and when merit, literally in the court of "dusty feet," begged from power as a privilege, that which had been denied to any prayer of the petitioner in the character of justice. We are not to ask what certain lords and lawyers may have said at such periods, though some of these, the very noblest of their order, have spoken as they should, in consonancy and strict agreement with the common laws of sense and justice. What is the truth, is our only question, and if, unlike Pilate, we have only the patience to wait, it is possible we may procure an answer.

sufficient reason that Common Law, in its choicest | done-what, in brief, is right, fit, becoming, in him signification, is, in reality, nothing less than common to do. And these questions are not of temporary injustice. It is the common sense and the moral terest. They affect concerns by which successive sense of a people conjoined-the matured fruits of races are to be influenced-by which they are to the thought and experience, the received convic- triumph or be overthrown-stand or fall-live and tions of successive generations, rendered venera- grow, great and glorious, or sink, mean and infa. ble by time, and forming the great and inestimable mous, the loathing and reproach of other nations. basis of a national character. Verily, it is of vast This question of literary property must be eximportance to a country, that this common sense amined on intrinsic grounds. It is a question, from and common law should lead to common justice-- its peculiar nature, very much by itself. It is one should rise superior to fictions and self-delusions- from which any attempt at analogous cases would should have regard to something more than the only serve to mislead us. It is absurd to regard it momentary profit and performance--should discard with a constant reference to old definitions and with scorn and indignation all mean and slavish ancient practices-definitions conceived when man suggestions, whether these appeal to its miserable was a savage and knew nothing of letters-and appetites, or more miserable vanities, and, stead-practices adopted and pursued when might was fastly stretching forward to the good, the true and every where triumphant over right—when the the immutable, should regard, as of the highest strong arm was an abler pleader than the eloquent value and importance, the transmission to the in- tongue-when the bribe outweighed the principle— fant generations of a capital, in conscience, superior to any in trade, which shall stand them in stead equally in the sight of God, as in that of his frail and erring creature, man! It is well that the Legislature should have an eye to the doings and the convictions of the past, but he must not be satisfied to confine himself to this survey alone. Man is an ascending, uplooking animal. The only true proof of his civilization is in his progress. He cannot bind himself entirely to the past. He builds upon the foundations of his fathers precisely as he builds above their heads. To be satisfied with what they have been, is to forfeit what they have left. To hold merely to what they were, is to sink from what we are. We must go forward, not to lose ground,-upward, not to descend. To remain stationary is to lose our hold upon present posses-individuality. The greatest number can take care sions. To set a God Terminus to our moral boun- of itself-will take care of itself—and asks nothing daries is to invite the arms of the "outer-barba- from society. If numbers were the object of Gorians," as in the case of modern China. There is vernment, the smallest would be the creature of a part in the history of every civilized nation its consideration. Its true object is the security which is necessarily great and glorious. It con- of the individual man. Let the other principle sists of that period when its own labors wrought prevail, and there would be no freedom, since there out its civilization. Such a period is one, certainly, would be no safety in a minority. Such a doctrine, of great authority, so far as it stimulates its succes-in our federal relations, would surrender the small sors to like exertions. But the present must always states to the tender mercies of the large. We arbitrate for itself, if it would assert its own indi- can very well conjecture, from what we know, viduality. To be content with this part, however what might be expected from these. The political grand or glorious, is to forego the exercise of jealousies and constant watchfulness of the smaller the very qualities which rendered it memorable. communities does not suffice to save them now, with The legislator has always before him much higher all their safeguards and checks, as devised by the standards, as well of sense as of morality, than his ancestor ever possessed. They are furnished by the labors of his predecessor. To reject the use of these advantages, and stubbornly to look back upon their progress, to the guide stones which they have left behind them, is to retrace the axe marks in the wilderness of the very implement which we carry on our shoulders. The proper question for the lawgiver is not so much what has been, but what should be—not what is done, but what ought to be

It is an error to say, or to suppose that the object of Government is the greatest good of the greatest number. Were this so, no man would enter society at all. Society would be fatal to his

federal compact. Under the social contract-I have no reference to Rousseau in the employment of this phrase-laws are framed, not for the mass, but for the individual. It is individual life and property which needs and claims protection. In the United States, we also guarantee to the individual the pursuit of happiness.-A guaranty which, generalizing too largely, has scarcely any practical application in our policy. These objects constitute the substance of all the duties which society is re

quired to perform. It is to protect the life, and snared in the distant thickets. These, as they besecure the possessions of the citizen and to give a came desirable objects of possession, were recogsanction to his labors, and guard him in their fruits. nized as objects of property also. Where they It matters not what may be the character of those escaped, and were held by others, the failure of labors, whether they consist of brick-making or the owner to recover them, was not owing to any book-making. The free choice of pursuit, accord- reluctance of the laws to regard them as such, but ing to the endowment of the individual, is guaran- simply because they were of that class of objects teed, we may presume, by every Government under which were not easily distinguishable one from the rather vague phrase, "the pursuit of happi- another. The proof and identification were next to ness." All that society has a right to require is, impossible. The owner could not show that they that this pursuit shall not conflict with the happi- were peculiar to himself. To remedy this defect, ness of any other of its children-shall impair the the same, or a similar process, was adopted in the rights of none other, shall hurt no man in his life, case of the bird, the deer, the dog, which was emhis limbs or his possessions. ployed for the proof and security of cattle. Some badge, proper to the owner, was fastened about them; and in this way, little by little, society proceeded to confirm the rights of the individual to all objects of sight, upon which, without infringing the previous rights of another, he had laid his hands and impressed his peculiar signet.

a

The definition of property, however various its forms and objects, is as simple and perspicuous as that of life. Ordinarily, it is one of those practical subjects which demand no definition. What is peculiar to one's self is one's own, whether it be the creature of one's ingenuity, or industry. It does not matter that the object should be one of Now, whether the right of the author to his market value, or of general utility. It is enough that book is less valid than that of him who first enters it is susceptible of claim and identity-that it was upon lands, who first tames the wild cow or the gotten without detriment to the right of another horse, who first takes the deer, who first snares that the claimant establishes in behalf of his right the bird? His right is based upon the peculiar and better title than any other can assert. In primi- personal labor and skill by which his books have tive periods this, with some exceptions, was the case. been made. They are emphatically his works. They The vulgar sense of the useful limited the defini- are not yours. The very terms which we are tion of property to such objects only as came under compelled to employ in stating the simple fact of the narrowest meaning of that term. Objects of authorship embodies the very clearest notion of taste and fancy, were not considered worthy of property. Nay, it is as his works, and not as their protection. Land, cattle, horses, sheep, the im- own, that they are valuable to the publishers who plements of husbandry and the chase, constituted, appropriate them against his will. Unlike other at such periods, the only objects of social protec- stolen goods, the marks of the owner, so far from tion. And even these were only secured to the being obliterated and erased, are preserved with owner while he was in their actual possession. care, and earnestly insisted upon, as constituting The moment he vacated the land, or the dwelling, the highest recommendation to the purchaser. that moment it might be seized on by another. The When, therefore, with this fact before their eyes, moment his cattle, or sheep, strayed from the fold, it is insisted by the appropriator that the work they were counted wild, in feræ naturæ, and might which he reprints is not peculiar-that the ideas be taken by the first comer. Hence, in Jewish are common-might have occurred to any manhistory, the immediate pursuit of the stray lamb we are prepared to acknowledge instantly that such the constant watch of the shepherd and the watch base ingenuity deserves nothing better than the dog, and the nightly tale by which the missing horsewhip. "I confess," says Mr. Justice Aston, were to be detected. The truth is, at such pe-"I do not know, nor can I comprehend any property riods, the right of property, depended for half of being more emphatically a man's own-nay, more its virtue upon the constant vigilance of the proprie- incapable of being mistaken than his literary works." tor, and the strength of arm with which his pos- And this is the language of every honest mind-of sessions were maintained. It was a step towards every man not selfishly interested to prefer falsesecurity, and so to civilization, when the branding hood to truth, or simply anxious, as in the case of of cattle was introduced as a practice; when the all new fledged sophists, to exercise ingenuity, in slit in the ears of dog, hog, sheep or cattle, de- making out a case, at the expense of conscience. termined their ownership, and left no roguish ap- What author's works have ever been mistaken in propriator any pretext that the property was aban- this manner. What bookseller confounds Ben doned. Civilization made another progress, when Johnson with Shakspeare, Marlowe with Fletcher, beauty, forming an alliance with taste, won to her Dekkar with Rowe, Tickell with Addison, Dryden lures, and tamed to her hand, the favorite bird of with Pope? Which of them, simple as he pretends the forest, whose song and plumage made it an ob- himself, ever put forth an edition of Dryden, with ject of delight to fancy;-when the young hunter, the title page of Settle? or the writings of Milton laid at her feet the petted fawn which he had with the name, as author, of Sir Richard Black

more.

What purchaser is it that buys a book and he would be made secure in his property so long avows a total indifference to the name of the au- as it shall last,—he is visited with all sorts of opprothor, being satisfied that ideas are things in com- brious censure by the very persons that fatten on mon, and those of one man quite as proper for the his fruits. He is called a monopolist—that vulgar market as another? Both parties take precious catch word of the cunning, meant to prejudice in good care of this. The right of the author to his the ears of the selfish and the ignorant those rights book is never denied when the chapman is about to which are otherwise unassailable. The author, a sell it to his customer-only when the author him- monopolist--the author a selfish, grasping, merceself appears to urge his demands for a small por-nary creature-he who has grown into a proverb tion of the profits growing out of his labors and from the recklessness of his career, his notorious his fame. inattention to his own interests, and the looseness

denounced and derided, are crowded with the usual drivel about his distresses; yet they do not see that these very distresses are mainly due to that denial of justice, which now, for the first time in America, he is beginning impatiently to demand.

The right of the author to the property in his with which he squanders the pittance, which his productions, so far from being questionable, is necessities receive from those who roll in luxuries really superior to that of all other producers. His solely gathered from his improvident but prolific works depend less upon extraneous assistance. genius. The very pages in which his claims are They do not result from the application of his industry to physical substances-such as ores, lands, clay or lumber-things, which, in the possession of any artist, may be fashioned into peculiar forms, showing the hands of the maker, and which he thus converts into a means of profit. He is, But suppose he is a monopolist? If the property under God, their sole creator, almost without agent be his, as I hope has been sufficiently shown, why or implement of any sort. They spring at his bid- should he not enjoy it, as all other property is ding from sources of which no man may obtain the enjoyed by other men? Why should not his books control of which no man suspects the abundance. yield him an annual income, as well as his money The fountain of their being is in himself-never or his lands? They have an annual demand in the was, and never could be, in the possession of any market. There are persons ready to buy who do but himself, of which no man can have been des- not complain of his prices. It is by multiplying poiled-of the very existence of which none but the copies of his works that the author's returns are himself has any knowledge. He is as peculiarly derived; and this fact is all-important to a just the thing he makes as the spider is of his web of comprehension of what is due by the government gossamer; spinning from his brains and his sensi- of a country to the proper protection of his probilities, as the latter from his bowels, the structure perty. The country takes the life of the offender which he endows and inhabits. Thus then, above, who forges the name of the merchant-the same we find him the sole proprietor. The technical country is pledged to secure to her citizens who language of the law, which, of old, according to pursue any form of business, an adequate protecVerulam, recognized theft as one of the modes for tion, though, in doing so, she employs new agents acquiring property (a recognition, by the way, for the purpose. This is the vital principle upon which the age, entitled, par excellence, that of which the author relies in the assertion of his chivalry, which Burke deplored and which Bay- claim. His property is a peculiar one. It would ard did not represent-certainly did much to sanc-be valueless if he were not permitted to use it in tion) has none more legitimate than that of the the only way in which it will yield him profit. author. In his claim lie all the essential elements When his writings were delivered by recitation, of a just definition of property. His work is the the very mode of publication, as we have seen, fruit of his sole industry-made out of materials en-secured him against spoliation. Perfect copies tirely his own-wrought into shapes, devised and could not be taken from his lips, and the partial designed by himself; its appropriation to his own appropriations only served to whet the appetite of use, hurts no man—takes from no man's right. It the hearer, for all the rest. When written copies is a thing of value-a thing of eager desire among were furnished to individuals, prior to the discovery men,—and yields a profit in the market, to which of printing, he had like securities in the ignorance no man but himself pretends a right. It is a thing of the community, and the extreme costliness of of public use and benefit, and furnishes means of the labor by which copies only could be made. knowledge and happiness to thousands. Indeed, it This latter fact, by the way, is the one which is only because of the immense value of his labors answers all analogies addressed to the case, drawn that the effort is made to deprive him of them from the inventors of orreries and other expensive entirely to bestow upon him as a gratuity a tem- efforts in machinery;-the cost entering into the porary use in them which wresting the right from mere physical structure, being the chief expense his possession, and when he would desire to have to the purchaser. We contend that printing the this better understood, in order to the ends of jus-book in copies, does not alter the case, or lessen tice-when, like the house-builder and house-holder, 'the exclusive right of the author to the multiplica

tion of his copies in that way, any more than by of the law depends somewhat upon the nature of writing them with his own hands—that the putting the property. The objects must be the same in of these individual copies on sale, is not, by this character which you place under the same rules act, an abandonment of the work to any person and definitions. The definition must be adapted to who may think proper to appropriate it. And such suit the interest, and not the interest the definition. was the understanding of the British public. To The intention of the seller, as to the object sold, this day, the decision of the British judges, is and the extent of interest which he conveys at of prime authority, which determined the owner-sale, is a condition declared or understood at that ship of the MS. to be in the writer, though actually time between the parties. This must be taken sent by him, in the form of letter, to another; a de- into consideration here. What is it that the author cision which controls manuscript compositions as sells? Not his book, but a copy of it. Hence the well as private correspondence. Among the judges peculiar term "Copyright," or the right of making so deciding, we are able to recall at this moment and multiplying copies-a right which he keeps,-Lord Hardwicke, Lord Mansfield, and more re- which he refuses to sell,-a right peculiar to him cently, Lord Eldon. But the principle is not de- who owns the original, as first maker, first finder, nied by any. On this point it is ruled by Lord first worker, first discoverer! Not to recognize Mansfield, that 66 no disposition, no transfer of paper this right, would be fatal to all authorship-would upon which the composition is written (though it put an end to all publication, or would impose gives the power to print and publish) can be con- upon the author the necessity of some legal stipustrued a conveyance of the copy, without the lation, specially made, with every purchaser, at the author's express consent to print and publish,' very moment of sale,-a proceeding which would much less against his will." Now, printing does very greatly enhance the cost of the publication. not substantially affect this principle. Printing is "What," says Mr. Justice Aston, "is there no difnothing more than a more rapid means of multi-ference between selling the property in the work plying copies. To employ this agent, instead of and only one of the copies? To say 'selling the his pen, certainly changes none of the author's rela- book conveys all the right,' begs the question. tions with the public, affects none of his rights in For, if the law protects the book, the sale does not his labors. But, according to Mr. Justice Yates, convey away the right from the nature of the thing, and others of his creed, publication, through the any more than the sale conveys it where the stamedium of the press, implied an abandonment of tute protects the book." "Can it be conceived, his right, by the author, to the public. But by that, in purchasing a literary composition at a shop, what reasoning is this conclusion reached? By the purchaser ever thought he bought the right to what implication is it made? The point involves a be the printer and seller of that specific work? The fact to be established. The onus probandi is upon improvements, knowledge or amusement, which he the defendant in this issue. The author denies can derive from the performance, are all his own, any abandonment! The consent cannot be implied. but the right to the work-the Copyright—remains An express showing of the abandonment must be in him whose industry composed it. The buyer made. It cannot be inferred from publication, might as truly claim the merit of the composition since copies in writing were publications, and by his purchase, as the right of multiplying the recitations from the stage, are publications, and copies and reaping the profits." neither of these words was ever supposed to indi- Another passage from Justice Aston requires to cate such an abandonment. The several modes, be particularly read by all that class of publishers declaiming recitation first, manuscript copies next, who claim still to defer to something of a moral and printing last, were employed by the author in law. It may be also, in some degree, useful to that realizing from his production whatever profit it class of sophists, who, in their passion for ingenious would bring. "Without publication," says Mr. argument, are but too apt, in the exercise of an Justice Aston, "'tis useless to the owner, because exquisite mental, to forget the uses of a moral, without profit. Property without the power of use sense. "The invasion of this sort of property is and disposal, is an empty sound. In that state 'tis as much against every man's sense of it, as it is lost to the society in point of improvement, as well against natural reason and moral rectitude. It as to the author in point of interest. Publication, is against the convictions of every man's own therefore, is the necessary act, and only means to breast who attempts it. He knows it not to be render this confessed property useful to mankind his own. He knows he injures another, and and profitable to the owner. In this they are he does it, not for the sake of the public," (of jointly concerned." "But," said the opposite coun- which, by the way, how wondrous, patriotic, and sel, “when a man buys a book it is his own." earnest are the considerations of printers and paper Reasoning, from common analogies, such would be makers,) “but mala fide et animo lucrandi." A the case. It is certainly the case where a man truly conscientious publisher, reading this language buys horse, or house, or farmstead. But the cases of some of the first minds in Europe—if there be are without proper parallelism. The application' any modesty in his composition--will rather pause

VOL. X-58

in his career, whatever may be his own convic- Jideas detached from any physical existence. There tions, and ask himself, seriously, if it may not be are no indicia: another may have had the same the case, that the love of gain blinds him to the thoughts upon the same subject, and expressed them strict requisitions of honesty; whether his powers in the same language, verbatim. At what time, of reasoning are not somewhat impaired by his and, by what act, does the property commence? cupidity, and, whether it would not be more pru-The same string of questions may be asked, upon dent, in a matter in which his interest is too great the copy before publication: is it real or personal? to allow him an unprejudiced judgment, to give Does it go to the heir or to the executor? Being a heed to the counsels of those, equally renowned right which can only be defended by action, is it, as for wisdom and morality, who, at the same time, a chose in action, assignable or not? Can it be are totally uninfluenced by the results of their own forfeited? Can it be taken in execution? Can it decision. be vested in the assignees under a commission of However peculiar may be the nature of the pro-bankruptcy?" It was with difficulties such as these perty-however differing in its characteristics, and that the mere technical lawyer environed the subthe securities which it asks, from every other kind ject with difficulties, which grew out of his slavish of property, it is only necessary to show it to be deference to arbitrary dicta in cases no ways analosuch, and to show where the right lies, to compel gous. The mind of Mansfield, grasping the suba new definition so as to compass the interest. ject itself, rejected with scorn the employment of The legislator has this peculiar province committed mere supposititious cases, of imperfect parallels, to his care; and it is to meet the constant varia- and sophistical problems which never pierced the tions in the condition of society, its interests and core of the difficulty. "From what source then," securities, that the business of legislation is re- he asks, "is the Common Law drawn, which is quired to go on pari passu, with all other social admitted to be so clear, in respect of the copy employments. The mode in which an interest is before publication?" His answer to this question to be employed arises from the necessity of its pe- might fitly conclude these papers. "From this culiar case; and from the recognized right of every argument, because it is just that an author should man to sell just as much, or little of his property reap the pecuniary profits of his own ingenuity and as he pleases, and to couple the sale with whatever labor. It is just that another should not use his limitations he may think proper to impose upon it. name without his consent. It is fit that he should Were this not conceded in the case before us, there judge when to publish, or whether he ever will could be no sale from the author in the first instance, publish. It is fit he should not only choose the for no publisher would buy, and no books would be time, but the manner of publication; how many; printed, except those of the amateur. The author, what volume; what print. It is fit he should or publisher, in the words of Lord Mansfield, could choose to whose care he will trust the accuracy "reap no pecuniary profit, if, the next moment and correctness of the impression; in whose honafter his work comes out, it may be pirated upon esty he will confide, not to foist in additions: worse paper, and in worse print, and in a cheaper with other reasonings to the same effect. I volume"-and farther, from the same great legal allow them sufficient to show "it is agreeable to and moral authority: "The author may not only the principles of right and wrong, the filness of be deprived of any profit, but lose the expense he things, convenience, policy, and therefore to the has been at. He is no more master of the use of Common Law, to protect the copy before publicahis own name. He has no control over the cor- tion. But the same reasons hold after the publicarectness of his own work. He cannot prevent tion." For these, and many more reasons, it additions. He cannot retract errors. He cannot seems to me just and fit, to protect the copy after amend or cancel a faulty edition. Any one may publication." "All objections which hold as much print, pirate and perpetuate the imperfections to the to the kind of property before, as to the kind of disgrace, and against the will of the author; may property after publication go for nothing. They propagate sentiments under his name, which he prove too much. There is no peculiar objection to disapproves, rejects and is ashamed of. He can the property after, except that the copy is necesexercise no discretion as to the manner in which, sarily made common, after the book is once pubor the persons by whom his work shall be published.' Does a transfer of paper upon which it is lished." I must make a few more extracts from printed, necessarily transfer the copy, more than Lord Mansfield. "If," says he, "the copy belongs the transfer of paper upon which the book is writto an author, after publication; it certainly belonged ten? The argument turns in a circle. The copy to him before. But if it does not belong to him is made common because the law does not protect after publication, where is the Common Law to be it; and the law cannot protect it because it is made found, which says, "there is such a property be- common.' The author does not mean to make it fore?" All the metaphysical subtleties from the nature of the thing may be equally objected to the property before. It is incorporeal it relates to

66

common; and if the law says, 'he ought to have the copy after publication'-it is a several property, easily protected, ascertained and secured. The