a statute of the legislature was suffered to be published with a direct falshood for its imprimatur. Upon the supposition of a common law right, the statute curtailed, instead of enlarging an author's privileges; it vested nothing in him but what he had before; it secured nothing to him but what he was previously secured in by the common law; and in the place of enjoying a 1. property transmissible in perpetuity to his heirs, he enjoyed one for 14 years only.

Sir John then stated his notion of the statute in question, humorously thus: there is nothing, said he, an author or a he printer detests so much as a minister. Now, if no common law right exists, the property must be vested by patent; but for an author to be eternally soliciting for patent after patent, would have too much the air of dependance on a great man: now, continued sir John, an author is foolish enough to think, that if a great man promises to grant him a patent, or any other favour, the great man should keep his word; and if he breaks his promise, the author is apt, said sir John bluntly, to think the great man a rogue. To save therefore an author from the pain of reiterated solicitations, this statute of queen Anne passed; it serves for an universal patent, and supercedes the necessity of an author's applying for particular ones. It passed in the reign of a Tory prince, under the influence of a Tory ministry; yet the statute is defensible, and lawyers would defend it upon different principles. The truth is, continued sir John, that lawyers, like parliaments, vary in their language. The style of the House of Commons, in my time, has varied; it is the same with courts; what at one time is prerogative, at another is necessity; proclamations are now out of fashion, yet I remember them in tolerable vogue; hence lawyers, as well as ministers, vary about; and according to the fashion of the times, will defend a thing upon the principles either of prerogative, property, or state necessity, or all together. Chief Justice Chief Justice Scroggs, at the head of the Whigs, would contend for liberty and property; judge Jefferies for prerogative; a prudent lawyer, for both liberty, property, and prerogative.

Sir John having thus combated the statute of queen Anne, made a variety of miscellaneous observations rather foreign to the point, but introduced seemingly to level a stroke of sarcastic humour. He said, that he was informed the counsel [VOL. XVII.]

on the opposite side intended to prove that a copy right had been acknowledged by the testimony of several divines; but with deference to the church, he did not believe what they signed to be the truth. He said, that authors and booksellers seldom were men of family or fortune; it was therefore extremely difficult to find out their heirs ten years after their deaths. He said, that twelve or thirteen booksellers were hovering, like eagles over a carcase, about the remains of poor Thomson; but he hoped their lordships would protect those remains from such hungry vultures.

Sir John, after thus jocularly discoursing, thus returned to combat the subject upon more serious, as well as substantial grounds. He argued thus: the book about which the action is brought, was printed at Edinburgh; in Scotland there is no such thing as literary property; by the articles of Union, matters respecting traffic stand mutually upon the same footing; can, therefore, or cannot a man import into this kingdom, and here sell books printed in Scotland?

Sir John then talked about ideas. If I copy a manuscript, says he, and publish it, I am liable to a civil action; if I steal a book, to a criminal one; the one is simply taking ideas, the other a chattel. But, argues he, what property can a man have in ideas? whilst he keeps them to himself they are his own, when he publishes them they are his no longer. If I take water from the ocean it is mine, if I pour it back it is mine no longer. Besides, continues sir John, there are various methods of conveying ideas; by looks, at which the ladies are most expert. Now an ogle is a lady's own whilst in private, but if she ogles publicly they are every one's property. By gesture ideas are conveyed; Foote's, or any other person's puppet-shew continued his before public representation, but after that any one might imitate it. Prints and engravings were, when once made public, the property of every imitator. Hence in the case of some of Hogarth's prints, an Act passed vesting an exclusive right in his widow for a term of years. Besides all this, sir John contended, that a decision in favour of the appellants would benefit authors, promote trade, and increase the revenue. It would benefit authors because the old stock upon booksellers' hands becoming common, authors would be applied to for new works; hence trade as well as authorship would [3 Q]

be served, and the revenue by consequence encreased considerably.

Such are the substance of the most of sir John Dalrymple's arguments, sir John spoke for two hours and a half, and seemed to exhaust, in this one speech, all the knowledge, metaphysical, legal, chemical and political, he possesses. He passed the greatest encomiums on lord Hardwicke, mentioned a doubt of his lordship's upon the subject of literary property, and said, "that the doubts of one wise man contained more information than the dogmatic opinions of ten thousand weak blockheads.

Sir John computed the number of printers and booksellers in London to amount to thirty thousand, and dropped the following expression: when the lord mayor was parading from the House after some popular act about discharging the printers, I was in the city, and perceiving the mob not so numerous as might be expected, I enquired the reason, and was told that a printer had been hanged that day, and ten thousand of the brotherhood chose rather to attend that than the lord mayor's procession.

Feb. 8. Counsel being called in, Mr. Solicitor General Wedderburn was heard for the Respondents:

He began his speech with complimenting the two counsel on the other side of the question; one of the learned pleaders, he observed, had entered into the argument with great ability, his definition of the word property' had been shrewd, metaphysical, and subtle; but he hoped to be able to convince their lordships, that ingenious as the definition of that word had been, it was nevertheless erroneous. Literary property had, by those who spoke before him, been said to be so abstruse and chimerical, that it was not possible to define it. The interpretation they had put upon the word property' was, that it implied something corporeal, tangible, and material. He begged leave to differ from this opinion, and to point out how common it was for terms to be misapplied as to their import. The word 'property' had, by the ablest writers, been called jus utendi, fruendi, disponendi;' it was therefore evident that any idea, although it was incorporeal in itself, yet if it promised future profit to the inventor of it, was a property. And the latter word had, rough inaccuracy, been used, as de

scribing that, over which a possessor held an absolute reign, dominion, or power of disposal. The subject matter might be immaterial, and yet liable to be appropriated. Property changed its nature with its place: in England, portions of land were private property; among the Arabs and Tartars no such idea prevailed, they looked upon cattle and chattels as the only private property. Among the Ame ricans, in certain districts, land was considered as property, but not as the property of individuals; as the inhabitants lived upon the gains of hunting, a circumference of land, sufficient for them to hunt on, was considered as the general property of one tribe or nation. The lawyers' mode of describing property was exceedingly trite and familiar, they generally divided it into corporeal and incorporeal, and in the present case it had been said to commence by occupation, and to continue by possession. This was a nar row scale of argument. In the courts of law it was universally admitted that matters incorporeal were nevertheless matters of property, and the lawyers' divi sion of it proved that matters not in occu pancy or possession, were yet of value, and could be sold or given over, as in the cases of manors and advowsons, remainders, and reversions. They could be sold by assignment, and the mode of sale was by title. Pos session was usually described as originating from two things, livery and grant. Under the latter title, in some degree, stood literary property; but it was not to be considered as originating from crown grants, for excepting the prerogative copies, the crown had no right, and in the first of those (the Bible) no farther right, than in that particular translation published in the reign of king James.

The Solicitor General observed, that every inventor had a right to the profit of his invention; and as he found that Grotius had not escaped the Attorney Ge neral's researches, he was much surprised that in his definition of property, learned pleader had not hit upon a posi tion which was directly in point. He then read an observation cited by Gro tius as having been made by Paulus, Roman lawyer, who declared, that one mode of acquiring property was invention, and that from the nature of things, he who made a matter was the owner of it. This he observed was a much more liberal construction of the word invention' than had been put on it by the other side,

who had taken it up in its vulgar acceptation, and only given it allusion to trifles, such as the finding shells on the sea shore, &c. It had been contended, that the maker of an orrery was in the same predicament as an author, when he published. Such allusion came not to the point; the first sheet of an edition, as soon as it was given impression, in a manner loaded an author with the expences of a whole edition, and if that edition was 5,000 number, the author was not repaid for his labour and his hazard, till the last top of the 5,000 was sold. The maker of an orrery was at no other trouble and charge, than the time, ingenuity and expence, spent in making one orrery; and when he had sold that one, he was amply paid. Orrery-making was an invention, and the inventor reaped the profit accruing se from it. Writing a book was an invention, and some profit must accrue after publication: who should reap the benefit of it? Authors, he contended both from sprinciples of natural justice, and the interest of society, had the best right to er the profits accruing from a publication of their own ideas; and as it had been admitted on all hands that an author had an interest or property in his own manuscript, previous to publication; he desired bras to know who could have a greater claim byto it afterwards. It was an author's dominion over his ideas that gave him his property in his manuscript originally, and nothing but a transfer of that dominion or right of disposal could take it away. It was absurd to imagine, that either a sale, a loan, or a gift of a book, carried with it an implied right of multiplying copies; so much paper and print were sold, lent, or given, and an unlimited perusal was warranted from such sale, loan or gift, but it could not be conceived that when 5s. were paid for a book, the seller meant to transfer a right of gaining 100l.; every man must feel to the contrary, and confess the absurdity of such an argument.

e c

The Solicitor General produced a copy of the original grant of king James for printing some poems of his writing, which, excepting some royal stile in the beginning, he observed, ran in the ordinary phrase of an author's assignment of copyright to a bookseller; nay, indeed it was more ample, for it not only transferred the right of the matter then published, but also transferred a right to every thing he should hereafter be pleased to write. Among other matters adverted to in this

speech, Ames's Typographical History was particularly noticed: the application of the printers in Prynne's time to suppress and call in the patents for printing and publishing the Bible, was mentioned; the applicants terming those patents a sanction for monopolizers, the matter was heard by counsel, when Prynne pleaded on one side of the question, and his answer turned on nine points, in one of which that celebrated lawyer declared, that the most serious and solid objection against the printers, was the inherent common law right for an author to multiply copies. This the Solicitor General said, was one strong proof that in the worst of time the jus naturale respecting literary property was not forgot. Licences in general, he observed, proved not that common law right did not inherently exist, but were the universal fetters of the press at the times in which authors were obliged to obtain them.-With regard to the statute of queen Anne, he was very willing to let that rest on the same grounds as the Attorney General had placed it last Friday, namely, that if it gave no right it took none away. But he could not help observing that it contained a positive clause to let the matter respecting a common law right, remain precisely in the state in which it was when that Act passed: and that the court of Chancery considered that such a right did exist, was evident from the several injunctions that court had granted since the enacting of the statute, which did not govern those injunctions, as it did not particularly specify how the court of Chancery were to act. He instanced the cases of Pope and Curl, Gwynne and Dr Shebbeare, and two law books, as proofs of what he asserted. He mentioned also the case of Dodsley v. Kinnersly, in 1761, before sir Thomas Clark, master of the rolls. The former prayed an injunction against the latter, for abstracting part of Dr. Johnson's Rasselas, and publishing such abstract in a magazine. The Solicitor General, after noticing the great ability of sir Thomas, declared that his opinion was the same respecting literary property, as that he had maintained; and after a variety of very ingenious remarks, he concluded his argument, invoking the Lords to sanctify the final determination of a question founded on natural justice, and the interest of society, by affirming the decree.

he

репте

would have been very hard for a translator to have published an English edition as soon as possible after their appearance in Latin; and more especially so, if the case could have happened at this day, as the English edition would have had the advantage greatly in point of profitable sale. In the case of Newton's Milton, the court of Chancery decreed generally; they did not, as had been observed on the other side, divide the author's text from the commentator's notes, and the reason is obvious, for no man would have purchased one without the other. It was true, he observed, that the statute of queen Anne had not either restricted or enlarged the power of the court of Chancery, respecting the mode of treating the question; but it was as true, that the court of Chancery had not only of itself always acted upon the principles of that statute, but that every prayer for an injunction had of late years been grounded upon it. The late lord Hardwicke had been declared to have been of opinion, that there did exist a common law right. Before lord Hardwicke's opinion was attempted to be positively pronounced, it was highly necessary, he presumed, to ascertain that he entertained any opinion relative to the matter. If one court's determination in favour of the common law rights, had given three guineas for such a work as Hawkesworth's Voyages, what would not a determination of the House of Lords give? Six guineas at least; so that the public would be materially injured if the monopoly contended for by the respondents was ratified and confirmed. That it was a monopoly tending to distress the public, injure literature, and contrary to every species of natural justice. After having argued near two hours, denying that the counsel on the other side had defeated his former posi tions, and endeavouring to produce new ones in support of his doctrine, he concluded with summing up the strongest parts of his argument, and hoping that their lordships would consider they were about to determine the law on a most important point, and wishing that they might pronounce in favour of the appellants.

session must originate from a grant of the king, when he declared that the law described it as arising either from livery or grant. Literary property could not be of either of these origins, and was to all intents and purposes indefinable. But he could not help expressing his amazement, that ait should have been attempted to charge him with unfairly defining the meaning of Ce invention, by citing the very passage from ***Grotius which he had first quoted, as immediately proving the meaning he had given it. He read the whole period, and appealed to his hearers whether he had gat not drawn a fair and defensible conclusion from it. With regard to the observation, that the inventor of an orrery was not at all le to be compared to the inventor of a book, because he was paid for his labour when he de had sold one orrery; there was not a more fallacious doctrine in the power of words. The maker of a time-piece, or an orrery, Lab stood in the same, if not in a worse predicament, than an author. The bare invention of their machines, might cost them twenty of the most laborious years in their whole life; and the expence to the first inventors in procuring, preparing, and portioning the metals, and other component parts of their machines, was too infinite to bear even for a moment the supposition that the sale of the first orrery recompensed it. And yet no man would deny that after an orrery was sold, every mechanist had a right to make another after its model. Authors had certainly an interest in their manuscripts before publication, and they had a right to every advantage which could possibly accrue from first communicating their manuscript to the world; but having once done so, they lost all further claim. Publication was in his mind sale, and after a man had sold his right, it was absurd to contend that he had any claim upon the purchaser. The case recorded by Prynne fully confirmed him in the opinion he entertained. The printers were then urging an improper suit. The sole printing of Bibles had been granted by the crown, and such a use of the prerogative was very defensible and very proper. As to the doctrine that any man had a right to publish translations, and that therefore other versions of the Bible might be published, it was exceed ingly absurd, supposing that a common law right did exist. Lord Bacon and several of the old learned writers, always gave their thoughts in Latin; surely if they had a right to their own ideas, it

The counsel were directed to withdraw. And it being proposed, That the Judgesbe directed to deliver their Opinions upon the following Questions ;

1. "Whether, at common law, an author of any book or literary composition, had the sole right of first printing and publishing the same for