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.