Great books have naturally enough, being longer lived, come into court

even more frequently than great authors. _Paradise Lost_, _The Whole

Duty of Man_, _The Pilgrim's Progress_, _Thomson's Seasons_, _Rasselas_,

all have a legal as well as a literary history. Nay, Holy Writ herself

has raised some nice points. The king's exclusive prerogative to print

the authorised version has been based by some lawyers on the commercial

circumstance that King James paid for it out of his own pocket. Hence,

argued they, cunningly enough, it became his, and is now his

successor's. Others have contended more strikingly that the right of

multiplying copies of the Scriptures necessarily belongs to the king as

head of the Church. A few have been found to question the right

altogether, and to call it a job. As her present gracious Majesty has

been pleased to abandon the prerogative, and has left all her subjects

free (though at their own charges) to publish the version of her learned

predecessor, the Bible does not now come into court on its own account.

But whilst the prerogative was enforced, the king's printers were

frequently to be found seeking injunctions to restrain the vending of

the Word of God by (to use Carlyle's language) 'Mr. Thomas Teggs and

other extraneous persons.' Nor did the judges, on proper proof, hesitate

to grant what was sought. It is perhaps interesting to observe that the

king never claimed more than the text. It was always open to anybody to

publish even King James's version, if he added notes of his own. But how

shamefully was this royal indulgence abused! Knavish booksellers,

anxious to turn a dishonest penny out of the very Bible, were known to

publish Bibles with so-called notes, which upon examination turned out

not to be _bonâ-fide_ notes at all, but sometimes mere indications of

assent with what was stated in the text, and sometimes simple

ejaculations. And as people as a rule preferred to be without notes of

this character they used to be thoughtfully printed at the very edge of

the sheet, so that the scissors of the binder should cut them off and

prevent them annoying the reader. But one can fancy the question, 'What

is a _bonâ-fide_ note?' exercising the legal mind.

Our great lawyers on the bench have always treated literature in the

abstract with the utmost respect. They have in many cases felt that they

too, but for the grace of God, might have been authors. Like Charles

Lamb's solemn Quaker, 'they had been wits in their youth.' Lord

Mansfield never forgot that, according to Mr. Pope, he was a lost Ovid.

Before ideas in their divine essence the judges have bowed down. 'A

literary composition,' it has been said by them, 'so long as it lies

dormant in the author's mind, is absolutely in his own possession.' Even

Mr. Horatio Sparkins, of whose brilliant table-talk this observation

reminds us, could not more willingly have recognised an obvious truth.

But they have gone much further than this. Not only is the repose of the

dormant idea left undisturbed, but the manuscript to which it, on

ceasing to be dormant, has been communicated, is hedged round with

divinity. It would be most unfair to the delicacy of the legal mind to

attribute this to the fact, no doubt notorious, that whilst it is easy

(after, say, three years in a pleader's chambers) to draw an indictment

against a man for stealing paper, it is not easy to do so if he has only

stolen the ideas and used his own paper. There are some quibbling

observations in the second book of Justinian's _Institutes_, and a few

remarks of Lord Coke's which might lead the thoughtless to suppose that

in their protection of an author's manuscripts the courts were thinking

more of the paper than of the words put upon it; but that this is not so

clearly appears from our law as it is administered in the Bankruptcy

branch of the High Court.

Suppose a popular novelist were to become a bankrupt--a supposition

which, owing to the immense sums these gentlemen are now known to make,

is robbed of all painfulness by its impossibility--and his effects were

found to consist of the three following items: first, his wearing

apparel; second, a copy of _Whitaker's Almanack_ for the current year;

and third, the manuscript of a complete and hitherto unpublished novel,

worth in the Row, let us say, one thousand pounds. These are the days

of cash payments, so we must not state the author's debts at more than

fifteen hundred pounds. It would have been difficult for him to owe more

without incurring the charge of imprudence. Now, how will the law deal

with the effects of this bankrupt? Ever averse to exposing anyone to

criminal proceedings, it will return to him his clothing, provided its

cash value does not exceed twenty pounds, which, as authors have left

off wearing bloom-coloured garments even as they have left off writing

_Vicars of Wakefield_, it is not likely to do. This humane rule disposes

of item number one. As to _Whitaker's Almanack_, it would probably be

found necessary to take the opinion of the court; since, if it be a tool

of the author's trade, it will not vest in the official receiver and be

divisible amongst the creditors, but, like the first item, will remain

the property of the bankrupt--but otherwise, if not such a tool. On a

point like this the court would probably wish to hear the evidence of an

expert--of some man like Mr. George Augustus Sala, who knows the

literary life to the backbone. This point disposed of, or standing over

for argument, there remains the manuscript novel, which, as we have

said, would, if sold in the Row, produce a sum not only sufficient to

pay the costs of the argument about the _Almanack_ and of all parties

properly appearing in the bankruptcy, but also, if judiciously handled,

a small dividend to the creditors. But here our law steps in with its

chivalrous, almost religious respect for ideas, and declares that the

manuscript shall not be taken from the bankrupt and published without

his consent. In ordinary cases everything a bankrupt has, save the

clothes for his back and the tools of his trade, is ruthlessly torn from

him. Be it in possession, reversion, or remainder, it all goes. His

incomes for life, his reversionary hopes, are knocked down to the

speculator. In vulgar phrase, he is 'cleaned out.' But the manuscripts

of the bankrupt author, albeit they may be worth thousands, are not

recognised as property; they are not yet dedicated to the public. The

precious papers, despite all their writer's misfortunes, remain his--his

to croon and to dream over, his to alter and re-transcribe, his to

withhold, ay, his to destroy, if he should deem them, either in calm

judgment, or in a despairing hour, unhappy in their expression or

unworthy of his name.

There is something positively tender in this view. The law may be an

ass, but it is also a gentleman.

Of course, in my imaginary case, if the bankrupt were to withhold his

consent to publication, his creditors, even though it were held that the

_Almanack_ was theirs, would get nothing. I can imagine them grumbling,

and saying (what will not creditors say?): 'We fed this gentleman whilst

he was writing this precious manuscript. Our joints sustained him, our

bread filled him, our wine made him merry. Without our goods he must

have perished. By all legal analogies we ought to have a lien upon that

manuscript. We are wholly indifferent to the writer's reputation. It may

be blasted for all we care. It was not as an author but as a customer

that we supplied his very regular wants. It is now our turn to have

wants. We want to be paid.'

These amusing, though familiar, cries of distress need not disturb our

equanimity or interfere with our admiration for the sublime views as to

the sanctity of unpublished ideas entertained by the Court sitting in

Bankruptcy.

We have thus found, so far as we have gone, the profoundest respect

shown by the law both for the dormant ideas and the manuscripts of the

author. Let us now push boldly on, and inquire what happens when the

author withdraws his interdict, takes the world into his confidence, and

publishes his book.

Our old Common Law was clear enough. Subject only to laws or customs

about licensing and against profane books and the like, the right of

publishing and selling any book belonged exclusively to the author and

persons claiming through him. Books were as much the subjects of

property-rights as lands in Kent or money in the bank. The term of

enjoyment knew no period. Fine fantastic ideas about genius endowing the

world and transcending the narrow bounds of property were not

countenanced by our Common Law. Bunyan's _Pilgrim's Progress_, in the

year 1680, belonged to Mr. Ponder: _Paradise Lost_, in the year 1739,

was the property of Mr. Jacob Tonson. Mr. Ponder and Mr. Tonson had

acquired these works by purchase. Property-rights of this description

seem strange to us, even absurd. But that is one of the provoking ways

of property-rights. Views vary. Perhaps this time next century it will

seem as absurd that Ben Mac Dhui should ever have been private property

as it now does that in 1739 Mr. Tonson should have been the owner 'of

man's first disobedience and the fruit of that forbidden tree.' This is

not said with any covered meaning, but is thrown out gloomily with the

intention of contributing to the general depreciation of property.

If it be asked how came it about that authors and booksellers allowed

themselves to be deprived of valuable and well-assured rights--to be in

fact disinherited, without so much as an expostulatory ode or a single

epigram--it must be answered, strange as it may sound, it happened

accidentally and through tampering with the Common Law.

Authors are indeed a luckless race. To be deprived of your property by

Act of Parliament is a familiar process, calling for no remarks save of

an objurgatory character; but to petition Parliament to take away your

property--to get up an agitation against yourself, to promote the

passage through both Houses of the Act of spoliation, is unusual; so

unusual indeed that I make bold to say that none but authors would do

such things. That they did these very things is certain. It is also

certain that they did not mean to do them. They did not understand the

effect of their own Act of Parliament. In exchange for a term of either

fourteen or twenty-one years, they gave up not only for themselves, but

for all before and after them, the whole of time. Oh! miserable men! No

enemy did this; no hungry mob clamoured for cheap books; no owner of

copyrights so much as weltered in his gore. The rights were

unquestioned: no one found fault with them. The authors accomplished

their own ruin. Never, surely, since the well-nigh incredible folly of

our first parents lost us Eden and put us to the necessity of earning

our living, was so fine a property--perpetual copyright--bartered away

for so paltry an equivalent.

This is how it happened. Before the Revolution of 1688 printing

operations were looked after, first by the Court of Star Chamber, which

was not always engaged, as the perusal of constitutional history might

lead one to believe, in torturing the unlucky, and afterwards by the

Stationers' Company. Both these jurisdictions revelled in what is called

summary process, which lawyers sometimes describe as _brevi manu_, and

suitors as 'short shrift.' They hailed before them the Mr. Thomas Teggs

of the period, and fined them heavily and confiscated their stolen

editions. Authors and their assignees liked this. But then came Dutch

William and the glorious Revolution. The press was left free; and

authors and their assignees were reduced to the dull level of unlettered

persons; that is to say, if their rights were interfered with, they

were compelled to bring an action, of the kind called 'trespass on the

case,' and to employ astute counsel to draw pleadings with a pitfall in

each paragraph, and also to incur costs; and in most cases, even when

they triumphed over their enemy, it was only to find him a pauper from

whom it was impossible to recover a penny. Nor had the law power to fine

the offender or to confiscate the pirated edition; or if it had this

last power, it was not accustomed to exercise it, deeming it unfamiliar

and savouring of the Inquisition. Grub Street grew excited. A noise went

up 'most musical, most melancholy,

'As of cats that wail in chorus.'

It was the Augustan age of literature. Authors were listened to. They

petitioned Parliament, and their prayer was heard. In the eighth year of

good Queen Anne the first copyright statute was passed which, 'for the

encouragement of learned men to compose and write useful books,'

provided that the authors of books already printed who had not

transferred their rights, and the booksellers or other persons who had

purchased the copy of any books in order to print or reprint the same,

should have the sole right of printing them for a term of twenty-one

years from the tenth of April, 1710, and no longer; and that authors of

books not then printed, should have the sole right of printing for

fourteen years, and no longer. Then followed, what the authors really

wanted the Act for, special penalties for infringement. And there was

peace in Grub Street for the space of twenty-one years. But at the

expiration of this period the fateful question was stirred--what had

happened to the old Common Law right in perpetuity? Did it survive this

peddling Act, or had it died, ingloriously smothered by a statute? That

fine old book--once on every settle--_The Whole Duty of Man_, first

raised the point. Its date of publication was 1657, so it had had its

term of twenty-one years. That term having expired, what then? The

proceedings throw no light upon the vexed question of the book's

authorship. Sir Joseph Jekyll was content with the evidence before him

that, in 1735 at all events, _The Whole Duty of Man_ was, or would have

been but for the statute, the property of one Mr. Eyre. He granted an

injunction, thus in effect deciding that the old Common Law had survived

the statute. Nor did the defendant appeal, but sat down under the

affront, and left _The Whole Duty of Man_ alone for the future.

Four years later there came into Lord Hardwicke's court 'silver-tongued

Murray,' afterwards Lord Mansfield, then Solicitor-General, and on

behalf of Mr. Jacob Tonson moved for an injunction to restrain the

publication of an edition of _Paradise Lost_. Tonson's case was, that

_Paradise Lost_ belonged to him, just as the celebrated ewer by

Benvenuto Cellini once belonged to the late Mr. Beresford Hope. He

proved his title by divers mesne assignments and other acts in the law,

from Mrs. Milton--the poet's third wife, who exhibited such skill in the

art of widowhood, surviving her husband as she did for fifty-three

years. Lord Hardwicke granted the injunction. It looked well for the

Common Law. Thomson's _Seasons_ next took up the wondrous tale. This

delightful author, now perhaps better remembered by his charming habit

of eating peaches off the wall with both hands in his pockets, than by

his great work, had sold the book to Andrew Millar, the bookseller whom

Johnson respected because, said he, 'he has raised the price of

literature.' If so, it must have been but low before, for he only gave

Thomson a hundred guineas for 'Summer,' 'Autumn,' and 'Winter,' and some

other pieces. The 'Spring' he bought separately, along with the

ill-fated tragedy, _Sophonisba_, for one hundred and thirty-seven pounds

ten shillings. A knave called Robert Taylor pirated Millar's Thomson's

_Seasons_; and on the morrow of All Souls in Michaelmas, in the seventh

year of King George the Third, Andrew Millar brought his plea of

trespass on the case against Robert Taylor, and gave pledges of

prosecution, to wit, John Doe and Richard Roe. The case was recognised

to be of great importance, and was argued at becoming length in the

King's Bench. Lord Mansfield and Justices Willes and Aston upheld the

Common Law. It was, they declared, unaffected by the statute. Mr.

Justice Yates dissented, and in the course of a judgment occupying

nearly three hours, gave some of his reasons. It was the first time the

court had ever finally differed since Mansfield presided over it. Men

felt the matter could not rest there. Nor did it. Millar died, and went

to his own place. His executors put up Thomson's _Poems_ for sale by

public auction, and one Beckett bought them for five hundred and five

pounds. When we remember that Millar only gave two hundred and forty-two

pounds ten shillings for them in 1729, and had therefore enjoyed more

than forty years' exclusive monopoly, we realise not only that Millar

had made a good thing out of his brother Scot, but what great interests

were at stake. Thomson's _Seasons_, erst Millar's, now became Beckett's;

and when one Donaldson of Edinburgh brought out an edition of the poems,

it became the duty of Beckett to take proceedings, which he did by

filing a bill in the Court of Chancery.[8]

These proceedings found their way, as all decent proceedings do, to the

House of Lords--farther than which you cannot go, though ever so minded.

It was now high time to settle this question, and their lordships

accordingly, as was their proud practice in great cases, summoned the

judges of the land before their bar, and put to them five

carefully-worded questions, all going to the points--what was the old

Common Law right, and has it survived the statute? Eleven judges

attended, heard the questions, bowed and retired to consider their

answers. On the fifteenth of February, 1774, they reappeared, and it

being announced that they differed, instead of being locked up without

meat, drink, or firing until they agreed, they were requested to deliver

their opinions with their reasons, which they straightway proceeded to

do. The result may be stated with tolerable accuracy thus: by ten to one

they were of opinion that the old Common Law recognised perpetual

copyright. By six to five they were of opinion that the statute of Queen

Anne had destroyed this right. The House of Lords adopted the opinion of

the majority, reversed the decree of the Court below, and thus Thomson's

_Seasons_ became your _Seasons_, my _Seasons_, anybody's _Seasons_. But

by how slender a majority! To make it even more exciting, it was

notorious that the most eminent judge on the Bench (Lord Mansfield)

agreed with the minority; but owing to the combined circumstances of his

having already, in a case practically between the same parties and

relating to the same matter, expressed his opinion, and of his being not

merely a judge but a peer, he was prevented (by etiquette) from taking

any part, either as a judge or as a peer, in the proceedings. Had he not

been prevented (by etiquette), who can say what the result might have

been?

Here ends the story of how authors and their assignees were disinherited

by mistake, and forced to content themselves with such beggarly terms

of enjoyment as a hostile legislature doles out to them.

As the law now stands, they may enjoy their own during the period of the

author's life, _plus_ seven years, or the period of forty-two years,

whichever may chance to prove the longer.

So strangely and so quickly does the law colour men's notions of what is

inherently decent, that even authors have forgotten how fearfully they

have been abused and how cruelly robbed. Their thoughts are turned in

quite other directions. I do not suppose they will care for these

old-world memories. Their great minds are tossing on the ocean which

pants dumbly-passionate with dreams of royalties. If they could only

shame the English-reading population of the United States to pay for

their literature, all would be well. Whether they ever will, depends

upon themselves. If English authors will publish their books cheap,

Brother Sam may, and probably will, pay them a penny a copy, or some

such sum. If they will not, he will go on stealing. It is wrong, but he

will do it. 'He says,' observes an American writer, 'that he was born

of poor but honest parents, _I_ say, "Bah!"'[9]

NATIONALITY

Nothing can well be more offensive than the abrupt asking of questions,

unless indeed it be the glib assurance which professes to be able to

answer them without a moment's doubt or consideration. It is hard to

forgive Sir Robert Peel for having once asked, 'What is a pound?'

Cobden's celebrated question, 'What next? And next?' was perhaps less

objectionable, being vast and vague, and to employ Sir Thomas Browne's

well-known phrase, capable of a wide solution.

But in these disagreeable days we must be content to be disagreeable. We

must even accept being so as our province. It seems now recognised that

he is the best Parliamentary debater who is most disagreeable. It is not

so easy as some people imagine to be disagreeable. The gift requires

cultivation. It is easier, no doubt, for some than for others.

What is a nation--socially and politically, and as a unit to be dealt

with by practical politicians? It is not a great many things. It is not

blood, it is not birth, it is not breeding. A man may have been born at

Surat and educated at Lausanne, one of his four great-grandfathers may

have been a Dutchman, one of his four great-grandmothers a French

refugee, and yet he himself may remain from his cradle in Surat to his

grave at Singapore, a true-born Englishman, with all an Englishman's

fine contempt for mixed races and struggling nationalities.

Where the English came from is still a matter of controversy, but where

they have gone to is writ large over the earth's surface. Yet their

nationality has suffered no eclipse. Caviare is not so good in London as

in Moscow, but it is caviare all the same. No foreigner needs to ask the

nationality of the man who treads on his corns, smiles at his religion,

and does not want to know anything about his aspirations.

England has all the notes of a nation. She has a National Church, based

upon a view of history peculiarly her own. She has a National Oath,

which, without any undue pride, may be pronounced adequate for ordinary

occasions. She has a Constitution, the admiration of the world, and of

which a fresh account has to be written every twenty years. She has a

History, glorious in individual feats, and splendid in accomplished

facts; she has a Literature which makes the poorest of her children, if

only he has been taught to read, rich beyond the dreams of avarice. As

for the national character, it may be said of an Englishman, what has

been truly said of the great English poet Wordsworth--take him at his

best and he need own no superior. He cannot always be at his best; and

when he is at his worst the world shudders.

Res Judicatæ: Papers and Essays · 第 11 / 13 段