The history of literary property in this country might form as ludicrous a narrative as Lucian’s “true history.” It was a long while doubtful whether any such thing existed, at the very time when booksellers were assigning over the perpetual copyrights of books, and making them the subject of family settlements for the provision of their wives and children! When Tonson, in 1739, obtained an injunction to restrain 17 another bookseller from printing Milton’s “Paradise Lost,” he brought into court as a proof of his title an assignment of the original copyright, made over by the sublime poet in 1667, which was read. Milton received for this assignment the sum which we all know—Tonson and all his family and assignees rode in their carriages with the profits of the five-pound epic.[12]
The verbal and tasteless lawyers, not many years past, with legal metaphysics, wrangled like the schoolmen, inquiring of each other, “whether the style and ideas of an author were tangible things; or if these were a property, how is possession to be taken, or any act of occupancy made on mere intellectual ideas.” Nothing, said they, can be an object of property but which has a corporeal substance; the air and the light, to which they compared an author’s ideas, are common to all; ideas in the MS. state were compared to birds in a cage; while the author confines them in his own dominion, none but he has a right to let them fly; but the moment he allows the bird to escape from his hand, it is no violation of property in any one to make it his own. And to prove that there existed no property after publication, they found an analogy in the gathering of acorns, or in seizing on a vacant piece of ground; and thus degrading that most refined piece of art formed in the highest state of society, a literary production, they brought us back to a state of nature; and seem to have concluded that literary property was purely ideal; a phantom which, as its author could neither grasp nor confine 18 to himself, he must entirely depend on the public benevolence for his reward.[13]
The Ideas, that is, the work of an author, are “tangible things.” “There are works,” to quote the words of a near and dear relative, “which require great learning, great industry, great labour, and great capital, in their preparation. They assume a palpable form. You may fill warehouses with them, and freight ships; and the tenure by which they are held is superior to that of all other property, for it is original. It is tenure which does not exist in a doubtful title; which does not spring from any adventitious circumstances; it is not found—it is not purchased—it is not prescriptive—it is original; so it is the most natural of all titles, because it is the most simple and least artificial. It is paramount and sovereign, because it is a tenure by creation.”[14]
There were indeed some more generous spirits and better philosophers fortunately found on the same bench; and the identity of a literary composition was resolved into its sentiments and language, besides what was more obviously valuable to some persons, the print and paper. On this slight principle was issued the profound award which accorded a certain term of years to any work, however immortal. They could not diminish the immortality of a book, but only its reward. In all the litigations respecting literary property, authors were little considered—except some honourable testimonies due to genius, from the sense of Willes, and the eloquence of Mansfield. Literary property was still disputed, like the rights of a parish common. An honest printer, who could not always write grammar, had the shrewdness to make a bold effort in this scramble, and perceiving that even by this last favourable award all literary property would necessarily centre with the booksellers, now stood forward for his own body—the printers. This rough advocate observed that “a few persons who call themselves booksellers, about the number of twenty-five, have kept the monopoly of books and copies in their hands, to the entire exclusion of all others, but more especially the printers, whom they have always held it a rule never to let become purchasers in copy.” Not a word for the authors! As for them, they were doomed by both parties as the fat oblation: they indeed sent forth some meek bleatings; 19 but what were AUTHORS, between judges, booksellers, and printers? the sacrificed among the sacrificers!
All this was reasoning in a circle. Literary property in our nation arose from a new state of society. These lawyers could never develope its nature by wild analogies, nor discover it in any common-law right; for our common law, composed of immemorial customs, could never have had in its contemplation an object which could not have existed in barbarous periods. Literature, in its enlarged spirit, certainly never entered into the thoughts or attention of our rude ancestors. All their views were bounded by the necessaries of life; and as yet they had no conception of the impalpable, invisible, yet sovereign dominion of the human mind—enough for our rough heroes was that of the seas! Before the reign of Henry VIII. great authors composed occasionally a book in Latin, which none but other great authors cared for, and which the people could not read. In the reign of Elizabeth, Roger Ascham appeared—one of those men of genius born to create a new era in the history of their nation. The first English author who may be regarded as the founder of our prose style was Roger Ascham, the venerable parent of our native literature. At a time when our scholars affected to contemn the vernacular idiom, and in their Latin works were losing their better fame, that of being understood by all their countrymen, Ascham boldly avowed the design of setting an example, in his own words, TO SPEAK AS THE COMMON PEOPLE, TO THINK AS WISE MEN. His pristine English is still forcible without pedantry, and still beautiful without ornament.[15] The illustrious Bacon condescended to follow this new example in the most popular of his works. This change in our literature was like a revelation; these men taught us our language in books. We became a reading people; and then the demand for books naturally produced a new order of authors, who traded in literature. It was then, so early as in the Elizabethan age, that literary property may be said to derive its obscure origin in this nation. It was protected in an indirect manner by the licensers of the press; for although that was a mere political institution, only designed to prevent seditious and irreligious publications, yet, as no book could be printed without a licence, there was honour enough in the licensers not to allow other publishers 20 to infringe on the privilege granted to the first claimant. In Queen Anne’s time, when the office of licensers was extinguished, a more liberal genius was rising in the nation, and literary property received a more definite and a more powerful protection. A limited term was granted to every author to reap the fruits of his labours; and Lord Hardwicke pronounced this statute “a universal patent for authors.” Yet, subsequently, the subject of literary property involved discussion; even at so late a period as in 1769 it was still to be litigated. It was then granted that originally an author had at common law a property in his work, but that the act of Anne took away all copyright after the expiration of the terms it permitted.
As the matter now stands, let us address an arithmetical age—but my pen hesitates to bring down my subject to an argument fitted to “these coster-monger times.”[16] On the present principle of literary property, it results that an author disposes of a leasehold property of twenty-eight years, often for less than the price of one year’s purchase! How many living authors are the sad witnesses of this fact, who, like so many Esaus, have sold their inheritance for a meal! I leave the whole school of Adam Smith to calm their calculating emotions concerning “that unprosperous race of men” (sometimes this master-seer calls them “unproductive”) “commonly called men of letters,” who are pretty much in the situation which lawyers and physicians would be in, were these, as he tells us, in that state when “a scholar and a beggar seem to have been very nearly synonymous terms”—and this melancholy fact that man of genius discovered, without the feather of his pen brushing away a tear from his lid—without one spontaneous and indignant groan!
Authors may exclaim, “we ask for justice, not charity.” They would not need to require any favour, nor claim any other than that protection which an enlightened government, in its wisdom and its justice, must bestow. They would leave to the public disposition the sole appreciation of their works; their book must make its own fortune; a bad work may be cried up, and a good work may be cried down; 21 but Faction will soon lose its voice, and Truth acquire one. The cause we are pleading is not the calamities of indifferent writers, but of those whose utility or whose genius long survives that limited term which has been so hardly wrenched from the penurious