taylor, 1769, dissenting from the other three judges of the King's Bench, on the subject of the copyright of "Thomson's Seasons,"
lays down, as one of his main positions, that "nothing can be the object of property, which has not a corporeal substance. There must,” says he, " be something visible, which has bounds to define it, and some marks to distinguish it. The property here claimed is all ideal; a set of ideas, which have no bounds or marks whatever. Their whole existence is in the mind alone; incapable of any other modes of acquisition or enjoyment, than by mental possession or apprehension.” “The subject," said Thurlow, afterwards Chancellor, who was also counsel with Yates in the first case, “must be the abstracted, ideal, incorporeal composition. It should,” said he, "be something that should be seen, felt, given, delivered, lost, or stolen, in order to constitute property.” “How," asked Lord Mansfield, interrupting him," would you steal an option, or the next turn of an advowson ?"—a question which presented, in a demonstratively ridiculous light, the sophistry of this objection. The law, as everybody knows, recognises many species of property which cannot be seen, delivered, stolen, &c., such as right of way, of air, light, fishery, common, and the like. The sophistry is double, therefore; first, in assuming that nothing is regarded by the law as property excepting corporeal substances, or things having essential reference to such substances; and, secondly, in assuming that, unless you can call the right of the author property, it is no right.
Both assumptions are wholly false; the first as we have seen, the second as may be familiarly illustrated. The services of a child are not, any more than the child himself, the property of his parent, and yet the parent has an action in case of his being wrongfully deprived of the child's services. A man's reputation is not any species of property, an article of merchandise, a chattel, any kind of goods or effects, by the common law, and yet he has an action for damages against one who libels or slanders him. If we substitute the word right, instead of property, we shall readily find, that every man has many abstract rights, which are recognised by the law, and which others cannot violate with impunity. Among these rights, an author or his assignee claims that of exclusively multiplying copies of his work. If the law is disposed to protect this right, what occasion is there for any of this metaphysical jargon about property, substance, visible, palpable, impalpable, ideal, imaginary, and the like, any more than in vindicating his right to his good name. It is a miserable libel upon the common law, or statute law, or any body of law, to say, that it is profoundly ignorant of whatever is not a direct object of all or some of the five senses. It is not the law, that refuses to recognise whatever is seen only by the mind's eye; the fault is in the blind judge.
But, then, say the same champions of confiscation, the author, by publishing, abandons his right, or property, or privilege, or whatever he was possessed of, or invested with, before publication. By pub
lication, says Mr. Yates, the author's sentiments, arrangement, and language, “are thrown into a state of universal communication." “I insist,” said Thurlow," that every subscriber has a right to do what he pleases with the book he has subscribed for.” “Can he complain,” says Mr. Justice Yates, “ of losing the bird he has himself voluntarily let out ?" And yet the same judge says, “ If the author had not published his work at all, but only lent it to a particular person, he might have enjoined that he should only peruse it; because in that case the author's copy is his own, and the party to whom it is lent contracts to observe the condition of the loan. But when the author makes a general publication of his work, he throws it open to all mankind.” This is the gist of the argument, and a virtual admission of all that is claimed in behalf of copyright; for if the author can lend on condition, why not sell on contract with the reader that he may read, abridge, criticize, and make extracts from his work, but shall not multiply copies? The publisher may sell the paper, ink, and binding, with the right of reading or obliterating the printing, or writing, but not of making copies for sale. Now this is precisely what he does, when he publishes with notice of a claim of copyright. We cannot see but that the cases of loan and sale, in this respect, are precisely parallel. And if they are so, and Mr. Justice Yates is right in his position about the lent manuscript, this ends the argument, as far as this ground is concerned; and it is, in fact, the main one, and substantially the only one on which the invaders justify themselves. The rest is, for the most part, but spongy declamation, or quibbling metaphysics.
In the discussion in the House of Lords, one lord said, such a right "would be a monopoly more destructive to learning, and even to authors, than a second irruption of the Goths and Vandals.” "Monopoly!” as if it were an odious monopoly, that a man should have the fruits of his own labour. This is upon a par with the repeal of copyright by the French National Convention, because it had been recognised by law under the description of privilége, and so was classed with the privileges of the nobility. What was society instituted for, but to give every man a monopoly of what is his own by the law of nature, and secure it against the rapine of Goths, Vandals, and pirates ? As to such a privilege, or rather the concession of such a right, being destructive to authors themselves, the suggestion is too absurd to be seriously answered. It is very true, that publishers would be more benefited than authors themselves. This, however, is a matter of contract between them; and though we may regret that Milton received but fifteen pounds for the copyright of " Paradise Lost,” which yielded his publishers as many hundreds or thousands, no doubt, yet he had no reason to complain, any more than any other person who has made a bad bargain. But how any lord could persuade himself, if he did so persuade
himself, that perpetual copyright would be destructive to authors, cannot easily be divined. As to the destruction which would ensue to the public by reason of an author or his assignee having the fruit of his labour, it is by no means to be so greatly dreaded as that likely to follow from the monopoly which an agriculturist has of the corn, or a grazier of the meat, which he produces on his own farm, by his own labour. It would have been much more plausible, had their lordships proposed the pillage of the farmers, lest we should be starved to death; for their productions we must have, whereas we really can exist without those of the author, however excellent they may be: and if, instead of scattering them at large by a sale, at a reasonable price, he chooses to limit their circulation by a high price, or to absolutely suppress them, he will starve nobody but himself.
But how ridiculous to talk of destruction to the public from the exercise of a right, which was conceded in England for two centuries and a half after the invention of printing, with entire harmlessness ? It is evident that all the destruction which could accrue from a perpetual copyright, will necessarily ensue from a limited one, which the Goths and Vandals do not object to ; for it never has happened, in all the copyrights ever granted, that the public were not supplied with copies in sufficient number, at reasonable prices. The publishers have suffered from surplus copies infinitely more than the public for want of them. But, if there is danger that some authors may turn dogs in the manger, this is no reason for disfranchising the whole species. The true remedy is, to take their copyright for the public use, and allow them a reasonable compensation, as we take a proprietor's land for a public highway. It is quite a new principle in legislation, to take away the plain and essential rights of a whole class, lest some of that class might, by possibility, injure themselves, for the singular satisfaction of withholding a benefit from the public. If a man should write a book for the public, and, finding the public wanted it, should thereupon withhold it, he would be a suitable subject for guardianship, so that the law already provides against the catastrophe foreseen by the sage legislators.
With regard to Lord Mahon's Copyright Bill, which is likely, as we have already stated, to lead to the passing of a law that will stand for a long period, and to prove practically advantageous as well as generally satisfactory, we may notice ere closing our paper, some of the features of the speech in which the measure was proposed. Having traced the history of the law of copyright, down to the act of 1814, which gives a copyright of twenty-eight years, or for the life of the author should he survive that period; he proceeded to answer some of the arguments which had been used against Serjeant Talfourd's bill last session, having undertaken the conduct of the present measure at the request of the learned gentleman. For example, it had been argued that a copyright descending to heirs would sometimes result in the suppression of valuable works. Mr. Crowther, the grandson and heir of Richardson, had never read his grandfather's works; but it was not from that to be assumed that he had any hostile feeling towards those writings; and, besides, he was not the only representative of Richardson. Again, though Sir Alexander Boswell might not like to hear references to his father's life of Johnson, there was not the least evidence that he desired to suppress the book. Those who employed the argument, indeed, confounded the case of works already published, which could not be suppressed, and of manuscripts in possession, which could always be suppressed. But, to guard against the possibility of that danger, the present bill would include a clause, giving to the Privy Judicial Council power to license works for publication, provided suppression were attempted. His lordship also contended that the measure which he proposed would give no monopoly to publishers; for the increasing demand for books and the great supply, had taught publishers the advantage of publishing at cheap rates. And, emulating M. de Lamartine, who called on France to take the lead in rescuing genius from spoliation, his lordship called on England to take the lead. We may therefore hope for an early adjustment of this long and keenly-agitated question.
Art. X.—The Works of Jeremy Bentham. Part XIX. Memoirs of
Bentham. Edinburgh: Tait. Taese memoirs, by Dr. Bowring, including autobiographic conversations and correspondence, are brought down by the present half volume, to Bentham's forty-sixth year. The subject of the work was, unquestionably, one of the most remarkable men of the last generation; having, in spite of much contemporary prejudice and misrepresentation, reared for himself, while living, not only a monument which was acknowledged by many of the most independent and profound thinkers of that period, to be more glorious than the trophies of your Nelsons and Wellingtons; but, as is now generally admitted, which is destined to stamp with lasting and beneficent effect, the generations of mankind coming after the era of the philosopher. Perhaps the retired speculations and the abstract philosophy of no one mind, ever promised to achieve so much practical good as the science of morals, cultivated in the manner which Bentham pursued. The indomitable courage, and the singleheartedness with which he maintained his course, not to speak of the originality of the process, proclaimed him to be an extraordinary person. He may have been thoroughly convinced that he was