event, being satisfied that Mr. Roberts | Shoreham have already abused their and myself will have equal justice rendered to us by this hon. House. Mr. Sawbridge. I desire that the Act of the 11th of George 1, for regulating the elections of members to serve in parliament for the city of London, may be read (the Act was accordingly read). The design of this Act was evidently intended to prevent the great expence and long delays which controverted elections in that city might occasion, where the electors are so very numerous. The right of final decision is there vested in the returning officers; nor can I think the House have a right to interfere, without a manifest breach of that Act, unless it appears that the sheriff's have, in the first instance, failed to comply with the terms of it. Mr. Roberts, when the majority on the poll was against him, demanded a scrutiny, which the sheriffs, conscious of their uprightness, very readily granted; but Mr. Roberts, before the scrutiny was finished, declined carrying it on, which, to all intents and purposes, in my opinion, precludes him from any claim to the interposition of this House. It was the general wish of every friend to the freedom of election in the city of London, that Mr. Roberts might go on with his scrutiny; because then it would have most incontestibly appeared, that Mr. Roberts could have no pretensions to a seat in this House, the majority of the livery of London being clearly against him. This Petition therefore can only create trouble, and therefore I am against its going before the committee. Mr. Charles Fox. I am not at all surprized that the hon. gentleman should imagine that the House have no right to interfere on the present occasion, for I can easily conceive the reasons which induce him to be of that opinion, as he imagines it has relinquished all its power by the late Act for regulating controverted elections. He is, however, too late in his objection, as it does not now rest with us to refuse to refer the Petition, it being once received. I do not at present see the hon. gentleman who last year moved to make this Act perpetual. I sincerely desire that it may be again agitated, as I hope to be one who shall heartily join in expressing the fullest disaprobation of it, in order that the House may again recover that inherent right, which is at present vested in a body, I may say, totally unconnected with it, and who in disfranchising the borough of power. Mr. T. Townshend. I cannot sit silent, and hear an act of the legislature spoken of in such reprehensible and indecent terms. The part of the House the hon. gentleman now sits in was formerly occupied by those appointed to determine undue elections. I dare say he is very well qualified for an election-manager: we can hardly doubt of his acquired or hereditary talents for such an employ. ment. However I might have differed with the hon. gentleman (Mr. Grenville) in political sentiments, to whom we are indebted for this very salutary Act, I had always the highest veneration for his integrity and great abilities; nor can there be a stronger instance of the great utility of the Act, than the sense entertained of it by the gentlemen whose rights are now to be determined by it. The imputation thrown out on the committee that determined the Shoreham election is by no means just; or, if it had, the abuse of a power by no means proves that it was improper to delegate it: besides, the act of disfranchisement cannot, with any degree of justice, be laid to the committee, when it is recollected, that it was the solemn act of the whole legislature. Mr. Rigby. Though it was the act of the legislature, the grounds on which it was framed originated with the committee; nor can the annals of parliament furnish another instance of such an indiscriminate punishment. If gentlemen wish by a side glance to cut off what they termi the rotten part of the constitution, would it not be more fair to declare themselves openly? For what will be the consequence? Why, if any instance of bribery be proved, no more is required than to procure an act of disfranchisement, and the business is done. The evil will not stop here, but will extend to burgage tenures, and even to cities. Thus, if the freemen of Worcester should be proved guilty of bribery, as you have reason to believe from the tenor of the Petition now before the House they may, that city may meet with the same fate with that of the borough of Shoreham; and probably, in the general rage for disfranchising, the city of London itself may not escape. Colonel Onslow. The hon. gentleman (Mr. Sawbridge) has informed us, that Mr. Roberts demanded a scrutiny, and that he declined carrying it on; but he forgot to tell us the reason why he de clined it. Mr. Roberts, being himself unacquainted with the city laws, demanded counsel, that justice might be done him in the course of the scrutiny. This reasonable demand, contrary to the usage of the city of London, and unprecedented in the general conduct of elections, was denied him; and therefore he chose rather to have recourse to the impartiality of a parliamentary scrutiny, than to trust himself in the hands of such partial scrutinizers. And no man, surely, can have a juster claim to prefer a petition, and to Ghave it fairly heard. Sir Joseph Mawbey. The hon. gentleman who has now told the House that Mr. Roberts was refused counsel, appears to have been misinformed. Mr. Roberts began his scrutiny without counsel, and did not give notice to the lord mayor of his intention until a day or two before the sheriffs were obliged to make their return of a member. By this artful method of demanding counsel at such a time, it was thought, when no other hope was left, to tie have prolonged the time, and to have defeated the election by protracting the return. He can therefore have no right to petition on this ground. The motion was then agreed to. The order of the day being read, for hearing counsel in the cause wherein Alexander Donaldson and John Donaldson are appellants, and Thomas Beckett and others are respondents; and for the judges to attend; counsel were accordingly called in; Mr. Attorney General Thurlow opened as counsel for the appellants. He first entered into a minute investigation of the idea inculcated by what is called a publication; he then dwelt much upon the sense of the word property,' defining it philosophically, and in the separate lights of being corporeal and spiritual; the term Literary Property, he in a manner laughed at, as signifying nothing but what was of too abstruse and chimerical a nature to be defined. The booksellers, he observed, (exemplifying his observations by several cases) had not, till lately, ever concerned themselves about authors, but had generally confined the substance of their prayers to the legislature, to the security of their own property; nor would they probably have, of late years, introduced the authors as parties in their claims to the common law right of exclusively multiplying copies, had not they found it necessary to give a colourable face to their monopoly. He was very diffusive upon grants, charters, licences, and patents from the crown, both to corporate bodies and individuals, tracing them far back, and asserting, that they all specifically proved, that, if there had been any inherent right of exclusively multiplying copies, such instances of exerting the royal prerogative would have been unnecessary. He particularly adverted to the statute of the 8th of queen Anne, maintaining that it was not merely an accumulative act declaratory of the common law, and giving additional penalties, but that it was a new law to give learned men a property which they had not before, and that it was an incon trovertible proof that there previously existed no common law right, as contended for by the respondents. He cited many cases to prove his arguments; some before the 8th of queen Anne, and others immediately upon that statute, generally inferring that the grand question touching the common law right had never been decisively determined by any chancellor. Feb. 28. The Speaker informed the House, that he had received a letter from Mr. Roberts, acquainting him that he desired to withdraw his petition. Mr. Alderman Hopkins then made an apology for the trouble he had given the House on Mr. Roberts's account; he said, he was averse, from the first, to any petition being presented, as he was confident the present sitting member was a gentleman of such honour, that he would not make use of any unfair means to gain a seat; that he could wish the lord mayor was present, as he was sure he would entirely acquit him of any partiality in the business; and he wished to acquaint the House, that he only presented the petition as a member, by the desire of Mr. Roberts, who, he said, had not acquainted him with any intention of withdrawing it. He concluded, wishing the lord mayor health and prosperity to enjoy his seat for life. The Petition was then withdrawn. Proceedings in the Lords on the Question of Literary Property.*] February 4. * "The House of Lords this session, in its judicial capacity, determined the great ques He concluded his speech with a compliment to his learned coadjutor, and a hope, that as the lords of session in Scotland had freed that country from a monotion of literary property, which was brought before them by an appeal from a decree in poly which took its rise from the chimerical idea of the actuality of literary property, their lordships, whom he addressed, would likewise, by a decree of a similar nature, rescue the cause of literature and authorship from the hands of a few mono chancery. The present age, in this country, favourable to every species of meritorious and beneficial industry, has been peculiarly advantageous to literary ability. In former times, when the circulation of learned productions was confined, and the number of readers small, genius often lay buried in obscurity, and merit was not sufficient, without a fortunate coincidence of circumstances, to ensure protection and support: the most successful adventurers could receive no other recompence than the patronage of the great, and at best could only enjoy a precarious and irksome dependence. Since the art of printing has rendered the multiplication of copies easy, and the progress of science and erudition has introduced a taste for reading among numerous classes of people, authors have had it in their power to repay themselves for their labours, without the humiliating idea of receiving a donative. But the degree in which they were to reap this benefit, depended on the security and the duration of their literary property. The protection afforded by the laws of the country to this species of labour, is not only important to the author, but also to the public; for literary works, like all others, will be undertaken and pursued with greater spirit, when, to the motives of public utility and fame, is added the inducement of private emolument. polizing booksellers, in whom the perquisites of other men's labours, the fruits of their inventions, and result of their inge nuity, were at present wholly centered. When the Attorney General had finish. ed, the counsel were desired to withdraw, neral principle by which every man is entitled to the fruits of his own labour. Whoever by the exertion of his rational powers has produced an original work, appears to have a clear right to dispose of the identical work as he pleases; and any attempt to vary the disposition, seems an invasion of that right. The identity of a literary composition consists entirely in the sentiment and language: the same conceptions, clothed in the same words, must necessarily be the same composition; and whatever method be taken of exhibiting that composition to the ear or the eye of ano ther, by recital, by writing, or by printing, ia any number of copies, or at any period of time, it is always the identical work of the author which is so exhibited. On these grounds of natural justice it was contended, that common law respecting literary property was founded, and by that common law the right of an au thor or his assignee was perpetual. A statute of queen Anne had declared an author and his assigns to have a right to a work for fourteen years, and for fourteen years more if the author should so long live. Certain judges, among whom was lord Kaimes in the court of session, and Yates in London, denied that ever such a right existed at common law. This opinion they founded on the following allega tions: that a literary composition is in the sole dominion of the author while it is in manuscript; the manuscript is the object only of his own labour, and is capable of a sole right of possession; but this is not the case with respect to his ideas. No possession can be taken, or any act of occupancy asserted, on mere ideas. If an author have a property in his "The occasion which brought this question before the public was as follows: certain booksellers had supposed, that an author possessed by common law an exclusive right for ever to the publication of his own works, and consequently could transfer that right. On this supposition, some of them had purchased copyrights, and had prosecuted others who pub-ideas, it must be from the time when they lished the same books, as invaders of an exclusive right which they had acquired by purchase. A decree of chancery had been ob tained in favour of Mr. Becket, a prosecutor on these grounds, against Messrs. Donaldsons, as pirates, in having published a work belong. ing to Mr. Becket. The defendants had appealed to the House of Peers; and the question rested principally on three points: 1st, Whether the author of a book, or literary composition, has a common law right to the sole and exclusive publication of such book, or literary composition? 2nd, Whether an action for a violation of common-law right, will lie against those persons who publish the book or literary composition of an author without his consent? and, 3rd, How far the statute of the 8th of queen Anne affects the supposition of a common-law right?. Under the 1st head, it was contended by the advocates of perpetual literary property, that this right was founded in the ge occur to him; therefore, if another man should afterwards have the same ideas, he must not presume to publish them, because they were pre-occupied, and become private property. Lord Mansfield shewed the fallacy of the maxim, that nothing but corporeal substance can be an object of property; repu tation, though no corporeal substance, was property, and a violation thereof was entitled to damages. Every mau's ideas are doubtless his own, and not the less so because another person may have happened to fall into the same train of thinking with himself: but this is not the property which an author claims; it is a property in his literary composition, the identity of which consists in the same thoughts, ranged in the same order, and expressed in the same words. This illustrious judge conceived a common law right to the copy of his work to be vested in an author and his assigns ori ginally, and still to exist, notwithstanding the and the further hearing was adjourned until the 7th. February 7. Counsel being called in, Sir John Dalrymple was heard for the Appellants: from the licensing act to the statute of the 8th of queen Anne. Printing, sir John said, was, when first discovered, deemed a mystery, like that of making sal ammoniac, or any other chymical preparation; the journeymen and apprentices were laid under severe injunc tions not to lay open the principles of the art to the unskilful; as a manufacture of the kingdom it was therefore exercised. He laid down two preliminary observations: First; that the best and only method of discovering how the law stood in any abstruse case, was by adverting to an history of the law. Secondly, Sir John observed, That he combated the matter upon an exceeding advantageous ground; for it having been decided in favour of his clients by the lords of session in Scotland, ten lords to one, though it could not prepossess their lordships before whom he spake, yet it evinced that the appellants had more than a shadow of claim, had sub-perty. stantial justice on their side. Sir John observed, That in Scotland the jus gentium, or laws and customs of other nations, were pleaded in the courts of that kingdom, and from a diligent search into the laws and customs of every nation, ancient or modern, the Scotch lawyers, when the question concerning literary property was lately agitated in that kingdom, found themselves justified in affirming that no such property ever existed or ever was claimed in any civilized nation, England excepted, under the canopy of heaven. In conformity to the first preliminary observation, That the law in any abstruse case was best discovered by entering into a history of it, sir John proceeded to give an history of the law respecting literary works. This historic account he divided into three periods; from the invention of printing to the institution of the Stationers Company in queen Mary's reign; from the institution of the Stationers Company to the licensing act; and statute of queen Anne. It was agreeable to the principles of right and wrong, convenience and policy, and therefore to the common law. The court of chancery, proceeding upon its conception of moral justice and general equity, had uniformly decreed that this, like every other species of property, was perpetual to the original acquirer, his heirs, assigus, or others to whom it might be transferred by gift, sale, or any other means of transmission. Lord Camden did not contest the conformity to natural justice of either lord Mansfield's principle or the chancery decrees, nor undertake to prove that there was any reason in the nature of literary productions for rendering the property of these less durable than that of other Sir John then mentioned the several books printed previous to the institution of the Stationers Company; and from the silence respecting literary property during the whole of that period, from the right every printer exercised of printing any book he chose, sir John deduced a strong presumptive proof, that the common law recognized no such thing as literary pro Sir John then stated the history of the institution of the Stationers Company. He said, it was instituted in the reign of Philip and Mary, princes who ruled with a despotic sway; that they, like every other despotic prince, wished to crush the liberty of the press; the booksellers, however, acquiesced in the Act, because such of them as were members of the Stationers Company were benefited by it. There were many curious regulations, sir John said, subsisting in this Company; he had read them all, and found the following three.". That no two persons should speak at once. 2. That every member should speak with his hat off. 3. That a member should speak seriously." From such important regulations, the importance of the Company might be deduced; yet, during the whole of this period, from the invention of printing to the institution of the Stationers Company, not a suggestion about common law right to literary property was started; books were printed by licence or leave from the Sta fruits of labour, but confined himself to what he apprehended to be the written law of the land. The statute of queen Anne, he affirmed, took away any right at common-law for an author's multiplying copies exclusively for ever, if such right ever existed. "The House of Peers concurred in his opi nion, the decree was reversed, and thenceforth literary property depends on the statute of the 8th of queen Anne, which secures to the author or his assigns an exclusive property for 14 years, and 14 years after the expiration of that period if he so long live; but, on the expiration of the one or both of these terms, ordains the copy-right to be at an end." Bisset's George the Third. Scotland, in translating the Psalms of David. His son published this work; yet so far was he from dreaming about a common law right, that he granted a patent for the printing it. tioners Company, and published "cum privilegio." Whilst, therefore, the members of the Stationers Company agreed amongst themselves, the charter granted to that company was a charter enacting a body of licensers, sued for on a principle of interest, and granted by the crown on a principle of policy. That books were published during all this time by privilege, or patent, was a notorious fact, for he could produce a list of many thus pub-ed in the title, and the word se lished, almost as long as his arm. When the members of the Stationers Company however quarrelled (as it was natural to suppose they would) amongst themselves, then each talked of some favourite book as his property; that the public might be impressed with the consequential notion of the word, it was generally printed, said sir John, in letters as long as my finger. Those who plumed themselves upon being the owners of these works called themselves proprietors, and the works were copy right. The statute of queen Anne sir John noticed, with respect to the title, the pream ble, and some of the clauses contained therein. He observed, That it had been mentioned the word vest' was adopt cured' was inserted in the body of the Act. This he thought was a distinction of the greatest propriety, for the Act was framed to give an author or his assignees a property in that which he had not be fore; it therefore vested something in him, and after having vested it, there was a provision made to secure it to the author. With respect to the preamble of the Act, sir John took notice, that, admitting such a right as that claimed under the denomination of literary property, to have existed anterior to this statute, the pre Thus dismissing the Stationers Com- amble was couched in terms the most ridipany, with several other severe animad-culous. It runs thus, "Whereas divers versions, sir John touched upon the decrees of the Star Chamber, which he observed were heinous exertions of unconstitutional power; yet none of them, respecting books, recognized any other right to vest in the author, or his assignees, than that created by patent. liberty not perhaps quite equitable, but against which, however, except by statute, no proviso was made. persons have taken the liberty to print," &c. A curious expression, argued sit John, one man deprives another of his property, and the legislature calls this only taking a liberty! Can it be believed that British legislators will talk in this ab surd strain? Might it not be with equal Sir John then proceeded to examine the propriety said, that divers persons have ordinances issued in the time of the Com- taken the liberty to commit fraud, perjury, monwealth, upon which he vented some or theft? From the very phraseology of humorous remarks. He said, he should the preamble, sir John inferred, that one mention a truth founded on the experi- man printing a book, published by ano ence of ages; it was this; that men al-ther, was in fact no more than taking a ways took the very same methods to keep power, when they had obtained it, which they blamed in others before they gained their point. Thus, argued he, the commonwealth-men abused the king and ministry for edicts laying restraints upon the press; and yet no sooner had they obtained the reins of government, than they caused ordinances to be issued prohibiting a book to be published that had not undergone state revision. But, though the press was ever an object both to legal and usurping princes, yet in no regulations respecting it was a common law right in books noticed in the most distant manner; yet had such right existed, we surely must have heard of it, particularly as some of the British princes were authors. James the 1st (added sir John humorously) took it into his head to turn poet; he employed his leisure hours, whilst in Another clause in the Act furnished sir John with ample matter of discussion. The statute vested a property in the author for 14 years," and no longer." Sir John asked, why the phrase " and no longer" was adopted? Admitting the respondents right in their notions about a common law property, a claim so founded must vest the property in the owner for a perpetuity: How then could this statute be called, as it is, An Act for the better encouragement of learning. Was learning encouraged by depriving learned men of a property they had for a perpetuity, and vesting it in them for a term of years only! The supposition was absurd; and yet if the Act by some certain privileges not enjoyed before, did not encourage learning, |