(This "Introduction" will doubtless induce in the reader a despair akin
to that felt by a sleepy worshipper on a warm Sunday afternoon, when,
nearing, as he supposes, the close of the discourse, the preacher turns
over a new leaf, and announces, "Secondly!")
"INTRODUCTION.
"Before proceeding to the subject-matter of the controversy, will the
referees permit me to apologize for appearing before them to present
the case myself. Nothing was further from my intention. Until the
evening before the reference I did not mean to be present at all,
and I then consented to be in the room only at Mr. Dane's urgent
solicitation. I wished a full, clear, and exhaustive discussion. I
knew that I was not able to enter into it myself. I have steadfastly
refused to attempt it even in private with Messrs. Hunt and Parry,
because I knew I was so ignorant of the details of business, that such
a discussion would be fruitless. How much less then should I have
attempted it before two gentlemen of the character and ability of the
referees, appealed to for a formal and final decision?
"The paper already presented to the referees was prepared originally
for my own convenience, and was subsequently put into Mr. Dane's hands
for his exact understanding of the matter. It was not designed for the
referees. It contained much irrelevant matter, and my only excuse for
offering it, is the embarrassment and perplexity in which I suddenly
found myself involved, and from which this seemed the only way of
escape.
"The same circumstances must be my apology to Mr. Hunt for certain
letters which appeared in that statement. They were placed there
only for the sake of a few lines which were in them. These extracts
were all that were designed to be read. But in the confusion of the
moment I was entirely unable to make any separation or distinction. I
mention this, not because the letters contained anything discreditable
to Mr. Hunt, for they did not; but because I would wish to avoid
even the appearance of unnecessarily giving private letters to the
semi-publicity of arbitration.[12]
"For the paper which I now present, I must also beg the indulgence of
the referees. I have done the best I could do under the circumstances,
but I know that it must seem to them redundant, deficient,
unsystematic, and perhaps inadequate. I can only assure them that had
I thought it possible I should be forced to conduct the case myself, I
should never have appealed to arbitration.
"I beg to thank the referees most sincerely for their unvarying
kindness and forbearance.
"SUBJECT-MATTER OF THE CONTROVERSY.
"I claim what is justly due for copyright on eight works, namely:--
"'City Lights,'
"'Alba Dies,'
"'Rocks of Offense,'
"'Old Miasmas,'
"'Pencillings,'
"'Holidays,'
"'Cotton-Picking,'
"'Winter Work,'
Published by Messrs. Brummell & Hunt, since Hunt, Parry, & Co.
"Were there no contracts, the author's share should, I suppose, be
determined by the usage of publishers and authors, as to similar works
with similar sales.
"For four of these books there is no contract.
"On the first book, 'City Lights,' there is a written contract at ten
per cent. on the retail price after the first edition is sold. This
price was fixed voluntarily by the publishers without suggestion from
or consultation with me, and must be considered as expressing their
idea of what was fair and usual under ordinary circumstances, even with
a new author. This contract has never been rescinded. Messrs. Hunt,
Parry, & Co. claim that it has been rescinded. No one can be called
upon to prove a negative. To prove that the contract exists, I produce
the contract. To prove that the rescission exists, I demand that they
produce the rescission. This they have utterly failed to do. Mr. Hunt
simply asserts a verbal agreement, which I deny. A verbal agreement
between two parties, which one party stoutly maintains, and the other
flatly denies, is, I submit, an agreement more suited to the latitude
and longitude of Dublin than of Athens. A verbal agreement, which on
examination proves to be an utter and absolute disagreement, cannot
cancel a written contract.
"They not only attempt to rescind the first contract, but to substitute
another for it by including 'City Lights' in the second contract.
But 'City Lights' is not named in the second contract. They do not
even pretend that they intended to name it there. They simply assert
a conversation in which both parties agreed that, the first contract
still existing, they would act as if it did not exist; and that 'City
Lights' not being inserted in the second contract, both parties should
act as if it were so inserted. I beg to inquire if there is anything
in the Union as it was, or the Constitution as it is, that could make
such a procedure reasonable? Is it credible that a shrewd business firm
should rely on a verbal agreement to cancel a written one and leave the
latter uncancelled in the possession of the other party?
"'Dies Alba,' 'Rocks of Offense,' and 'Old Miasmas,' were published
at different periods subsequent to the publication of 'City Lights.'
They are all embraced in one contract, which bears date September 24,
1764. This contract is not at ten per cent. on the retail price, but at
fifteen cents a volume on all volumes sold.
"This contract I claim to be invalid, because it was obtained from me
under false representations, and because it is not equitable.
"Mr. Hunt asserts that before entering into this contract, and as a
basis of this contract, he had a long conversation with me in which he
fully showed me the reason of the proposed change from ten per cent.
to fifteen cents on a volume. His recollection of this conversation is
so vivid that he even recalls the sofa on which he sat. He thinks he
sent for me, but is not quite sure. He remembers that I was disposed
at first to be trifling, but he begged me to be serious, and assured
me that this was a serious matter. He remembers using the expression,
'that their house was shaking in the wind.' He says, he explained to
me over and over again the state of affairs and the reasons which
necessitated the change; and repeatedly asked me, 'Do you understand
this clearly?' and I answered that I did, and 'Do you agree to it?' and
I said yes. He is so positive in his assurance that he expresses the
wish that he could take his oath on it; the referees ask him if, in
that conversation, 'City Lights' was included among the other books,
and he replies, 'distinctly.' Then, in face of my repeated written
and verbal assertions to him that I had no recollection of any such
conversation, he fixes his eyes upon me and says, with emphasis, 'I
think, M. N., you _must_ remember this.'
"I have already stated to the referees that I had no recollection
of any such conversation or of any verbal agreement. I was willing
to attribute the assertion to a mistaken impression on the part of
Mr. Hunt. Now, after his positive, persistent, and circumstantial
assertion, I go further. I deny his assertion in part and in whole,
in every point and particular. I deny it not simply as a mistaken
impression, but I deny it as a question of veracity between Mr. Hunt
and myself.
"As I have said before, I cannot be called upon to prove a negative.
The burden of proof lies on Mr. Hunt who asserts the positive. He
admits that he has no correspondence to show it, but affirms that I
admit it myself in one of my early letters by saying, 'I dare say'
I did have such a conversation. The letter to which he refers is my
second letter of inquiry, written before my faith in him had been
shaken, and before the question of such a conversation had assumed any
prominence or arrested my attention. I had asked him, as my letters
show, why he wanted me to take less than ten per cent. He had replied,
that we had talked it over and I agreed to less. I replied that I knew
I agreed to it, for here were the contracts, but why did he wish me
to make such contracts? My exact words were, 'I don't remember ever
talking the things over with you, but I dare say I did--or rather you
talked and I nodded,--as usual. And of course I agreed, for here are
the contracts that say so.... Don't you see the trouble lies back of
the contracts. Why did you _wish_ me to be having seven or eight per
cent. when other people are getting ten?' Here it is seen that in the
very beginning, almost before any suspicion was aroused, and before my
attention was at all fixed upon the importance of this conversation, I,
first, carelessly but distinctly assert that I remember no such talk;
second, I found my recognition of my assent not upon any remembered
talk but upon the written contract; and third, I reiterate my questions
concerning what lay back of the contract in entire unconsciousness that
the talk had anything to do with it.
"So then, the only testimony which Mr. Hunt can produce of a verbal
agreement which vitiates one contract and forms the basis of another,
is a letter of mine in which I distinctly affirm that I don't remember
anything about it! Mr. Hunt is welcome to all the sunshine he can find
in _that_ cucumber.
"Again, Mr. Hunt cannot fix the time when this explanatory conversation
occurred and this verbal agreement was made; but it was the basis of a
contract which was executed on the 24th September. It would naturally,
therefore, be somewhere within speaking distance of that time. Now, in
my statement of the case, made out on the 22nd October, 1768, and put
into the hands of my friend Mr. Dane a few days after, and read before
the referees, I said, 'I think it must have been at the time this
contract was made out--but I cannot be sure as to the time,--that Mr.
Hunt told me that they were going to pay me a fixed sum, fifteen cents
on a volume, instead of a percentage;' adopting this course with their
authors, 'on account of fluctuations, general uncertainties, and so
forth.' In the following January my vague recollections were confirmed
by finding unexpectedly, and without seeking it or knowing that I had
it, a letter from Mr. Hunt dated September 23, 1764, from which I make
the following extract: 'The contract has been delayed for a sufficient
cause.' [He then gives the cause of the delay, namely, Mr. Brummell's
absence]. 'The percentage will read fifteen cents per copy, as the
business times are fluctuating the prices of manufacture so there is
no telling to-morrow, or for a new edition, what may be the expenses
of publication. So we reckon your percentage in every and any event as
fixed at fifteen cents per volume on all your books. If it should cost
$1.50 to make the volumes you are sure of your author profit of fifteen
cents. The price at retail may be $1.50, $2.00, or $3.00, as the high
or low rates of paper, binding, etc., may be, but _you_ are all right.
This arrangement we make now with all our authors....
"'As I write, the contracts are reported ready, so I enclose them. Sign
both, and send back the one marked with red X. You keep one and we the
other.'
"I submit, that this extract, bearing date the day before the contract,
has every sign of being fresh information. All the circumstances
combine with my own distinct recollection, apart from them, to show
that a new contract was made at my suggestion, not with any view
whatever of changing the terms, but because I thought if a contract
was necessary with one book, it was with another. I did not know that
there had been or was to be any change from percentage to a fixed sum,
until this letter told me. The retail price of the books had gone up to
$1.50, so that ten per cent. and fifteen cents were the same. In this
letter no allusion whatever is made to any previous conversation on the
subject of the change from percentage to a fixed sum. Is it credible,
I ask, that Mr. Hunt should have sent for me; should have assured me
that this was a very serious matter; should have explained it all to me
over and over again; should have repeatedly asked me if I understood
it; should remember the conversation five years after, so vividly that
the intensity of his convictions cannot find adequate expression in
simple declaration but craves the relief of an oath; is it credible,
that in his letter of the period he should have made no allusion to
this conversation, but should have mentioned the arrangement as then
communicated to me for the first time,--as it actually was?
"But further than this, my diary for 1764, carefully kept, with not a
day missing, shows that during the whole summer and autumn preceding
the 23d September, 1764, I was not once in Athens!"
[And yet again,--I set on foot an inquiry at the time but did not
get an answer in season to use it before the reference,--Mr. Hunt
distinctly remembered that he sat on a certain sofa in the new shop
during the conversation which was the basis of the contract of
September, 1764. But the firm did not move into the new shop till May,
1765!
Now if Mr. Hunt should gratify himself with the wished-for oath, I am
sure that the accusing angel who flies up to Heaven's chancery with it,
will blush as he gives it in, and the recording angel as he writes it
down, will drop a tear upon the word and blot it out forever.]
"But it may be urged, giving up the conversation and relying only
on the letter, that in any event I accepted and assented to the new
contract with a full understanding of its meaning and effect, and am
hence bound by it. This I deny. The law always scrutinizes transactions
between parties in confidential relations, as father and son, guardian
and ward, attorney and client, husband and wife, and demands the
utmost frankness and fullest disclosure of circumstances, allows no
concealments, and sets aside all contracts where any advantage is
gained by reason of the confidence reposed. It recognizes the influence
of superior position, and the right to trust in the party occupying
it, and demands the strictest honor on his part. I think my position
with my publishers comes within the scope of this principle. In respect
of the matters involved in this contract, were we or could we be
equal? They were practiced business men living in the city, with full
knowledge of all the details of their affairs. It was their business
to manage the external material parts of books. I was living in the
country, with no knowledge of these affairs, and as I supposed, no
need and no means of acquiring it. It was my part to attend to the
interior and intangible souls of books. I could not look into their
business without neglecting my own; as indeed I have been forced to
do for sixteen months past, and as I should do with equal pertinacity
for sixteen years, were it necessary. I never sent for my accounts,
except when I wanted money and wished not to overdraw. When they came,
I scarcely did more than glance at the footing to ascertain what was
due me. Nor do I now see of what use it would have been to examine them
ever so minutely. I was proceeding entirely on a basis of confidence,
which I think I had a clear right to assume, and which was complete and
unimpaired until the date mentioned in my first paper, when I awoke to
the fact that I was not receiving what I seemed to be entitled to, and
what, on the closest scrutiny, I believe to be my legal and equitable
dues.
"Such being the relation of the parties, let us examine for a
moment--that is a pulpit fiction, I mean for a good many moments--the
inducements held out to me by my publishers, as they are found in this
letter. I maintain that the proposed change from percentage to a fixed
sum is so mentioned as directly--I do not say intentionally--to mislead
me. It is held up as an arrangement peculiarly to my advantage, as
guaranteeing me in any event against a loss to which I might otherwise
be exposed, and as securing me my profits by some stronger safeguard
than I had before possessed. But whereas I was blind I now see that it
guarantees me against no loss, and the only safeguard it presents, is
a safeguard against any benefit which might accrue to me from the rise
in prices. Mr. Hunt says, "if it should cost $1.50 to make the volumes,
you are sure of your author profits of fifteen cents,"--as if I should
not have been just as sure of them had I received percentage! "The
price at retail may be $1.50, $2.00, or $3.00, as the high or low rates
of paper, binding, etc., may be, but _you_ are all right,"--whereas I
was all wrong, for if I had kept to a percentage, and the retail price
had become $3.00, I should have had thirty cents instead of fifteen.
"It was almost immediately after this contract that the retail price of
all my books went up to $2.00, and has remained so ever since. This was
a fact which my publishers had the means to foresee, but which I could
not and did not anticipate or even conjecture. The absolute identity of
ten per cent. and a fixed sum at the time of the new contract, together
with their representations of its superior advantage to me, and my
confidence in them, all combined to deceive me. I should have adopted
the same reasoning and drawn the same inference if a year earlier I
had been asked to change the ten per cent. to twelve and a half cents,
which at that time amounted to precisely the same thing.
"Had I been distinctly told that my books were largely to advance
in price, but that all the profit of the advance was to accrue to
the publishers and none of it to me, should I have consented to such
an arrangement? The referees and my publishers, in discussing these
matters, plunged into an abyss of figures into which I cannot attempt
to follow them. I do not even understand the jargon--I trust they will
pardon the term--in which they appeared to be communicating ideas. I
had provided myself with a friend who was, I believed, fully competent
to dive as deep as the best of them. But I was not allowed to retain
him, and I could only sit in despair on the brink of the gulf and stare
at the spectacle. From the few intelligible sounds that did reach me
I infer that the sacrifices of publishers in behalf of authors have
never been fully appreciated. I felt that in claiming ten per cent. I
was guilty of an extortion second only to that of David Copperfield in
suggesting to Mr. Dolloby eighteen pence as the price of 'this here
little weskit.' 'I should rob my family,' says Mr. Dolloby, 'if I was
to offer ninepence for it.' It is gratifying to recollect that the
last winter was a mild one, so that the cases of extreme suffering
must have been rare. If it were not for an occasional glimpse at our
impertinent income-returns one would be inconsolable. As it is, would
the referees count it as bringing in new facts if I should send one or
two postage-stamps to the retired clergyman whose sands of life have
nearly run out, and beg a receipt for returning an income of fifty
thousand dollars on a bi-annual cash profit of three hundred dollars?
"But though I cannot bring up a fact from the bottom of the sea, I can
see a fact when it stares me in the face on land. If there was any
reason except uncovenanted mercies for advancing my copyright from
twelve and a half cents to fifteen, when the books went from $1.25 to
$1.50, it must have applied with equal force to advancing my copyright
from fifteen to twenty cents when the books advanced from $1.50 to
$2.00. I deny that the increased cost of doing business should be
reckoned solely on the side of the publisher as the justification of
_his_ receipts and profits, while the author should be held down to
the same fixed sum. The same causes that increased the cost of doing
business to Messrs. Brummell & Hunt as publishers, increased in quite
as large a ratio the cost of my doing business as an author. Every
conceivable form of expenditure to which I was subjected was all the
time increasing, and I was as much in need of a _pro rata_ increase of
receipts from my books as the publishers could be. But Messrs. Brummell
& Hunt take the opposite ground and maintain that no matter what the
added expenditure of the author may necessarily become, only a fixed
sum shall be allowed to meet it, while the vast increase of receipts
and of profits shall be absorbed by the publisher alone. If this be
justice, equity, or law, I think we would better stop hammering on the
jubilee house, and begin back again at the Ten Commandments.[13]
"But though I was not able to follow my publishers through the technics
and tactics of their business, there were two ways in which I might
have formed and presented some opinion of the justice of their course.
Had I been allowed, I would have called in other publishers and have
asked them what would be a fair price for books with the character,
dress, and sales of mine. I do not see that there could be any
unfairness in this. They surely would not be likely to decide unjustly
against their own craft, and they surely would be able to give an
intelligent answer.
"From the inquiries which Mr. Dane has made among other publishers, I
believe that the sum which Messrs. Brummell & Hunt allege that they
have made on all my books represents much more nearly the profits which
they made on a single one of them, 'City Lights,' and that the profits
which accrued to themselves from the rise in the prices of books are
much larger than they represent them.
"It was for the purpose of elucidating this matter, also, that the
questions were sent to Messrs. Hunt, Parry, & Co. some days before the
reference began. Had I known the profits of their firm, the number and
sales of their books, and the profits of their periodicals, I should
have been in a position to judge of the correctness of their statements
regarding the cost and profits of my books. Mr. Parry objects to
such testimony, as he says they may make a great deal of money in
outside ways, by speculating in butter, for instance. Precisely. But
they advertise themselves as a publishing house solely, not as a
publishing and butter house. It is Hunt, Parry, & Co., publishers, not
publishers and dairymen. When I am charged in my books with the cost
of store-rent, I wish to know whether the rent is for packing-cases
or butter-tubs. I am charged for insurance and clerk-hire. How can
I tell whether the insurance and clerk-hire cover my share alone or
whether they may not also embrace the safety and the management of
the "Adriatic?" There is a separate item for the cost of advertising;
but I am told that in a single year the receipts of the firm for
advertising in their periodicals are ten thousand dollars more than the
cost to them of all the advertisements which they publish elsewhere.
Undoubtedly the sagacity of the firm in managing their periodicals
has much to do with that circulation which makes them so valuable as
advertising mediums; but is it not just possible that the quality of
the writing has some slight influence on their circulation. Yet not
only are the authors of the books and of the magazine articles often
one and the same, but the articles themselves are frequently but
extracts from the books, and the books themselves are frequently made
up in part or in whole from the articles. I do not mention this as
an advantage to the publishers and a disadvantage to the author, but
simply to show that the book business and the magazine business are so
interwoven that an investigation of the one, to be exhaustive, must be,
to some extent, an investigation of the other. Messrs. Hunt, Parry, &
Co. must give us all the data if we are to make their 'sums prove,' as
the children say. As they decline to do this, and as I never learned
to 'cipher in turkey rule,' they have everything their own way in
arithmetic.
"Another point in Mr. Hunt's letter of explanation was, as he says,
'This arrangement we make now with all our authors.'
"When I wrote to Mr. Hunt about the last of August, 1768, that,
contrary to what I had understood his assertion to be, several authors
had ten per cent., and therefore I thought I ought to have ten per
cent., the firm did not deny my premise, but simply said, 'In your
letter you assume that we have but one set of terms with the various
authors whose works we publish. In this you are in error. What we pay
to any individual author is a matter quite between him, or her, and
ourselves, and it is not our custom to make one author the criterion
for another. Many elements enter into the case that would make a
uniform rate impracticable. Independently of other considerations, the
varying cost of manufacture caused by different styles of publication
would alone preclude such an arrangement. We must therefore decline to
admit such an argument into the case.'
"The fact is, it was not necessary to admit it, since it was already
there--placed there by Mr. Hunt's own hands. It was offered as an
inducement for me to accept the new terms, "this arrangement we now
make with all our authors." Either, then, Messrs. Brummell & Hunt do
make a uniform arrangement with all their authors or they do not. If
they do, this last letter cannot be a correct statement of facts, and
the question arises, what is that uniform arrangement? If they do
not, then Mr. Hunt's letter of September 23, 1764, cannot be true,
and the representation which he held out to me of a uniform mode of
payment as an inducement for me to come into the arrangement, was not
a correct representation. To ascertain whether or not they did make
such an arrangement, I applied to such authors as were within reach to
know what were and had been their rates of payment. A. writes, 'I have
always received a percentage. I remember no change in 1764, unless
that B. & H. about that time (perhaps earlier), without my asking it,
raised the sum they paid me for a poem, by one third.' B. says, 'I have
been content with ten per cent.' Messrs. Hunt, Parry, & Co. write to
C., 'Even D. now has only ten per cent.' E. says, 'I never published
but one book (prose) with Brummell & Hunt.... I received on this the
usual beggarly percentage.' F. says, 'Generally we go on the system
of half profits.... In regard to 'Old King Cole,' they print and sell
and allow me a certain sum on each copy sold.' G. says, 'Brummell &
Hunt have, I believe, allowed me ten per cent. on the retail price
of my books.' H. says, 'I believe it (the book) was to have yielded
ten per cent. if anything.' I. says, 'Messrs. H., P., & Co. have
published four books for me. The three first sell for $1.25, and I
receive twelve cents each copy. The last is a joint affair, published
by subscription.' K. says, 'All my contracts have been for _one half
the net profits_. The two volumes published by the Troubadours, were
offered to Parry, but as he wanted to make other terms, I declined, and
they went to the Troubadours. This is the sum of my transactions with
Messrs. B. & H.'
"On Friday, April 16, Mr. Dane sent to Messrs. Hunt, Parry, & Co.
certain questions, in writing, which the referees now hold, asking
them to cite their contracts with other authors, and giving a list
of names. Did they meet this question fairly? On Friday, April 23,
they made their reply to my statement. On the question of contracts,
they cited A.'s collected poems, B.'s poems, F.'s 'Old King Cole,'
M.'s works (collected), a part of which had to be bought from another
publisher, and the works of Theodore Winthrop, which I believe were not
asked for. All these they cited as examples of works on which similar
contracts to mine had been made, and they cited no others. If these
persons had written no other works this would have been fair as far as
it goes. But these persons had written other works, and I maintain that
Messrs. Hunt, Parry, & Co. had selected out of these works those that
were most unlike mine in scope, style, cost, and probable circulation,
and said nothing whatever about books by the same authors which
would more nearly resemble mine in these respects. A., besides his
collected poems, his blue and gold and cabinet editions of his poems,
has written separate poems and prose works, which have been issued in
separate editions, and which, therefore, furnish a far more proper
basis of comparison with mine. But about these separate books they said
nothing. Of his separate books, a, b, c, d, e, they made no mention.
They brought up B. as one whose works were treated in the same way as
mine; but they mentioned only his Poems, blue and gold, and his Songs.
They never hinted that he had printed and they had published any prose
book for him. Yet it is these prose books, his novels and essays,
which form the true basis of comparison between him and me. They
cited F., but they cited only his 'Old King Cole,' which they did not
originally publish, and which they own by a peculiar bargain, and said
nothing about the original books which they have published for him,
novels, essays, and stories. They cited M., but while bringing in his
collected poems, which were entangled in a bargain with some previous
contumacious publisher, one Fussey, they said nothing of his separate
volumes. They cited Winthrop, but Winthrop, like Marley, was dead to
begin with; and if the living have hard work to hold their own against
this enterprising firm, what can be expected of the dead?
"Here they rested their case so far as the contracts go; but as a
desire was expressed to see the contracts, they promised to produce
them next morning. On Saturday, accordingly, we began with one set of
contracts which proved to be a most perplexing medley--a sort of contra
dance between written contracts and verbal agreements with the rattling
of stereotype plates for tambourines. As the government of Russia is
said to be despotism tempered by assassination, so the business of
Messrs. Hunt, Parry, & Co. may be said to be conducted on the basis of
written contracts annulled by verbal agreements. If we were met for the
purpose of preparing a Mars Hill House Shorter Catechism and should
ask, 'What is the chief end of a written contract?' Messrs. H., P.,
& Co. would promptly reply, 'A written contract's chief end is to be
canceled by a verbal agreement and annihilated forever!' According to
their practice, it seems that we all agree, in writing, as to what we
will do, for the sake of saying afterwards that we won't do it.
"However, plodding my way along as best I could through the contracts,
with Mr. Markman's kind assistance, I found, or thought I found,
that for one book its author received at first twenty per cent., he
owning the stereotype plates. Whether this was by written contract or
verbal agreement Mr. Markman does not recollect. From 1762 to 1764, he
received twenty cents a volume, the retail price, meanwhile, having
advanced from one to two dollars. Since then a written contract gives
him twenty cents a volume, the retail price being two dollars.
"A second book by the same author is on the same principle, except that
there is no written contract.
"A third, in 1762, either by contract or verbal agreement, was
receiving twenty per cent. on $1.00, retail price, the author owning
stereotype plates. In 1764 it was changed verbally from percentage to
twenty cents a volume, the price having gone up to two dollars.
"While I was painfully thridding these labyrinthine ways, I was
arrested by a proposition from some quarter that time should be saved
by intrusting the further examination of these contracts to the
referees. I had every confidence in the referees, but how could I make
my argument concerning these contracts without having seen them? It
was said that I should be present and examine them with the referees;
but the referees were about to disperse to the four quarters of the
earth--or, as there are only two of them, I suppose it might be more
strictly accurate to say, the two hemispheres--not to meet again till
Thursday, when I was to make my final statement. Mr. Markman then
said that he would have the principal points of the contracts copied
and sent to me either Saturday afternoon or Monday; but on Tuesday
I received a letter from him saying that his time has been so much
occupied with matters relating to Mr. Hunt's absence, that he has not
had time to complete the copyright memorandum which he promised to
send me, but will surely send it to-morrow--all of which I do not in
the least doubt, but it does not alter the fact that the information
concerning the contracts, for which I asked ten days ago, has not yet
been furnished; that I am to hand in my argument on Wednesday, and find
myself at home to write up the play of Hamlet with a pretty important
part of Hamlet left out.
"From what goes in, however, I am left, like Providence among the
heathen, not without witness. Accepting alleged verbal agreements, it
seems that the author cited, in changing from percentage to a fixed
sum, came down to a sum fixed as high as the highest of my percentage.
That is, he, at his lowest, is precisely where I was at my highest.
My sole ambition was to climb as high as the point where he stopped
falling! Does this fairly make out the assertion, 'this arrangement we
make now with all our authors'?
"But I cannot reason upon contracts which I have never seen. I fall
back upon the statements made to me by the authors I have quoted, and
on this ground I affirm that I have not fared as the other authors,
even of Messrs. Hunt, Parry, & Co., have fared. Neither can I accept
their allegations of verbal agreements which cancel written contracts.
The only verbal agreement I know anything about is one that never
existed. I did not intend to mention Mrs.---- any further than I
have done, but Mr. Parry has cited her case and I may therefore be
permitted to say that verbal agreements and explanations were brought
to bear on her in the same way. In a letter to me dated August 9, 1768,
she says, 'A letter arrived from Mr. Hunt [Thursday] telling me that
_he had explained as I knew_, just what he had never once explained as
he knew--and I read it and denied totally all his assertions.' August
20, 1768, she says, 'Do you see all the contracts Mr. Hunt tells Mr. E.
were verbal. I do not believe Mr.---- ever consented to change to ten
per cent., because he would have told me, and besides you see he had
fifteen per cent. for the very last book he gave them!... And now they
say he made a verbal agreement with Mr. Brummell who is dead and cannot
say anything. But they show no papers.'
"I have been a practitioner at law but four days, and it becomes me
to be modest; yet I will hazard the remark, that a verbal agreement
without witnesses, between two dead men, is as near nothing as anything
in the way of evidence can well be.
"Mr. Parry affirms that Mrs.----'s sister afterwards examined
their books and found nothing wrong therein, and that Mrs.---- was
subsequently satisfied. I saw Mrs.---- in Paris on her way to Asia,
and it seemed to me that she was very far from satisfied, but that
she _was_ worried out, and preferred peace to pence. One can imagine
Miss---- hunting up Messrs. Hunt, Parry, & Co.'s account books in
pursuit of knowledge!
"Neither do I accept accounts as proofs of a verbal agreement. My
accounts ran on for years, unchallenged, without any such agreement,
though that agreement is now alleged as the basis of the accounts. J.
wrote to me, May 11, 1768, 'In the accounts of sale I believe the price
paid me was ten per cent. of the _original_ retail price, that is, the
'Ambrosia' was published at a dollar fifty and I have always received
fifteen cents a copy on that. When paper became so high during the war,
the price of the book was raised to $1.75, but I am pretty sure I never
received seventeen and a half cents, but always only fifteen, yet, as
the papers are at home, I cannot be certain; only in a little account
of sale sent here this winter the reckoning was at fifteen cents a copy
for one, and twelve and a half cents for the other, but the account
covered a space of three years during which the books had been selling
at $1.75 and $1.50 respectively; so that, literally, he has not been
paying me ten per cent.; but I did not think much about it, taking it
for granted that the extra price was due to hard times. But I do not
know why our labor is the only labor to remain low-priced.' Here it
will be seen that for three years J.'s accounts might have been cited
at any time as proof of a verbal agreement, though no such agreement
had ever been made or even alleged. Messrs. H., P., & Co. may say that
they have a right to infer that silence gives consent, and that authors
have no right to be so loose in money matters. Leaving out any silence
which might arise from delicacy, I would say, it is true that they
ought to be more accurate and systematic, but surely we may say to our
publishers, as the crab remarked to his father, when rebuked for going
sidewise, 'Gladly, my father, would we walk straight, if we could first
see you setting the example!'
"But authors are not always to be blamed for their silence. We are not
very large buyers of our own books and do not always know when the
price is raised. Surely we cannot be expected to sit inflexibly upon
our property, like Miss Betsy Trotwood, watching the rates of sale. It
was a considerable time after L.'s story-book advanced in price before
its author discovered it; as soon as she did, she made a note of it,
and after a little trouble succeeded in having her contract fulfilled.
But any time between the change and her discovery of it, her account
might have been alleged as proof of a verbal agreement which did not
exist. I am, of course, not saying that it would have been so, but
that it might have been so. What we want, therefore, is _facts_, Mr.
Gradgrind.
"Since writing this, Mr. Markman's memoranda of contracts have put in
an appearance, and if correct, show beyond question, that their letter
of September, 1768, was true, and that the statement in Mr. Hunt's
September 1764 letter was not true. There is scarcely an approach to
uniformity in the arrangements made with authors. Taking those books
which most resemble mine, the contracts are of every species. There
are contracts for twenty per cent. where the author owns the plates,
and ten per cent. where the publisher owns them. Books that retail at
$1.25 pay the author ten cents per volume, or fifteen cents per volume,
he owning the stereotype plates, or twelve cents per volume, or twelve
and a half cents per volume; books that retail at $1.50 pay the author
fifteen cents, and ten cents; books that retail at seventy-five cents
pay five per copy; books that retail at $1.00 pay twenty cents per
copy; books that retail at $2.00 and $1.75 do the same; books that
retail at $1.12 pay ten cents. When a verbal agreement is alleged as
a substitute for a written contract, the substitute also varies. Some
of the contracts are for half profits. I do not find a single example
of a book that retails at $2.00 and pays the author fifteen cents. I
shall depend upon the referees to discover any fault in my figures, but
I believe they are correct. When a change is made from percentage to
a fixed sum, there is generally a decrease to the author, but not so
great as in my case. The aggregate of one set of books at a percentage
was $1.36¼; after the change to a fixed sum it amounted to $1.68. On
some of the books there has been no change. So that when Mr. Hunt says,
'this arrangement we make now with all our authors,' whether he means
that they change from percentage to a fixed sum, or whether he means
that they make with all the same ratio of decrease that they make with
me, he is equally incorrect. There is no sense in which his words can
be understood, in which they are true."
[There is one sense in which they may be counted correct. If we
construe them to mean, "We pay all our authors just as little as we
think they will stand. You, being rather the most pliable of any, will
bear the greatest reduction, and we have accordingly reduced you to the
lowest point," they appear to be marvellously accurate.]
"I claim, therefore, that I never assented to the second contract
because I never understood it, and because the representations made to
me as inducements were not correct. I claim that Mr. Hunt's letter was
calculated (I do not say intentionally) to mislead and deceive me; that
I was misled and deceived by it, and as the result of this deception,
I signed a contract which deprived me of my plainest rights in the
premises; and the accounts subsequently rendered were accepted by me in
the same good faith with which I sought the contract, with scarcely an
examination, certainly without the least suspicion.
"Of the books not named in the contracts I believe I need say little.
Even had the second contract been valid, no understanding can be
inferred from it as to the five books not included in it. Why should
the second contract be taken as a guide any more than the first? The
first was made under ordinary circumstances, the second under peculiar
ones which soon changed. They did not themselves understand that the
second contract governed all the rest, for they did not pay me fifteen
cents but only ten cents on 'Holidays.' They say that it was a small
book; but so was 'The Rights of Men.' Yet 'Holidays' contained 141
pages, was retailed at $1.50, and paid me ten cents, while 'The Rights
of Men' contained 212 pages, retailed at $1.50, and paid me fifteen
cents--no accounts being rendered till after the trouble began. Mr.
Parry says that 'Holidays' was a different kind of book, a children's
book with pictures, and therefore he supposed they did not class it
with the others, but simply fixed a price which they thought equitable.
But X.'s story-book was also a juvenile book, with pictures, of the
same class as mine; yet on that they paid by contract ten per cent.
C.'s story-book was also an illustrated juvenile, and on that they paid
half profits.
"But I hold that the contract pretending to cover 'Dies Alba,' 'Rocks
of Offense,' and 'Old Miasmas,' is inoperative and void, and cannot
regulate the compensation to which I am entitled by copyright on these
three books; still less can it regulate the compensation to which I
am entitled on subsequent ones. If a contract is void in the direct
operation claimed for it, its inferential operation must be shadowy
indeed. With all due respect, I hold that it is little less than absurd
for Messrs. Hunt, Parry, & Co. to claim that I am bound to accept that
contract as the basis of settlement for subsequent publications. I hold
that on these five books, published under no contract, I may claim what
is just according to the usages of the trade.
"I do not know what may be the result of the inquiries of the referees
among publishers. Mr. Dane, as his letter shows, made careful
investigations, and found no one who did not say that ten per cent.
was the minimum price. I believe that no respectable publisher can
be found in the country who, regarding the cost of the books and the
number sold, will not say that ten per cent. on the retail price is the
very lowest sum that an honorable publisher would have paid me had the
whole matter been referred to his own honor.
"Nor is it necessary to scour the country for evidence, since Messrs.
Hunt, Parry, & Co. recognize such a usage themselves, even if they do
not follow it. On what other principle did they allow me ten per cent.
in the beginning on 'City Lights,' when I was a new author, and they
had the whole matter of price in their own hands? During the reference
they have also offered to return to ten per cent. Why should they offer
ten per cent. in the beginning, and ten per cent. at the close, and
skip about meanwhile from six and two thirds to seven and a half per
cent. according to their fancy or caprice? This is a specimen of piping
on the part of publishers, and dancing on the part of authors, that I
do not propose to take part in.
"My claim to compensation on five hundred of the fifteen hundred books
exempted in the first edition of 'City Lights,' needs no labored
argument. Their attempt to prove from their books that I had due
notice of the fact, proves that I ought to have had notice, while the
accounts received and produced by me prove that no such notice was
given me. Mr. Markman thinks it may have been lost in the mail, but
the accounts which I hold cover the whole time of my transactions with
Messrs. Brummell & Hunt, and I submit that the mails shall be believed
innocent till they are proved guilty, and that Messrs. Brummell & Hunt
must be nipped in the bud, or they will soon, as Sidney Smith says, be
speaking disrespectfully of the equator. Mr. Parry admits that without
explanation the word edition means a thousand copies. He also admits
that in all cases when more than a thousand copies are exempted, the
specific number is given. He believes mine to be the only exception
to this rule. He alleges as the reason of this unusual exemption the
unusual cost of my books, saying that they cost a great deal more than
any other on their list. To this I reply that I should have been told
in the beginning that they did or would cost more than others. Mr.
Markman then brings forward a letter of mine to prove that I _was_
told, and did know that the books cost more. This letter bears date
September 20th, 1762, two days after the publication of 'City Lights,'
and the extract says: 'The fact that I wish to impress upon your mind
is that you have tricked out my book so beautifully that nothing could
be lovelier. You would not have done it though, if I had not threatened
you within an inch of your life, would you? [etc., etc., etc.] But now
see, I never thought till yesterday that they must cost more than the
other way, and I have been distressed all along and this makes me more
so,' etc.
"This does not prove what Mr. Markman introduced it to prove, but it
proves just the opposite, which is the next best thing. It shows that
until the day after the book was published I had never thought of the
book's cost, and that then the thought was spontaneous, not suggested
to me by others. It proves beyond question that nothing had ever been
said to me about it.
"On one or two other points, not strictly necessary to the case but
introduced by Mr. Parry, I must beg a moment's forbearance. Mr. Parry,
feeling that my claim involves fraud, reads extracts from my early
letters, to show that I was very urgent to publish 'City Lights,' that
I expressed the greatest confidence in them, and that, in short, I came
to them in such a way as, to use his own language, would have almost
held out a temptation to defraud me. So that if they had been disposed
to defraud me at all they would have done it then.
"Fraud is a hard word, and I believe I have not used it; but if Mr.
Parry insists, I will say that the exemption of the fifteen hundred
books under cover of _an edition_ occurred with the first edition of
my first book, and I really don't see how they could have begun _much_
earlier if they had tried.
"Mr. Parry mentions as a proof of their friendly intentions, that they
desired to refer the whole matter to Mr. Rogers because they thought he
was my friend; that they offered to refer it to my friend Mr. Brook,
of whom they knew nothing, and to my friend Mr. Greatheart, of whom
they knew very little. It will be observed that they did not once ask
me to select a friend, but generously took the whole burden of the
selection upon themselves.
"The first person to whom they offered to refer it was Mr. Rogers,
and I accepted him gladly. I was so much in earnest that I wrote him
myself begging him not to decline--and this although I had never seen
him. On account of his health he felt obliged to decline; but before
he had declined, Messrs. Hunt, Parry, & Co. proposed to relinquish
him, for what reason I do not know. They proposed that I should give
up Mr. Russell, and they should give up Mr. Rogers, and we should each
make a new selection. I was entirely satisfied both with my choice and
theirs, and I saw no reason for changing. So that I not only accepted
the nail they drove, but I clinched it myself. I not only kept to my
own choice, but I had to make them keep to theirs. It was while they
stood thus shivering on the brink, after Mr. Rogers had been proposed
and accepted, and before he had declined, that they proposed Mr. Brook
and Mr. Greatheart.
"But was it friendly in them to turn away from their own choice, and go
about among my friends choosing persons of whose qualifications they
were ignorant, forcing me to reject them, and thus to discriminate
against my own friends? Did not Messrs. Hunt, Parry, & Co. know that
this was a matter not to be settled by sentiment? I should have
considered it a far more unequivocal sign of friendliness if they had
permitted me to appear before the referees with the friend whom I had
intelligently chosen, who had stood by me through the whole trouble,
who was familiar with all the details of my case, and capable of
understanding all the details of theirs, and by whose aid, therefore,
arbitration might be satisfactory as well as conclusive. Instead of
which they compelled me to stand alone, unaided, without preparation,
without the possibility of being prepared, in a position for which
their long acquaintance with me must have told them I was eminently
unfit, and which one at least of their number must have known would be
to me peculiarly embarrassing and distressing. Their idea of a friendly
arbitration seems to be that of imposing upon me the friends I do not
want, and taking away from me the friend I do want.
"Mr. Parry thinks indeed that Mr. Dane had poisoned my mind regarding
them. But he also thought Mrs.----'s mind was jaundiced. Perhaps that
question belongs to the doctors rather than the referees. Whether it be
poison or jaundice it is to be hoped the disease may not spread.
"There are other parts of Mr. Parry's statements which I should like
to lay before the referees, but I remember that they are mortal, and
though the spirit is willing the flesh is weak, and I forbear.
"IN CONCLUSION,
I claim that my first contract for 'City Lights,' specially stipulating
ten per cent., shall be carried out in good faith; and that it shall
not be considered as changed or modified by any conversation remembered
by Mr. Hunt, but absolutely denied by myself. And I claim that the word
edition used therein shall be held to mean just what Mr. Parry admits
it would mean in common acceptation with the book-trade, namely, one
thousand copies.
"2. I claim that my second contract, covering 'Alba Dies,' 'Rocks
of Offense,' and 'Old Miasmas,' was obtained from me under a total
misapprehension of facts, that this misapprehension of mine was the
result of a misrepresentation (I do not say intentional) made to me by
Mr. Hunt in his letter of September 23, 1764, wherein he represents
the arrangement as one uniform among their authors and as assuring
me a rate of compensation, which he leaves me to infer, I might not
otherwise obtain, whereas he knew that the arrangement was not uniform
and that my percentage would amount to more as prices were then
tending,--and the arrangement was made by him so as to prevent my ten
per cent. from amounting to more than fifteen cents per copy. This I
did not understand, and should not have assented to if I had understood
it. I hold that neither in law, equity, morals, nor manners should I
be held to an agreement which I did not comprehend, which the opposite
party so presented as to prevent my comprehending it, and which
deprived me of my proportionate share of an increase of profit admitted
to have been made on the books published under it. The contract,
therefore, should be set aside, and I should be paid according to the
usage of publishers, or at the same rate as appears in the contract for
'City Lights,' namely, ten per cent.
"3. I claim that on my books published since the date of my second
contract, and not alluded to or included in either contract, namely,
'Winter Work,' 'Holidays,' 'Pencillings,' 'Cotton Picking,' and 'Rights
of Men,' my compensation shall be fixed by the usage existing among
publishers and authors.
"4. I claim and must certainly be entitled to receive interest at the
rate of seven per cent. on all sums found to be due me at the date of
the several semi-annual settlements, counting my compensation uniformly
at the rate of ten per cent. on the retail price of the books at the
date of the settlement. This point is so plain that it can need no
argument.
"5. I claim that I am equitably entitled to damages to compensate me
for the loss that has resulted to me pecuniarily and otherwise from
this unhappy occurrence. My pecuniary damage alone amounts to more than
three thousand dollars. There are hurts of other kinds to which money
bears no relation.
"My actual expenses in preparing for this reference have been very
considerable, and under the award of costs I claim that I should have
an ample allowance made me to cover my outlays in this regard."
After this statement had been read, Messrs. Hunt, Parry, & Co. were
permitted to make whatever of reply they chose. They denied no fact,
and challenged no inference in my statement.
The referees, after two days of deliberation, returned the following
decision:--
"The undersigned, mutually agreed upon as referees in the matter in
controversy between M. N. and Messrs. Hunt, Parry, & Co., on their own
account, and as successors of Brummell & Hunt, hereby award to M. N.
the sum of twelve hundred and fifty dollars, to be paid her by Hunt,
Parry, & Co., within three days from the date of this paper in full
compensation for her claims upon the matter in this controversy--and
that hereafter M. N. shall receive ten per cent. copyright on the
retail price of all her books printed by Hunt, Parry, & Co., except
the three books embraced in the contract between the parties dated
September 24, 1764. The referees decline any compensation for services
or expenses and leave each party to pay their own costs.
"Signed and delivered, April 30, 1769.
"J. RUSSELL.
"G. W. HAMPDEN."
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