JOHNSON has dignified the booksellers as "the patrons of literature,"
which was generous in that great author, who had written well and
lived but ill all his life on that patronage. Eminent booksellers, in
their constant intercourse with the most enlightened class of the
community, that is, with the best authors and the best readers,
partake of the intelligence around them; their great capitals, too,
are productive of good and evil in literature; useful when they carry
on great works, and pernicious when they sanction indifferent ones.
Yet are they but commercial men. A trader can never be deemed a
patron, for it would be romantic to purchase what is not saleable; and
where no favour is conferred, there is no patronage.
Authors continue poor, and booksellers become opulent; an extraordinary
result! Booksellers are not agents for authors, but proprietors of
their works; so that the perpetual revenues of literature are solely
in the possession of the trade.
Is it then wonderful that even successful authors are indigent? They
are heirs to fortunes, but by a strange singularity they are
disinherited at their birth; for, on the publication of their works,
these cease to be their own property. Let that natural property be
secured, and a good book would be an inheritance, a leasehold or a
freehold, as you choose it; it might at least last out a generation,
and descend to the author's blood, were they permitted to live on
their father's glory, as in all other property they do on his
industry.[10] Something of this nature has been instituted in France,
where the descendants of Corneille and Moliere retain a claim on the
theatres whenever the dramas of their great ancestors are performed.
In that country, literature has ever received peculiar honours--it was
there decreed, in the affair of Crebillon, that literary productions
are not seizable by creditors.[11]
The history of literary property in this country might form as
ludicrous a narrative as Lucian's "true history." It was a long while
doubtful whether any such thing existed, at the very time when
booksellers were assigning over the perpetual copyrights of books, and
making them the subject of family settlements for the provision of
their wives and children! When Tonson, in 1739, obtained an injunction
to restrain another bookseller from printing Milton's "Paradise
Lost," he brought into court as a proof of his title an assignment of
the original copyright, made over by the sublime poet in 1667, which
was read. Milton received for this assignment the sum which we all
know--Tonson and all his family and assignees rode in their carriages
with the profits of the five-pound epic.[12]
The verbal and tasteless lawyers, not many years past, with legal
metaphysics, wrangled like the schoolmen, inquiring of each other,
"whether the _style_ and _ideas_ of an author were tangible things; or
if these were a _property_, how is _possession_ to be taken, or any
act of _occupancy_ made on mere intellectual _ideas_." Nothing, said
they, can be an object of property but which has a corporeal
substance; the air and the light, to which they compared an author's
ideas, are common to all; ideas in the MS. state were compared to
birds in a cage; while the author confines them in his own dominion,
none but he has a right to let them fly; but the moment he allows the
bird to escape from his hand, it is no violation of property in any
one to make it his own. And to prove that there existed no property
after publication, they found an analogy in the gathering of acorns,
or in seizing on a vacant piece of ground; and thus degrading that
most refined piece of art formed in the highest state of society, a
literary production, they brought us back to a state of nature; and
seem to have concluded that literary property was purely ideal; a
phantom which, as its author could neither grasp nor confine to
himself, he must entirely depend on the public benevolence for his
reward.[13]
The Ideas, that is, the work of an author, are "tangible things."
"There are works," to quote the words of a near and dear relative,
"which require great learning, great industry, great labour, and great
capital, in their preparation. They assume a palpable form. You may
fill warehouses with them, and freight ships; and the tenure by which
they are held is superior to that of all other property, for it is
original. It is tenure which does not exist in a doubtful title; which
does not spring from any adventitious circumstances; it is not
found--it is not purchased--it is not prescriptive--it is original; so
it is the most natural of all titles, because it is the most simple
and least artificial. It is paramount and sovereign, because it is a
tenure by creation."[14]
There were indeed some more generous spirits and better philosophers
fortunately found on the same bench; and the identity of a literary
composition was resolved into its sentiments and language, besides
what was more obviously valuable to some persons, the print and paper.
On this slight principle was issued the profound award which accorded
a certain term of years to any work, however immortal. They could not
diminish the immortality of a book, but only its reward. In all the
litigations respecting literary property, authors were little
considered--except some honourable testimonies due to genius, from the
sense of WILLES, and the eloquence of MANSFIELD. Literary property was
still disputed, like the rights of a parish common. An honest printer,
who could not always write grammar, had the shrewdness to make a bold
effort in this scramble, and perceiving that even by this last
favourable award all literary property would necessarily centre with
the booksellers, now stood forward for his own body--the printers.
This rough advocate observed that "a few persons who call themselves
_booksellers_, about the number of _twenty-five_, have kept the
_monopoly of books and copies_ in their hands, to the entire exclusion
of all others, but more especially the _printers_, whom they have
always held it a rule never to let become purchasers in _copy_." Not a
word for the _authors_! As for them, they were doomed by both parties
as the fat oblation: they indeed sent forth some meek bleatings; but
what were AUTHORS, between judges, booksellers, and printers? the
sacrificed among the sacrificers!
All this was reasoning in a circle. LITERARY PROPERTY in our nation
arose from _a new state of society_. These lawyers could never
develope its nature by wild analogies, nor discover it in any
common-law right; for our common law, composed of immemorial customs,
could never have had in its contemplation an object which could not
have existed in barbarous periods. Literature, in its enlarged spirit,
certainly never entered into the thoughts or attention of our rude
ancestors. All their views were bounded by the necessaries of life;
and as yet they had no conception of the impalpable, invisible, yet
sovereign dominion of the human mind--enough for our rough heroes was
that of the seas! Before the reign of Henry VIII. great authors
composed occasionally a book in Latin, which none but other great
authors cared for, and which the people could not read. In the reign
of Elizabeth, ROGER ASCHAM appeared--one of those men of genius born
to create a new era in the history of their nation. The first English
author who may be regarded as the founder of our _prose style_ was
Roger Ascham, the venerable parent of our _native literature_. At a
time when our scholars affected to contemn the vernacular idiom, and
in their Latin works were losing their better fame, that of being
understood by all their countrymen, Ascham boldly avowed the design of
setting an example, in his own words, TO SPEAK AS THE COMMON PEOPLE,
TO THINK AS WISE MEN. His pristine English is still forcible without
pedantry, and still beautiful without ornament.[15] The illustrious
BACON condescended to follow this new example in the most popular of
his works. This change in our literature was like a revelation; these
men taught us our language in books. We became a reading people; and
then the demand for books naturally produced a new order of authors,
who traded in literature. It was then, so early as in the Elizabethan
age, that _literary property_ may be said to derive its obscure origin
in this nation. It was protected in an indirect manner by the
_licensers_ of the press; for although that was a mere political
institution, only designed to prevent seditious and irreligious
publications, yet, as no book could be printed without a licence,
there was honour enough in the licensers not to allow other
publishers to infringe on the privilege granted to the first
claimant. In Queen Anne's time, when the office of licensers was
extinguished, a more liberal genius was rising in the nation, and
_literary property_ received a more definite and a more powerful
protection. A limited term was granted to every author to reap the
fruits of his labours; and Lord Hardwicke pronounced this statute "a
universal patent for authors." Yet, subsequently, the subject of
_literary property_ involved discussion; even at so late a period as
in 1769 it was still to be litigated. It was then granted that
originally an author had at common law a property in his work, but
that the act of Anne took away all copyright after the expiration of
the terms it permitted.
As the matter now stands, let us address an arithmetical age--but my
pen hesitates to bring down my subject to an argument fitted to "these
coster-monger times."[16] On the present principle of literary
property, it results that an author disposes of a leasehold property
of twenty-eight years, often for less than the price of one year's
purchase! How many living authors are the sad witnesses of this fact,
who, like so many Esaus, have sold their inheritance for a meal! I
leave the whole school of Adam Smith to calm their calculating
emotions concerning "that unprosperous race of men" (sometimes this
master-seer calls them "unproductive") "commonly called _men of
letters_," who are pretty much in the situation which lawyers and
physicians would be in, were these, as he tells us, in that state when
"_a scholar_ and _a beggar_ seem to have been very nearly _synonymous
terms_"--and this melancholy fact that man of genius discovered,
without the feather of his pen brushing away a tear from his
lid--without one spontaneous and indignant groan!
Authors may exclaim, "we ask for justice, not charity." They would
not need to require any favour, nor claim any other than that
protection which an enlightened government, in its wisdom and its
justice, must bestow. They would leave to the public disposition the
sole appreciation of their works; their book must make its own
fortune; a bad work may be cried up, and a good work may be cried
down; but Faction will soon lose its voice, and Truth acquire one.
The cause we are pleading is not the calamities of indifferent
writers, but of those whose utility or whose genius long survives
that limited term which has been so hardly wrenched from the
penurious hand of verbal lawyers. Every lover of literature, and
every votary of humanity has long felt indignant at that sordid
state and all those secret sorrows to which men of the finest
genius, or of sublime industry, are reduced and degraded in
society. Johnson himself, who rejected that perpetuity of literary
property which some enthusiasts seemed to claim at the time the
subject was undergoing the discussion of the judges, is, however,
for extending the copyright to a _century_. Could authors secure
this, their natural right, literature would acquire a permanent
and a nobler reward; for great authors would then be distinguished
by the very profits they would receive from that obscure multitude
whose common disgraces they frequently participate, notwithstanding
the superiority of their own genius. Johnson himself will serve as
a proof of the incompetent remuneration of literary property. He
undertook and he performed an Herculean labour, which employed him
so many years that the price he obtained was exhausted before the
work was concluded--the wages did not even last as long as the
labour! Where, then, is the author to look forward, when such works
are undertaken, for a provision for his family, or for his future
existence? It would naturally arise from the work itself, were
authors not the most ill-treated and oppressed class of the
community. The daughter of MILTON need not have craved the alms of
the admirers of her father, if the right of authors had been better
protected; his own "Paradise Lost" had then been her better portion
and her most honourable inheritance. The children of BURNS would have
required no subscriptions; that annual tribute which the public pay
to the genius of their parent was their due, and would have been their
fortune.
Authors now submit to have a shorter life than their own celebrity.
While the book markets of Europe are supplied with the writings of
English authors, and they have a wider diffusion in America than at
home, it seems a national ingratitude to limit the existence of works
for their authors to a short number of years, and then to seize on
their possession for ever.