"Again, the well-known firm of F. A. Brockhaus holds out a p

LETTERS

ON

INTERNATIONAL COPYRIGHT:

BY

H. C. CAREY,

AUTHOR OF "PRINCIPLES OF SOCIAL SCIENCE," ETC. ETC.

SECOND EDITION.

NEW YORK:

PUBLISHED BY HURD AND HOUGHTON,

459 BROOME STREET.

1868.

RIVERSIDE, CAMBRIDGE:

PRINTED BY H. O. HOUGHTON AND COMPANY.

PREFACE.

At the date, now fourteen years since, of the first publication of these

letters, the important case of authors _versus_ readers--makers of books

_versus_ consumers of facts and ideas--had for several years been again

on trial in the high court of the people. But few years previously the

same plaintiffs had obtained a verdict giving large extension of _time_ to

the monopoly privileges they had so long enjoyed. Not content therewith,

they now claimed greater _space_, desiring to have those privileges so

extended as to include within their domain the vast population of the

British Empire. To that hour no one had appeared before the court on the

part of the defendants, prepared seriously to question the plaintiffs'

assertion to the effect that literary property stood on the same precise

footing, and as much demanded perpetual and universal recognition, as

property in a house, a mine, a farm, or a ship. As a consequence of

failure in this respect there prevailed, and most especially throughout

the Eastern States, a general impression that there was really but one

side to the question; that the cause of the plaintiffs was that of truth;

that in the past might had triumphed over right; that, however doubtful

might be the expediency of making a decree to that effect, there could be

little doubt that justice would thereby be done; and that, while rejecting

as wholly _inexpedient_ the idea of perpetuity, there could be but slight

objection to so far recognizing that of universality as to grant to

British authors the same privileges that thus far had been accorded to our

own.

Throughout those years, nevertheless, the effort to obtain from the

legislative authority a decree to that effect had proved an utter failure.

Time and again had the case been up for trial, but as often had the

plaintiffs' counsel wholly failed to agree among themselves as to the

consequences that might reasonably be expected to result from recognition

of their clients' so-called rights. Northern and Eastern advocates,

representing districts in which schools and colleges abounded, insisted

that perpetuity and universality of privilege must result in giving the

defendants cheaper books. Southern counsel, on the contrary, representing

districts in which schools were rare, and students few in number, insisted

that extension of privilege would have the effect of giving to planters

handsome editions of the works they needed, while preventing the

publication of "cheap and nasty" editions, fitted for the "mudsills" of

Northern States. Failing thus to agree among themselves they failed to

convince the jury, mainly representing, as it did, the Centre and the

West, as a consequence of which, verdicts favorable to the defendants had,

on each and every occasion, been rendered.

A thoroughly adverse popular will having thus been manifested, it was now

determined to try the Senate, and here the chances for privilege were

better. With a population little greater than that of Pennsylvania, the

New England States had six times the Senatorial representation. With

readers not a fifth as numerous as were those of Ohio, Carolina, Florida,

and Georgia had thrice the number of Senators. By combining these

heterogeneous elements the will of the people--so frequently and

decidedly expressed--might, it was thought, be set aside. To that end,

the Secretary of State, himself one of the plaintiffs, had negotiated the

treaty then before the Senate, of the terms of which the defendants had

been kept in utter ignorance, and by means of which the principle of

taxation without representation was now to be established.

Such was the state of affairs at the date at which, in compliance with the

request of a Pennsylvania Senator, the author of these letters put on

paper the ideas he had already expressed to him in conversation. By him

and other Senators they were held to be conclusive, so conclusive that the

plaintiffs were speedily brought to see that the path of safety, for the

present at least, lay in the direction of abandoning the treaty and

allowing it to be quietly laid in the grave in which it since has rested.

That such should have been their course was, at the time, much regretted

by the defendants, as they would have greatly preferred an earnest and

thorough discussion of the question before the court. Had opportunity been

afforded it _would_ have been discussed by one, at least, of the master

minds of the Senate;[1] and so discussed as to have satisfied the whole

body of our people, authors and editors, perhaps, excepted, that their

cause was that of truth and justice; and that if in the past there had

been error it had been that of excess of liberality towards the plaintiffs

in the suit.

[Footnote 1: Senator Clayton of Delaware.]

The issue that was then evaded is now again presented, eminent counsel

having been employed, and the opening speech having just now been made.[2]

Having read it carefully, we find in it, however, nothing beyond a labored

effort at reducing the literary profession to a level with those of the

grocer and the tallow-chandler. It is an elaborate reproduction of Oliver

Twist's cry for "more! more!"--a new edition of the "Beggar's Petition,"

perusal of which must, as we think, have affected with profound disgust

many, if not even most, of the eminent persons therein referred to. In it,

we have presented for consideration the sad case of one distinguished

writer and admirable man who, by means of his pen alone, had been enabled

to pass through a long life of most remarkable enjoyment, although his

money receipts had, by reason of the alleged injustice of the consumers of

his products, but little exceeded $200,000; that of a lady writer who, by

means of a sensational novel of great merit and admirably adapted to the

modes of thought of the hour, had been enabled to earn in a single year,

the large sum of $40,000, though still deprived of two hundred other

thousands she is here said to have fairly earned; of a historian whose

labors, after deducting what had been applied to the creation of a most

valuable library, had scarcely yielded fifty cents per day; of another who

had had but $1000 per month; and, passing rapidly from the sublime to the

ridiculous, of a school copy-book maker who had seen his improvements

copied, without compensation to himself, for the benefit of English

children.

[Footnote 2: See _Atlantic Monthly_ for October.]

These may and perhaps should be regarded as very sad facts; but had not

the picture a brighter side, and might it not have been well for the

eminent counsel to have presented both? Might he not, for instance, have

told his readers that, in addition to the $200,000 above referred to, and

wholly as acknowledgment of his literary services, the eminent recipient

had for many years enjoyed a diplomatic sinecure of the highest order, by

means of which he had been enabled to give his time to the collection of

materials for his most important works? Might he not have further told us

how other of the distinguished men he had named, as well as many others

whose names had not been given, have, in a manner precisely similar, been

rewarded for their literary labors? Might he not have said something of

the pecuniary and societary successes that had so closely followed the

appearance of the novel to whose publication he had attributed so great an

influence? Might he not, and with great propriety, have furnished an

extract from the books of the "New York Ledger," exhibiting the tens and

hundreds of thousands that had been paid for articles which few, if any,

would care to read a second time? Might he not have told his readers of

the excessive earnings of public lecturers? Might he not, too, have said a

word or two of the tricks and contrivances that are being now resorted to

by men and women--highly respectable men and women too--for evading,

on both sides of the Atlantic, the spirit of the copyright laws while

complying with their letter? Would, however, such a course of proceeding

have answered his present purpose? Perhaps not! His business was to pass

around the hat, accompanying it with a strong appeal to the charity of the

defendants, and this, so far as we can see, is all that thus far has been

done.

Might not, however, a similar, and yet stronger, appeal now be made in

behalf of other of the public servants? At the close of long lives devoted

to the public service, Washington, Hamilton, Clay, Clayton, and many other

of our most eminent men have found themselves largely losers, not gainers,

by public service. The late Governor Andrew's services were surely worth

as much, per hour, as those of the authoress of "Uncle Tom's Cabin," yet

did he give five years of his life, and perhaps his life itself, for far

less than half of what she had received for the labors of a single one.

Deducting the expenses incident to his official life, Mr. Lincoln would

have been required to labor for five and twenty years before he could have

received as much as was paid to the author of the "Sketch Book." The

labors of the historian of Ferdinand and Isabella have been, to himself

and his family, ten times more productive than have been those of Mr.

Stanton, the great war minister of the age.--Turning now, from civil to

military life, we see among ourselves officers who have but recently

rendered the largest service, but who are now quite coolly whistled down

the wind, to find where they can the means of support for wives and

children. Studying the lists of honored dead, we find therein the names of

men of high renown whose widows and children are now starving on pensions

whose annual amount is less than the monthly receipt of any one of the

authors above referred to.

Such being the facts, and, that they are facts cannot be denied, let us

now suppose a proposition to be made that, with a view to add one, two,

three, or four thousand dollars to the annual income of ex-presidents, and

ex-legislators, and half as much to that of the widows and children of

distinguished officers, there should be established a general pension

system, involving an expenditure of the public moneys, and consequent

taxation, to the extent of ten or fifteen millions a year, and then

inquire by whom it might be supported. Would any single one of the editors

who are now so earnest in their appeals for further grants of privilege

venture so to do? Would not the most earnest of them be among the first to

visit on such a proposition the most withering denunciations? Judging from

what, in the last two years, we have read in various editorial columns, we

should say that they would be so. Would, however, any member of either

house of Congress venture to commit himself before the world by offering

such a proposition? We doubt it very much. Nevertheless it is now coolly

proposed to establish a system that would not only tax the present

generation as many millions annually, but that would grow in amount at a

rate far exceeding the growth of population, doing this in the hope that

future essayists might be enabled to count their receipts by half instead

of quarter millions, and future novelists to collect abroad and at home

the hundreds of thousands that, as we are assured, are theirs of _right_,

and that are now denied them. When we shall have determined to grant to

the widows and children of the men who in the last half dozen years have

perished in the public service, some slight measure of justice, it may be

time to consider that question, but until then it should most certainly be

deferred.

The most active and earnest of all the advocates of literary _rights_

was, two years since, if the writer's memory correctly serves him, the

most thorough and determined of all our journalists in insisting on the

prompt dismissal of thousands and tens of thousands of men who, at their

country's call, had abandoned the pursuits and profits of civil life. Did

he, however, ever propose that they should be allowed any extra pay on

which to live, and by means of which to support their wives and children,

in the interval between discharge from military service and

re-establishment in their old pursuits? Nothing of the kind is now

recollected. Would he now advocate the enactment of a law by means of

which the widow and children of a major-general who had fallen on the

field should, so far as pay was concerned, be placed on a level with an

ordinary police officer? He might, but that he would do so could not with

any certainty be affirmed. She and they would, nevertheless, seem to have

claims on the consideration of American men and women fully equal to those

of the authoress of "Lady Audley's Secret," already, as she is understood

to be, in the annual receipt from this country of more than thrice the

amount of the widow's pension, in addition to tens of thousands at home.[1]

[Footnote 1: The London correspondent of Scribner and Co.'s "_Book

Buyer_" says that Miss Braddon's first publisher, Mr. Tinsley (who died

suddenly last year), called the elegant villa he built for himself at

Putney "Audley House," in grateful remembrance of the "Lady" to whose

"Secret" he was indebted for fortune; and Miss Braddon herself, through

her man of business, has recently purchased a stately mansion of Queen

Anne's time, "Litchfield House," at Richmond.]

It is, however, as we are gravely told, but ten per cent. that she asks,

and who could or should object to payment of such a pittance? Not many,

perhaps, if unaccompanied by monopoly privleges that would _multiply the

ten by ten and make it an hundred!_ Alone, the cost to our readers might

not now exceed an annual million. Let Congress then pass an act

appropriating that sum to be distributed among foreign authors whose works

had been, or might be republished here. _That_ should have the writer's

vote, but he objects, and will continue to object, to any legislative

action that shall tend towards giving to already "great and wealthy"

publishing houses the _nine_ millions that they certainly will charge for

collecting the single _one_ that is to go abroad.

"Great and wealthy" as they are here said to be, and as they certainly

are, we are assured that even they have serious troubles, against which

they greatly need to be protected. In common with many heretofore

competing railroad companies they have found that, however competition

among themselves might benefit the public, it would tend rather to their

own injury, and therefore have they, by means of most stringent rules,

established a "courtesy" copyright, the effect of which exhibits itself in

the fact, that the prices of reprinted books are now rapidly approaching

those of domestic production. Further advances in that direction might,

however, prove dangerous; "courtesy" rules not, as we are here informed,

being readily susceptible of enforcement. A salutary fear of interlopers

still restrains those "great and wealthy houses," at heavy annual cost to

themselves, and with great saving to consumers of their products. That

this may all be changed; that they may build up fortunes with still

increased rapidity; that they may, to a still greater extent, monopolize

the business of publication; and, that the people may be taxed to that

effect; all that is now needed is, that Congress shall pass a very simple

law by means of which a few men in Eastern cities shall be enabled to

monopolize the business of republication, secure from either Eastern or

Western competition. That done, readers will be likely to see a state of

things similar to that now exhibited at Chicago, where railroad companies

that have secured to themselves all the exits and entrances of the city,

are, as we are told, at this moment engaged in organizing a combination

that shall have the effect of dividing in fair proportion among the wolves

the numerous flocks of sheep.

On all former occasions Northern advocates of literary monopolies assured

us that it was in that direction, and in that alone, we were to look for

the cheapening of books. Now, nothing of this sort is at all pretended. On

the contrary, we are here told of the extreme impropriety of a system

which makes it necessary for a New England essayist to accept a single

dollar for a volume that under other circumstances would sell for half a

guinea; of the wrong to such essayists that results from the issue of

cheap "periodicals made up of selections from the reviews and magazines of

Europe;" of the "abominable extravagance of buying a great and good novel

in a perishable form for a few cents;" of the increased accessibility of

books by the "masses of the people" that must result from increasing

prices; and of the greatly increased facility with which circulating

libraries may be formed whensoever the "great and wealthy houses" shall

have been given power to claim from each and every reader of Dickens's

novels, as their share of the monopoly profits, thrice as much as he now

pays for the book itself! This, however, is only history repeating itself

with a little change of place, the argument of to-day, coming from the

North, being an almost exact repetition of that which, twenty years since,

came from the South--from the mouths of men who rejoiced in the fact

that no newspapers were published in their districts, and who well _knew_

that the way towards preventing the dissemination of knowledge lay in the

direction of granting the monopoly privileges that had been asked. The

anti-slavery men of the present thus repeat the argument of the

pro-slavery men of the past, extremes being thus brought close together.

Our people are here assured that Russia, Sweden, and other countries are

ready to unite with them in recognizing the "rights" now claimed. So, too,

it may be well believed, would it be with China, Japan, Bokhara, and the

Sandwich Islands. Of what use, however, would be such an union? Would it

increase the facilities for transplanting the ideas of American authors?

Are not the obstacles to such transplantation already sufficiently great,

and is it desirable that they should be at all increased? Germany has

already tried the experiment, but whether or not, when the time shall

come, the existing treaties will be renewed, is very doubtful. Where she

now pays dollars, she probably receives cents. Discussion of the question

there has led to the translation and republication of the letters here now

republished, and the views therein expressed have received the public

approbation of men whose opinions are entitled to the highest

consideration. What has recently been done in that country in reference to

domestic copyright, and what has been the effect, are well exhibited in an

article from an English journal just now received, a part of which,

American moneys having been substituted for German ones, is here given, as

follows:

"We have so long enjoyed the advantage of unrestricted competition in the

production of the works of the best English writers of the past, that we

can hardly realize what our position would have been had the right to

produce Shakespeare, or Milton, or Goldsmith, or any of our great classic

writers, been monopolized by any one publishing-house,--certainly we

should never have seen a shilling Shakespeare, or a half-crown Milton;

and Shakespeare, instead of being, as he is,' familiar in our mouths as

household words,' would have been known but to the scholar and the

student. We are far from condemning an enlightened system of copyright,

and have not a word to say in favor of unreasoning competition; but we do

think that publishers and authors often lose sight of their own interest

in adhering to a system of high prices and restricted sale. Tennyson's

works supply us with a case in point--here, to possess a set of

Tennyson's poems, a reader must pay something like 38_s_. or 40_s_.--in

Boston you may buy a magnificent edition of all his works in two volumes

for something like 15_s_., and a small edition for some four or five

shillings. The result is the purchasers in England are numbered by

hundreds, in America by thousands. In Germany we have almost a parallel

case. There the works of the great German poets, of Schiller, of Goethe,

of Jean Paul, of Wieland, and of Herder, are at the present time 'under

the protecting privileges of the most illustrious German Confederation,'

and, by special privilege, the exclusive property of the Stuttgart

publishing firm of J. G. Cotta. On the forthcoming 9th of November this

monopoly will cease, and all the works of the above-mentioned poets will

be open to the speculation of German publishers generally. It may be

interesting to our readers to learn the history of these peculiar legal

restrictions, which have so long prevailed in the German booktrade, and

the results likely to follow from their removal.

"Until the beginning of this century literary piracy was not prohibited

in the German States. As, however, protection of literary productions

was, at last, emphatically urged, the Acts of the Confederation (on the

reconstruction of Germany in the year 1815) contained a passage to the

effect, that the Diet should, at its first meeting, consider the

necessity of uniform laws for securing the rights of literary men and

publishers. The Diet moved in the matter in the year 1818, appointing a

commission to settle this question; and, thanks to that supreme

profoundness which was ever applied to the affairs of the father-land by

this illustrious body, after twenty-two years of deliberation, on the

9th of Nov., 1837, decreed the law, that the rights of authorship should

be acknowledged and respected, at least, for the space of ten years;

copyright for a longer period, however, being granted for voluminous and

costly works, and for the works of the great German poets.

"In the course of time, however, a copyright for ten years proved

insufficient even for the commonest works; it was therefore extended by a

decree of the Diet, dated June 19, 1845, over the natural term of the

author's life and for thirty years after his death. With respect to the

works of all authors deceased before the 9th of November, 1837--

including the works of the poets enumerated above--the Diet decided

that they could all be protected until the 9th of November, 1867.

"It was to be expected that the firm of J. G. Cotta, favored until now

with so valuable a monopoly, would make all possible exertions not to be

surpassed in the coming battle of the Publishers, though it is a somewhat

curious sight to see this haughty house, after having used its privileges

to the last moment, descend now suddenly from its high monopolistic stand

into the arena of competition, and compete for public favor with its

plebeian rivals. Availing itself of the advantage which the monopoly

hitherto attached to it naturally gives it, the house has just commenced

issuing a cheap edition of the German classics, under the title

'Bibliothek für Alle. Meisterwerke deutscher Classiker,' in weekly parts,

6 cts. each; containing the selected works of Schiller, at the price of

75 cts., and the selected works of Goethe, at the price of $1.50. And

now, just as the monopoly is gliding from their hands, the same firm

offers, in a small 16mo edition, Schiller's complete works, 12 vols.,

for 75 cts.

"Another publisher, A. H. Payne, of Leipzig, announces a complete edition

of Schiller's works, including some unpublished pieces, for 75 cts.

"Again, the well-known firm of F. A. Brockhaus holds out a prospectus of

a corrected critical edition of the German poets of the eighteenth and

nineteenth century, which we have every reason to believe will merit

success. A similar enterprise is announced, just now, by the

Bibliographical Institution of Hildburghausen, under the title,

'Bibliothek der deutschen Nationalliteratur,' edited by Heinr. Kurz, in

weekly parts of 10 sheets, at the price of 12 cts. each. Even an

illustrated edition of the Classics will be presented to the public, in

consequence of the expiration of the copyright. The Grotesche

Buchhandlung, of Berlin, is issuing the 'Hausbibliothek deutscher

Classiker,' with wood-cut illustrations by such eminent artists as

Richter, Thumann, and others; and the first part, just published,

containing Louise, by Voss, with truly artistic illustrations, has met

with general approbation. But, above all, the popular edition of the

poets, issued by G. Hempel, of Berlin, under the general title of

'National Bibliothek sämmtlicher deutscher Classiker,' 8vo. in parts, 6

cts. each, seems destined to surpass all others in popularity, though not

in merit. _Of the first part (already published), containing Bürger's

Poems, 300,000 copies have been sold, and 150,000 subscribers' names have

been registered for the complete series. This immense sale, unequalled in

the annals of the German book-trade, will certainly induce many other

publishers to embark in similar enterprises._"--Trübner's _Literary

Record_, Oct. 1867.

Judging from this, there will, five years hence, be a million of families

in possession of the works of Schiller, Bürger, Goethe, Herder and others,

that thus far have been compelled to dispense with their perusal. Sad to

think, however, they will be of those cheap editions now so much despised

by American advocates of monopoly privileges! How much better for the

German people would it not have been had their Parliament recognized the

perpetuity of literary _rights_, and thus enabled the "great and wealthy

house" of Cotta and Co. to carry into full effect the idea that their own

editions should alone be published, thereby adding other millions to the

very many of which they already are the owners!

At this moment a letter from Mr. Bayard Taylor advises us that German

circulating libraries impede the sale of books; that the circulation of

even highly popular works is limited within 20,000; and that, as a

necessary consequence, German authors are not paid so well as of right

they should be.[1] This, however, is precisely the state of things that,

as we are now assured, should be brought about in this country, prices

being raised, and readers being driven to the circulating library by

reason of the deficiency of the means required for forming the private

one. It is the one that _would_ be brought about should our authors,

unhappily for themselves, succeed in obtaining what is now demanded.

[Footnote 1: New York _Tribune_, Nov. 29]

The day has passed, in this country, for the recognition of either

perpetuity or universality of literary _rights_. The wealthy Carolinian,

anxious that books might be high in price, and knowing well that monopoly

privileges were opposed to freedom, gladly cooperated with Eastern authors

and publishers, anti-slavery as they professed to be. The enfranchised

black, on the contrary, desires that books may be cheap, and to that end

he and his representatives will be found in all the future co-operating

with the people of the Centre and the West in maintaining the doctrine

that literary _privileges_ exist in virtue of grants from the people who

own the materials out of which books are made; that those privileges have

been perhaps already too far extended; that there exists not even a shadow

of reason for any further extension; and that to grant what now is asked

would be a positive wrong to the many millions of consumers, as well as an

obstacle to be now placed in the road towards civilization.

The amount now paid for public service under our various governments is

more than, were it fairly distributed, would suffice for giving proper

reward to all. Unfortunately the _distribution_ is very bad, the largest

compensation generally going to those who render the smallest service. So,

too, is it with regard to literary employments; and so is it likely to

continue throughout the future. Grant all that now is asked, and the

effect will be seen in the fact, that of the vastly increased taxation

ninety per cent. will go to those who work for money alone, and are

already overpaid, leaving but little to be added to the rewards of

conscientious men with whom their work is a labor of love, as is the case

with the distinguished author of the "History of the Netherlands."

Twenty years ago, Macaulay advised his literary friends to be content,

believing, as he told them, that the existing "wholesome copyright" was

likely to "share in the disgrace and danger" of the more extended one

which they then so much desired to see created. Let our authors reflect on

this advice! Success now, were it possible that it should be obtained,

would be productive of great danger in the already not distant future. In

the natural course of things, most of our authorship, for many years to

come, will be found east of the Hudson, most of the buyers of books,

meanwhile, being found south and west of that river. International

copyright will give to the former limited territory an absolute monopoly

of the business of republication, the then great cities of the West being

almost as completely deprived of participation therein as are now the

towns and cities of Canada and Australia. On the one side, there will be

found a few thousand persons interested in maintaining the monopolies that

had been granted to authors and publishers, foreign and domestic. On the

other, sixty or eighty millions, tired of taxation and determined that

books shall be more cheaply furnished. War will then come, and the

domestic author, sharing in the "disgrace and danger" attendant upon his

alliance with foreign authors and domestic publishers, may perhaps find

reason to rejoice if the people fail to arrive at the conclusion that the

last extension of _his own privileges_ had been inexpedient and should be

at once recalled. Let him then study that well-known fable of Aesop

entitled "The Dog and the Shadow," and take warning from it!

The writer of these Letters had no personal interest in the question

therein discussed. Himself an author, he has since gladly witnessed the

translation and republication of his works in various countries of Europe,

his sole reason for writing them having been found in a desire for

strengthening the many against the few by whom the former have so long, to

a greater or less extent, been enslaved. To that end it is that he now

writes, fully believing that the _right_ is on the side of the consumer of

books, and not with their producers, whether authors or publishers.

Between the two there is, however, a perfect harmony of all real and

permanent interests, and greatly will he be rejoiced if he shall have

succeeded in persuading even some few of his literary countrymen that such

is the fact, and that the path of safety will be found in the direction of

letting well enough alone.

The reward of literary service, and the estimation in which literary men

are held, both grow with growth in that power of combination which results

from diversification of employments; from bringing consumers and producers

close together; and from thus stimulating the activity of the societary

circulation. Both decline as producers and consumers become more widely

separated and as the circulation becomes more languid, as is the case in

all the countries now subjected to the British free trade influence. Let

American authors then unite in asking of Congress the establishment of a

fixed and steady policy which shall have the effect of giving us that

industrial independence without which there can be neither political nor

literary independence. That once secured, they would thereafter find no

need for asking the establishment of a system of taxation which would

prove so burdensome to our people as, in the end, to be ruinous to

themselves.

H. C. C.

PHILADELPHIA,_

Dec_. 1867.

LETTERS

ON

INTERNATIONAL COPYRIGHT.

LETTER I.

Dear Sir:--You ask for information calculated to enable you to act

understandingly in reference to the international copyright treaty now

awaiting the action of the Senate. The subject is an important one, more

so, as I think, than is commonly supposed, and being very glad to see that

it is now occupying your attention, it will afford me much pleasure to

comply, as far as in my power, with your request.

Independently of the principle involved, it seems to me that the course

now proposed to be pursued is liable to very grave objection. It is an

attempt to substitute the action of the Executive for that of the

Legislature, and in a case in which the latter is fully competent to do

the work. For almost twenty years, Congress has been besieged with

applications on the subject, but without effect. Senate Committees have

reported in favor of the measure, but the lower House, composed of the

direct representatives of the people, has remained unmoved. In despair of

succeeding under any of the ordinary forms of proceeding, its friends have

invoked the legislation of the Executive power, and the result is seen in

the fact, that the Senate, as a branch of the Executive, is now called

upon to sanction a law, in the enactment of which the House of

Representatives could not be induced to unite. This may be, and doubtless

is, in accordance with the letter of the Constitution, but it is so

decidedly in opposition to its spirit that, even were there no other

objection, the treaty should be rejected. That, however, is but the

smallest of the objections to it.

If the people required such a law, nothing could be more easy than to act

in this case as we have done before in similar ones. When we desired to

arrange for reciprocity in relation to navigation, we fixed the terms, and

declared that all the other nations of the earth might accede to them if

they would. No treaty was needed, and we therefore became bound to no one.

It was in our power to repeal the law when we chose. So, again, in regard

to patents. Foreigners exercise the power of patenting their inventions,

but they do so under a law that is liable to repeal at the pleasure of

Congress. In both of these cases, the bills underwent public discussion,

and the people that were to be subjected to the law, saw, and understood,

and amended the bills before they became laws. Contrast, I beg of you,

this course of proceeding with the one now proposed to be pursued in

reference to one of the largest branches of our internal trade. Finding

that no bill that could be prepared could stand the ordeal of public

discussion, a treaty has been negotiated, the terms of which seem to be

known to none but the negotiators, and that treaty has been sent to your

House of Congress, there to be discussed in secret session by a number of

gentlemen, most of whom have given little attention to the general

principle involved, while not even a single one can be supposed qualified

to judge of the practical working of the provisions by whose aid the

principle is to be carried out. Once confirmed, the treaty can be changed

only with the consent of England. Here we have secrecy in the making of

laws, and irrevocability of the law when made; whereas, in all other

cases, we have had publicity and revocability. Legislation like that now

proposed would seem to be better suited to the monarchies of Europe, than

to the republic of the United States. The reason why this extraordinary

course has been adopted is, that the people have never required the

passage of such a law, and could not be persuaded to sanction it now, were

it submitted to them.

The French and English copyright treaty has, as I understand, caused great

deterioration in the value of property that had been accumulated in France

under the system that had before existed, and such may prove to be the

case with the one now under consideration. Should it be so, the

deterioration would prove to be fifty times greater in amount than it was

in France. Will it do so? No one knows, because those whose interests are

to be affected by the law are not permitted to read the law that is to be

made. They know well that they have not been consulted, and equally well

do they know that the negotiator is not familiar with the trade that is to

be regulated, and is liable, therefore, to have given his assent to

provisions that will work injury never contemplated by him at the time the

treaty had been made. Again, provisions may have been inserted, with a

view to prevent injury to the publishers, or to the public, that would be

found in practice to be utterly futile, or even to augment the difficulty

instead of remedying it. That such result would follow the adoption of

some of those whose insertion has been urged, I can positively assert. In

this state of things, it would seem to be proper that we should know

whether the provisions of the treaty were submitted to the examination of

any of the parties interested for or against it, and if so, to whom. So

far as I can learn, none of those opposed to it have had any opportunity

afforded them of reading the law, and if any advice has been taken, it

must have been of those publishers who are in favor of it. Those

gentlemen, however, are precisely the persons likely most to profit by the

adoption of the principle recognized by the treaty; and the more

disadvantageous to others the provisions for carrying that principle into

effect, the greater must be the advantage to themselves. They, therefore,

can be regarded as little more than the exponents of the wishes of their

English friends, who were counselling the British Minister on the one

hand, while on the other they were, through their friends here,

counselling the American one. A treaty negotiated under such

circumstances, would seem little likely to provide for the general

interests of the American people.

When, in 1837, the attempt was first made to secure for English authors

the privilege of copyright, a large number of them united in an agreement

declaring a certain New York house to be "the sole authorized publishers

and issuers" of their works. Now, had that house volunteered its advice to

the Secretary of State of that day, he would scarcely have regarded it as

sufficiently disinterested to be qualified for the office it had

undertaken; and yet, if any advice in the present case has been asked, it

would seem that it must have been from houses that now look forward to

filling the place then occupied by that single one, and that cannot,

therefore, be regarded as fitted for the office of counsellors to the

Secretary of the present day. Recollect, I am, as is everybody else,

entirely in the dark. No one knows who furnished advice as to the treaty,

nor does any one know what is to be the law when it shall have been

confirmed. Neither can any one tell how the errors that may now be made

will be corrected. With a law regularly passed through both Houses of

Congress, these difficulties could not arise. They are a natural

consequence of this attempt to substitute the will of the Executive for

that of the people, as expressed by the House of Representatives, and

should, as I think, weigh strongly on the minds of Senators when called to

vote upon the treaty. Their constituents have a right to see, and to

discuss, the laws that are proposed before those laws are finally made,

and whenever it is attempted, as in the present case, to stifle

discussion, we may reasonably infer that wrong is about to be done. This

is, I believe, the first case in which, on account of the unpopularity of

the law proposed, it has been attempted to deprive the popular branch of

Congress of its constitutional share in legislation, and if this be

sanctioned it is difficult to see what other interests may not be

subjected to similar action on the part of the Executive. In all such

cases, it is the first step that is most difficult, and before making the

one now proposed, you should, as I think, weigh well the importance of the

precedent about to be established. No one can hold in greater respect than

I do, the honorable gentleman who negotiated this treaty; but in thus

attempting to substitute the executive will for legislative action, he

seems to me to have made a grave mistake.

In the claim now made in behalf of English authors, there is great

apparent justice; but that which is not true, often puts on the appearance

of truth. For thousands of years, it seemed so obviously true that the sun

revolved around the earth that the fact was not disputed, and yet it came

finally to be proved that the earth revolved around the sun. Ricardo's

theory of the occupation of the earth, the foundation-stone of his system,

had so much apparent truth to recommend it, that it was almost universally

adopted, and is now the basis of the whole British politico-economical

system; and yet the facts are directly the reverse of what Ricardo had

supposed them to be. Such being the case, it might be that, upon a full

examination of the subject, we should find that, in admitting the claim of

foreign authors, we should be doing injustice and not justice. The English

press has, it is true, for many years been engaged in teaching us that we

were little better than thieves or pirates; but that press has been so

uniformly and unsparingly abusive of us, whenever we have failed to grant

all that it has claimed, that its views are entitled to little weight. At

home, many of our authors have taken the same side of the question; and

the only answer that has ever, to my knowledge, been made, has been, that

if we admitted the claims of foreign authors, the prices of books would be

raised, and the people would be deprived of their accustomed supplies of

cheap literature--as I think, a very weak sort of defense. If nothing

better than this can be said, we may as well at once plead guilty to the

charge of piracy, and commence a new and more honest course of action.

Evil may not be done that good may come of it, nor may we steal an

author's brains that our people may be cheaply taught. To admit that the

end justifies the means, would be to adopt the line of argument so often

used by English speakers, in and out of Parliament, when they defend the

poisoning of the Chinese people by means of opium introduced in defiance

of their government, because it furnishes revenue to India; or that which

teaches that Canada should be retained as a British colony, because of the

facility it affords for violation of our laws; or that which would have us

regard smugglers, in general, as the great reformers of the age. We stand

in need of no such morality as this. We can afford to pay for what we

want; but, even were it otherwise, our motto here, and everywhere, should

be the old French one: "_Fais ce que doy, advienne que pourra_"--Act

justly, and leave the result to Providence. Before acting, however, we

should determine on which side justice lies. Unless I am greatly in error,

it is not on the side of international copyright. My reasons for this

belief will now be given.

The facts or ideas contained in a book constitute its body. The language

in which they are conveyed to the reader constitute the clothing of the

body. For the first no copyright is allowed. Humboldt spent many years of

his life in collecting facts relative to the southern portion of this

continent; yet so soon as he gave them to the light they ceased to be his,

and became the common property of all mankind. Captain Wilkes and his

companions spent several years in exploring the Southern Ocean, and

brought from there a vast amount of new facts, all of which became at once

common property. Sir John Franklin made numerous expeditions to the North,

during which he collected many facts of high importance, for which he had

no copyright. So with Park, Burkhard, and others, who lost their lives in

the exploration of Africa. Captain McClure has just accomplished the

Northwest Passage, yet has he no exclusive right to the publication of the

fact. So has it ever been. For thousands of years men like these--

working men, abroad and at home--have been engaged in the collection of

facts; and thus there has been accumulated a vast body of them, all of

which have become common property, while even the names of most of the men

by whom they were collected have passed away. Next to these come the men

who have been engaged in the arrangement of facts and in their comparison,

with a view to deduce therefrom the laws by which the world is governed,

and which constitute science. Copernicus devoted his life to the study of

numerous facts, by aid of which he was at length enabled to give to the

world a knowledge of the great fact that the earth revolved around the

sun; but he had therein, from the moment of its publication, no more

property than had the most violent of his opponents., The discovery of

other laws occupied the life of Kepler, but he had no property in them.

Newton spent many years of his life in the composition of his "Principia,"

yet in that he had no copyright, except for the mere clothing in which his

ideas were placed before the world. The body was common property. So, too,

with Bacon and Locke, Leibnitz and Descartes, Franklin, Priestley, and

Davy, Quesnay, Turgot, and Adam Smith, Lamarck and Cuvier, and all other

men who have aided in carrying science to the point at which it has now

arrived. They have had no property in their ideas. If they labored, it was

because they had a thirst for knowledge. They could expect no pecuniary

reward, nor had they much reason even to hope for fame. New ideas were,

necessarily, a subject of controversy; and cases are, even in our time,

not uncommon, in which the announcement of an idea at variance with those

commonly recorded has tended greatly to the diminution of the enjoyment of

life by the man by whom it has been announced. The contemporaries of

Harvey could scarcely be made to believe in the circulation of the blood.

Mr. Owen might have lived happily in the enjoyment of a large fortune had

he not conceived new views of society. These he gave to the world in the

form of a book, that led him into controversy which has almost lasted out

his life, while the effort to carry his ideas into effect has cost him his

fortune. Admit that he had been right, and that the correctness of his

views were now fully established, he would have in them no property

whatever; nor would his books be now yielding him a shilling, because

later writers would be placing them before the world in other and more

attractive clothing. So is it with the books of all the men I have named.

The copyright of the "Principia" would be worth nothing, as would be the

case with all that Franklin wrote on electricity, or Davy on chemistry.

Few now read Adam Smith, and still fewer Bacon, Leibnitz, or Descartes.

Examine where we may, we shall find that the collectors of the facts and

the producers of the ideas which constitute the body of books, have

received little or no reward while thus engaged in contributing so largely

to the augmentation of the common property of mankind.