INFORMATION
FOR
ALEXANDER DONALDSON and JOHN WOOD,
■ Bookfellers in Edinburgh, and JAMES MEUROSE,
Bookfeller in Kilmarnock, Defenders;
, AGAINST
John Hinton, Bookfeller in London, and Alexander
M‘Conoghie, Writer in Edinburgh, his Attorney, Fhir-
fuers.
January 2 . 1773 .
[Lord CoALSTON Reporter.]
FOR
ALEXANDER DONALDSON and JOHN WOOD,
Bookfellers in Edinburgh, and JAMES MEUROSE,
Bookfeller in Kilmarnock, Defenders;
AGAINST
■*
John Hinton, Bookfeller in London, and Alexander
M^Conochie, Writer in Edinburgh, his Attorney, Pur-
fuers.
A bout the year 1732 the reverend Mr. Thomas Stack-
houfc, vicar of Beenham, in the county of Berks,
publiflied a book, entitled, * A new hiftory ot the
‘ holy Bible, from the beginning of the world to the
‘ eftablidiment of Chriftianity, &c.’
A Itcond edition of this work was publiflied by Stephen Auf«
tin, bookfeller in London, who obtained a patent from his Ma-
jefly in the following terms : ‘ George, &c. To all to whom
‘ thefe prefents fliall come, greeting : Whereas, our trufty and
‘ well-beloved Stephen Auflin, of our city of London, book-
‘ feller, hath humbly reprefenced unto ns, that he is now' print-
‘ iiig a fecond edition ot a w'ork, entitled, new hiftory of the
* holy Bible, from the beginning of the world to the eftabUfmcnt of
* Chrijlianity, with anfwers to moji of the £ontr over ted quejtionsy differ ta-
' ' A ‘ tions
C 2 ]
tlons upon the mojl remarkable pajfages^ and a connexion of prophane
* hijiory all along / to -which are added^ notes explaining difficult texts,
* reilifjing miftranflations, ' and reconciling feeming contradictions ; in
* two volumes in folio ; compiled and written by our triifty and
* well-beloved Thomas Stackhoufe, mafter of arts^ and vicar of
* Pjeenhani in our county of Berks ; And whereas the faid Ste-
‘ jiflien Auftin has informedus, that tlie faid work has been per-
‘ tcded with great labour, ftudy, and expence, and that the
* foie right and title of the copy of the faid work (as now pu-
‘ bliOiing) is veiled in him, he has tnerefore prayed us to grant
‘ unto him, the faid Stephen Auflin, our royal privilege and li-
‘ cence for the foie printing, piiblUhing, and vending the faid
‘ work for the term of fourteen years. We being gracioufly
* inclined to give encouragement to all works that may be of
‘ public ufe and benefit, and cfpecially to thofe of this kind,.
‘ which tend fo much to the advancement of religion, and the
* general good of mankind, are pJeafed to condefeend to his
‘ requell, and do, by thefe prefents. {^as far as may. be agreeable
to the fatute in that cafe made and provided) grant to the laid Ste-
* phen Aultin,. bis heirs, executors, adminiftrators and. aifigns^
our royal privilege and licence for the foie printing, publifli^
^ ing and vending the faid work, during the term of fouvteeiir years,
< to be computed from the date hereof, llridly prohibiting^
< and forbidding all our fubjecds within our kingdoms, and;
< dominions, to reprint or abridge the fame, either in the like
« or any other volume or volumes whatfoever, or to import, buy,
« vend, utter, or dillribute any copies thereof repriuted beyond
« the feas, during the aforelaid term of fourteen years, without
‘ the confent or approbation of the faid Stephen Aiiflin, his
‘ heirs, executors, adminillrators, and afiigns, by writing un-
‘ der bis or their hands and feals firft had and obtained, as they
‘ will anfwer the contrary at their peril r Whereof the cominil-
* fioners and other officers of our clilloms, the mailer, wardens,
« and company of llationers of London, and all other officers
‘ and minifters whom it may concern, are to take notice that
‘ ltri<d obedience be given to our pleafure herein fignified.
‘ Given at our court of St. James’s the eighth day of January
* 1741 -2, in the fifteenth year of our reign.’
This fecond edition appeared about the year 1744.
Stephen
[ 3 ]
Stephen Auftin executed a will, by which he appointed his
wife to be his^ foie executrix, and bequ'eatiied to her his eUate
real and perfonal.
Elizabeth, the widow of Andin, proved the will, and obtained =" 5 *
adininidration of his ejfferts.
Elizabeth afterwards married
is now deceafecl.
Mr. Sta'ckhoufe, the author, died in OtJlober 1752.
About the eiid'of the year 1765 Mr. Meurofe complented an
edition of Stackhoufe’s hidory in fix volumes odavo, which he
had frequently aclvertifed in the newfpapers for two years pre-
cedinty ; during which time he was employed in printing and
puhlifiiing the work in volumes, without any challenge on tlie
part of Mr. Hinton.
Mr. Meurofe thinking there might poflibly be lefs demand for'
tiiat part of the work which related to the Old Teftament than
for the New-Teftament parr, kept the two leparate, making in-
dexes for eacli, anxl printing more copies of the latter than of
the former. But afterwards finding, upon trial', that the whole
book went off equally well, he agreed with Mr.. Donaldfon and
Mr. Wood, to reprint and publifli fo many copies of the firfi:
four volumes, (being the Old-Teffament part)' as, joined to the
copies remaining of the two laff,. would make compleat l*ets.
This was done in 1767, when the book was advertiled as for-
merly, and drill no complaint made.
No earlier than 1770, Mr. Hintonwvithout any previous no-
tice, was pleafed to bring this acifion before the Court of SrfTion,
concluding againd the defenders for reditution and damages, on
account of a fuppofed violation of his property, by printing and
puhlifiiing faid work. He did not pretend to lay his claim up-
on the paient, then confededly at an end', or upon the datute
of Qj-ieen Anne, which was likewife out of the quedion ; but he-
endeavoured to maintain the conclufions of his adfion upon the
footing of a common-law property in authors, independent of da--
tute, or of fpecial grant.
The caufe having come before Lord Coaldon, Ordinary, the-
defenders moved an objection to the title ; that, fuppoling the*
exidcnce of fuch a right in authors and their heirs or alligns,.
the purfucr in this cafe had produced no fufficient evidence of
his;
John Hinton, the purfucr, and
I 4 ]
lus being eitlier the heir or affignec of the author. To which
it was anfwered, that the author having made over his copy-
right to Auftin, the aliignee, and Aulliti having conveyed his
whole efFedts by tertament in favour of his wife, the fame paiTed
jure mariti to Mr. Hinton, the fecond hufband of Auitin’s wi-
dow ; and confeqnently this property, if it did at all exiil, was
now in the purfuer. The Lord Ordinary was of this opinion,
and the objedion to the title having been over-ruled, liis Lord-
fhip took the caufe to report upon the merits, and ordered in-
formations ; in obedience to which, this is humbly offered for
the defenders.
In general they are to maintain, That the law of this
country acknowledges no perpetual monopoly in authors, or, in
other words, no referved exclulive right to their works after pu-
blication, fuch as hath of late been contended for, under the
name of literary property.
The fubjedb is copious, and has of late been much handled.
The defenders would encroach greatly too far on the patience of
your Lordfliips, were they to flate every thing that has been
wrote and faid upon it. The plan which they propofe, is,
I. To inquire into the nature of this fpecies of property
claimed by authors, or rather by bookfellers ; and to fliow,
that it is not founded in the general principles of law ; that it
is not confonant to reafon: and that neither the interefl of fb-
cicty, the advantage of authors themfelves, nor any confidera-
tion of expediency or police, are concerned in eftablifliing fuch
a property.
II. To examine how far it is a fpecies of property acknow-
ledged by x\\G common lazu of Scotland, independent of fpecial pri-
vilege and of the ad: of Queen Anne : Under which head, the
defenders expect to fatisfy your Lordlhips, that it is fupported
by no authorities or precedents with us ; by no cuftom ; by no
circumftance tending to fliow that fuch a property ever exifled
in Scotland.
III. To conflder the ad of Queen Anne, with its effed upon
this queftion.
IV. With great deference, to fnbmit a few obfervations on the
law of England, which is laid to Hand in favour of tHe exclufive
right of authors.
V. Shortly
[ s ]
V. Shortly to bring under view thofe fpecial clrcumftanccs of
the prefent cafe, which may have an influence upon thequedion.
I. The affertors of literary property define it to be, * A right I. Nature
* which the author of any work has in the combination of ideas
* produced by himfclf, and of which his book is compofed.* It
is not merely a property in the manufcript, whicii is a tangible
fubllancc, capable of pofTeffion ; but they are pleafed to figure
fomething incorporeal and invifible, in which that fort of right,
called literary property, confiOiS. It is a right to the do<^trinc
contained in the book ; to a fet of ideas, or modes of thinking,
communicated by words and fentences ; and which carries
along with it the foie privilege and power of difpofal even after
publication.
This incorporeal right, detached from any phyfical exiftence,
they exprefs by the word copy, or copy-right ; and the benefit at-
tending it when fold, they call copy-money. The technical terms
here ufbd, are of modern invention; and when we enquire into
the nature of the fubjetl to which they are applied, we find no-
thing real in it, nothing to which the charader of property can
either in language or in reafon be affixed.
A man who puts his thoughts into writing, or who prints
them, may keep hold of the volumes, and call them his pro-
perty : But this will not anfwer the purpofe of thofe who con-
tend for literary property, without fuppoling the matter of the
book, or the ideas and compolition, to be the foundation of an-
other kind of property, independent of the materials; and this
property we muft figure to be of fuch a nature, that it can fub-
lifl and be retained by a pofTeffion of the mind, after the fubjefl
of it is given away, and put under the power of others. Their
pofition is. That though the author difpofes of his edition, and
makes his work patent and public to the whole world, he never-
thelefs referves to himfelf a property in the literary compofition,
whereby he alone has the power of regulating all future pubdea-
tions, and of refraining others from tranferibing or reprinting
his work.
The fmallefl confideration will fliow, that the word property is
here inoft erroneoufly ufccl. If it be any thing at all, it is not
a property, but a monopoly, or right of prohibiting others from
doing what otherwife would be competent to them. Property
[ 6 ]
is defined to be, jus in re ; and there can be no property without
a fubjet^ or corpuSy to which it refers. Neither the definitions of
property given by PuffendorfF, Grotius, and other writers, nor the
modes of acquiring it, do at all apply to this metaphyfical right
which an author is fuppofed to have in his ideas after publica-
tion. Such a right is not capable of occupancy, of acccfiion,
(fi’ tradition ; nor is it the objetfl of any vifible pofiefilon. Ideas,
w hether remaining in the mind, or expreffed and piiblifiied by
w'ord or writing, cannot be deemed propert-j in a civil or legal
fenfe. They are indeed proper to the perfon who conceived thofc
ideas ; but when they are called his properly^ it muft be meta-
phorically, and not in a firicl lenfe.
Befidcs, it has been well obferved by writers on this fubjedi,.
That all men whofe fenfations are equally well ordered, ought
to have the fame perceptions. It will be extremely difficult
therefore to afcertaiii whofe ideas they originally were, or to fay
that they are proper to one man more than to another. All that
can be fald of the matter is, That an ingenious and fpeculative
man improves his intelledliial powers more, and makes abetter
life of them than his neighbours. But this cannot come under
the denomination of propertyy any more than the circumftance
» of oile man^s blood circulating fafier than another’s, or of being
more expert in walking, riding, or fencing.
If by the word property is meant. That fuch a man is the author
of luch a work, /. e. that the work is the rcfiilt of his labour
and ingenuity, in arranging a fer of ideas, putting them into
writing, and caufing them to be printed and publilhed ; all this
may be very true, and fo far the author may be faid to be pro-
prietor. But this is a definition which will be of no avail in the
prefent qtieftion ; it is merely a metaphorical property, and an abu-
five fignification of the word.
It may likewife be admitted, ivithout hurt to the argument,
that by publication the author is not divefied of this fpecles
of property. He ftill remains entitled to the charafier of au-
thor ; he has a right to all the fame arifing from that cha-
rafler ; and if any perfon attempts to rob him of that fame,
for example, by denying that he is the author ; luch perfon
is guilty of an injury and li:»ble to jull cenfnre ; thougli whe-
ther even this offence would be adlionable before a court of com-
mon
C 7 ]
mon law, is far from being clear. A ftory is told of one Sisuoii
Marins, a German, relkUng at Padua, who having tranflatecl
into Latin a book publifhed the year before by Galilajo, caufed
bis difciple Capra to print it as his own. Galilaso complained of
this to the Reformers of the imiverficy of Padua, who very
juftly ordered Capra’s book to be fnpprefled, and give fatisfac-
tion to Galilaso for thednjnry done him againji the laws of print-
ing. It is plain, that the ofience here conlidcd in the attempt
to rob the author of his fame, by printing the book under a
falle name ; for as Marius was the tranflator of it, he had clear-
ly a title to publiOi his tranjfl ition, even according to the mo-
clcrn ideas of literary property, had he done it fairly, and pub-
lilhed it as the work of Galileo. It appears too, that the com-
plaint was made, not to a court of common law; but to an ex-
traordinary jurifditflion, erecled far the purpofe of regulating
fuch matters, and of inquiring into literary frauds. Such lite-
rary thefts are committed every day,, and are known by the
names o\‘ piracy and plagiarifn ; however contrary to good mail’*
ners, it may be doubted if they are cognizable in courts of
common law.
But the prefent queflion is. Whether, after an author has
publilhed his work, he referves a property in it, whereby he can
reftrain all other men from tranferibing, printing, or multi|)Iy-
ing copies of this work, which falls into their hands, no injury
being done to his chamber as author of the work, wdiicli may af-
ford him any perfonal ground of complaint ? The queflion in;
lliort is, Whetiter he has a retained property in the words, fenti-
ments, and compofition, after having prefented tliem to the
public ; or if, on the contrary, by the very aft of publication,
he does not make them common ?
That he docs make them common, and put it in the power of
all mankind to coj>y, tranferibe, and print them at pleafure, is,
with fubmilfion, a felt-evident propofition. He can have no hold'
of the fentiments which he has publiflied ; he throws them into*
the common flock; he quits tiie pofLeflion of his ideas, and allows*
every perlbn to make of them what ufe he thinks proper. In cer-
tain cafes, the law acknowledges a pojfejfio anhni ; but here no
fuch mental polFelilon can be figured : For the very purpofe of
publication is, to communicate the pofTeliion to all mankind ;,
and this is the natural and necefTary confequence of the acl.,
*■ In.
C 8 ]
* In vain (fays PufFendorfF) would we appropriate to ourfelves
* thoFe things which others can enjoy without our conient,
‘ and without our being in a condition to hinder them in any
‘ Oiaoe.*
i
By publifhing, whether or For a valuable confideration,
the author gives his fentiments and do^Irine to the world at
large ; and there arc not termini habiles For ruppofing that he liill
retains a power and control over them. If a proprietor of land
gives oft' a road to the public, he cannot afterwards obftrucl
that road, or hinder the public from ufing it. W hen an author
is out of pofTeflion, by publifliing his work, he cannot fliil
have a jus in rCy or fuch dominion over it as to limit the ufe of
thofe who came lawfully into the pofTefFion of what he has
publlflied.
^ I
The purfuer fays, ‘ That property in Its juil fenfe compre-
* hends the intereft of a party in any thing which is capable
* of ownerfliip, whether corporeal or incorporeal, fuch as his
* life, his labour, or his fame, and that the common law means
‘ to fecure to him whatever he has a jull: right to hold and en-
‘ joy, or whatever cannot be violated, confiflently with the
* peace and happinefs of mankind, and that every man’s feel-
‘ ings can eafily diftinguifli what falls under this idea.* It is
further obferved, ‘ that the definitions of property given by
‘ Grptius and other lawyers, are not adapted to the prefent
* Hate of fociety.’
But it is ];>lain^ that the delcriptions of property here fubfli-
tuted, in place of thofe which have uniformly been adopted by
lawyers, both antient and modern, are by much too lax and in-
definite. In this way, every fort of right, whether real or other-
wife, whether connected with a corporeal fubjetfl;, or merely ari-
fing from contract, or founded in tlie date of perfons, and in the
duties which men owe to one another in fociety : All thefe, ac-
cording to the purfuer’s definition, mud come under the idea
of property ; fo that if he has children, he may fay that he has
a property in the obedience which they owe him : — If he has
a wife, tlie conjugal duties are his property: — If a certain privi-
lege is given liim by law, or by grant, of doing a particular
thing, or of hindering others from doing it, this he may llke-
wife call his property, In (liort, every right whatever may be
brought
[ 9 ]
brought under this general denbmination, and every legal and
known didiiK^tion of terms muft be given up, in order to an-
fwer the purfuer’s hypo»^hens.
But after all, fuppofing his argument were founded in the
propriety ot language, and in the juft fignification of the words
ufed by him, it would ftill remain to prove his right of ownerjhipy
which muft mean an exclufive right, in a fubjetft not under his
power, viz. a literary compofition, whic|i he himfclf has com-
municated to all mankind by publication. He neither has the
pofleftion, nor enjoys the ufe of it, except in common with o-
ther men. How then can he cxercife this pretended property,
or upon what foundation does it reft?
The difficulties of a retained oivnerjhip in a publiftied com-
pofition, arc fo great and fo obvious, that the aftertors of lite-
rary property have been driven to fuppofe, that there is fome
vnplied contract in the a<fV ot publication, by which it is under-
ftood, that only a limited ufc is conveyed, and that purchafers
are not to multiply copies for their own benefit. But if there
is fuch an implied contradl in the nature of the tranfaeftion, it
muft he juris gentiumy it ought to obtain every vvhere, and we
would have feen it eftablifhed and enforced in all ages, at leaft
fince the invention of printing. On the contrary, no notice
has ever been taken, either by lawyers or by authors, of any
fuch contract ; no aeftion has ever been fued upon it ; and at
this day, it would found very ftrange in the courts of France,
Holland, or other countries, were an Englifli author to file for
breach of contradf on account of his works being republiilled
there by perfbns who never had any cbntradl with him.
When an author, or bookfeller, fells a pHnted copy of his
book, he does not ftipulate vvith the purchafer that he' ftiall only
make this or that ufe of it ; and, in particular, that he ftiall not
tranferibe, or multiply copies. No title-page ever b'ore,‘ that '
the book was fold upon condition that the purchafer ftiould n6t
write or print it over again. No bargain of this kind ever wai
expreffed, and none can be implied, as the pufchafe is ntade
without any refervation ; and it would be againft th6 com'rhbti
principles of law, as well as public good, to limit the jrurchafer’s
right by implication. The diffullon of learning iS a matter of
general concern; audit might be a meatTs df'obUrufting this, if
C any
[ 10 J
any perfoi? who has hona fide acquired as his own property either
a written or printed copy of a book, might not tranfcribe, print
and circulate fuch book at his pleafure. A prohibition to mul-
tiply copies can no more be inferredy than a prohibition to lend
to a friend, or to keep a circulating library ; by which, as well
as by multiplying, the profits of the firft publifticr may be a*
bridged.
The purfuer fays, why ftiould an author forfeit the right
of printing his own work, by the firft publication ? and why
lliould it be fuppofed, that when one purchafes a printed co-
py of a book for a few ihillings, he has thereby acquired the
riglit of reprinting and felling that work? Tlie anfwer has alrea-
dy been given. The author forfeits no right which he could
pofiibly retain, and the purchafer of the book is entitled to be-
llow his labour upon ir, either by copying, printing, or in any
other fiiape he thinks proper, nnlefs reltrained by fpecial autho-
rity ; in the fame way as the purchafer of a table or a chair is
at liberty to make as many other tables or chairs exadlly fimilar
to it as he fhall think fit, either for his own ufe, or for felling
to others.
So far from being againft the nature of the tranfaeftion, it is;
plain, that fuch multiplication is moft agreeable to it; nay, is
the very thing which every author miift be fuppofed to have in
view by the act of publication. For every author wlio brings
forth his fentiments into the world, muft be underftood to mean,
that thofc fentiments ftiould be propagated; and therefore the
perfon who is moft aftifting to him in this, by multiplying co-
pies, is the perfon to whom the author, is, or ought to be, moft
obliged. He docs him the greateft of all favours, by diftribut-
ing his work, and confequeiitly fpreading his fame. This is the
true light in which the matter ought to be viewed by authors :
For as to the paltry conlideration of copy -money, (the late in-
vention, not of authors, but of bookfellers), it is plain, that
whatever an author may be entitled to upon the firft publication,
he has no foundation in reafon, or in the nature of the thing,
to expeeft that this ftiould be repeated, after the book is no lon-
ger under his power.
It was laid, that a literary compofition does certainly remain
tinder the foie dominion of the author, till he thinks proper to
publifti
C 3
piiblifli it; and if fo, why fhould he lofe this property by the
adl of publication ?
The diflinftion is extremely obvious. Before publication, he
has the manufeript in his pocket; he may exclude all others
from feeing it, or may throw it into the fire. The manufeript
is as much his property as a table, or a chair, or any move-
able belonging to him. Of courle the feiniments and dodlrinc,
which are only to be found, either in his own head, or in the
manufeript, muft be under his power, being not communicated
to others. Even after publication, the original writing may
continue under his power; and any perfon who opens his ca-
binet, and takes it away, may be punillied as a felon. But the
author’s dominion over the fentiments and compofition is at
an end by the publication ; it could not in nature fubfift any
longer.
The author may avail himfelf as much as he pTeafes of the
property of his manufeript ; but it is denied that he has any
propevt) in the ideas thereby convened, further than that he could
have retained them in his mind ; or, when formed into a literary
compofition, could have (but up this in his cabinet; wliich no
more conftitutes him x\\g proprietor of the comjiofition, conlider-
ing it as an intelledlual conception, than a man can be faid to
be proprietor of a good thought, or of a witty faying. He is the
author oi it, but not the proprietor \ and as foon as lie divulges it
to the world, he gives up his words and thoughts to the public ;
he cannot poffibly recall them, nor can he hinder any perfon
from repeating and fpreading them at pleafure. It is inaccurate
to fay, that the autlior lofes his property by publication. He on-
ly makes his ideas common ; he delivers his compofition to the
public; and puts it in the power of every individual who gets
this publication into his hand, to make any ufe of it he fliall-
think proper. There is only one cafe in which it can he figur-
ed tliat an author retains the exclufive enjoyment of his ideas,
after having publifiied them, viz, if he writes in an unknown
language, or charadler invented by himfelf, and which he alone
can dtcypher. At the fiune time even there, fuppofing any
pel foil into whole hands the book has come, fhould take a fancy
to reprint it, what power has the author to hinder him ?
Allowing.
C 12 ]
. Allowing that the word property could, in the ftridefl feii-Te,
be applied to this fort of incorporeal cfTcnce called comvojition^
where is the difficulty in fuppofiug, that, before publieaiion,
this property remains with the author; and that, after publica-
tion, it becomes communicated to thofe who purchafe his book?
Take the cale of a man who deals in horfes, and who has a
flud for the purpofe of breeding. This man may keep the
whole produce to himfelf, without falc or communication to any
perfon; but if he choofes to do the contrary, is it not plain that
every perfon who buys from him, muft have the power of mul-
tiplying the breed, unlefs fpecially reftrained by law, or pa^lion ?
The fame thing holds with regard to the inventor of a machine,
the raifer of a new fpecies of grain, the difeoverer of a nojirurriy
or of any fecret art. in all fuch cafes, the art of publication
muft make an effential difference; and why it ffiould not make
the fame difference in the article of books, the defenders cannot
fee. While the inventor retains his difeovery to himfelf, or the
author, his ideas, it is plain that none other can interfere in the
ufe or prartice of what is known to none but him; but when
the fecret is once difeovered, and the ideas are publiHied, every
perfon is at liberty to take benefit from them, where no lawful
impediment occurs.
It was faid. That literary property was attended with the ef-
fential qualificatians of other property ; for that it was ufeful to
mankind, and was capable of having its polTefTion afeertained.
If by this it is meant. That the publifhing books is ufeful to
mankind, the defenders (ball not difpute the propofition : But
they cannot admit, that areferved exclufive property after publi-
cation, would either be ufeful to mankind, or ealily afeertained
by pofleffion.
If there be fuch a property, it is of all others the moft whimfi-
cal: For it may be taken away entirely from the owner, by only
adding a little to it, or improving it ; for example, by repub-
lifliing with notes, or tranflating it into another language, or
making a few alterations here and there, flill preferving the fuh-
ftance of the ideas^
Further : If it be a property, it is fingular in this, that no
creditor ever attached it, nor is it capable of being attached: For
one of the great arguments iifed in favour of a referved right in
the author, is, That it is fit he lliould judge when to publifh, and
w'hen
[ T3 ]
when not ; that he fliould not only chnfe the time, b’nt the
manner of the publication ; how many and what volumes ;
what type; and to whole care he would truft the accuracy and
iieatnefs of the imprellion ; in whole honelly he would conlidc,
not to put in additions, <^c. At this rate, it becomes a rej mer^
faculcatts \n the author, though he has once publillied his woik,
whether he will ever allow a fecond imprellion of it to be made
or not. Ail thefe things he, or the pedbn whom he trulls, mull:
alone judge of: And therefore, though the argument liippofes
him to have a perpetual hereditary right in this literary compo-
fition, beneficial to himfelf, and exclufive of all others ; yet it
is a right which no creditor can lay his hand upon, becaufe inbts^
ret offibtis of the author, or the perfon to whom he gives it.
Suppole the author dies before publication, and the manu"
feript is found in his repolitories, the faper may no doubt be
conlidered as executry ; but how is the property in the eompofition
to be dilpofed of? If this is to yield a perpetual revenue, or to
he the fubjed of future profits at every publication, it ought by
the law ot Scotland to be accounted as heritage ; fo that here will
he a queflion not eafily relolved between heir and executor.
And with relpecd to creditors, it may be alked, can they force'
the reprefentatives of the author to publifli and repnhiifli this
work, in order to enlarge the fund for their payment ? Can they
arrefl the ideas or adjudge them ? Perhaps the author had no
intention to publilh this work poflibly it contains Ibmething
criminal, or of a bad tendency, is it in the powder of creditors,,
by attaching the manufeript, to publifliit contrary to the will of
liis heirs, and thereby to bring infamy on the author’s name an-d
family ? It may further be afked, whether tl>e author’^s fon, by
publilliing his father’s manufeript, would lubjetl himfelf in a>
palfive title to creditors? Thefe, and other difficulties, would re-
fult from eflabiifliing this imaginary property.
To fay, That a literary eompofition is of common utility, and;
therefore fufccptible of property, is quite inconclufive.. Ligiit
and air are of common utility ; and yet no perfon ever Confider-
cd them as the fuhjeft of properf^,
A more plaufible argument is, That an author is juflly entit-
led to ail the benefit arifing from the labour of his mind and^
tiiat literary eompofition^ being the produce of fiich labour, it is.
Wrong to interfere with him in reaping the profits of it.
D
To
L u 1
To this it is anfwered, in the Jirft place. That the wrong here
iuggefted, depends entirely on the extent and duration of the
author’s property ; and it is the violation of that property that
■mud alone conftitute the injury. If his^ property be at an end,
no injury is done him; and the queflion therefore returns, Whe-
ther, by the act of publication, the author himfelf did not make
his work common? That this is the cafe, has already been fliown ;
it is implied in the very word publication^ and in the nature of
the aft itfelf.
2i/y, It will be confidered, that in order to give the extraor-
dinary benehc here contended for to authors, the natural rights
of others rauft be abridged. A perfon who copies or reprints a
book which he acquired without any limitation, does no more,
than exercife a legal right ; and however we may lean to lite-
rary merit, the property of other men is likewile entitled to
protecUon. If the author himfelf has laid his work open, and
has acquired all the fame ariling from it, and even the profits of
the publication, can he complain of the natural confequences of
publication ? He may, if he pleafes, republifli, and reprint his
work ; but he has alfo put it in the power of others to do the fame ;
and this being his own aft and deed, he cannot fay that he is
injured.
3^/y, Though it may be true, that the labour and fervices of
an author often merit pecuniary reward as well as reputation,
the queflion is. Whether this ought to be infinite, and wiiiiout
end ; or if the advantages attending a firft publication, are not,
for the mofl part, fully adequate to the purpofe ; and if It would
not be highly detrimental to the public, \vere not fome bounds
fet to this fuppofed equitable claim,? The man of genius and flu-
dy ought, no doubt., to have fultable encouragement ; but this
mull be limited by the general good, and by a proper attention
to the rights of others.
That an author fliould have the foie dlfpofal of his original ma-
nufeript, and fliould enjoy the profit whicii naturally attends the
afl of making it public, is certainly mofl rcafonable. Accor-
dingly, every author has this in his power; and it is impoffiblc
to difpute it with him, becaufe he may refufe to make it public,
and may deflroy his mannfeript, if not previoufly infured of a
Suitable encouragement. Sir Walter Ralcigii deflroyed the ma-
uufeript
[ 15 ]
nufcript of the feconcl vohime of his hiftory, becaufe his book-
feller told him he had loft upon the firft ; and every author may
do the fame.
If he choofes to publifli his work, he has the further advan-
tage accruing from the reputation of it, which may often be con-
fiderable, even in. a pecuniary view. A phyliclan writing ably
upon his profeftion, may advance his reputation, and confe-
quently his pradice ; a lawyer may do the fame ; and even thofe
who apply themfelves to hiftory, to poetry, or to belles lettres^
have generally met with patronage and fupport from rich and
powerful men, according to the merit of their works. This was
of old, and this ought ftill to be, the true idea of an author’s
profit; and it is an idea far fuperior to the modern invention of
copy-money : An invention which has tended much to degrade
the author’s charadter, and to render him fubfervient to book-
fellers and printers.
At the fame time, the author may likewife, if he pleafes, have
his copymone'j, if by this is meant the immediate pecuniary profits
arifitig from the a<ft of making his book public. Nay, he may
have a great deal more. He may, by the eftabliflied pradlice in
this and all other countries in Europe, have a fpecial exclusive
privilege for a certain limited time, which will fecure him in rea~
fonable profits, if the work is entitled to any. The only quef-
tion is, Whether he fhould not only have thefe advantages, but
fomething farther? Whether he ftiould have a renewal of copy-
money upon every fubfequent publication without end, althongii,
by the firft adl of publication, he has put. the book, i. e, the fen-
timents and compofition, entirely out of his power, and com-
municated them to the public? Or, in other words. Whether, at
the fame time that he publiflics bis book, he is underftood not to
have made it public, but referved to himfelf an exclufive pof-
feffion and power over it. A little attention will fliow,jn the firji
place. That it is impoftible to give way to fuch contradidlions.
7 hat it would be no advantage to authors to go into them.
Indeed it is remarkable, that the claim of literary property has
fcarceever been infifted in by authors'; and is almoft confined to
a particular lociety, even bookfellets, viz. thofe of London. At.
the fame time, it is a queftion in which regularly the bookfellers
ought to have no concern; For when a bookkller purchafts any
work
t
[ i6 3
work from an autlior, he can adapt his price to the extent of the
benefit which he acquires ; and he can no more complain that
the monopoly is not perpetual, than a perfon, who takes the
leafe of a farm, can complain, that his Jeafe is only to endure
for a certain period.
- Belides; It is well knowm, that every book or maniifcript is
purchafed upon the prefumption, that there w ill be an i hi medi-
ate call- for it. Few bookfellers can afrord to link their mohey^
even for certain returns, if they are Very diftant, much lefs would
the unQertain chance that a book will Continue laleable for ever,
although the perpetual monopoly were fixed, go any greht
length in enliaiicing the price. No bookfelter ever pu'rchafes a
book, without calculating that he is to be indemnified, and to
•have profit upon the firft, or at furthefl the fecond edition ; and
every perfon converfant in this matter knows, that the Lo'rtdoh
bookfellers give an author very little more for the abfohue dif-
pofal of the manufcript, than for one large impreffion. Neither
would they give more for a perpetual right, were it to be afcef-
tained, than for the terms allowed by the datute of Queen Anne.
The ellablilhing a perpetual monopoly, therefore, vyould be
-of no benefit to authors ; and it is plain, that bookfellers have
ho pretence of claim to fuch a monopoly. Their profits have
always been much beyond thofe of an author ; and it would not
only be againft juftice, but mofl detrimental to the public, to
.extend their advantages any farther. One conlequi nee would
-be, that, the bookfeller, being freed from all rivals in the price,,
paper, correflnefs, or any other part of the good execiuion of
the work, would think himfelf at liberty to ferve tiie public in
all thefe refpetTs as he chool'ed. Tiie execution wdiild therefore
be inferior, and the price very high. In tliis lafl article, the
Xondon bookfellers have of late gone to a mod extravagant pitch.
In every kind of commerce, and in every art, there ought to be
a competition. Without tlfis, indullry will not profper ; and any
monopoly or reftraint mull nonriih tyrants, to opprefs the coun-
try, and to annihilate ingenuity. The more ufeful any inven-
tion is, the more grievous the monopoly mull be.
Belides, it was well obfervecl by a late honourable perfon u\ Eng-
land, * That he could never entertain fo clifgracekil an ojnnion
‘ of learned men, as to imagine, that nothing wonld induce tlieni
‘ to write^ but an abfolutc perpetual monopoly : That he could
‘ not
* not believe they had no benevolence to mankind ; no Iionour-
‘ able ambition ot fame ; no incitement to Gommnnicate their
‘ knowledge to others ; but the mofl avaricious and mercenary
‘ motives. From authors fo very illiberal,, the public would hard-
* ly receive muchf benefit.’
Another effe^f of making books a monopoly would be to en-
rich a few booklellers, at the cxpence of the whole nation ; a con-
fequence already too much felt from the temporary exclufivc
privileges by patent, and from the of Qiieen Anne. The de-
fenders have been alTurcd, that the bookfcllers in London have
by ways and means engrolTed, or attempted to engrofs, many
of the mofl: valuable books, both ancient and modern, under the
l^cious colour of having purchafed the copy-rights from the au-
thors eitlier immicdiately or by progrefs ; and that, when new’
'works are produced, efpecially in Scotland , comhim tQg^ihcrio
put a negative on the fale of them, if they are not placed under
Uicir immediate proteffion. One inftance of this was Mr. Hume’s
Hiftory, Vol. L It is even aflerted as a fa< 5 t. That in the year
1759, they entered into articles of agreement, and bound them-
felves under fevere pcnalcies, not to keep in their Ibops any
Englifli books whatever that had been reprinted in Scotland :
That they railed a large fubfeription for employing perfons to
fearch for fueh books, and for profecuting thole who fliouldi
tranlgrefe their refolution ; and allb wrote circular letters, thrca'7'
tening the country bookfcllers, if they dealt in Scots editions r
That, in other words, the London bookfcllers claimed to ibem»-
felves, and refblved to aflert, the foJe privilege of printing and
pubUftiing all Englifli books.
The coniequenccs to the public, and particularly to Scotland,)
rue extremely injurious. Inftances could be given of publica-
tions, even of works compofed by Scotchmen, which ought to
have been Ibid at one-fourth of the price put on them by the
London bookfellers. This is a ferious matter to the country, andl
wUL loon prove lb to authors themfelves, if the book-trade is car-
ried on. by a few hands, who will be enabled to di(flate their
o,wn ternjs.
Mil'torC's Paradife- Lojl was fold by the author to a* bookfclkr in
London for 15 1 . Sttrltng, the notion of perpetual copy<-right
iirot having then taken place. From this circumftance of being
opigiiial-ly publiflied by a London bookieller,; the gentlemen of
E that
[ ]
tdiat profeflloii, now in- London, draw'an inference of perpetual
exclufive right to themfelves in this book, which has already
produced to them many thoufands of pounds ; and, if the doc-
trine of literary property were to be eftabliflied according to their'
ideas of it, there is hardly a book extant in the Englilh lan-
guage, which might not in the fame way be claimed by them.
The trade of printing, bookfelling, and paper-making, would in'
efFe<^l be knocked up in every part of the ifland, except London;
for the moft of the capital books being firll publilhed in London,
the whole buiineft would be there carried on.
The right of fuppreffionY is another dangerous though necef-
fary confequence of the doflrine of literary property. — Suppofe
the heirs of Napier of Merchifton fhould infift to deprive man-
kind of the life of the logarithms invented by their predecelTor,
^nd on tvhich navigation fo greatly depends, would not fuch an
attempt be alarming to fociety? Yet the author and his heirs are
faid to be the only judges of this. A perfon mifchievoufly in-
clined might buy up copy-rights, in order to fupprefs them.
Let it be fuppofed, that the pretended copy-rights of Milton,
Shakefpear, Locke, Newton, and all the heft authors prefently
claimed by the London bookfellers, fliould happen in the courfe of
time to be brought to fale, and purchafed perhaps by a book-
jeller in Aberdeen, or in the Orkneys, who, in confequence of
their own doftrine, would for the future have the foie regulation
and difpofal of thefe works, it may be afked, would the London
bookfellers truft to the Aberdeen or Orkney bookfeller for fup-
plying the Englifh market ? It would certainly appear hard to
every Englifliman, to fee* his country deprived of the right of
printing her beft authors. It would be faid, that thefe great
men did not write merely to get a little pittance to themfelves
or their families, but to enlighten mankind ; and that the race
of bookfellers, after being indemnified a hundred times over,
had no right to deprive their country, or prevent the public,
from having the full benefit of fuch ufeful works ; that England
had the befl; right to pofTefs and enjoy the writings of thofe great
men to whom fhc had given birth, education, and profc^edlion,
and was not for ever to be at the mercy of a Scotch bookfeller.
Befidcs : The cftablifliment of fuch a perpetual monoply,
would be attended with endlcfs confufion and litigation among
’43,uhors and bookfeUers themfelves. The wo-tk of the mind, or
what
[ »9 ]
what is callfd the dodrinCy is faid to be the foumdation of the au-
thor’s claim of property. Now, if tliis be the criterion, many
will be found who have no pretence' of right, and yet whofe
works are very ufeful to the public. In the firfl; place. All edi-
tors who only publiQi the works of others, cannot plead this
title. Then, all authors who give us nothing new, are in the
fame fituation. The follower of any ancient or modern feff of
philofophy, who only utters the doeftrine of his mafter, can-
not be faid to publifli his own ideas, or to furnidi any original
compofition. A tranflator does not add a fingle idea. The pu-
bliflier of a newfpaper only tranferibes. The compiler of a didi-
onary, of a grammar, or of the rudiments of a language, will
generally be much in the fame (late.
It may often happen too, that different authors, writing upon
the fame fubjed,' have the fame reafonings. Can the author
who publiflies firft on that fubjed, exclude all others from ufi ng
the fame fet of words or ideas ? Certainly he cannot. Suppofe
two different men compofe tables of intereft; if both their*
calculations are exad, they muff, according to the rules of arith-
metic, turn out to be the fame. This obfervation will apply
to moll kinds of tables or calculations, as on life-annuities, loga-
rithms, almanacks, &c If the firft publifliers of any fuch works
were to have a perpetual monopoly, how abfurd would fuch a
pofition be, and how unjuft to the reft of mankind \
Further: If this idea of property, in compofitions of the mind,
is at all gone into, it is difficult to fee where we are to flop. The
author of a fong, or of a piece of mufic ; the perfon who makes*
a fpeech in public, or who whiftles a tune, will have the fame pro-
perty in his compofition, and may equally infift in lawfuits againft
every one who pretends to borrow from, or to repeat after him.
A lawyer may be profecuted for copying authoiities, and for
taking arguments from the fuggeftion of others; yet he would
not otherwife do juftice to his caufe.
It is entertaining however to obferve, what fliifts the Englifli
bookfellers and publifliers fall upon, to evade their own dodrine.
They firppofe an author’s works to be part of his eftate, tranf-
milTible to his heirs and affigns for ever ; yet any third perlon,
uncon neded with the author, and deriving no right from him,
may lay hold of this property, and transfer it to himfelf, by on-
ly making a few infignificant criticifms, in the form of notes ;
xxr
C 20 ]
or perhaps €>orre^ing the text, by th« addition of Tome words
and corn m-a&. Shakefpsar^s vforks been by a num-
ber of perfoBS in England ; by Mr- Rowe, Mr. Pope,, Mr. Theo-
bald, Sir Thoma? Hanraer, Mr Santuel Johnfoii, &c. and if we
can believe what thefe critics fay of one another, their alterations
are ofrener for the worfe than the better * ; yet, bad as they are,
they G^rry along wdeh them a property in the book thus manu-
fad;ured, and each critic becomes proprietor of a work which he
never was capable of writing., In this way, not only the works
of Shakefpear, bat thofe of Spenler, Ben Jobnfon, Bntler, MiL-
touj &G. b^yc been appropriated by different commentators,..
* ‘ Mr. Rovje (fays Dr. Warburton) vsRas fo utterly unacquainted: with, tke whole bufineAr
* o£ crisicifna; dvat he. did'not even, collate: or confult the firft editions of the work he un-
“ dertook to publifh.” The fame charafter Ts given of Mr. Rowe's edition by Tlteobald,
And Johnfon fays, Mr. Rowe feems to have tlwjught very litile on corre£Vioo or cxpla.
nation, but that our author’s works might appear like- thofe, of his fraternity,, with the.
appendages of a life, and recommendatory preface.”
Mb. Rope (fays Theobald) pretended' to have collated’ the old copies, and yet (elJona-
has, corrected the tcj^t, but ttrits injiury.”~‘^ I know not (feysi Johafon) why Mr. Pope
is commended: by Dr. Warburton for difUnguilhiog the genuine frorn the fpurious plays.
In this choice, he exerted no jud'gmenrof his own j. the plays which he received, were
given by Hemings-aad Condcl, the firsft editois.,”
“ Mr. ’Theobald, (fays Dr. Warburton), wanted fufficient knowledge of the progrels and
“ various ftagj^s of the Engllflb , tongue, as well as acquaintance with the peculiarity of
Shakefpear’s language; to underhand, w-hat. was right; nor had he either commnn judg'.
mem to fee, or critical fagacity to amend,, what was. manifdUy faulty ; hence he ge*
nerally exert* his. cortjeftural talent in the wrong place.” — “ Theobald (fays Jobnfon)
was a man of narrow comprehenfion, and fmall acquifitronsj with no intrintie fplendor
of genius; witblhtla of the artiftciaHight- of learning,; but zc,a!ous for minute accuracy.
In his reports of copies and editions, he is' npt to be trufted. without examination. I ha\x.
•*' fometi'mes adopted his refioration of a comma, without inferring the panegyric in which
he celebrated' liiiuftlf for bis atchievement.”
“ Sic Thotmas Hanmer. (fays War. buri.an)j.w^ abfolutely ignorant of the art of criticjftn,,
“ as weU as the poeiry of that time, and the language of his author: And fo far from
“■ having thought of examining, rhe lirfl edition^,. that he even neglcfted ta compiarf
Pope’s, from which he printed his own„wuh.Mr; Tbeohald^s.” In another pjtfftge, he.
fays> “ Theobald and Sir Thomas Hnnmer have, left their aqthor in ten times a worle con>
‘‘‘ diiion than they found him.” — “ Sir Thomas Hanmer (fays Mi . Dodd) procteds iivthcr
“• moft unjuftifiable nnethod, foiftingjnto his- text,, a theu/and idle alterations ”
This critic, Mr Dodd, is fbmewhat fevere in his. remarks. He fays,, “ Mr. TVavburton'%
“ condufl can never be juftified, for inferring every fancy of his own in the text, when I
dau'e venture to fay, his better and cooler judgment niu.ft condemn the greateft.part of
them.— Tnat there are good notes in.his editiqiv of Shiikdpear, I never did deny ; but
“ as he has had the plundering of two de'ad men ( The.jbald and Hanmei ), it will be difii-
*»• cult to know which arc h-:s own. Some of them,. 1 fuppafe, may be ; md' lv.ird indeed
wtjuld be his luck, if, among fo.noany bold' throws; he fhauld never have a winning call.
“ But I do inlffl, that there are great numbers of fuch fhameful blundcis, as difparage the
reft if they do not dii'crcdit his title to thcm,’’-i — -See alft a. pamphlet eolitled. The Ca-
^ ThmasTiunmors printed. a; London in, 1.763.
Even:
.[ 21 ]
Kven fome of the nnticnt claffic authors hare been laid hold of,
and divided into (hares among the London bookfelkrs. If the
doflrine of literary property is ehabliftied in bcotland, the boolo-
fcllers and printers here mufl: fail upon Ibme device of the fame
nature, as they have no other method of employing themfelves,
except printing law-papers to the Court of Seffion, and reprint-
ing and publiihing books which have formerly been publifhed
in London and elfewhere ; in doing which laft, they imagine
they are lawfully employed, while they do not cncroacli on the
ftatutory or fpecial privileges of others.
An argument ufed for literary property, is, That when an
author has beftowed much time and labour in eompofing, and
perhaps expended all his flock of money in printing and pub-
iifliing an ufeful work, it is unfair and unjuil that another
fhould ftep in, the very next day after the work is publifh-
ed, and by purchafing a fingle copy, forthwith fet about a
cheaper edition, by W'hich the profits of the author are inter-
cepted, and even a lofs brought upon him. 1 hat the edition
thus publifhed may be fliamefully incorredl, and the author is
alfo thereby deprived of the power of retraffing errors, or mak-**
ing neceffary additions ; that the author has evidently a title in
juflice to prevent thefe things ; and where there is a wrong,
there ought to be a remedy iu common law.
But the cafe here fuppofed, does, in faeff, very feldom, if ever,
happen. No bookfeller or printer will be fo unwife as to re-
publilh the v/orks of a living author without his confent, with a
view to intercept his profits becanfe it is in the author’s power
to retaliate the injury, by immediately correfling and altering
his work, and by pnblifliing it in a new form. Inftanccs could
be given of authors who have adlually followed this courfe, in
order to prevent others from interfering with them. Thus it is
a known fadl, that Aitf/V* publifhed feven or eight editions of his
Bvok-keepingy all of them different from one another ; and tho
fame thing has been alledged of a more celebrated w'/iter,
Voltaire. Neither will any perfon ever knowingly print an in-
eorre^l edition, which will not fell when a better one can be had.
If the author’s edition be incorreff, nothing liinders him to pu-
bliih another, and to retracl errors, ar make additions, but he
can never recall the copies he has once publifiied and fold.
* T ‘ B-efides::
T ■]
Belides : The argument^ when attended to, will appear to he
inconclidive. It is, no doubt, ungenerous to interfere with an
author upon his firfl; publication ; but it is fuch a wrong as can
-only be remedied by [fecial interpofition» And accordingly, to
.prevent this very abufe, the practice has been, here, and in o-
ther countries, to give exclulive privileges to authors for a de-
finite time, in the fame way as to the inventors of machines, or
of any other art.
The poor have an equitable title to demand their mainte-
nance from the rich ; but it never was imagined, that, indepen-
dent of any ftatute, they could bring actions before courts of
law or equity, for eftablifliing rates upon the rich, fufficient to
fnbfift them. Courts of jufiice can only interpofe to make per^
fe^ rights effectual, not imperfe£i ones, fuch as that juft now
mentioned, and many others, arifing from the obligations of
friendftiip, gratitude, and benevolence.
The author of a book is precifely on the fame footing, in this
refpedf, with the inventor of a machine, or art ufeful in life.
It is equitable that he ft^ould have the exclufive right of felling
his work, for fuch a length of time as to reimburfe him of the
expence, and recompenfe him for his trouble ; but it by no
means follows, that this right can be enforced by legal procels.
He has always the advantage of priority of fale ; and if others
have^n opportunity of following him, this is the neceftary con-
fequence of publication. It requires legiflative power to reftrain
the natural rights of others.
The maintainers of literary property, finding it neceffary to
admit that the inventors of machines have no fuch exclufive
right, have been at great pains to diftinguifti between the cafe
of machines, and that of books : But, with fubmilfion, their di-
ftindfions are inconclufive and unintelligible. A book is a com-
bination of ideas, lb is a machine ; both of them are the refulc
of invention : Why then flioulcl not the authors of both be e-
qualiy entitled to make a trade of communicating this invention
to the public ? It is either wrong to interfere with either, or it
is lawful to interfere with both.
It is laid, ‘ That a machine or utenfil is the work of the
‘ hand, not of the mind ; and that property in the work of the
‘ hand is confined to the individual thing made, which if the
* proprietor thinks not fit to hide, others may make the like in
‘ imitation
[ 23 ]
‘ imitation of it, and thereby acquire the fame property in their
‘ manual work, which he hath done in his. But in the cafe of
* a produ 61 ion of the mind, the property confifts in the doclrine
* produced, which the owner ought to Jiave the foie right of
‘ tranferibing and copying for gain.*
This argument is founded on a propefition not true in fadl.
That a machine is folely the work of the hand. The hand is no
doubt neceflary to put it into form, in the fame way as in the
cafe of a book : But furely it will not be denied, that the micro-
cofm was the refult of long labour and ingenuity of the mind ;
that Mr. Harrifon’s time-piece is in the fame cafe ; and that eve-
ry fpecies of mechanical work is more or lefs fo. The author
of a machine certainly ufes his mind as much as the author of a
book; and the copier of a book ufes his hand as much as the
copier of a machine.
It is next faid. That * in the cafe of an utenfil made, the
‘ principal expence is in the materials employed, whicli whoe-
* ever ftirnifties, acquires a property in the thing made, though
* by imitation: On the contrary, in a book compofed, the prin-
‘ cipal expence is in the form given, which, as the original mak-
* cr only can fupply, it is but reafonable, how greatly foever
* the copies of his work maybe multiplied, that they be nuilti-
* plied to his own exclufive profit.*
This argument is far from being intelligible ; and it feems al-
fo to be founded on a miflake, that in the cafe of valuable ma-
chines, fuch as orreries, telefcopes, time-pieces, the chief
expence confifls in the materials furnifhed. In mofl; books, the.
charge of printing the imprdlion, is much more than the copy-
money, often ten times as much.
It is unnecefTary to go through the other arguments which have
been fuggefted, for fliowing a difference between a book and a
machine. They are all of the fame flam p, all founded on which
at firft fight muil appear to be erroneous, or on diflindions too
riice and fubtile to be perceived by common eyes. There is no
real difference with refpe<T to the queffion of property, between
a mechanical invention, and a literary one. The inventor, as well
as author, has a right to determine, whether the world fliall
Tee his produdion or not ; but if he once makes it public, every
.acquirer has a right to make what ufe of it he pleafes. Jf the in-
ventor
[Hi
ventor has no patent, his inftrumcnt may be copied; If the au-
thor has no patent, his book may be multiplied.
A printer of linen cloth, who devifes new and elegant patterns,
does not elTentially differ from an author of books. An engraver
of prints, who improves the art, and difcovers fomething ingeni-
ous and new, is likewife in the fame cafe; yet it never was
thought, that either in the one inftance or the other, there was
any ground in law upon which copying could be hindered. It
required a fpecial ac^ of Parliament to fecure engravers in a tem-
porary exclufivc privilege, as in the feqnel will be ftiowm. The
reafon is plain ; becaule ftamping and engraving, as well as print-
ing books, are lavvful employments, which every one may exer-
cife, unlefs forbid by fpecial authority.
' Befides the inconveniences already noticed, another difficulty
which would follow the dortrine of inherent literary property,
is, That it is attended with no marks by which the property can
be denoted. The moft ftrenuous affertors of this property ad-
mit, That a work may be abandoned to the public, in fuch
manner as to leave no property in the author; and that this will
be the cafe, * if he ftamps no mark ofownerffiip upon it.* But
they fay. That if he fells for gain, or if his name be on the title-
page, thefe are indications of property, wliich fliow his inten-
tion to preferve his right.
This is, in effect, retracting the admlffion : For few books
are publiflied without bringing gain ; and, for the raoft part
alfo, the author’s name is upon the title-page, which is only
expreffive of a faCt, that he was the compofer of the book y
but does not inform the public, whether he is to claim a perpe-
tual property in this w'ork, or to make a free offering of it for
the ufe of mankind. Third parties have no accefs to know
what bargain there was betw^een the author and the bookleller, or
whether any price was paid to the former by the latter. When
a temporary right was afeertained to authors by the add of Qiieen
Anne, the Icgiflature faw the nccellity of eflablilhlng ibme ouvert
evidence of the author’s intention, and provided for it ; but
upon the footing of the common'-law right, a perfon may offend
without having any poliible means of knowing whether he does
figiit or wrong.
Upon ihefe grounds, the defender is advifed, that the perpe-
tual right, llippoled to be in authors and their heiis and alligns,
which
[
]'
wliich has recf-ivecl the name of literal-) propc 4 -[), reds upon ii')
general principle oi law, rcaf^in, or expediency. The nexc
queilion is, How far there arc‘any traces of it in the law of Scot-
land, prior to and independent of the aiT of Qiieen Anne ?
II. If this fpccics of property be at all a branch of the muni- Corrmoa
cipal law of Scotland, it mud be founded either in the civil law, ScotlanJ.
or in our own ancient cuflonis, ads of the legiflature, authori-
ties of our lawyers, or judicial determinations of our Courts.
All of thefe fources have been invefligated ; every corner has
been fearched ; but not the lead glimpfe difeovered of literary
exclufion, independent of fpecial grant : On the contrary, we
find ample materials to fhow, that it is adverfe to every notion
of the common law of this country.
Before the invention of printing, the idea of property ip an?
author, in the fenfe now contended for, could harilly exid ; be—
caufe the multiplication of copies by writing was fo tedious, that
it could yield no gaiti to the author, whatever it might do to-
thofe who endeavoured to procure a fubfidence by their manual
labour. This, in the Roman and Grecian dates, was generally
the talk of flavcs ; and It was common for learned men, or thole
who -were fond of making libraries, to keep (laves for the piir-
pofe of tranferibing. This, in particular, was the cafe of Ariicus, C.NeposVt.
who made a large collection of very valuable books by means of
his Raves, at no othei\expence than that of copying; and it
does not appear that by Ib doing he gave any olrence either to
authors or to booklcllcrs..
'1 he only literary property acknowledged in the civil law, was-
that which was in the owner of the paper, or parchment, on
which the words were wrote.. ‘ Litera: t^uoqiie, licet aurcs lint,.
‘ perinde chartis membranifve cedunt ; ac folo cedere lolent ea,
* qujB ineclificantur, aut inferuntur. Ideoque fi in chartis mem-
‘ branifve tuis carmen^ vel hidoriam, vel orationem Titius Icrip-
* feret ; hujus corporis non Titius, fed lu dominus cfle videris.
* Sed li a 1 itio petes tuos llbros, tuafve membranas, nec impen-
‘ fas feriptnrse folvere parattis lis ; poterit fe Titius delendere
‘ per exceptioneni doli mali, utique fi earum chartariim mem-
‘ branarumve polllllioncm bona fide naddus ed.* Injh de rermn.
divif’onc, § 33.
A late author takes notice of this text, . and fays, ‘ We find no
‘ other mention. in the civil law of any property in ilie works oT 0^26. il.V
G> ‘ th.c
Comment-.
Jib. I. tit,
4. § II.
[ 26 ]
‘ the nnclerHandlng, though the fale of literary copies ^for the
‘ purpofes of recital or multiplicatipn, is certainly as ancient
‘ as the times of Terence, Martial, and Statins.’ The latter
part of this propofidon, if it means that fnch copies were fold
with an exclufvc power of multiplication, is not fnpported by
the authorities referred to.
Thus, in tlie prologue to the Eunuch, Terence fays, ‘ Hanc
* fabuiara poftquam ediles emerunt.’ This only fliows, that the
public magiftrate fuperintended the amufements of the theatre,
and gave the dramatic poet a price for his work : It does not
pjrove, that there was a trade fubfiding between the bookfdler
and the author upcm the footing of perpetual copy-right.
- In the fame way, the epigrams referred to in Martial, ferve
only to evince, that there was a bookfeller, or copyift, who made
it his trade to tranferibe maniifcripts and fell them, and who
no doubt was paid for his trouble.
Sunt qiiidsm^ qtii me dicunt non ejfe f octant ;
Sed qui me vendit hibliopola, putat^ Mart. /. 14, ep. 1^4.
The palfage relative to Statins, in the fevenih fatire of Juve-
nal, is equally inconclulive, as it only proves, that Statius dif-
pofed of bis tragedy to the players.
The following lines of Horace fliow very plainly, that there
was no fuch thing as cop)^-riglit among the Romans.
Hie meret tcra liber Sofiis, hie et mare tranfit,
Et longiim noto feriptori prorogat nevum. De art. poet. v. 345.
In the preceding verfes the book is deferibed, which is here
fpoke of, as procuring moneq to the Sojii, two brothers of that
name, eminent bookfellers in Rome ; and to tiie author, fame.
This contrad between the author and the bookfeller is remark-
able : It fliows Horace’s fenfe of the matter ; and that the notion
of profit to an author, by perpetual fale of his works, was not
then entertained.
Neither do the writers on the civil law take tlie Icaft notice
of a property in literary coiupofitions ; thougli Voet, in treating
of privilegia, makes mention of the CRcluflve patents fometimes
given to printers of books.
Tlie idea therefore of literary property could not creep in
among us from the civil law; and as little can it be traced to
any
[ 27 ]
any other foiirce. It is faid by Ames^ in the prchtcc to his
graphical Antiquities, ‘ That in the time of Plenry II. of England,
‘ tlie manner of publilhing the works of authors, was to have
* them read over for three days fucceffively before the Univcrh-
‘ ty, or other judges appointed by the publi’c ; and if tliey met
* with approbation, copies of them were then permitted to be
‘ taken, which were ufually done by monks, fcribcs, illuminors,
‘ and readers trained up to that purpofe for their maintenance.’
At this period, furely authors could have no monopoly after
publication, either in Scotland or England. Every pcidon who
chofe to be at the labour of tranferibing, muft have been entitled
to r^p (he fruit of his labour ; and as our common law goes
back that length, fo it follows, that literary property is no ori-
ginal part ot the common law of this country. Public utility,
as well as the nature of the thing, muft have rejected any fuch
pretence ; and if fo, it will be difficult to explain how, or at
what time, or for what good reafon, it (liould afterwards have
been introduced among us.
Upon ti'.e revival of learning,- and after printing had been in-
vented, the publication of books was ftill an expenfive opera-
tion, anvl could not be attended with profit to the author ; buft
the zeal of learned men was great, and they publiffied their
w'orks not only without reward, but at great private expencc.
The art of printing was Introduced into England by Caxton a- >-
bout 1471, and into Scotland at or fooij after the fame time, as
4 )ears from Ames, and from Watfoii^s Hijiory of Printing. When in-
troduced, it was confidered as a mechanic bufinefs, a manufac-
ture of the kingdom, which all men had a right at common law
to exercile : It was only a more expeditious method ot copying,
7 'hc fird: printers, both in England and ScotPind, confidered it
in this light, and printed every book that came in their way,
without any notion of being reurained, either by literary pro-
perty, or by any other conlideration.
The only metliod taken in thofe days to prevent interference
was to conceal their art as far as polfible, not being metapliyfi-
cians enough to imagine, that, by inventing the art, they had
acquired any exciufive right to exercife it. ‘ Invcntores primes
‘ id clam habuifle, omnefque iecreti confeios, religione etiam
‘ jurisjurandi inrerpofita, exclufilfe ; idcoque vafls molis opera
* ptr paueis opernriis fuifle concredita.’ In fpite of their endea-
vours
[ :8 ]
voiirs however, the art fpreach printers Tnulcipliecl, ttnd books
were piibliQied without any control!, till the policy ot different
flates reflrained it by pofitive regulations, or the prerogative of
the prince, in arbitrary times, encroaciied upon the natural li-
berty of the fubjeft.
The invention therefore of printing w'ronght no alteration to
make the common law adopt new principles.
The liberty of the prefs in Scotland was firft retrained by the
(latute of Qiieen Mary, 1551, cap. 27. which, upon the narrative,.
* Tiiat diveiTe prenters in the realme prented buikes concerning tbe-
‘ faith, ballates, fanges, blafphematlones, &c. to the defama-
‘ tion and flander of the lieges,^ therefore ftatutes and ordains,
‘ That na prenter prefume, attempt, or take upon hande, to
* prenr e/'/y buikes, ballates, fanges, blafphemationes, rimes, or tra-
‘ gedies, outhcr in Latine or Englifli toung, in ony times to
‘ cum, unto the time the lamin be feene, viewed, and examined
* be Ibme wife and difereit perfons, depute thereto be the Ordi—
‘ nares quhat-fum-ever ; and thereafter ane licence had and ob-
‘ teiiied fra our Soveraine Ladie and the Lord Governour, for
‘ impreniing of fik buikes, under the palne of confifcation of all
‘ the prenter’s glides, and banifliing him of the realme for ever,*
This was entirely agreeable to the fpirit of the eflablifhed religioa
in thole times, averfe to free enquiry, and having no other means
left of oppofing the reformation than by obdruefing the progrefs
of knowledge and true literature, then faft gaining ground by,
means of the invention of priming.
Sir George Mackenzie, in his obfcrvatlons on this adf, main-
tains, Thar^ printing is inter regalia, and that the King may dif-
charge any man to print without his licence. At the fame time
he owns, ‘ It is the opinion of fome republicans, that, printing
‘ belmr a trade, no man can be debarred from the free ule of it,
except by Parliament, in which tlieir own confent is implied.’ It
is immaterial to the prefent argument, whether tlie power of
redraining the prefs was in this country acknowledged to be
in the Sovereign, or in Parliament ; for dill thefe redraints
ivere of a very different kind from that of literary property, of
which neither the legijflature at tlie time, nor our lawyers, a{>-
pear to have had the fmallcd conception. The abi above recited
drikes againd authors as much as againd others, and, paying no
regard to liter proper f'j, prohibits them from even piiblifhing
tlreir
t 29 ]
{heir own tv itholit licence.
Prior to the aforefaid a:T-, I55r> there appears one in James
the Fiich^s reign, 1540, cap. 127. ordaining the aefts of Parlia-
ment to be pnblitlied, and the clerk-iv^gider ‘ to make ane au-
* thentic extradl and copy of all the faidis arts, fa far as con-
< cernis the common weill, under his fubfeription manual, to be
* imprented, be qnhat prenter it fall pleale the laid clerke of
* regilter to chufe : And it fliall not be lealiim to ony uther
‘ prenter, to imprent the faniin within this realme, or without
‘ the famin, or bring hame to bee faulde, for the [pace of fex
* zeirs nixt to cuniy under the paine of confifeation of the famin :
* Providing alwaies. That the faid prenter to be chofen be the
* faid clerke of regifter, as faid is, have our faid Sovereigne
* Lordis fpecial licence thereto.* Accordingly, in the fame
year 1540, we find a patent granted by the King to Thomas
Davidfon, for printing the arts of Parliament, and difeharging
all others for the fpace of fix years, under the pain of confifea-
tion ; and there are fundry renewals of thofe licences to print
the arts from time to time.
But this can hardly be accounted a reftrirtion of the liberty of
the prefs, as it was thought proper very early, both in England
iind Scotland, that arts of Parliament, and other arts of Stale,
fliould be piiblifhed under the dirertion of the King or his of-
ficers, and likewife Bibles; and in England, Prayer-books^ and ybl-
fnafjacks, regulating the fafts and feftivals of the church. Thcfe,
in our neighbouring country, are called prerogative copies^ having
been veiled in the fupreme Magiflrate from political conflder-
iitions, for the fake of uniformity in law and national religitm.
They had no connertion either with the fuppoled private right
of authors, or with the general reftrirtion of the prefs. At the
fame time it may be noticed with regard to the above art 1540^
that the exclufive privilege, even of printing the arts of Parlia-
ment, was limited to fix years, and that the authority of Parli-
ament was thought neceflary to confer this monopoly.
It is probable, that the eftablifhment of the Reformation fbon
rendered the art 1551 unpopular, lo far as regarded a general
prohibition of priming without licence ; But the ideas of pre-
rogative at that time w’ere high, and a cuftoiti had been intro-
duced in other parts of Europe, of applying Co the fpvercign
H for
[ 30 3
{or priv'ilegia, or cxd ufive patents, of printing and publifliing
for a term of years. This took its rife in the more abfoluce
governments of Europe, where the printers having been at
great expence in fearching out ancient authors, collating the
manufcripts, and printing them, and being juflly entitle<l to en-
conragement for i'o doing, applied to particular Princes for fucli '
privilegia^ within their dominions ; and it was no uncommon
thing to obtain them from feveral potentates at once, e. g. the
Emperor, the King of France, the Pope, and other Italian
States Such privileges were in a great meafure necelTary, in
order to bring thefe excellent authors from rubbiih and obfcu-
rity: And as the work was attended with great expencc, it was
but fair to allow thofe who performed it to be indemnified; and
even, by the profpedt of gain, to be encouraged. It deferves, how-
ever, to be remarked, that privilegia never were perpetual,
but always granted for a limited term ot years; fometimes feven,
fometimes ten, and feldom, if ever, exceeding twenty years.
In Scotland, the firft books were printed without cither li-
cence or exclufive privilege, generally at the expence of feme
rich or learned man, who had no profit from the work, but the
fatisfaflion of doing good. The firfl printed book which we
have in Scotland, is a Breviary of the church of Aberdeen, pro
Hyemali PartCy faid to have been printed in 1509. The only re-
maining copy of it is in the Advocates Library ; and ^s it wants
the beginning and end, the manner in which it was printed does
not appear: But the next is a continuation, or fecond volume,
of the fame Breviary, called, the ‘ Pars Aillivalis, cum diverfo-
‘ rum fau(?torum Legenlis, &c. per reverendum in Chrifto
* pattern, Wilelmum, Abirdonen, epifeopum ftudiofins, maxi-
* mifque cum laborious colkAIis, non folum ad ecclefige fus A-
* birdonen, verum etiam ad totius ecclefise' Scoticance ufum per-
* celebrem Oppido Edinburgenfi impreffo, jiiffu et impends
* honorabilis viri Waltcri Chapman, ejufdem oppidi mercatoris,
‘ quarto die mends J ulii, anno Domini 1510.’ And there are
fomc others, foon after, printed in the fame way.
Afterwards follow fome books printed and publiilied cum pri-
vikgio; fuch as, a tranflation of Hedor Boece, by Mr. John Bel-
lenden, Archdean of Murray, printed by Thomas Davidfon,
the King’s printer, cum privilegioy in 1541. The works of Sir
* Sec an example of this in Ryiner’s Foedera, i8th April, 1551, tom. 15. p. 255.
David
[ 3
Pavid Lind fay of ihe Mount, printed l>y John Scott, at the ex-
pence of Henry Charteris, cum privilegio regali, iir 1568,
Whether thefe lafl were merely licences to print, or cxclufivs
privileges, does not clearly appear; though it is certain, that,
by degrees, exclufivc privileges hy patent from tlie Crown,
and liiniced to cert iin periods, became in life in Scotland as in
other countries; but always granted as a matter of favour, up-
on liipplication of the author, or publillier of the Work, or of
the printer employed by him.
In the reign of Charles II. a new and very dangerous check
was given to the liberty of the prefs in Scotland by the King’s-
pi'inters, who, under pretence of their gifts from the Crown,,
aflumed a power of controlling the prefs, and of licendng o-
ther printers : Particularly it appears, that one Anderfon hav-
ing, in 1671, obtained a gift of this office for forty-one years,
he and his widow pretended to very high powers over the prefs,
and which were attended with very bad confequences. Watfon,,
in his Hijiory of Printing, fays, that ‘ by this gift the art of
‘ printing in this kingdom got a dead flroke ; for by it no *
‘ printer could print any thing, from a Bible to a ballad, wich-
* out Mr. Anderfon’s licence” He adds, that under his wi- ~P* iS-’
‘ dow, nothing came from the Royal Prefs, (as Mrs. Amlerfon
‘ vainly termed it) but the moil illegible and uncorrecl Bibles
* and boojts that ever were printed in any one place in the
‘ world. She regarded not the honour of the naiion, and-
‘ never minded the duty lay upon her as the Sove.eign’s ler-
‘ vant. Prentices, inflead of the beft workmen, were gener-
‘ ally employed in printing the facred word of Goo. And in
‘ fine, nothing was fludled but gaining of money by printing
‘ Bibles at any rate ; which Hie knew none other durft do, and
‘ that nobody could want them. The whole nation being fen-
‘ fible how ill they were ferved, and the oppreffion of this mo-
‘ nopolizer being the common difeourfe in moft places of the
‘ kingdom, thofe who formerly were her friends, and fupport-
‘ ed this unaccountable gift, began to be afliamed of her prac-
‘ tices, and turned their back upon her. At laft. His Koyal.
‘ Highnefs the Duke of York (our late Sovereign) coming to
‘ Scotland, 1680, John Reid informs him, by petition, of the
‘ perfecution and oppreflion he and others of his employment
‘ had undergone through the extenfivenefs of Mr. Anderfon’s
‘gift.
/
[ 32 ]
‘ gift. And th6 matter lying then before the Privy Council,
‘ and being moved. His Royal Hightleft there declared. That it
‘ could only be the King’s meaning and pleafure, by that gift,
* that his printer fliould enjoy what privileges his Royal prede-
‘ ceUbrs were in life to grant to their printers, fuch as printing
* of Bibles, Afls of Parliament, etc. Therefore the Council al-
‘ lowed the printers to go on in their ordinary work.’
This matter being fet to rights, printers and publilhers went
on as formerly ; and when they thought it material to have an
exclufive privilege for a term of years, they applied for, and ob'
tained it. This was held by lawyers to be a part of the prero-
gative ; though, as Sir George Mackenzie fays, the legality of
it was much doubted by fome, who rather inclined to think,
that monopolies, granted by the foie authority of the Prince,
were not quite connHent with the nature of a free government.
However, upon this footing Rood the exclufive privileges of
printing all over Europe. It was never once dreamed that they
were granted ex juJUtia-y in virtue of a perfedl right. They were
indulged from fdvouTy and with a view to expediency, in the
lame way as patents granted to the contrivers of ufeful machines.
It is remarkable too, that they were at firft granted, not to au-
thors, to prompt them to write, but to printers and publlfliers,
to induce them to hiake correct and ufeful editions of books
\ ,
which lay in manufcVipt ; though by degrees they came alfo to
be granted to authors, but Rill for a limited time, and only
meant for the equitable purpofe of indemnification. If at any
time a more aUipte privilege was obtained, this could be confi-
dered in no other light than as an abufe, being unjnR to others,
and contrary to the original defign of Rich grants. Fritchins, an
Deabufibus author, on this fubjeiR, fays, ‘ Iniquum tamen non eR, fi quis
typogr.tol-< Riper impfefiione llbri, in quern nuiltos erogavit fumptos, lii-
par. 4. cruhi & commodum aliqiiod laboris fui pras aliis fentiat, ne
* quod alias fieri po'Re't, alibrum fafto in paupertatem inopina-
* tarn cohjiciatur. Q[ii6d fi tamen abiifiis pfivilegii concefli in
* perniciem reip. verget, diibium non eR illud, quocunque
‘ etiam modo impetratu'm fit, juRilfiine revocari, ant tolli pofle.
‘ ER autem pfecipuus privilegii a'bufus hie, quod typographi &
‘ bibliopolae librorum pretia pro lubltu augere foleant, quae ho-
* die, non fine reip. literariae decremento in tanqaimi excrevere,
‘ lit
I
[ 33 ]
* itt magiftratus rel hulc oblcem poneiicU juflifUmam caulam ha-
* berent.’
All the writers and pubUniers on our law have clearly fignified
their opinion, that they could not preferve an exclnfive right to
their works, without a fpccial grant either from the Crown or Par-
liament. Sir Thomas Craig’s book, De Fendis, was publifhed un-
der the authority of an art of parliamenr, obtained in 1633 by
his fon, Mr. Robert Craig advocate ; granting to him the foie
privilege of printing the faid book for the fpace of twenty-one
years; and prohibiting all others from printing and felling the
lame during that time, under the penalty of confifcation.
Lord Durie’s Decihons were publiflied by his grandfon, SirLordDunc.
Alexander Gibfon, a lawyer ; who obtained an exclnfive patent
from the Privy Council for nineteen years, from the 12th of
July 1688, to print, reprint, import and vend the faid book.
Sir John Nilbet of Dirleton’s Doubts and Decilions v/ere pub- vSir joha
Ilfhed by Mr. Robert Bennet, Dean of the Faculty of Advocates,
Avho obtained for George Mofman ftationer, burgefs of Edin-
burgh, his heirs and affignees, a patent from the Privy Council
in 1697, giving the file privilege of felling tliis book for nine-
teen years, and difcharging all others under a penalty.
Prefident Gllmour and Prelident Falconer’s Decilions
publilbed in the fame manner, under a patent, in 1699. ‘
Sir George Mackenzie, advocate to Charles II. and fames II. Sy George
author of fome of the moft valuable books on the law of Scot-
land, publiflied his Criminals in 1 678,^pnder the authority of an
exclnfive patent from the Privy Council for the fpace of nine-
teen years, from 7th April 1 677 ; and, upon the expiration
of this term, it appears, that Andrew Simplon, who had been
Sir George’s amanuenfis, applied foT and obtained a new patent,
for the foie printing and publilhing another edition of the fame
book, during the fpace of nineteen years, from the iith No-
vember l6y7, and prohibiting all others to print, &c. under a
penalty. And Sir George’s other works, which were publiflied
by himlelf, appear to liave been guarded by patents in the fame
manner, and for the fame term of nineteen years. See the pa-
tents prefixed to the firfl: edition of his Inflitiuions in 1684, and
to the firfl: edition of his Obfervations in 1687. This laft pa-
tent he afiigns to Thomas Brown flaiioner, his heirs and afiig-
I nces,
L 34 3
nees^ * to do and in virtue thereof, in all points, as fully
‘ and freely as I might have done myfelf.’
Lord Stair. Lord Stair, one of the greateft of our lawyers, thought it
neced'ary to fecure, by a patent to his printer, the foie privilege
of printing and pubfilhing his valuable works for nineteen years.
The patent from King Charles II. bearing date the iith April,
1681,. is inferted after the, epiftle dedicatory of the firft volume
.of his Decihons. Jt is i.niituled, ‘ His Majefty’s gift and prL
‘ vllege to Sir James Dalrymple of Stair, for printing liis InflL-
‘ tutions,’ It proceeds on a narrative of the ufcfulnefs of
ihefe works, and his Majelly ‘ being willing to give to the faid
‘ Sir James, all encouragement therein therefore ratifies an a-
^ greement which be had made with his printer, and prohibits
all others to print the faid books for the I'pace of nineteen years,
without the fpecial leave of the faid Sir James, his heirs and fuc-
effbrs. This patent contains no penalty upon contravention ;
it is a fimple grant of eKclnfive right for ninteen years, which
llirely there was no occafion for, if the author had by common
law an excluhve right for ever.
Sir James Smart, advocate to Queen Anne, took out a pa-
tent of the fame nature, when he publiihed his abridgment of
the a6ts of parliament, and alligned it to his printer ; the term
limited being nineteen years, from the 25th Ss^ptember 1701.
Forbes. Mr. Forbes, when he publillied his treatife on titlies in 1707,
,got a fimilar patent from the Privy Council for nineteen years,
proceeding on this narrative ; ‘ Tliat where the faid Lords are
‘ in ufe'to eiuourage the author of any new , book, b'j granting to hini
‘ the foie p’ivilege of priming and vending the fame.’ The like
patent is prefixed to the fecond part of his Juftice of Peace, in
1707. Wiiat life was there for tliis encouragement, if authors
had a perpetual exclufive .right at common law ?
The, opinions of thefe lawyers, expreffed rabus ipfis et faciiSy in
a matter concerning themfelves, muff have great weigiit. They
fliow more clearly what vvas underdood to be the law of Scot-
land, than the mod; dire4t authorities from their books could
have done. Their works are filcnt upon the fuhjecfl, but the
reafon is plain, becaufe the notion of literary property was not
then conceived in Scotland. All that any of our authors ever
looked for, was an exclufive right by patent, or by act of par-
liament, for a certain number of years ; and it may he obferved,
that feveial of thefe books have been republifhed dnee the expi-
ration
[ 35 ]
ration of the patents, not by the heirs of the authors, but by
Grangers, without any challenge.
It was faicl, that patents were the fafliioii of the times; that
Sir George Mackenzie was an advocate for prerogative, and
Lord Stair was wc-r in condition to preferve his prepert'j^ without uf-
iug the means then in practice; that the patents did not create
the right, but only tended to fecure and preferve it by a public
prohibition ; and that they were often without any penalties an^
nexod, which fliowed, that an a<!fion of damages lay at common
law.
The defenders muft be permitted to fay, that thefe obferva.-
tions appear to them in a very extraordinary light. Sir George
Mackenzie was at the head of the bar. Lord Stair Prclident of
the Seflion,. and both were very able to preferve their rights a-
gainfl; any unlawful invalion of them. Lord Stair’s patent being,
merely prohibitory, without any mention of a penalty, affords a
ftrong argument againfithe pretended common law-right, as alrea-
dy laid ; for if he had an exclulive privilege at common law, what
earthly advantage did he obtain by the patent ? It, on the other
hand, he had none Inch by the common law, the patent was ne-
cefTary to create right in his favour, which might be the foun-
datlonofa claim for refUtution and damages in cafe ofviolation.
All thefe patents were underftood to be creative^ not corrobora-
tive of the autlior’s right.
Neither did any alteration happen in confeqnence of the Ur*
nion : On the contrary,, the necelfity of patents was l ather eur
forced, from this circumflance, that, by the Union, the Englilli
laws relative to trade were communicated to Scotland, and a
mong.others, that moft lalutary KnglUli ftatiue, 21 Ja. I. cap. 3,
prohibiting all grani,s of monopolies to any perfon, except the
lirfl: inventor of a new manufacture, and to him only for the
term of fourteen years, and from which flatute, ^ any letters
* patent, or grants of privilege, heretofore made, or hereafter
* to be made, for or concerning printing^, ate alfo excepted.
The hill time that ever this queflion appears to have been flir--
red in Scotland, was in the year 1743, vvheii Daniel Midwinter,
and other bookfellers in London, brought an aflion before the
Court of Selfion, againfl the bookfellers of Edinburgh and Glaf-
gow, complaining, that the defenders had tranfgrefred the ffatiue
of Qi^ieen Aniie^ by printing, reprinting, 5 cc. the fevciTd boohs
therein 1
Reraart.
Decif. June
-y. i,748‘
M'Dowa!,
b I tit. 19
§ 11.& 12.
I 36 ]
therein fpeclfiecl, without confent of the pnrfuers, who had pur-
chafed thefe books from the authors ; and therefore, concluding
for the penalties and foifeitures -of the ftatiite ; At leaf!, that the
defendants ought to pay damages for every furreptitious copy, on
account of their having invaded the property of the pnrfuers.
In this a6iion, the alternative claim of damages, to which at lad
the purfuers reftridfed their adiion, gave occalion to much ar-
gument upon the alledged common-law right, a topic then for
the firft time broached in Scotland. The cafe is very well a-
bridged in a Collediion of Decihons lately publiflied.: But as it
will fall to be more particularly noticed under the next head,
concerning the acl of Qiieen Anne, the defenders fliall only at
prefent obferve. That neither the pleadings here, the judgment
of the Court of Sefiion, nor what afterwards pafled in the iloufe
of Lords in chat cafe, were in any degree favourable to the pre-
tended common-law right.
The author of the late Inftitute, who wrote pofierior to the
cafe of Midwinter, is the firll Scots law writer who has taken
notice ol authors of books being entitled to any privilege ;
aud as he gives them nothing but what they are entitled to by
the adl of Qtieen Anne, fo it is plain, that he rejedls any com-
mon-law right. He brings in their privilege, under the clafs
of monofolies, and fays, ‘ It is only granted to authors of books,
‘ or their alligns, that enter them in Stationers Hall in London,
‘ as the ftatutes in that behalf diredt ; and in fuch cafe, they are
< entitled to the foie right of printing or felling the books for
‘ fov.vtecn years after the publication.* He then mentions the cafe
of Midwinter, and miftakes the decilion, not knowing that the
ialt interlocutor was in favour of the Scots bookfcllers. But he
fays notone word of a common-law right ; he founds the right of
authors entirely upon the ftatiue : And indeed, when he pub-
liQied his own book, he thought it neceffary to comply literally
with the terms of the ilatute, by entering it in Stationers-hall,
in order that he might have the benefii of the adf.
In the late abridgement of the llatute-Iaw of Scotland, the acf
of Qiieen Anne is placed under the word mom-poly ; which goes
feme length to (how that author’s opinion.
In further evidence of the common law of Scotland, the un-
deiflanding of the country may be appealed to. Many mull
have been the trefpaifes, and many the violations of this pro-perty
bv
«/
[ 37 ]
by printers and bookrellei*S, if we can fiippofe it to Iiave exifiecl ;
but which never were in any one initance complained of, or
brought before a court in this country, except in the cafe of
Midwinter, when no encouragement was given to it. The de-
fenders are ready to produce evidence of nuinberlefs publications
carried on in Scotland openly and avowedly againft the fuppofed
perpetual riglit of authors, and they call upon the other party
I’O Oiow a fingle cafe in which this was ever found illegal.
If fuch a property had exided in Scotland, it ought to
have manifelled itfelf in fonie ouvert manner, in the way of
trail fmillion, fale, diligence, forfeiture, or teflament. It is ei-
ther a real or a perfonal property : It ought either to have
been the fubjedl of fervice or confirmation : It ought to have
been attachable by creditors ; conveyable by difpofition ; an ob-
ject of prefcription pofitive or negative ; an eftate or intereft,
falling under gifts of ultimiu haeresy forfeiture, and efcheat. Au-
thors are often poor, and fome inflanccs ought to have appeared
of their furrendering their ideas in a cejjlo bonorum. The defenders
have in vain endeavoured to find this property in fome one or
other of thefe fltapes. They can difeover no veftige of it, except
now and then, that a royal patent, limited to a term of years,
has been conveyed by aflignation or teflament. The cafe may,
be otherwife in England ; but certain it is, that no fuch exif-
tence is to be found in any part of the law or pradice of Scot-
land.
An opinion of the late Mr. York, obtained in the cafe of
Mrs. Ruddiman againft Rivington, concerning a violation of
her right, under a patent obtained by her deccafed hufband,
has been founded on by the purfuer in this caufe. When the
Opinion is looked into, it will be found to give no judgment
upon the common -law right even in England, far lefs in Scot-
land, hut only to point out the eafieft method of applying for
redrefs ngaiitft an Englifli bookfeller, viz, by bill in Chancery
for an injunction : And it fets out with faying, that Mrs.
Kuddimaii’s right depends on the ' law of Scotland^ where Mr.
buddlman lived and died. So far the opinion will be admitted
to be applicable to this cafe. As not only the defenders live,
but the artion is brought in Scotland, the law of Scotland
rnufl undoubtedly be the rule here ; and they cannot, with
fubmiflion, conceive a propofition more clear, than that the law
K of
. ' [ 38 ]
of Scotland rejects the idea of an excliifive right, after publica-^
tion.
nr. Aa of III. The next queillon is, Wliether the a<T of Qiieen Anne
Q^Anne. akeration upon our iavv favourable to the piirfuer’s
clalna I This aft took its rife from a petition of the London-
bookfellers ; and, by way of introdu<ftion to the flatute, it may.
be proper to enquire, wiiat were the rights claimed or exercifed
by the Stationer’s Company of London prior to that period, and,,
what may have been their views in applying for a new law.
The liberty of the prefs, oi-, as Milton calls it, the liberty of wi-
licenfed printing, was invaded in England much about the fame
time that it was in Scotland, and from the fame caufes.
.g It has already been fiid, that the firft printers carried on
their bnlinefs as a lawful employment, without any patent or li-
cence. Caxton’s title pag'es never bear cum privilegio, but only
thefe humble words : ‘ Imprinted by me fimple man WiJlianii
Caxton.’
In 153.9 iojunckions w'cre ilTued, in the King’s name, againft..
importing books from aoroad without examination of the King or,
his council (or fome perfon appointed), particularly Englidi books; .
or printing’, pnblilhing, and felling within the realm, EnglHli,
books of Scripture, wdthout examination by the King’s High-
nefs, or one of his council, or one Biliiop wliofe. name was to
be expreircd.
In 1555, th'^re W'as a proclamation by Pliilip and Mary
againf: importing htretical and leditious books, fpecifying the
books of all the great reformers of Europe, Englifli and Ibreign.
This was faid to be founded on a flatute of Henry LVth for re—
preliing herefes;.
In 1556, the hr ft charter was granted to the ftationers com-
pany, requiring all printers to be of that company, and giving
power of fearch and feizure, in refped: of all books printed or
ftamped contrary to the form of any flatute or proclamation.
In 1559, additional injundions were publUhed againft here-
tical and feditious books, requiring in the firft inftance, previous
to the printing or publifliing of any booksi ^hc licence of the
Qtieen in w'l'Iring, or of fix privy coiinfelloi s, the Archbilhops of
Canterbury and York, the Bilhop of London, the Chancellors of,
the two Univerfities, the Biftiop, (being Ordinary,) and the Arch-
deacon, or any two of them, the Ordinary of the place being
one.
[ 39 ]
onei As to pamphlets, plays and ballads, (wherein regard was-
te be had, that nothing be I'editious, heretical, or nnfeemly for
Ghril'lian ears,) fuch writiitgs were tiirntd over to be licenfed by
the commhlioncrs of eccleliaflical canles.
This was the firil general regulation for licenfing in England,
and as it flowed from the ro\al authority, I’o it appears that ma-
ny unconftitLitional proceedings, with regard to printing, w'cre
enforced from time to time by ordinances of the Star Ghamber ;•
and that tlte ftationer’s company was encouraged and fupported'
as a creature of the crown, and ufed as an cnghie for promoting
thofe arbitrary meahires.
Nothing indeed could be more ridiculous than fome of tl^e
patents that were given. Thus, Ciiriftopher Saxton having rc-
prefented to Qiieen Elifabeth that he had travelled over divers*
parts of England, and made pkafant maps thereof, and intend-
ded to travel flill more, a patent was obtained by him from her
Majefly, during ten years, to make as many pleafant maps, as*
to him fliould feem* meet, and forbidding all her loving fubjeds
to do the fame. Another man got the liberty of printing * all*
* forts ot things that are, may, or fhall be printed on one iidc
* of a flieet, provided the other fide* be white paper
Tile Stationers Company pretended to various exclufive privi-
ledges, and they had letters patent from the crown giving*
them temporary rights to the foie printing and publiihing cer-
tain books. They had likew'ife regulations and agreements a-
mong ihemfelves, by which any member of the corporation who
claimed a right of printing any particular book by patent or o-
therwife, w as to enter the fame in the regitler of the company,
and the other members w'ere not* to encroach upon tlie right or
priviledge thus claimed. By degrees the entry in this regiller-
book of the company became a criterion or mark by whicli the
i'ndividuals of the company regulated qiieftions among them-
fe ves, but which could be of no avail. as to others.
Soon after the Refloration, a general licenfing act was pafTed,
(1662, cap. 33.) entitled, ‘ An adf for preveiitijig abufes in
‘ printing feditious, treafonable, and unlicenfed books and
* pamphlctSj and for regulating of printing and piinti ig preE
*• fes.’ By this flatute it was enaGfed, ‘ That ho privaie per--
‘ fon whatfoever fliall at any time hereafter, print, or caufe to
‘ be printed, any book or pampliiet Avliatfoevcr, unicfs the fame.
‘ book.
[ 40 - ] -
* book or pamphlet, together with all and every the titles, c-
* piftles, prefaces, proems, preambles, introdudlions, tables,
* dedications, and other matters and things thereunto annexed,
* be firfl entered in the book of the regijler of the Compan'j of Stationers of
London f (except afts of parliament, and fome others) ; ‘ and un-
‘ lefs the fame book and pamphlet, and alfo all and every the
‘ faid titles, &c. fliall be firfl lawfully licenfed and aiithorifed
‘ to be printed, by fuch perfon or perfons only as fliall be con-
* flitLited and appointed to licenfe the fame That is, tliat ail
books concerning the common laws of the realm, be printed by
the fpecial allowance of the Lord Chancellor, or Lord Keeper of
the great feal of England, Lords Chief Juflices, and Lord Chief
Baron, or one or more of them, or by their appointments ; all
books of hiftory, or other books concerning the flate, by the
principal fecretaries of flate ; all books concerning heraldry by
the Earl Marflial, &c. ‘ And all other books to be imprinted or
‘ reprinted, whether of divinity, phyfc, philofophy, or what-
* foever fcience or art, fhall be firfl licenfed and allowed by the
* Lord Archbifliop of Canterbury,, and Lord Blfliop of London
‘ for the time being, or one of them, or by their or one of their
* appointments, or by either of the Chancellors or Vice-chanceL
lots, of either of the univerfities of the realm for the time be-
* ing ; Provided always, that the laid Chancellors or Vice-chan-
‘ cellors of either of the faid univerfities, fliall only licenfe flicli
‘ books as are to be imprinted or reprinted within the limits of
‘ the faid univerfities refpeclively, but not in London or elfe-
‘ where, not meddling either with books of common laws, or mat-
‘ ters of flate or governnient, nor any book or books, the right
* of printing ivhcreof doth folely or properly belong to any particular
* perfon or perfons, without his or their confent firfl obtained
‘ in that behalf.’
Thefe laft words are taken hold of as implying a copy-right
in authors at common law. But that this was not meant, ap-
pears from an after claufe of the ac^l, in which the rights of in-
dividuals are more fully explained and fived, in thefe words :
‘ And be it further enabled, That no perfon or perfons fliall,
* within this kingdom, or elfewhere, imprint, or caufe to be
* imprinted, nor fliall import or bring in, or caufe to be ini-
‘ ported into this kingdom, from or out of any other his Majef-
*■ ty’s dominions, nor from atiy other parts beyond tlie leas,
‘ any
[ 41 ]
« any copy or copies, book or books, or part of any book or
< books, or forms of blank bills or inclentorcs for any of his
* Majelly’s ifiands, printed beyond the Teas, or elfewhere, whleh
* any perfon or perlons by force or virtue of any letters patent
* granted or aU'igned, or whicii fliall hereafter be granted or ai-
‘ ligned to him or them, or (where the lame are not granted by
‘ letters patent,) by force or virtue of any entry or entries
‘ thereof, duly made, or to be made in the regijler-book of the
‘ faid Company of Stationers^ or in the regifter-book of either of the
‘ univetfities relpe^Hvcly, liave or fiiall have the right, privilege,
‘ authority or allowance, folely to print without the confent of
* the owner or owners of fuch book or books, copy or copies, form
‘ or forms, of fuch blank bills, nor fliall bind, ditch, or put to
‘ fale, any fuch book, or books, or part of any book or books,
‘ form or forms, without the like confent, upon pain of lofs
* and forfeiture of the fame, and of being proceeded againd as
* an offender againd this prefent atd,* &c.
It is plain that the rights here meant to be protected are thole
conferred by fpecial privilege, either to individuals or to uni-
verlities, or thole rights which the dationers claimed in quedions
with one another by virtue of entries in their regider^book.
This appears to be the fird datutein wdiich any notice is taken
oftheregider of Stationer’s Hall, and it does not contain the lead
inlinuation of a property in all authors at common law. On
the contrary, one claufe of the aft fays, that printing is ‘ an
‘ art and manufafture of the kingdom,’ and the whole tenor of
it fuppofes, that every perfon is entitled to print and publidi,
unlels in fo far as redrained by the datute itfclf, or by fpecial
cxclulive privileges belonging to individuals.
This aft was only to continue in force for a limited time,
which was renewed afterwards, but finally expired in 16^4.
From the rules and ordinances of the Stationer’s Company, it ~
is clear, that they themfelves did not entertain the idea of a li-
terary property in authors at common law.
Thus, at an adembly of the mader and wardens, &c. of the
faid Company, upon the 17th Augud 1681, it was, ititer aliay
refolved : ‘ And whereas feveral members of this Company have
* great part of their edates in copies ; and by ancient ufage of
‘ this Company^ when any book or copy is duly entered in the
‘ regider-book of this Company, to any member or members of
L * this
C 42 ]
« this Company, fitch perfon to whom fitch entry is made, is,
‘ and always hath been reputed and taken to be proprietor of Inch
‘ book or copy, and ought to have the foie printing thereof, which
‘ privilege and interell is now of late often violated and abufed.
‘ It is therefore ordained, That %vhere anj entry or entries, is, or
‘ are, or hereafter fall be duly made of any book or copy in. the [aid
V regifter-hook of this Company, by or for any member or mcm-
‘ hers of this Company ; that in fncii cafe, if any other member err
‘ members of this Company diall thereafter, .without the licenle or
‘ confent of fnch member or members of this Company, for
‘ whom fuch entry is duly made in the regifler-book of thi-s
‘ Company, or his or their affignee or aifigns, print, or caufe to
* be jirinted, import, &c. any fuch copy or copies, book or
books, &c. or fhall fell, bind, flitch, or expofe the fame, or
any part or parts thereof, to fale, that then fuch member and
‘ members fo offending, fall forfeit to the maflers, and keepers
‘ or vrardens, and commonalty of the myflery or art of Statioir-
‘ ers of the city of London, the fiiin of twelve pence for every.
* fuch copy or copies,’ ike.
By another article, ‘ Whereas his mod; Excellent
‘ King Charles II. that now is, by his letters patents under the
‘ great feal of England, bearing date the iith day of Odober,
* in the i 8th year of his reign, did grant unto the mafler, and
‘ keepers or wardens, and commonalty of the mydery or art
‘ of Stationers of the city of London, and their fuccefTors, li-
‘ cenfe, authority, and privilege only to print, utter, and fell
‘ the feveral books therein to them particularly mentioned, for
‘ a term of years yet in being ; It is therefore ordained, that
‘ if any member or members of this Company fhall hereafter, during
*■ the continuance of the term in the forefaid letters patents granted,
‘ without the licenfe or content of the faid maflers, and keepers
d or wardens, and commonalty of the myflery or art of Stationers
* of the city of London, imprint, or caufe to be imprinted, or
* import, &c. any fuch book or books, or put to fale, contrary
‘ hereto ; then fnch member fliall forfeit to the keeper or war-
‘ dens, &c, for every fuch book, twelve pence.’
And by another article, it is ordained, ‘ That W'here the foie
‘ printing of any copy or copies, book or books, is already
‘ granted to any member, or members of this Company, by any let-
‘ ters patents of his now Majdly, or any of his Royal predecef-
‘ fors,
[ 43 ]
fors, Kings, or Qifeens of this realm ; or where the printisi'g
‘ of any copy or copies, book or books, is by any letters patcirts-
‘ granted to any perfon or peifons, not being a member or
* tnembers of this Company, to his and tiieir own life ; or \vl)e!i
* the printing of any copy or copies hereafter fliall be granted by
‘ his now Majejly^ or any of hit Royal Jurceffors, to any member Oi*
‘ members of this Company, to his and their own ufe ; or ftieh
* letters patents (hall be duly and legally aifigned to any member
* or memoers of this Company, to his a d their own ufe: I'hen,
* if any other member or members of this Company fliall, with-
* out the licenl'e or content of fuch owner or owners, or the ex-
‘ editor or adminidrator of Inch owner or owners {being a maU'
‘ her or members of this Companf of Inch copy, or book, &c. print,
‘ or canie to be printed, or import, or put to fale, any copy, &c.
* fuch member (liall forfeit twelve pence to the Company for
* every fuch book.*
Thefe regulations fecni to point out, what was the fenfe of the
Stationers Company, with refpect to this matter. The firft ar-
ticle above recited, does not pretend that there was any fuch
thing as a common-law property, but is founded on a fuppoled
ufige among themfehes ; by which, when any book is entered in
the regider of the Company, as belonging to any particular
member, the book is reputed to be his property, and the other
members oblige themfelves not to interfere with him in it, though
they often violate this obligation ; and therefore, by private con-~
ctr/ among themfelves, they agree tliat they (hall not encroach
on one anothers rightSj cllahlilhed in this manner, by the
rules of the Company. T liC other two articles exprelsly acknow-
ledge the Koyabletters and patents, to be the foie foundation of
any exclufive privilege belonging either to the Company in ge-
neral, or to intfividuals.
Thus matters flood when the aiT of Qtieen Anne was applied
for; and it is material to attend to the proceedings on that oc-
cafion.'
Lipion examining the Journals of the Houfe of Commons, it
appears, that, on the 12th December, 1709, ‘ A petition of
* Henry. Mortlock, <^=c. on behalf of themfelves, and other y^l
^'fellers and printers in and about the city of London, and elle- p- 24°*
‘ where, was prefented to the Houfe and read; fetting forth,
‘•That it has been the conftant ufage fo the writers of books,
‘ ■ to ^
[ 44 1
^ ‘ to fell their copies to hookrellers or printers, to the end they
‘ might hold thofe copies as their proper and enjoy the profit
* of making and vending impreliions of them; yet divers per-
‘ fons have of late invaded the properties of others, by reprlnt-
* ing feveral books without the confent, and to the great inju-
* ry of the proprietors, even to their utter ruin, and the dif-
‘ couragemeiu of all writers in any ufeful part of learning:
‘ And praying,’ that leave may be given to bring in a hiW^ for fe-
‘ curing to than the propert'j of books bought and obtained ' by
‘ them.’
Here it is to be obferved. That the narrative or preamble of
this petition (which is to be confidered as the aflertion of the
; bookfellers who prefented it) differs from the fubfumption. The
narrative does not alledge, that at common law authors or book-
fellers had any right of property; but only that there had been
^ an ufage among them of purchafing books, to be held as their
■' property : Which is a plain acknowledgment by the petitioners
- fthemfelves, that there was no real property, but only fomeching
V which they had been pleafed to view as a fort of property, or
compare of liken to a property. But the fubfumption immedi-
ately infers from this, that they aflually had a property, entitled
to the protection and aid of the law ; which, however artful, is
neither confiftent nor conclufive.
it would feerti. That the view of the bookfellers in their
petition was, to be fecured in a perpetual property of their
books, not a temporary cxclulive right. They had been pleaf-
ed to figure to therafelves, that an author, or the perfon to
whom he fold his work ought to be confidered as the proprietor
of it. Their own particular rules, and the boundaries lectled
with one another, had given birth to this idea, however adverfe
to the true meaning of thofe very rules. They were diffident
' however of the ftrength of common law to fupport them in it;
and therefore they made this application to Parliament, hoping
to have the queftion decided in their favour : A queflion highly
important to the London bookfellers, who were in poflefiion of"
all the mod: valuable books, but of little confequence to au-
thors ; and accordingly not one author joins in the application.
Leave having been given to bring in the bill, iith January
Vol. i6. 1709, ‘ Mr. Wortley, according -to order, prefented to the
P- 240- < Houfe, A bill for the encouragement of learning, and for fe»
‘ curing
[ 45 ]
‘ curing the pro^ertj of copies of books to tlie rightful owners
‘ thereof ; and the fame was received, and read the firil time.’
The bill was then ordered to be read a lecond time, and fur-
ther conlideration of it lay over till the 2d February, when the
bookfcllerSj being afraid that it would be loft or neglected, ob-Vol. 16.
tained a new petition to be given in, from ‘ the poor dijirejjed
‘ printers and bookbinders m London and Weftminfter ; letting forth,
‘ That the petitioners having ferved feven years apprenticeftiip,
* hoped to have gotten a comfortable livelihood by t'.ieir trades,
‘ who are in number at leaft 5000; but the liberty lately ta-
‘ ken of fome few perfons printing books^ to which tliey have no
‘ right to the copies, is fuch a dilcouragement to the bookfelling
* trade, that no perfon can proceed to print any book without
confiderable lofs, and confequently the petitioners cannot be
* employed; by which means the petitioners are reduced to ve-
* ry great poverty and want: And praying, that their deplor-
‘ able cafe may be effeflually redrefled, in fuch manner as to-
* the Houfc fliall feem meetd
Here the poor printers and bookbinders are introduced to re-,
vive and fecond the petition of the rich bookfellers. It will not
efcape notice, that the faift upon which this petition refts, does
by no means infer the conclufion : For how ihould the printing
of books make printers or binders lack employment, and reduce
them to poverty and want ?
9th February 1709, The bill was read a fecond time and or — p. 300.
dered to be committed.
. 21 ft February 1709, ‘ Mi% Compton reported from the Com-“P-352.
* mittee, that they had gone through the bill, and made feveral
amendments y which they had dire<fted him to report, when the
* Houfe were pleafed to receive the fame.*
25th February 1709, ‘ Mr. Compton reported, from the Com — p. 339,
‘ mittee of the whole Houfe, the amendments they had made on
‘ the bill ; and he read the fame in his place, and afterwards de-
‘ livered them in at the clerk’s table; where they were once
‘ read throughout, and then a fecond time, one by one; and
‘ upon the queftions feverally put thereupon, with amendments
^ to fome of them, agreed unto by the Houfe.*
‘ Orderedy That the bill with the amendments be ingrofted.*
14th March 1709. ‘ An ingrolfed bill for the encourage-— p 569,
‘ nient of learning, by vefling the copies of printed books, in the
M ‘ authors
Vol. 1 6
p. 394.
[ 46 3
* authors or furchafers of fuch copies, during the times therein men^
‘ tionedd was read the third time.
- ‘ Refolvedy That the bill do pafs, and that the title be, A bill
^ for the encouragement of learning, by vefting the copies of
* printed books, in the authors oy pur chafers of fiich copies, during
*■ the times therein mentioned^
Here it is material to advert, That the title given to the bill
when engrolTed, and wliich the Hoiife refolved it fhould bear
when they palled it, is extremely different from the title the bill
had when prefented by Mr. Wortley. The title originally given,
was agreeable to the views of the bookfellers, and feemed to im-
ply, that the authors or purchafers of books, had, ab ante, a
right of property in the copies : Whereas the title given to it,
when engroffed and palfed, viz, ‘ A bill for the encourage-
‘ ment of learning, by veJUngd as plainly implies, that the
authors or purchafers had no right of property^, but what was
given by this adl, and would have none after the times mention-
ed therein fliould expire. The intention of the bookfellers was
to have a perpetual property afeertained : The parliament would
only veil in them a temporary, conditional, and limited right.
Neither was this title given per incuriatn : On the contrary, it ap-
pears to have been an amended title^ given upon mature confider-
^tion, for the very purpofe of fliowing, that the legiflature did
not acknowledge an ah ante right.
yth April 1710. * The Houfe proceeded to take into confi-
‘ deration the amendments made by the Lords to the bill, inti-
* tilled, An aB for the encouragement ^ etc* and the fame were read,
* and are as follow.’
The firfl four amendments being of no confequence, iris need-
lefs to infert them.
The next is. To leave out the fourth fei^lion, about regulating
exorbitant prices : and the lall; amendment is, to add the follow-
ing provifo to the end of tlie bill: ‘ Provided always, that after
* the expiration of the faid term of fourteen years, the foie right
‘ printings or of difpofmg of copies, fliall return to the authors there-
‘ of, if they are then living, for another term of fourteen years d
This was a moft extraordinary claufe to be added, if by common
law the foie right was to return to them for ever*
All the amendments were agreed to, except that refpeifling the
prices.
Ordered^ * Tliat a CommittCiS be appointed to draw up rea-
* ‘ foils,
[ 47 ]
' fons, to be offered to the Lords at a conference, for difagree-
* ing to the faid amendment.* And it was referred to Mr. Se-
cretary Boyle, and feveral others, (of whom Mr. Addifon was
one), who were ordered to withdraw immediately into the Speak-
er’s chamber, and report to the Honfe.
Mr. Compton reported from the Committee, That they had
drawn up reafons, which he read in his place, and afterwards
delivered in at the clerk’s table, and are as follow; ‘ That Vo!.
‘ the Commons difagree to your Lordlhips amendments, in pr.
‘ 3. 1 . 14. Firjiy Becaufe authors and bookfellers having the
* foie property of printed books vefed m them b'j this ably the Com- '
‘ mons think it reafonable, that fome provifion fllonld be made,
‘ that they do not fet an extravagant price on ufeful books.
‘ Becaufe the provilion made for this purpofe by the flatute, 25th
* Henry VIII. chap, r 5. having been found to have been ineffec-
* tual, and not extending to that part of Great Britain called Scot-
* laudy it is neceflary to make fuch a provilion as may be effec-
* tual, and which may extend to the whole united kingdoip.
- The Lords did not infill: upon their amendment.
This conference about regulating the prices, affords a ffrong
additional evidence of what was underftood. The meaning
of the a(T was not to declare a pre-exiffing right in authors,
which they might ufe at their diferetion ; but to confer a
right for a term of years, and which therefore it was reafonable
the parliament fhould grant upon its own terms. This is
the very’ argument ufed by the Commons, and at length ac-
quiefeed in by the Lords ; the reflriffion of the price being
thought neceflary, in order to prevent the ill effefis of the mo-
nopoly thus given by the flatute. It did not then occur, that the • .
very fame author, who, during the term of the flatute, was limit-
ed as to his price, was, at the expiry thereof, to become quite
unlimited, and, at the fame time, to retain the exclufive power
of felling his works for ever.
The art was palled, verhatimy as hereto annexed. But it may
be obferved. That the fourth clauLe, refperting the regulation of
prices, was afterwards repealed by an art in the 12th of Geo, II.
cap. 36. becaule, upon trial, it was found not eafy to be execut-
ed ; fo that the prices are now left to the diferetion of bookfel-
lers, and the monopoly is thereby rendered fb much the more
dangerous.
Not only does the of the art fliow what was underflood
by
C 48 ]
by parliament, but the enabling claufes do in the moft explicit man-
ner point out, that a common-law right was not meant to be
confirmed ; but a llatutory-right granted for a certain time, un-
der certain conditions. The preamble indeed ufes the word
proprietors, as fynonimons with authors ; but the enafting words
are more corre<?l:. The preamble lays, * Whereas printers, book-
‘ fellers, and other perfons, have of late frequently taken the li-
* berty of printing, reprinting, and publilhing ; or caufing to
‘ be printed, reprinted, and publifiied, books, and other wri-
‘ tings, without the confent of the authors or proprietors offuch
** books and writings, to their very great detriment, and too ob
* ten to the ruin of them and their families.* The enacting
words ar€ ; ^ For preventing therefore fneh practices for the fu-
* ture, and for the encouragement of learned men to compofe
‘ and write nfeful books ; be it enacted, That from and after
* the i-oth of April 1710, the author of any book or books already
printed, who hath not transferred to any other, the copy or
* copies of fuch book or books, fhare or (hares thereof, or the
* bookjcller or bookfellers, primer or printers, or other perfm or per-
‘ fons, who hath or have purchafed or acquired the copy or co-
‘ pies of any book or books, in order to print or reprint the fame, '
‘ fliallhave thft foie right and liberty printing fuch book '^nd books,
* for the term of one and tvjenty years, to commence from the fald lotb
‘ day of A'‘pril, and no longer \ and that the author of any book or
* books already compofed, and not printed and publiflied, or that
‘ (liall hereafter be com|>ofed, 2iod his afgney or affgns, (liall have
‘ the foie liberty of printing and reprinting fuch book and books,
‘ for the term of fourteen years, to commence from the day of fir (I
* publidiing the fame, and no longerd Then follow the penalties
on tranfgrefibrs of the aift, by forfeiture of the books, etc. and
provifoes for entering in Stationers Hall, prefeiiting copies to the
Univerfities, and regulating the prices.
That the word proprietors, in the preamble of this acf, does
not mean to declare any antecedent property in authors or their
affigns, but is nfed in a fenle not llridHy proper, appears not on-
ly from what follows in the a^ itfelf, but from other inftances in
the flatute-law, where the fame word is tiled to exprefs a mono-
poly or exclufive right, fpecially conferred, without any pre-
tence of an aiTual property, in the ftri<^f and true fenfe of the
word. For example; the afl ^vo Geo. II. cap. 13. (or encou-
ragement
[ 49 3
ragement of the arts of clefigning, engraving, and etching prints^
fays, ‘ Whereas divers perfoiis have, by tlieir oivn gt nuis, in-
‘ duilry, pains, and expence, invented and engraved, or vvork-
* ed in mezzotintOy or chiaro ofturo, fets of hillorical and other
* prints, in hopes to have reaped the foie bmehc of their la-
*■ hours : And whereas prindellers, and other perfons, liave of
‘ late, without the confent of the inventors, defigners, and pro-
* prietors of fuch prints, frequently taken the Iii>erty of copying,
‘ engraving, and publilhing, or caufing to be copied, engraved,
* and publilhed, bafe copies of fncli works, defigns, and prints,
‘ to the very great prejudice and detriment of the inventors, de-
‘ figiiers, and proprietors thereof , — ^^For remede thereof, and for
‘ preventing fuch practices for the future, be it enaeded, 6cc.
* That from and after the 24th day oi'June, which fliall be in
‘ the year of our Lord 1735, every perfon who fliall invent and
‘ defign, engrave, etch, or work in mezzotintOy or chiaro ofeuro, or
* from his own works and invention, lhall caufe to be deligned
‘ and engraved, etched, or worked in mezzotintOy or chiai 0 ofeuro,
‘ any hiftorical or other print or prints, lhall have the foie right
‘ and libert) of printing and reprinting the fame, for the term
‘ of fourteen yearSy to commence from the day of the firft publiOi-
‘ ing thereof, which (hall be truly engraved with the name of the
* proprietor on each plate, and printed on every fuch print or
‘ prints/ Then follow the like forfeitures and penalties, as in
the aft concerning books.
The one aft feems in a great mcafure to be copied from the
other. And indeed, upon looking into the Journals of the Houfe
of Commons, it appears, that the petition of the engravers re-
fers to the law in favour of authors, and defires to be put on voi. 22,
the fame footing. No two fubjefts can be Fiker, and no two afts P’
of parliament can more nearly refemble one another ; yet it ne-
ver was thought, that the defigner of a print bad an inherent
exclulive right to hinder others from copying that print, after
having publihied it, or that he was in this lenfe proprietor of his
invention It never was maintained, that he had a common law
property, or exclufive right of any kind, independent offtatutc.-
By an aft in the 7th ot ids prefent Majefty, cap. 38. it was fur-
ther provided in favour of engravers, “ That ail and every per-
‘ foil and perfons who fliall engrave, etch, or work in niezzotinto,
N ‘ or
[ 5 ° ]
*« or chlard ofcuroy or caule to be engraved, etched, or worked^
« any print taken from any pitlure, drawing, model, or fciilp-
^ ture, either ancient or modern, Ihall have, and are hereby de-*
* dared to have, the benefit and protedion of the faid ad, and'
‘ this ad for the term herein after mentioned, in like manner as
if fiich print had been graved or drawn from the original de-
‘ fign of fneh graver, etcher, or draftfman ; and if any perfon
(hall engrave, print, and publifli, or import for fale, any copy
‘ of any fuch print, contrary to the true intent and meaning of
‘ this and the faid former ad, every fuch perfon fliall be liable
‘ ’to the penalties contained in the faid ad, to be recovered as
* therein, and herein after is mentioned.’
By tliis ad, the term of the exclulive privilege is prolonged
as follows : ‘ That the foie riglit and liberty of printing and re-
* printing, intended to be fecured and proteded by the faid
‘ former ad and this ad, fliall be extended, continued, and be
* vejied in the refpedive proprietors^ for the fpace of twentf eight
‘ years, to commence from the day of the firfl; publHhing of any
‘ of the works refpedively herein before, and in the faid former
‘ ad mentioned.’
On ’account of the extraordinary genius of Hogarth, his widow
was, by another claufe of the fame ad, indulged wdth a particu-
lar monopoly of his prints for twenty years, to commence from
January 1767, over and above the fourteen years which Hogarth-
himfelf had had by the ad, 8th of George II. But as in the in-
terval between the expiry of the firft privilege, and the com-
mencement of the fecond, feveral engravers had copied and pub-
liOied Hogartli’s works, the following claufe is very properly
added in the ad 7th of his prefent Majefty.
* Provided neverthelefs That the proprietor or proprietors of fuch
‘ of the copies of the faid William Hogarth’s works, which have
« been copied, and printed, and expofed to fale, after the expi-
* ration of the term of fourteen years from the time of their firfl:
‘ publication by the faid William Hogarth, and before the faid
‘ firfl: day of January, fliall not be liable or fubjed to any of the
‘ penalties contained in this ad, any thing herein before con-
‘ tallied to the contrary thereof in any wife notwithftanding.*
* Here the legiflacure made a very juft cliftiiidion. No perfon
p 7 as to be puiiifticd, or fued in any adioii, for publHhing Ho-
garth’s
' [ S* ]
garth’s works, after the monopoly of fourteen years had clapfed;
and nothing could rellrain any perfon from continuing (b to do,
but this new law, giving a further monopoly ibr twenty years.
It is to be obferved too, that throughout the whole flarute, al-
though propert'j 2 ind proprietor arc the terms ufed, nothing more
was meant than a flatutory exclufive right ; not an acftual, hut
a quafi propertjy the creature of that particular flatute ; and the
fame ohfervation does clearly apply to the ftatute of Qiicen Anne
concerning books.
It is remarkable, that even the copiers of Hogarth’s prints are
called proprietois in the above rlaufe, in as large a fenfe of flic
word as he is himfelf. The bookfellers had introduced thefe
cant words proper and copyright ; and they were naturally made
ufe of by others, as phrafes belonging to the trade; they were
copied from the petition of the bookfellers into the a 61: of Qtieeii
Anne, and from thence into the ftatutes of his late and prelent
Majefty. It is juftly obferved by Mr. Blackftone, That * words Voi. r
‘ are to be underftood in their ufual and moft known fignifica- ^9
* tion, not fo much regarding the propriety of grammar as their
‘ general popular ufe and in particular, ‘ terms of art, or tech-
‘ nical terms, muft be taken according to the accepfation of the
‘ learned in each art, trade, and fcience.’ ,
That the above is a juft con ftrudiioii of the ftatute of Qiieen
Anne, may further be illuftrated from the report in the cafe of
Midwinter, where the argument upon the ftatute is laid down
with great precifion. Treating of the right of an author after
publication, the reporter fays 4 * All that remains with him is p.ij^
‘ an exclufive privilege, granted by the ftatute, of reprinting'
‘ this book^ and of barring others from reprinting or vending it
‘ under certain penalties. It is neither more nor lefs than
♦ creating a monopoly, barring others from dealing in that par-
‘ ticular commodity ; the dirert confequence of which is, that
‘ fo far as reftrained by ftatute they muft fubmit .; but that, in
'* all other particulars,, their natural libertj^ is prelerved entire*
■* It is true, this monopoly or exclufive privilege is named a pro-
‘ perty in the ftatute ; and fo it is in one fenfe, becaufe it is pro-
‘ per or peculiar to thofe to whom it is given by the ftatute.'
But then it was not intended to be made property in the ftridf
^ feufe of the word ; for we cannot fuppofe the legiflature guilty
‘ of
C 52 ]
* of fuch a grofs abrtudity, as to eflablifli property wlihcnt a
‘ fabjeft or corpus : Thefe are relative terms which cannot be
* disjoined ; and property, in a ftritSt fenfe, can no more be
« conceived without a corpus, than a parent can be conceived
« without a child. But if the words of the flatute fliall be laid
‘ hold of, neglecting its fpirit and meaning, all that can be con-
‘ eluded is, that it is a property ad certum cffcBum only, granted
‘ in order to fupport the feveral aCtions and penalties cJiredfed
« by the flatute. It is a flatutory property, and not a property
‘ in any juft fenfe to be attended with any of the effefls of pro-
* perty at common law.’
‘ In the fecond place, Suppofing fo abfurd a thing as that a real
‘ property is eftabliflied by the ftatiite, it appears evident, that
‘ the purfuers can take no advantage of it, when they have not
‘ fulfilled the conditions upon which it is granted. The very
‘ firfl'claufe of the ftatuie, which talks of beftowing the property
^ upon the author, is what follows : ‘ And whereas many per-
Tons may, tlirough ignorance, offend againft this acd, unlefs
fome provUion be made, whereby the property in every fncli
“ book as is intended h) this aB, things to be fecured to the pro-
prietor may be afeertained,’ &c. Here tw'o things are plainly
* implied, or rather expreffed : i J?, That the property is not in-
* tended to be beftowed in every cafe ; for the words are,
“ Whereby the property in. every fuch book, is intended by
“ this aCt tp be fecured to the propiietor, may be al'certai ;ed.’
‘ And 2dl'j, The property is not beftowed direftly upon compo-
‘ fing, bur is to be claiuned or afeertained in a certain form
* eftabliftied in, the ftatute, viz. by entering in Sationers Hall,
‘ the name of the book, and the author’s confent for printing
‘ the fame. Upon thefe conditions the property is beftowed,
and not otherwife : Nor does this argiuneiit land in a criiicifm
‘ upon words ; it is founded on the very nature of »he thing ;
‘ for if it be true in fadl, that many perfonsi of dilliiK^lion amufe
* themfelves with eompofing- books, without intending to take
‘ any pecuniary benefit by the publication, muil it npt be com-
*• petent to every mortal to deal in fuch books, as much as it was
‘ to deal in all books before exchdive privileges were invemetl?
‘ It follows therefore, that every author, who inte nds to make
‘ profit of his works, muft fjgnhy the fame to the public, or, in
* the
[ S3 ]
* the language’of the flatute, mull have tlic property alcertaincd
* to him. And, as the method for claiming or alcertainiiig this
‘ property is allb laid down in the llatute, there mull be ella-
‘ bliflied ?L prcfumptio jut is et de jure, that every new book, which
‘ is not thus entered in Stationers Hall, is abandoned to the pub*
‘ lie, and a lau ful fubjecl ot commerce for every man to deal in.
‘ In the rbird place, Suppoling all obftrudions removed which
‘ bar the purfuers from a property in this cafe, llriclly taken,
‘ and fuppofe their property to be fuch as to afford the fame
‘ at^lions that may be founded on real property ; yet it does not
‘ appear, that they could take any benefit from thefe conceflions :
‘ for how are damages to be afeertained ? The only footing to
‘ go upon is to fliow how far the proprietor’s fale is lefTened by
< interlopers. But this can never be determined otherwife than
* by mere conjetflure : The proprietor himfelf cannot be certain,
* that the perfons who dealt with the interlopers would have
< purchafed from him, without which the afeertaining damage*
* is beyond the reach of law. And the purfuers tacitly yield
* this point, when they agree to confine their claim of damages
* to the fuppofed profits made by the defendants. Their claim,
* fo qualified, does indeed relieve them of fome part of the dif-
< faculty of proof, by no means of the whole ; becaufe an inter-
< loper, who has fome part of a piratical edition in his pofTeffion,
‘ cannot know what profits he makes till the whole be fold off.
< But to let this pafs : Where is the foundation in law, equity,
< or common fenfe, to deprive the defendants even of their pro-
« fits, unlefs the purfuers can fpecify that they have fuffered
* thereby ? If their fale be not lefTened, they have no jufl ground
‘ of complaint. Let ns give an example, w'hich iliall be Millar’s
« Didionary, publiflied in two folios, and fold at a price beyond
* the reach of common gardeners. If a printer fhall undertake
‘ an impreflion of this book on a very fmall type and very coarfe
* paper, which will be purchafed only by common gardeners,
* Philip Millar and his alligns will not lofe a fhilling by this edi-
‘ tion : yet by this low-priced book, knowledge in gardening is
* r]:)read much to the benefit of the public. Would it be reafon-
‘ able or juft to deprive fuch an undertaker of his profits, when
* the public gain by the undertaking, and Mr. Millar lofes no-
* thing ? it is obvious then, that this claim for profits cannot be
' O ‘ fupported
L 54 ]
fuppot'ted lefs or more as a claim of damages,’ when there is real-
‘ ly no damage to the party privileged, or, which is the fame,
‘ w here damages cannot be proved.*
Thefe, and other arguments ufed upon that occaflon, are a
better commentary upon the a^l.than any that the defenders can
make. The Court of Sellion found in that cafe, ‘ That no ao
‘ tion lies upon the flatnte, except for fuch books as have been
‘ entered in Stationers Hal!, in terms of the flatute. And found',
‘ That no afUon of damages lies upon the ftatute.*
The caufe was appealed by the London bookfellers to the
Houfe of Peers ; and having come to a hearing, it was the opi-
nion of that mod honourable Houfe, that the aflion ought to
be difmided as irrelevant, w’ithout prejudice to the points plead--
ed therein, tvhen they fhould be properly brought in judgment ;
and accordingly an order was given to that purpofe.
The London bookfellers were fo little encouraged by this de-
cifion, and by what pafTed in the Houfe of Lords upon occafion
of it, that they never ventured to renew their aedion in Scot*-
land, though it is well known how defirons they were to extend
their fehemes of monopoly over the whole ifland, and to pre-
vent all interference of thejr brethren here. This tiiey have not
yet been able to accomplifh, and it is hoped never will.
It is indeed, with fubmilTion,v. thought, that the. afl of
Queen Anne leaves no room, for the pretence of a common-law
property independent of the. ftatute. Your Lordfliips, in the
only queftion of the kind which has come before you, feem to
have confidered it in that light. At the fiime timey it is a pofli-
ble cafe, that the view of the legiflature may have been to. fettle
a contraverted point, by afeertaining. tins claim of property for a
certain limited timCy and fixing the boundary there, fo as to cut
off all pretences quoad nltra^ The word vejiing feems rather to
Ihow, that the antecedent right was in no lhape acknowledgedf
But taking the a(d in either lenfe, as conferring a new. right
which had never before exifted, or as declaratory fo far of a
right ab ante claimed ; it does not occur to be a doubt that this
right, whether vefted or declared, is, by the exprefs tenor of
the a(ft, limited in duration,, and made, entirely dependent
on the ftatute.
Oihcp
[' Sj J
Other inflances "'might be given, of rights cleaily fouiK!-
eel in common law being limited by llaiLUc. Bribery was a
ground for reducing the elections of magiilracy, long prior to
the art J4th of George II. wliereby it was, i/Uc’r alia, ‘ made
‘ lawlul for any conltituent member of a meeiing lor elertion,
who (hall apprehend any wrong to liave been done by the ma-
‘ j^J"Aty of Inch meeting, to apply to the Court of Seilion by
* fummary complaint, tor rettifyi g fuch abide, or making void
*■ the elertion, fo as inch complaint be prefented to the fitid
*• Court within two calendar months alter the annual elertion of
‘ magillrates and counfellois.*
In a late cafe, Young and others of Andruther-Eader, having-
allowed the two calendar months to elaple, were cut out of their
remedy ot fummary complaint upon the ftatute ; but they
brought an artion at common law for voiding the election. Proofs,
were adduced ol tlie bribeiy and corruption. The purfuers
prevailed in this Court, and tiie elertion was voidech
An appeal, however, having been taken againd this decree,,
the chief reafon urged for a reverlal, and for the fird time dated -
from the ban of the Houfe of Peers, not having beeu before at-
tended to, was, That the Court had given judgment in an ac-
tion which appeared . incompetent, the datute having limited-
the time, and pointed, out.the only mode for obtaining., redrefs, .
which had been neglerted..
The anfwer made was. That the datute only authorized ai
new mode of artion for redrefs of wrongs at annual elections,
but that thefe wrongS'Were dill artionable at common law; and
that the. remedies ab aiiie competent, coulcTnot be meant to be
taken away by the datute : That where a datute only allowed a
particular and new mode of redrefs,- in a cafe which was before
remediable at. common . law, , the common-law remedy dill re-
mained entire.
Replied, That the intendment of the legidaturc was to take
into condderation all the elertion laws, and by that datute, fo *
full and particular, to cut off at once, and put an end to alE
q.uedions and difpiites that might have arifen upon thefe laws.
The Houfe of Lords reverfed the decree of the Court of.
Sedion.:
The^
[ S6 ]
The reafonlng in that cafe appears extremely applicable to the
prefent ; and indeed, a fortiori applies, as the antecedent right
here was at befl difputable and uncertain. The ftatute of Qtieen
Anne confidered fully, and included, 'all the poor pretences of
authors to copy-right, and fettled this kind of property on a
clear, equitable, and folid footing. It fays, as clearly as words
can exprefs, That they fliall have a right for a certain term of
years, and no longer.
Though authors, and thofe in their right, fliould be fuppofed
to have had a perpetual property in their books ; yet there was
no iniquity in rendering it temporary by this ad:, by which their
right is proteded by forfeitures and penalties for a confiderable
trad of time, during which, if their books are good for any
thing, they will draw much more than fufiices to reimburfe and
recompenfe them. Many natural rights are reftrained by fta-
tute j fuch as, the exportation of wool, grain, &c. at certain
times. If the proprietors of thefe goods were allowed to go to
any market they pleafed, their gains would often be much
greater.
The laft claufe of the ad declares. That if the author fhall
happen to be alive at the expiry of the term of fourteen years,
the foie right of printing and difpofing, &c. fhall return to him
for another term of fourteen years ; not the penaltieSy but the
right, or what is called the proper t'j j and not to the bookfcller,
hut to the author huvii'el^, if he be alive. W hat pollible ufe was
there for this claufe, or what purpofe could it ferve, if, inde-
pendent of the ad, the exclufive right returned to the author,
not for fourteen years only, but for ever ? And how could the
right return ifo the author, if he had already given it away for
ever to an affignee ? A more unmeaning, nay, more improper
claufe, cannot be figured, if the purfuers are well founded in
their argument.
It is laid. That the purpofe of the ad of Qiieen Anne was to
give an additional fecurity to authors, by means of penalties
upon tranfgreflion ; and that the reafon of limiting this penal
fandion to a certain term of years, was, that the chief tempta-
tion to invade the property of authors was when the demand
was great, which generally lafted only a few years.
But, with fubmilfion, this is by no means a natural or reafon-
able conftrudion of the ftatute. No fimilar inftance will be*
^ ' pointed
L 57 ]
pointed out, of a property being guarded wltli penalties for a
certain number of years only, aitd left unguarded alter iliat
period. If a common-la v property is at all allowed to amhoi s
in their works, tins property is as flrong and as entire the fif-
tcentJ) year as it is i\ic fourteenth, and tlie dematid may be as great.
It is impodible to conceive, that fo trivial a circumflance, as the
difference of demand between the fifteenth and the fourt; enth
year after the publication of a book, woulti bethought faHicient
by the legiflature to make lb important a diflinction between
thefe tw'o periods. Belides, independent of penalties, whicli by
this ftatuie are not given at all to the author, but to tlie infor-
mer and to the King, the author’s right is made to continue
fourteen years longer, in the cafe of publications after the act,
if the author himfelf be alive ; fo that the penal confequenccs
in this cafe expire in fourteen years, and the prorogated right
of the author, unattended with any penalties, in twenty-eight
years, which furely mufl luppofe, that he has not a right in him
wliicli la^ts for ever.
Moft articles of moveable property are more valuable when
new than wnen old ; yet it never was thought nccefTary to make
a law for fecuring more effecftially the owner’s right to new fur-
niture, or new property of any kind, leaving the old to fhift
fot icfelf. No a(ff of parliament ever declared. That a man
diould have the foie excliifive right to difpofe of his goods tor
fourteen or t\Venty-£*ig!n years and no longer ; and that whoever
invaded this property during that time, fhould be liable in pe-
nalties and punifhment. So far from fecuring the property, this
would rather look like an invitation to invade it at the end of
tlie term afligned. If by common law a man had a perpetual
right or privilege to do a certain thing, it Svould 'furely appear
very lingular, were he to apply for, and obtain an abf of parlia-
ment, declaring his riglit to do that thing for fourteen years
and no longer. Any peribii who ac^Ied in this manner, would be
confidered as waving his right at common law.
It was faid. There are many inflances of penalties fuperadded,
as in the cafes of treafon, bribery’^ in elections, &c. But will an
inftance be Oiown of any ftatute which lays, that treafon fhall
be puniQiable for fourteen years, and no longer ; or, that bribery
fliall be a crime for fourteen years only, and punifhable during
P that
t 58 ]
that term ; or, that elecVions fliali be free and uneorrupt for
fourteen years, and no longer ?
In fliort, this ftatiite cannot be explained upon the footing of
a fuperadded penalty. The clear and plain conftruetion of it
is, That it is a Handing univerfal patent, giving authors an ex-
clnlive right in their works, or what is called a Jlatutor^ property^
for a certain time. It was intended not to give an additional
fecurity, but a new benefit to authors, and to free them from
the charge and trouble of procuring patents from the Crown.
The act therefore, (fo far, at lead, as applicable to Scotland),
appears to be neither accumulative nor rellridive ot any former
right, but rather creative of a full clear one, for a determinate
time, and under certain conditions : And the reafon of guard-
ing it wiih penalties feems to have been, that this was the heft
manner of fecuring the right introduced by the Hatute, as the
liquidation of damages mufl; often be extremely difficult. An
of this kind was fully fufficient for all the purpofes of re-
warding author^ and encouraging learning ; whereas the efla-
blifliing an independent inextinguifliable property in copies,
would be pernicious and deftrutdive.
The clanfe in the aCl, tvhich provides, ‘ That it do not extend
‘ either to prejudice or confirm any right that the faid Univer*
* fities, or any of them, or any perfon or perfons'have, or claim
‘ to have, to the printing Or reprinting any book, or copy al-
* ready printed, or hereafter to be printed/ has been appealed
to by fome, as containing a general falvo of all antecedent rights 5
and confequently of the common-law right of authors. But the
fmallefl confideration will fliow, that this clanfe could only have
in view thofe fpecial rights, founded upon flatute, charter, of
other privilege, which either the Univerfiiics or particular per-
fons may have a claim to; rights not merely natural, but found-
ed on privilege. It is obvious, that if the words of this provilb
are interpreted to mean any more than a falvo of fpecial rights,
Inch as the claims of King’s printers, patentees, and Univerfities,
iliey mull operate a repeal of all the preceding clanfes.
By the words ‘ faid Univerfities/ are meant Oxford and Cam-
bridge, who, before this aff, had the privilege, by patent, of
printing fevcral books, fnch as Bibles, Acts of Parliament, &c.
Balker, who was King’s Printer, difputed this right with them,
'T'hc Stationers Company likewUe had, or claimed, the foie right
of
[ 59 ]
of priiitiilg cUffcrer.t books, particularly Almanacks, Pfalm?,
Piakers., &c. Partridge difputed this, and inllfled to print an
Almanack of his own compiling. They likewife pretended a
right to law books ; but Atkins, a law-patentcc, got an ir<junc-
tion againft every member of the Company, I'or printing Koli’s
Abridgment. Roper, , who purchaled Croke^s Reports, printed
the book without the corifent of the law-patentees, upon whicli
they in i 705 raifed an atTion againll him. In like manner thefe
law patentees difpnted with Viner the right to print his abridge-
ment though compiled by himfelf. Ocher inllances might he
given ; and as feveral of thele difputes were fubfiking at the time
the aft of Queen Anne was in agitation. It was proper to tiirovv in
a provilion to leave the queftion as to thefe patent-rights entire,
whether regarding works already printed, or hereafter to be print-
ed ; for even authors, who might afterwards write on particular
fubjefts, might polfibly be debarred frojn printingtheir own works,
as happened in the cafe of Viner, Partridge, 6 cc. which whether
juft or not was left undetermined. The fame thing was done
in the licenfing aft 1662, and in the aft of James II. againft
monopolies.
Before leaving the aft of Qiieen Anne, it may be ohferved.
That the London bookfellers, not fatified with the advantages
which they had thereby obtained, did, in 1734. a new ap-
plication to Parliament, for leave to bring in a bill for making
more effeftual the aft of Queen Anne, and for preventing the
furreptitioiis printing or importation of books from foreign parts^
It is probable, the chief objeft in view tvas to prevent importa-
tion from Ireland, as it had long been, and indeed ftlll is a
praftice, to reprint every Englifli book of any confequence in
Ireland, immediately after being publiflied in England, and to
underfell the Englifli edition. Had any fiich thing as a com-
mon-law property been unclerftood to be in authors, or the
bookfellers to whom their copies were aftigned, this abiife might
furely have been redrefled, by applying to the Courts of Ire-
land. But no fuch attempt appears ever to have been made;
w hich at Icaft fliow’s, that there is no remedy at common law in Ire-
land ; though, if the defenders are notmiftaken, the common law
of Ireland is, in other refpefls, the fame with that of England.
Swift, in fome of his letters, complains. That even his rnanu-
icripts were ftole from him there, and publiflied without his con-
fent,
[ 6 = ]
fent, and that he could have no redrefs. Thus he writes to Mr.
Mar. 8, Pulteney, ‘ You will hear, perhaps, that one Faulkner hath
Vof/^3. ‘ printed four volumes, which are called my works. He hath
K0381. < only prefixed the firft letters of my ame. It was done utter-
‘ ly again fl my will ; for there is no proper rj in printers 01 hookjel^
‘ lershere^ and I was not able to hinder it. I did imagine, that,
‘ after my death, the feveral London bookfellers would agree a-
* mong tbemfelves to print what each of them had, by common
• ‘ confent; but the man here hatn prevented it, much to my
* vexation; for J would as willingly have it done even in Scot-
‘ land. All this has vexed me not a little, as done in fo ob-
‘ fciire a place. I liave never yet looked into them, nor I bc-
‘ lieve ever fliall.’ He feeras here to have had in view the tem-
porary property which in England was veRed in authors by the
acl: of Qiiecn Anne, but which did not extend to Ireland ; and
he had no notion of a property at common law./ See alfo his
Voi. 3. letter to Mr. Pulteney, 12th May 1735, on the fame fubjedt ;
° where he fays, ‘ I never got a fartiting by any thi‘ g I writ, ex-
‘ cept one, about eight years ago; and that was by Mr. Pope’s
‘ prudent management for me.’ And he adds, ‘ Here the prin^
*' ters and bookfellers have no proper t'j in their copies.*
The fame obfervation holds as to the American colonies,^
where the works of Englifli authors are every day repul lifhed
openly and avow'edly, without any leave from the London book-
fellers.
The application made in 1734, appears to have been attended
with no effect : But, in 1735, and 1756, the London bookfellers
made another effort ; and particidarly in 1736, upon a motion
made in their behalf, a bill w;as allowed to be brought in, ‘ for
tije better encouragement of learning, l>y the more effedlual
P- 740 ‘ feciiring the copies of printed books to the authors or purchaf-
‘ ers, during the times therein to he mentioned, and to repeal an
‘ acd, jiafled in the eighth year of the reign of her late Majeliy,
* endrled,’ &c.
I'his bill had probably been in agitation the year before, as
a let ter appears from ^lr. Pulteney to Dr Swift, of date 29th
Self ’s Apiil 1735, in thefe words : ‘ I have fciit you the copy of a bill
loi' q ‘ now ilcpending in our Honfe, for the encouragement of
No, 3.56 ‘ 1 - arning, (as the title bears ;) but I think, it is rather of ad-
‘ vnntng^c to bookfellers than authors. WTether it will pafs or not
‘ this
[ 6i ]
‘ this fefTion, I cannot fay ; but if it fliould not, I llioiild be glad
‘ of your thoughts upon it, againll another feilion. It Teems to
* me to be extremly imperfect at prefent I hope you have
‘ many more writings to oblige the world with, than thofe which
‘ have been fo icandalonfly Itolen from you ; and when a bill of
‘ this nature palfes in England, (as I hope it will next year),
‘ 3’0/<r then fecure the property to any friend, or any chari-
* table life you think fit.* This plainly fliovvs Mr. Pulteney^s
opinion. That, unlel's upon the footing of ftatute, there was no
fuch thing as a property in authors.
This bill was likewife thrown out, and the fcheme of repeal-
ing the adt of Q^ieen Anne appears to have been dropt. iiur,
in i739>, a new was paffed, not materially altering the a<T of
Qi' een Anne, hut eltablilhing two points in favour of the book-
fcllers. It is intitled, * An aft for prohibiting the importation
‘ of books reprinted abroad, and firft com poled, or written, and
‘ printed in Great Britain ; and for repealing fo much of an
‘ aft, made in the t ighth year of the reign of her late Majefty
‘ Qiieen Anne, as im powers the limiting the prices of books,’
The firft part of this aft lubjefts the importers to certain penal-
ties, and mull have been chiefly intended againft the interfe-
rence of Irilli bookfellers, as already obferved. At the lame
time, it contains this material provifo, That the aft ‘ lliall not
‘ extend to any book that has not been printed or reprinted in
* this kingdom, within twenty years before the fame fliall be
‘ imported.’ Which (hows, that the legiflature ftill had in view,
to debar all ferpctnal exclufive privileges, and to prevent the pof-
llbility of authors or bookfellers fiipprelling ufeful books.
IV. The defenders can pretend to no knowledge in the com- IV. Law of
mon law of England ; but they may without offence Hate what
appears from books, and they have already had occalion to ob-
ferve in wiiat manner printing was originally exercifed in Eng-
land as well as in Scotland.
After excluhve privileges came in ufe, we find much light
thrown upon the fubjeft, by thofe very grants of exclufion, ma-
ny of which are of fuch a nature, and are exprelTd in fuch
terms, as Ihow an univerfal opinion, that there was no literarv
property at common-law in England.
A great number of patents to authors and printers are to be
Q„ found
[ 6a ]
found in Rymer’s Foedera, fome few of which fliall be here no-
ticed.
By letters patent, dated 12th March 1563, Elizabeth, ‘in
‘ confideration, that Thomas Cooper of Oxford, hath diverfe
‘ and fundry times heretofore travailed in the correcting and
‘ augmenting ot the Englldi Dictionary (commonly called Biblio-
‘ theca Eliota) and now of late as well to his. further pains, &c.
* hath altered and brought the fame into a more perfect form in
‘ the following notable work, called Tbcfaurus Lingua; LatineJ*
Therefore, ‘ grants privilege and licenle to the faid Thomas'
‘ Cooper and his alTignies, to print and let forth to fale the faid
‘ Engliih Didionary (before named Bibliotheca Eliota), and now
‘ in this laft edition, intituled, Thefaurus Utriiifque Lingua; La-
‘ tinae et Britannics, and prohibits all otiiers from printing and
‘ felling the lame, either b'j the cop'j heretofore imprinted, or hereaf-
* ter to be printed by the faid Thomas Cooper,’ during the
fpace of 1 2 years. This prohibition feems to extend even
to the author of the’ original work and his heirs, who are debar-
ed from republilhing it during the term of the privilege.
26th April 1626, a licenfe in favour of Jofeph Webb, fets
forth, ‘ That John Webb, by his petition, has reprefented that
* he has attained to a more exaT, fufficieiit, and uleful way of
* teaching to write and fpeak the tongues than has hitherto been
‘ communicated.’— Therefore grants to him, his deputes, fub-
ftitutes and aflignies for 14 years, ‘ to have the whole teach-
‘ ing of all fiich as defire the fame in the tongues and languages
‘ by the way and means by him invented. And the foie prhn-
‘ lege of printing and sending all and every book and books whatfo-
‘ ever, which now are or hereafter lliall be invented hy him, or
‘ by him made ferviceable to the pnrpofe aforefaid, for the term
‘ of 31 years.’ And prohibits all others from attempting to
teach by the method invented by the faid John Webb, or to
tranlport out of the kingdom any of the forelaid books, or to
reprint the fame within the kingdom ; — yielding and paying
to his Majefty for the faid privilege, one fifth of the clear benefit
accrefeing thereby, and that yearly, at the feafi: of the annun-
ciation for the wiiole forefaid term, (the firfi: three years being
free) with L. iq penalty, if not paid within fixty days there-
after.
9th
[ 63 3
^th March 1 ^ 24 , Caleb Merely obtained a hinilar privilege
for 21 years, of printing and vending every book and books
wliich now are, or hereafter rtiall be invented him, or by him
made fcrviceable to the parpofe therein mentioned, (viz. a inetliod
invented by liim for the firm and infallible help of memory, and
grounding of fcliolars in feveral languages, but chiefly in the
Latin and Englifli tongues) as alfo, all fuch tables, modules and
works whatfoever, which may any way further his faid good in-
tention.
4th July 1635, a patent is given to Francis Holyoak for the
foie printing a book compiled by him, called Diblionariwn Ety-
mologicum Eatimvn, for i f years. The preamble bears, that his
majefty, ‘ being willing to encourage his fubjetTs in all lawful
* and commendable ftudies and endeavours, by appnp-iating unto
‘ them for fame term of years, the benefit and fruits of their labours,’
therefore grants, &ic, A claufe is thrown in at the end to this
ert’ed: ; That if at any time during the laid 14 yeat s, it fliould
appear to his Majefty or the Privy Council, ‘ that the grant is con-
* trary to the laws, or in any fort inconvenient to the ftate of
* the realm,’ then, upon fignification thereof by his Majefty,
under the fignet or privy feal, or by the Privy Council, or any
fix of them under their hands, that the fame is illegal or incon-
venient, thefe letters patent fliall forthwith ceafe.
1 8th Auguft 1635, a fimilar privilege is given to William
Braithwaite for the foie privilege of printing, according to the
method devifed by him, any book, poem, or leflbn, for the
more eafy teaching of mufic, and the furtherance of poetry, o-
ratory, and pronunciation of the Greek and Latin tongues for
2f years. This grant has the fame claufe in the preamble, and
contains the fame provifo, as the immediately preceding one.
From thefe it appears what was the induftive caufe of granting
fuch privileges, viz. ‘ to encourage the fubjedis in all iavvful and
‘ commendable ftudies, by appropriating unto them, for Ibme
* term of years, the benefits and fruits of their labours.’ In fome
other inftances, thefe fpecial grants and ordinances are exprefsly
mentioned, as being the only foundation of the rights of authors
and publifliers ; for example, a proclamation againft the diibr-
derly printing and dlfpofing of books, pamphlets, See. 25th Sep-
tember, 1623, narrates a decree of the Star-Chamber, anno
J586, and ‘ tJiai tlje true Intent and meaning of the laid decree
* has
[ 64 ]
‘ has been camioufly eluded, by printing beyond fea and elfe-
‘ where, as well fundry feditlous books, &c. as alfo Inch allow-
‘ ed books, works, and writings, as have been imprinted with-
* in the realm by Inch, to whom the foie printing thereof bj Ict^
* ters 'patent or lawful ordinance or authority doth appertain, accord-
‘ ing to the true intent of the faid decree, and by importing
‘ the fame into this our realm.* And a proclamation 15th April
1636, concerning the book, intitled Mare Claufum^ is exprelled in
fimiiar terms.
The great numbers of thofe patents, which are to be fonnd
from the reign of Qtieen Elizabeth downwards, are another llrong
proof of the fenfe of authors, that they had no exclutive power
at common law over their works after publication.
It appears too trom fome of the patents already cited, that it
was a matter of doubt, whether the granting fuch privileges
even for a limited time was not contrary to the rights of the
fubjedl, and mifehievous to the date.
In fome cafes, fo little were literary compodtions conlldercd
to be the property of the authors, that, thofe who obtained ex-
clulive grants, were burdened with the payment of an annual*
fum to the King.
To thefe obfervations may be added, that the Univerfities of
Cambridge and Oxford obtained grants, from time to time, for
yjrinting and vending all books whatfoever, without taking any
notice of the rights of authors
We do not find that Shakefpear or Ben Johnfbn, though their
works were valuable, ever dreamed of having any exclufive right
in them. Various editions of their plays came forth in their own
time, not pnbliflied by them, but by the prompters of the dif-
ferent places of exhibition*
|a. I. of England made a tranflation of David’s Pfalms. This
work w^as publUhed by order of his fon Ch. I. who claimed no
property in the book, but gave it the protedfion of a patent. His
words are, ‘ whereof our late dear father was author and he
fays, he has ordered it to be perufed, ‘ and, being found to be
* truely and exadly done, we do hereby authorife ctie fame to be
‘ imprinted according to the patent granted thereupon.’ The
* See patent in favour of ihe Univerfity of Cambridge, 20th July 1534, and patent in fa-
vour ot the Univerlity of Oxford, I2ih November j632.
edition
[ 6s ]
edition was printed at Oxford ‘ by William Turner, printer to the
‘ famous Univerfity, 1631.*
Swifi’s Letters, above noticed, fliow. That he never undcr-
ftood himfelf to be proprietor of the works piiblifhed by him.
Mr. Popc*s opinion too appears from the fale of liis Homer, in
1712. The conveyance granted by him, was ‘ of the copy right
‘ for fourteen years certain, or as long after as he is enabled by
‘ the ftatute of Queen A.nne to do it.’
And that Lord Bolingbruke was of the fame opinion, may be
inferred from his will, which, after letting forth. That he was
the author of certain books, or trad:s, therein mentioned, fome
of them already publiihed, others not, adds, ‘ but I have not Swift’s let-
‘ aliigned to any perfon or perfons whatfoever, the copy, or the Hawked
‘ liberty of printing or reprinting any of the laid books or tracls, worth, voi.
‘ or letters. Now I do hereby, as far as by law I can, give and ^• 379 -
‘ alfign to David Mallet of Putney, in the county of Surry,
‘ Ef jLiire, the copy and copies of all and each of the before-
‘ mentioned books, or traces, or letters} and the liberiy of re-
* printing the iamc.’
Roily in his Dictionary of trade and commerce, fccond edition,
London, 1761, under the word Book^ defines it to be, ‘ a work
‘ of wit or genius, compofed and printed for the public utility,
* or lometitnes only for curioficy and plealure.’ And adds, * The
‘ ftauite of Q^ieen Anne regulates the property of authors.’
Under tiie word Privilege^ he fays, * Privilege for the impreliion
‘ of books is properly excluhve, being a permillion which an
‘ author or bookfeller obtains under a Prince’s feal, to have alone
‘ the imprdhon of a book, with a prohibition of ail -others to
* print, fell, or diitribute the fame, within a certain' term of
‘ years, ufually fourteen, under dailies and penalties exprelled
‘ therein. Thel'e privileges were unknotvn till the beginning
‘ of the fixteenth century, when they were introduced in France.
‘ Tlie okleif is laid to bear date in the 1 507, and to liave been
‘ occafioned by fome printers counterfeiting the works of aii-
*' thors as foon as they appeared. But people were yet at liber-
‘ ty to take them, or let them alone, at pleafure, till the inte-
‘ rcfls of religion and the flate occnlioned the reflraining of
* this liberty. In 1563, Charles IX. piibiHlied a celebrated or-
‘ doimauce, forbidding any perfon, on pain of confifcatlon of
li ‘ body
[ 66 ]
‘ body and goods, to print any letter, fpeech, &c. witlioiit
* permiffion. The like has been fince done in England; though
‘ at prefent, privileges are not only feldoin required, but, by
* the late aft for fecuring the properties of books, feein need-
‘ lefs.’
Several other writers of note have declared againft literary pro-
perty, fo far as claimed independent of the ftatute. The author
of a Letter to a member of Parliament, printed in 1747, feems
to have been the hrd; who entered the lifts on the other fide.
This letter has been afcribed to an author of reputation,
and of high rank in the Church, but probably by iniltake ; as
the perfon here meant had fo little faith in the doftrine of com-
mon-law property, that when he publiflied the works of Mr.
Pope, with his own notes and commentaries, he applied for and
obtained from his late Majefty a patent for a term of years, pre-
fixed to the edition 1764 of the faid work
From this patent, containing no penalties,^ but fimply a grant
of exclufive property for a term of years, and from a note a-
gainft monopolies, Vol. iv. p 276. of the 8i;o edition, 1760,
it may be inferred what the learned editor’s opinion was on the
fubjeft of literary property. Yet the anonymous letter imputed
to him has been much founded on by the purfuer in this caufe ;
and appears to have been adopted by Pajilethwhayt in the laft
edition of his book, publiftied in 1766, where he has been
prevailed on by his bookfeller to infert it verbatim^ under the
article Book ; though his own remarks fliow, that he does not
think the property of authors is yet fufficiently eftablilhed. For
he fays, ‘ Though what this learned gentleman has urged is
* more than fufficient to fhow the juftice of a lazu for thej'ecurity
* of literary property ; yet we fliall prefume to add a word more,
* by obferving what effeft this would have on particulars, and on
* Yhe public.’ — The reafons offered by him for making fuch a law,
* It bears, That “ being defirous of reaping the fruits of his labour, which he cannot en-
joy without our royal licence and proteUion, he hath therefore moft humbly befought Us to
“ grant him our royal privilege and licenfe, for the foie printing, publilhing, and vending
“ the faid \vov\c.s, Jor the term of fourteen yean : We being graciouily pleated to gratify him
“ in his faid requeft, do by thefe prefents, agreeable to the ftatute in that behalf made and
provided, for Us, our heirs and fucceflbrs, give and grant, &c.
which
L 67 ]
M'hich he favs is ftlll wanted here, are foinewhat extraordinary :
In the frji place, That it would tend to make books ,•
and, fccondl'j. That the licentioiirnefs of libelling the govern-
ment, and infuUing the church, and gofpel iifelf, by impious
books, would be eafier remedied, than when property is infecure.
Under the word Patent, he fays, ‘ Nothing is more infecure in
‘ this nation than literary property.’
Savary, from whom this work is borrowed, fays, ‘ Privilce^e
‘ pour Pimprejjion des limes, Ce privilege eft proprement excluftf ;
* e’eft tine permiffion qu’un auteur, ou nn libraire, obtient an grand
* jeeau, pour avoir feul la perraiilion d’imprirnier un livre, avec
* defenfes a touts autres de i’imprimier, vendre, & debiter, pen-
‘ dant un certain nombre d^annees, avec les claufes et fous les peins
‘ qtii y font exprimees.’
Mr. Blackftone has been appealed to as an authority of weight c. 26,
in favour of literary property. But when the pafTage in his ^
book is confidered, it would rather feem that he is doubtful in
his opinion. He admits, that a work may be tacitly given to
the public, when the author permits it to be pubiiftied without
any referve of right, and without ftamping on it any mark of
ownerftiip. And he adds, ‘ Neither with us in England, hath there
* been any direft determination upon the right of authors at the common
‘ law. But much may be gathered from the frequent injundlions
‘ of the Court of Chancery, prohibiting the invafion of this pro-
* perty; efpecially where either the injunctions have been per-
‘ petual, or have related to unptibliflied manuferipts, or to fuch
‘ ancient books as were not within the proviflons of the ftatute
* of Queen Anne. Much may alfo be colleClcd from the feve-
* ral legiflative recognitions of copy-rights ; and from thofe ad-
* judged cafes at common law, wherein the Crown hath been
* confidered as invefted with certain prerogative copy-rights:
‘ For if the Crown is capable of an exclufive right in any one
* book, the fubjeCt feems alfo capable of having the fame right
* in another.’
Here your Lordfhips fee it exprefsly admitted. That when
this very learned author wrote, which was within thefe few
years, there never had been any direct! determination in Eng-
land upon the right of authors at common law; and indeed the
faci
Injunflions,
[ 68 ]
facl: is certain, that till the cafe of Millar againfl Taylor was ad-
judged very lately in the Court of King’s Bench, the point was
entire as to 2.x\y judicial determination. The circumftances of that
cafe will in tlie fequel be explained. In the mean time, as Mr.
Blackitone fays, that much may be gathered from the injnnfllons
in Chancery, it may be proper to inquire into thefe.
With regard to injunctions, in the firji place, it may in gene-
ral be obferved. That injunctions of the Court of Chancery are
iio evidence of a common-law right. They are every day grant-
ed in cafes where there is no remedy at common law. A vari-
ety of inflances of this kind will be found in the Equity Cafes
abridged. 2.^/y, Thefe injunctions often pals of courfe, upon
a bill being filed, without any anfwers from ih.c defendant.,
d'hey are fomething of the nature of a fifl upon a bill of fufpen-
fion in Scotland.
The defenders are informed, that the Court of Chancery has
never yet avowedly proceeded in its injunctions touching, litera-
ry compofition, upon the principle of an inherent property, an-
tecedent to the aCt of Parliament, and independent of fpecial
privilege.
The only injunCIions wdiich appear /r/or to the aCl, are; 15th
November 168I:, Stationers Company v. Lee, for printing al-
manacks ; 17th November 1681, Stationers v. Wrigiu, for the
fame; and 22cl February 1709, Stationers v. Partridge, for
felJing almanacks. Thefe were all upon patent-rights, and
therefore have nothing to do with the prefent queflion.
The injunctions p.nce the aCI, may be fbbdivkied into three
claffc'S. \ji. LijiinCfions upon the right given by flatute. Of
this kind are the two cafes, in wliich Mr. Blackftoiie fays, the
injimCIions were perpetual : •u/z. Knaplock v. Curl, 9th Novem-
ber 1722; and Bailer “u. Watlbn, 6th December 1737. And of
the lame kind, the defenders are informed, were, 28th Novem-
ber 1735, Morte V. Faulkner; and 27th January 1736, Wakho,
V. Walker. InjunCfions given to inforce the flatute, do in no
fhar«c apply to tiie prefent cafe. Viner, under the title. Books
and Authors^ mentions Knaplock v. Curl, and fays, that the
plaintiff claimed the foie right, <6v. per ft at. 8. An. He takes no-
tice of feveral other injunctions, but all of them under the fta-
tute.
[ 69 ]
Injunctions to reftrain the publication of papers obtain-
ed furreptitioufly. Of this kind .were] 24th May 1732, Webb
V. Role; 5th June I74i» Po))e -u. Curl; 13th ]une 1741, Forref.
ter V. Walker; 3 ill: July 1758, Duke of Qiieenlberry v, Sheb-
bcare- In thefe cafes, where manufcripts were clandeftinely ob-^
tained and printed, the Court of Chancery had no occafion to
go on the fuppofecl common-law right of authors, 10 the perpe-
tual monopoly of their works ; for, independent of this queftion,
it was certainly proper to reArain lb fraudulent an acfl as that of
publifhing an author*^s manufeript without his confent. Belides,
the idea of the Court might be to fecure to learned and incluf-
trious men, the right given by the Aatutc, and to hinder the pira-
tical' printer from robbing the author of a benefit, which, though
not aClually then veAed, might become veAed in him for four-
teen years, with a contingent term of fourteen more, as foon as
he chofe to publiAi.
3 r// 7 , Injunctions when the books were old, and the cafe not
within the terms ol the Aatute. This is the only kind of in-
junction from which any aid can poAibly be drawn in favour of
literary property, ^'t the fame time, when the inAanccs are
examined, they will be found to be of no avail.. The firA is,
Eyre v. Walker, for the Whole Duty of Man, ^th June 1735.
In this there was only an injunClion till full anfwer, or fun her or-
der, Injunctions of this kind may eafily be obtained, as the faCt
is taken upon tlxe Aating ot the bill. Notliing further appears
to have, been done in this cafe. It never came to a final hear-
ing, fo that no concltifion can be drawn from it.
The next is, Tonfon v. Walker, for Dr. Newton’s Milton, in
1752. From a written note of this cafe, it appears, that the
counfel for the defendant was interrupted by the then Lord
Chancellor, who defired to know, whether the life, and preface,
and notes, were not within the 8th Anne. On the firA hearing,
his LordAiip fent the book to the MaAer in Chancery, to fee
what notes there were of Mr. Merchant’s, the piratical editor, and
how many of Dr. Newton’s. Afterwards his Lordfiiip laid, he
had been inclined to fend a cafe to the Judges, in order to fettle
the general queAion of law; but as Dr. Newton’s notes came
within the ad of Qiieen Anne, without deciding on the point of
S . law,,
t 70 1
law, Merchant had no right to Dr. Newton’s notes ; and he con-
tinued the injunction.
The cafe of Millar v. Donaldfon, came before the next Lord
Chancellor. This was a motion at the firfl feal after Trinity t. rra,
1765, to continue the injunctions whicli had been obtained upon
a bill without anfwers, to Itay publication of the following books ;
‘Thomfon^s Seafons, claimed by Millar; Papers Iliads by Ofburne ;
SwifPs Mifcellanies with notes, and the life of the author, by Ba-
thurft. A written note of the cafe fays, it was obferved, * i have
* feen no cafe where the terms of the aCt being expired, the
* Court has continued the injunction, after anl'wer put in. — If I
‘ fee a queition of law, I only delay the parties by an injunction,
* when 1 fee that at the hearing I fliall fend them to law ; for
* they may go direCtly to law without the delay of this Court. — ■
* But where I fee it within the ftatute, then I fliould, according
‘ to the precedents which I mult approve, Itay the publication.
‘ — In the cafe of the Stationers Company, the Court went on
‘ the right of the letters patent: The Crown was conlidered as
■* Pater patrids and it was proper to print the aCts of State, and
« that the Crown Ihould have the power of doing it — In this
* cafe, it is a capital quellion in law, fubtile in its nature, and
‘ extenfive in its confequences. — It would be prefumption in me,
< to determine a quellion worthy of the highed conlideration of
* any Court in Wellminller-hall ; therefore, I Ilia 11 fay nothing
* as to the merits:— It might be flattery to ones felf, on the one
‘ hand, to determine for authors, in order to get fame and pa-
‘ negyric from them ; and on the other hand, it would be dan-
< gerous to veil the property ; for that contains not only a right
* to publilli, but alfo to fupprefs, by which means, thofe who
* have a right to the greatell authors, may fupprefs them, which
‘ would be a fatal confequence to tlie public.— Thefe outlines
‘ are fo extenfive, that I do not care to draw them nearer in fo
‘ great a quellion. But as at the hearing I fliall fend it to law,
* I think I onght to diflblve the injunClion, and leave the parties
* to proceed at lawy in regard to Thomfon’s Seafons and Pope’s
‘ Homer’s Iliad, which are both cut of the aCl. — Swift’s Mifcel-
* lanies lland on the fame footing with Newton’s Milton ; for
‘ the Life of Swift by Dr. Hawkefworth is new, and within the
‘ aCl.’ Accordingly the injunctions were diflolved, except as to
Swijds Mifcellanies ; and this was afterwards diflolved.
Soon
r 71 3
'Soon after came Millar v, Taylor, before the fame Lord Chan-
cellor, on motion to dilTolve the injunction obtained by the plain-
tiff, againft publifliing Thomfon’s Seafons. — The injunction had
been gt anted by Mr. Baron Smyth, who fat on a former occa-
fion ior the Lord Chancellor. But at the time of granting the in-
junction, Mr. Baron Smythhad made a cafe for the King’s Bench.
— On the prefent motion, the Court proceeded on the princi-
ples of the former cafe v, Donaldfon, and therefore diffolved the
injunClion.
Another cafe, of Millar Taylor, for printing Young’s Night-
Thoughts, came before the mailer of the rolls, Michaelmas term
1*765 The book was manifeftly within the 8th Anne, and a
perpetual injunction was prayed. A note of the eafe fays. It was
obferved. That a perpetual injunction might be improper, as it
feemed to Imply perpetual right. ‘ I think the injunction ought
‘ to be continued, bur. it ought to be fo framed, as not to ini-
‘ ply a right beyond tlie. two terms of fourteen years.*
The next cafe in Chancery known to tlie defenders was,
Macklin v. Richardfon, which came before the late Lord Chan-
cellor, Trinity term 1768, relative to an injunction granted
to flay the publication of Love y^-la-moJe^ a farce written by
Macklin. — The defendant had employed one Gurney, a fliort-
hand writer, to attend the performance at the play-houle, and
had the copy of him for one guinea. The firfl act was printed
in a magazine, and the fecond act was promifed in a fubfequent
number. Macklin had never printed his farce, or transferred
the copy-right. It appears, from a written note of the cafe, that
after hearing counfel for the plaintilf, the Court defired *to
know. Whether the queflion of law was decided. * Before he
‘ moved a flep, he defired to know the ground.’ The caufe
therefore was ordered to Hand over till the general quellioii of
property fliould be determined. The defenders are informed,
that Richardfon has fince been condemned in one fliilling dama-
ges.
It is faid. That the London bookfellers have all along been
afraid of bringing the matter to a folemn trial at law, though
much Induflry has been ufed in applying for injuncllons in the
Court of Chancery; and that more than once they have attempt-
ed to accomplifh their purpofe, by a collufive trial, Thus it 1 $
informed.
t 72 3
informed, that in 1758, a fuit was commenced by them in the
Court of Chancery, againft one CoHins of Salifbury, for vending
copies of the Spe< 5 lator printed in Scotland, Collins Iiad by this
time become deeply concerned in copy-right, in eonjun^lion with
tlie London boo.kieilers, fo that it was very much his intereft to
lofe the caule ; becaufe the advantage that would accrue to him
from perpetuating the exduiive right, W'ould far overbalance any
trifling damages to which he could be fiibjed:ed for felling Scotch
Spectators, fuppofing it had been underflood or intended that he
fliould pay. Collins’s defence, therefore, it will be readily belie-
ved, was not managed with the greatett accuracy ; but the Court,
upon hearing the cafe, being fenfible of its importance, and per»
haps fufpeding what was at bottom, referred the matter to the
twelve Judges, and it has lain over ever fin-ce.
Thus matters flood, when, in confequence of the above pro-
ceedings in Chancer}', in the cafes of Millar v. Donaldibn, and
'V. Taylor, the plaintiff Millar at laft brought his trial before the
Court of King’s Bench. The particulars of the trial are faid to
have been thefe. <
The fubjeCl in difpute was Thomfon’s Seafons, a book firft pub«
liflied in 1727. The monopoly ot twenty-eight years expired iii
1755. After that period, many editions of it were printed o-
penly, with the names of the pnblilhers affixed to the title-page,
without any challenge from Millar, (who had purchafed the co-
py-right from the author,) 11111763, when an injunciion was ob-
tained in Chancery againfl Donaldfon, and another againft Tay-
lor,v to flop the fale of an edition printed by Donaldfon ; which
injumflions, however, were afterwards in 1765 dillblved upon
aniwers, as already faid. Millar proceeded no farther in his fuit
with Donaldfon, but went on with Taylor, whom he feems to
have thought a fitter perfon to be dealt with, in cafe at any time
a compromife fhould be needful. It may be obferved, that Tay-
lor had not printed the Seafons, but only Ibid fome of Donald-
fon ’s imprefllon,
The injundioii having been diflblved in the Court of Chance-
ry, and the parties left to try the matter at common law, this
of itfelf is proof pofitive, that hitherto the point was undeter-
mined ; and it is likewife proof, that the Court of Chancery con-
fidered it as a common-law queflion, which did not fall to be de-
termined
C 73 ]
termlned upon fuggeftions of equity in the Court of Chancery,
but nece^^ari]y required the deciiion of the courts of la w.
The trial having proceeded in tlie Court of King’s Bench, the
jury returned a verdic‘1:, finding the fa^r of publication ; and the
Court afterwards gave judgment in favour of the plaintiu', hut
rtot without contrariety of opinion.
The defendant at firfl took out a writ of error againfl the de-
termination. Afterwards, however, it is informed, he was pre-
vailed on to compromife matters with tlie bookfellers, who, it is
faid, paid all his expences. Accordingly, he witlidrew his writ
of error.
A judgment of the Court of King’s Bench, eftablifhing a point
of the common law of England, not formerly decided, is un-
doubtedly of the higheft authority in that country; but it cannot
be admitted as conclufive of the prefent quertion, which muft ne-
ceffarily be tried by tlie law of Scotland*.
The legiflative recognitions, mentioned by Mr. Blackflone,
when looked into, are foreign to the purpofe. The licenfing adl,
13th Charles II. cap, 33. has already been Ipoke to. The aEt,
loth Q. Anne, cap. ly. § 112. only acknowledges that fort of
property, which was veiled by the adl 8th of Q. Anne ; and the
a(fl 5th of his prefent Majelly, cap, ra. §' 16. relates to lelling
pamphlets and newf-papers without the author or publifher’s
name.
Tlie only other thing, founded on, is the Crown’s prerogative
copy-right to certain books, fuch as Bibles and Ails of Parlia-
ment, vvliich has already been explained, and has no connexion
with the prelent quellion.
Thefe obfervations on the laAv of England are fubmitted n idi
the greatell diffidence ; and the defenders lliall only add upon
this head, that, if the law of England Hands in favour of lite-
rary property, it is different from the law of Scotland, or of
other countries. In France, patents are given to autliors and
bookfellers from ten to twenty years. And it appears that the po-
great Colbert was of opinion, that even thefe gave too much
* It is informed, that another injunction was lately moved for in the Court of Chan-
cery, againft hli . Doneldfon, for printing Thomfon’s Seafons ; and that the htme was
granted without any heat ing on the jateriis, as it was underftood in the Court, that Mr,
Donald ton was to bring the queftion by appeal before the Houfe of Lords, which he is ac-
cordingly pi cpal ing to do.
opportunity
C 74 ]
opportiinity to the ilatioaers of. Paris to opprcfs bookK-llers
in ot’ner parts of the kingdom, v»'hcrehy books were kept at an
exorbitant price. It is nelievecl, in Holland and in. Gerinaiiy,
daily inflances occur of tcinporar}. exclullve privileges to au-
thors. Many of them are to be icen prefixed to their books.'
But it will not he p-retended, that there is any inch thing there,,
as that whicli is now termed in England a literar'j p7-opsri-j at com-
mon Jaw. " . . ,
V. Circum- V.. The defenders fliall not beflov/ many words on the fpecial
IJj'^^pref^^Jcirciimftances of this cafe, which plainlv (bow, that the piirfuer,
and thofe in whofe right he pretends to have come,. .had origi-
nally no view to a claim of property at common law, or to any
thing further than a temporary right by patent in the work now
.In quefiion. The reverend author feems at firll to Iiave meant,
that this work lliould be abandoneefto the public, as it is belie-
ved, he did not fo much as enter it in Siationers Hall ; but af-
terwards, having been told by his bookfeller, tiiat fometliing
might be made of reprinting it under an exclufive patent for a
certain number of years, he afiigued his right with that view,
and a patent was obtained.
This patent, unguarded by penalties, and merely giving an
exclufive right for the term of fourteen years, was clearly of no
life, if fuch right was antecedently in him not for fourteen years
only, but for ever. If he could convey b.is property at common
law, and if this conveyance would have been a fufficient ground
of adlipn to the ailignee againft every violator of it, wliat higher
right, what greater benefit, did the patent confer upon him ?
what better ailion could he maintain upon the parent, than up-
on his common law-property I
When Mr. Aufiin publiflied the work with his patent prefixed,
did he not hold forth to the world, that he had an exclufive right
of printing this book for fourteen years, and for that term only?
and did he not in effe^I acknowledge and declare, tiiat, the
term of the patent being edapfed, every otlier pcrlbn might print
and publlfii the work at pleafure ? If his prefent jilea be good,
he laid a fnare for the lieges by founding only on his patent,
wlfich ought to bar hjm from the prclcnt aHIon.
Neitlicr was his condiud jullifiable, in allowitig the intended
new edition to be .advertifet! for two years and a lialf in all the
n c wl -
[ 75 ]
newrpapers wUhont imy challenge, ancrtheh'brrnging ll.e pre-
fent action upon titles Icarce connedled even witli the allignee of
the author, in order that he niiglit run away uith tlie profits,
without being at the expencc or trouble of the publication.
It may be added, that as the purfuer is a foreigner with re-
fpcct to Scotland, and as this book of which he claims the pro-
perty is the work of a foreigner, the queftion is to be confi-
dered entirely in the fame light, as if the aftion were brought
at the initance of a Fraub bookfeller, complaining of the defend-
ers for having republiflicd in Scotland a book, which had been
originally printed in France ; and how far fuch an acHon ought
to be fultained, even though the general dodlrine of literary
property were eftablifiied, may admit of conliderable doubt.
I'lie London bookfellers themfelves, have never underftood,
that the property of foreign authors extended to England, or
that Voltaire, and other French writers of the firft note, whofe
woiks are daily reprinted in England without leave afked or gi-
ven, would have any right to fue the Englifii publifiier, upon the
common law of England. It would not be convenient to carry
the dofirine fo far; and yet it does not occur what better right an
Englifii bookfeller can have to come to Scotland, and there to
maintain, that his property is invaded by a perfon who has
done nothing more than exercifed his bufinefs of a printer witli-
in Scotland, and who neither has encroached upon the right of
any of the leiges of this country, nor can be accufed of any vio-
lation of the common law of England having never fet his foot
in that kingdom, nor fubjedled himfelf to its laws.
The prel'ent queftion can never be tried upon the common
law of England, for -the defenders are not bound to know any
thing of that law, or to regulate their condiu^f by it in any
ftiape. The purfuer muft be able to fay that, he has a properly
in this work by the common law of Smlandy which property
happening to be accidentally in this country, has been unjuftly
feized by thefe defenders, whom he fues before your Lordfliips,
as the proper jurifdiflion in order to obtain reftitution from
them. But upon what footing is it that the common law of
Scotland can regulate the property of foreign authors with re-
gard to works compofed and publillied in another country ?
This would be giving it an eifetft beyond what the common law
of England is allowed to have; and the confetpcnccs ot extend-
ing
[ 76 ]
ing it fo far would be highly inexpedient ; as at this rate, wc
could not print a fingle foreign book in Scotland, and we
would b^ at the mercy of the bookfellers of other countries for
every woik not originally publiflied in Scotland, fo that the
learning of this country would foon come within a very narrow
compafs.
It is fubmitted, that thefe circumftances ought to have weight
in aid of the general argument ; and upon the whole, the de-
fenders, with humble confidence, exped: to be abfolved from
this adion.
In ref pelt ivhereof &c.
„ I L A Y C A M P B E L L.
1
[ 77 . ]
Anno 0(ftav9 AiNNiE Regin-e.
An Ad for the encouragement of learningy h'j ’vefing the copies of printed
books in the authors or purchafcrs of Juch copies^ during the times there-
in mentioned*
W HEREAS printers, bookfcllers, and other perfons have of
late frequently taken the liberty of printing, reprinting,
and publifhing, or caufing to be printed, reprinted, and pubiifli-
ed books, and other writings, without the confent of the authors
or pi‘oprietors of fuch books and writings, to their very great
detriment, and too often to the ruin of them and their families:
For preventing therefore fuch pra6lices for the future, and for
the encouragement of learned men to compofe and write nfeful
books ; may it pleafe your Majefty, that it may be enad:ed, and
be it enabled by the Qt^ieen’s moft Excellent Majefty, by and
with the advice and conlent of the Lords Spiritual and Tempo-
ral, and Commons in this prefent Parliament affembled, and by
the authority of the fame, That from and after the tenth day
of April, One thoufand feven hundred and ten, the author of
any book or books already printed, who hath not transferred to
any other the copy or copies of fuch book or boolvs, fliare or
ftiares thereof, or the booklellcr or bookfcllers, printer or print-
ers, or other perfon or perfons, who hath or have purchaled or
acquired the copy or copies of any book or books, in order to
print or reprint the fame, fliall have the foie right and liberty of
printing fuch book and books for the term of one and twenty years*
to commence from the faid tenth day of April, and no longer :
And that the author of any book or books already compofed,
and not printed and publiftied, or that fliall hereafter be com-
pofed, and his alfignee or aftigns fliall have the foie liberty of
printing and reprinting fuch book and books for the term of
fourteen years* to commence from the day of the firft publifliing
the fame, and no longer : And that if any other bookfeller, print-
er, or other perfon whatfoever, from and after the tenth day of
April, One thoufand feven hundred and ten, within the times
granted and limited by this adl, as aforefaid, fliall print, reprint,
or import, or caufe to be printed, reprinted, or imported, any
fuch book or books, without the conlent of the proprietor or
proprietors thereof firft had and obtained in writing, figned in
U the
[ 78 ]
the prefence of two or more credible witnefTes, or knowing the
fame to be fo printed or reprinted, without the confent of the
proprietors, (hall fell, publifli, or expofe to fale, or caufe to be
fold, publiflied, or expoied to fale, any fuch book or books,
without fuch confent firft had and obtained, as aforefaid. Then
fuch olfender or offenders (hall forieit Inch book or books, an<{l
all and every flieet or flieets, being part ot fuch book or books,
to the proprietor or the proprietors of the copy thereof, who
lliall forthwith damaflc and make wafle paper of them: And fur-
ther, That every fuch offender or offenders fliall forfeit one
penny for every flieet which fliall be found in his, her, or their
cuftody, either printed or printing, publifhed or expofed to fale,
contrary to the true intent and meaning of this adf, the one
moiety thereof to the Queen’s mofl excellent Majcfty, her heirs
and fucceffors, and the other moiety thereof to any perfon or per-
fons that fhall fue for the fame, to be recovered in any of h^r Ma-
jefty’s Courts of Record at Weftminfler, by a6fion of debt, bill,
plaint, or information, in which no wager of law, elToIgn, privi-
lege, or prote<ffion, or more than one iiuparlance lliall be allowed^
Arid whereas many perlbns may through ignorance offend
againfl this a6l, unlefs fome provifion be made, whereby the
property of every fuch book, as isintended by this aCt to be fecur-
ed to the proprietor or proprietors thereof, may be afeertained,
as likewife the confent of fuch proprietor or proprietors for the
printing or reprinting of fuch book or books may from time to
time be known : Be it therefore further enat^led by the authority
aforefaid, That nothing in this abl contained fliall be conllrued to
extend to fubjeift any bookfeller, printer, or other perfon whal-
foever, to the forfeitures or penalties (herein mentioned, for or
by reafon of the printing or reprinting of any book or books
without fuch confent as aforefaid, unlefs the title to the copy.
Or fuch book or books herealtcr publifhed, fliall, before fuch
publication, be entered in the regifter-book of the Company of
Stationers, in fuch manner as hath been nfual, whicli regifler-
book fhall at all times be kept at the Hall of the laid Company ;
and unlefs fuch confent of the proprietor or proprietors be in
like manner entered, as aforefaid ; for every of which leveral
entries fixpence fhall be paid, and no more; wliich laid rcgifler-
book may, at all feafonable and convenient times, be reforted
to, and infpe^ted by any bookfeller, printer, or other perfon,
for the pnrpofcs before mentioned, without any fee or reward j
and
[79 ]
and the clerk of the faid Company of Stationers fliall, when and
as often as thereunto required, give a certificate under his hand
of fuch entry or entries, and for every fuch certificate may take
a fee not exceeding llxpence.
Provided neverthelefs. That if the clerk of the faid Company
of Stationers for the time being, fliall refule or neglec^l to regi-
fler or- make fuch entry or entries, or to give fuch certificate,
being thereunto required by the author or proprietor of fuch
copy or copies, in the prefence of two or more credible wit-
nefles, That then fuch perfon and perfons fo relufiiig, notice
being firft duly given of fuch refufal, by an advertifement in the
Gazette, fliall have the like benefit as if fuch entry or entries,
certificate or certificates, had been duly made and given ; and
that the clerks fo refilling, fliall, for any fuch offence, forfeit to
the proprietor of fuch copy or copies the fum of twenty pounds,
to be recovered in any of her Majefly’s Courts of Record at Wefl-
minfler, by at^lion of debt, bill, plaint, or information, in which
no wager of law, efToIgn, privilege, or protedion, or more than
one imparlance fliall be allowed.
Provided neverthelefs, and it is hereby further enabled by the
authority aforefaid, 7’hat if any bookl'eller or bookfellers, print-
er or printers, fliall, after the faid five and twentieth day of
March, One thoufand feven hundred and ten, let a price upon,
or fell, or expole to fale, any book or books at fuch a price or
rate as fliall be conceived by any perfon or perfons to be high
and Linreafonable ; It fliall and may be lawful for any perfon or
perfons to make complaint thereof to the Lord Archbifliop of
Canterbury for the time being; the Lord Ciiancellor, or Lord
Keeper of the Great Seal of Great Britain for the time being;
the Lord Bilhop of London for the time being ; the Lord
Chief Juftice of the Court of Queen^s Bench, the Lord Chief
Juflice of the Court ‘of Common Fleas, the Lord Chief Baron
of the Court of Lxchequer, for the time being; the Vice-
Chancellors of the two Univerfities for the time being, in that part
ot Great Britain called England ; the Lord Prelident of the Sel-
fions for the time being ; the Lord Juflice General for the time
being ; the Lord Chief Baron of the Exchequer for the time
being; the Redor of the College of Edinburgli for the time
being, in that part of Great Britain called Scotland ; who, or
any one ol tliem, fliall and have hereby full power and autliori-
ty, from time to time, to lend for, funimon, or call before him
or
C So -]
or them fuch bookfeller or bookfellera, printer or printers, and
to examine and enquire of the realbn of the dearnels and en-
hancement of the price or value of fuch book or books by him or
them fo fold or expofed to fale ; and if upon fuch enquiry and
examination it lliail be found, that the price of fuch book or
books is enhanced, or any wife too high ornnreafonable, then anc\
in fuch cafe the faid Archbilliop of Canterbury, Lord Chancel-
lor or Lord Keeper, Bifhop of London, two Chief Jufticcs, Chief
Baron, Vice-Chancellors of the Univerfities, in that part of Great
Britain called England ; and the faid Lord Prefident of the Sef-
lions. Lord Juflice General, Lord Chief Baron, and Reftor of
the College of Edinburgh, in that part of Great Britain called
Scotland, or any one or more of them,fo enquiring and examine-
ing, have hereby full power and authority to reform and redrefs
the fame, and to limit and fettle the price of every fuch printed
book and books, from time to time, according to the befl of
their judgments, and as to them lliall feem juO: and reafbnable ;
and in cafe of alteration of the rate or price from what was fet
or demanded by fuch bookfeller or bookfellers, printer or print-
ers, to award and order fuch bookfeller and bookfellers, printer
and printers, to pay all the colls and charges that the perfon or
perfons fo complaining lliall be put unto, by reafon of fuc^
complaint, and of the cauliiig fuch rate or price to be fo limited
and fettled ; all which fhall be done by the faid Archbifliop of
Canterbury, Lord Chancellor or Lord Keeper, Billiop of Lon-
don, two Chief Juftices, Chief Baron, Vice-Chancellors of the
two Univerfities, in that part of Great Britain called England^
and the faid Lord Prefident of the Sellions, Lord Jullice Gene-
ral, Lord Chief Baron, and Rector of the College of Edinburghj
in that part of Great Britain called Scotland, or any one of them,
by writing under their hands and feals, anc| thereof public notice
fliall be forthwith given by the faid bookfeller or bookfellers,
printer or printers, by an advertlfement in the Gazette; and if any
bookfeller or bookfellers, printer or printers, fhall after fuch fet-
tlement made of the faid rate and price, fell, or expofe to fale, any
book or books at a higher or greater price than what -fliall have
been fo limited and fettled, as aforefaid, Then and in every fuch
cafe, fuch bookfeller and bookfellers, printer and printers, fliall
forfeit the fum of five pounds for every fuch book fo by him,
her, or them fold or expofed to fale, one moiety thereof to the
Qiieen^s
[ , ] ■
Qiieen’s moft Excellent Majefty, her heirs and fuccefTors, and
the other moiety to any perfon or perfons that (hall iue for the
fame, to be recovered, with colts of fult. In any ot her Majcfy’s
Courts of Record at Wellminller, by adtion of debt, bill, plaint,
or information, in which no wager of law, ellbign, j)rivilege, or
protection, or more than one imparlance lhall be allowed.
Provided always, and it is hereby enadted. That nine copies
of each book or books, upon the bell paper, that, from and af-
ter the faid tenth day of April, One thoufand feven hundred
and ten, fliall be printed and publiQied, as aforefaid, or re-
printed and publlflied with additions, lhall, by the printer and
printers thereof, be delivered to the warehoufe-keeper of the
faid Company of Stationers for the lime being, at the Hall of
the faid Company, before fuch publication made, for the ufe of
ilie Royal Library, the Libraries of the Lniverlities of Oxford
and Cambridge, the Libraries of the four Univerfities in Scot-
land, the Library of Sion College in London, and the Library
commonly called the Library belonging to the Faculty of Ad-
vocates ar Edinburgh, refpetflively ; which faid warehoufe-keep-^
er is hereby required, within ten days after demand by the
keepers of the refpet^dive Libraries, or any perfon or perfons by
them or any of them autliorized to demand the faid copy, to
deliver the fame, for tlie ufe of the aforefaid libraries ; and if
any proprietor, bookfeller, or printer, or the faid warehoufe-
keeper of the faid Company of Stationers, fliall not obferve the
dirediion of this act therein. That then lie and they, fo making
default in not delivering the faid printed copies, as aforefaid,
fliall forfeit, belides the value of the faid printed copies, the funi
of five pounds for every copy not lb delivered, as alfo the value
of the printed copy not fo delivered, the fame to be recovered'
by the Qiieen’s Majefty, her heirs and fuccclTors, and by the
Chancellor, M.tfters, and Scholars of any of the faid UniveiTi-
ties, and by the Prefident and Fellows of Sion College, and tlie
fiid Faculty of Advocates at Edinburgh, with their full cofts
rcfpe<^Vively.
Provided always, and ho it further enacted. That if any per-
fon or perfons incur the penalties of this acl, in that part of
Great Britain called Scotland, they fliall be recoverable by any
aedion before the Court of Seflion there.
X
Provided,
[ 8.2 1
Provided, 'Fhnt notliirig in this aft contained, do extend,, or
fliali he conftriicd to extend, to prohibit the importation, vend-
ing or feUing of any books in Greek, Latin, or any other fo-
reign language, printed beyond the leas.; any thing in this aft
coma tied to the contrary notwithfianding.
And be It further enafted by the autliorlty aforefaid. That if
^iny aftioia or fnit Ihall be commenced or brought againft any
perfon or perfons whatfoever, for doing or caufing to be done
any rhhig in pnrftiance of this aft, tlie defendants in fuch aftion
m ly plead the gen*eral ilTue, and 'give the fpecial matter in evi-
dence ; and if upon fuch aftion a verdift bo given for the defen-
dant, or the pElamtiffbecorae nonfuited, or difeontinue hi£ aftion,
then the defendant, lliall have and recover his full cofls, for
which he fliall have the fame remedy as a defendant in any cafe
hy law hath.
Provided., That nothing in tins aft contained daall extend, or
be conllrued to extend, either to prejudice or confirm any right
that the faid Univerlities, or any of them, or any perfon or per-
fons have, or claim to have, to the printing or reprinting any
book or copy already printed, or hereafter to be printed.
Provided neverthelcfs. That all aftions, fuits, bills, indift-
ments, or information's for any offence that lhall be committed
againil; this aft, lliall be brought, fiied, and commenced within
three months next after fuch offence committed, or elfe the fame
fliall be void and of none elfeft:.
Provided always, That after the expiration of the faid term of
fourteen years, the foie right of printing or difpoling of copies
fliall return to the authors thereof, if they are then living, for
another term of fourteen '^ears^
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