In order to arrive at any supposition as to these considerations which would be of value to our purpose in these papers, it will be necessary to glance at the state of literary property in the days between 1585 and 1606. How, in those days, there was absolutely no legal protection for an author's manuscript. Once it had strayed beyond the writer's hand it was practically "publici juris"—any body's property. The first law of copyright enacted in England was the act of Anne, of April 10, 1710, more than one hundred years after the last date at which commentators claim the production of a Shakespearean play. Even the first authoritative pronunciation of a competent tribunal as to literary property at common law (which preceded, of course, all literary property definable by statute) was not made until 1769, fifty-nine years later. But the Court of Star Chamber (of obscure origin, but known to have been of powerful jurisdiction in the time of Henry VII.) was in the height of its ancient omnipotence in those years. And of the various matters of which it took cognizance, one of the earliest was the publishing, printing, and even the keeping and reading of books. Under date of June 23,1585—the year that many commentators assign as that in which William Shakespeare first turned up in London—this Star Chamber, which had already issued many such, issued a decree that none should "print any book, work, or copy, against the form or meaning of any restraint contained in any statute of laws of this realm," except, etc., etc. Twenty-nine years before—in 1556—Philip and Mary had erected ninety-seven booksellers into a body called "The Stationers' Company," who were to monopolize the printing of books, if they so chose. They had given them power and authority—and their second charter, in 1558, confirmed them in it—to print such books as they obtained, either from authors' manuscripts or translations, and to see very carefully that nobody else printed them. Their power was absolute—they had their "privilegium ad imprimendum solum," and in the pursuit of any body who interfered with it they were empowered to "break locks, search, seize," and, in short, to suppress any printed matter they did not choose to license, wherever they pleased. This the Worshipful Company of Stationers did not fail to do; they pursued, and the Star Chamber convicted. The disgraceful record of infamous and inhuman prosecutions and punishments for reading, keeping, selling, or making books might well detain us here, did our scope permit. * Whatever literature accomplished in those days it accomplished by stealth, in defiance of the implacable and omnipotent Star Chamber and its bloodhound, the Stationers' Company, who ran in its victims.
It can not, we think, be doubted, by a student of those times, * that whatever literary property existed at common law then existed in the shape of a license to print a work under permission of the Stationers' Company; that no estate or property obtained in anything except the types, ink, paper, in the license to use them all together to make a book, and in the resulting volume; and that what we understand by "copyright" to-day—namely, an author's or a proprietor's right to demand a royalty or percentage, or to exercise other control over the work when once printed and published—was altogether unconceived and unclaimed.
* See "Omitted Chapters of the History of England," by
Andrew Basset, 1864
** "The person who first resolved on printing a book, and
entered his design on that register, became thereby the
legal proprietor of that work, and had the sole right of
printing it."—Carte, quoted in "Reasons for a Further
Amendment of the Act 54, George III., c. 15," London, 1817.
John Camden Hotten, "Seven Letters, Etc., on Literary
Property," London, Hotten, 1871, describes the modern
Stationers' Company as entrusted with "a vested interest
over somebody else's property, a prescriptive right to
interfere with the future work of other people's hands."
We are aware that this statement as to the condition of authors' rights in the days of Elizabeth will not pass unchallenged; but a review of the reported cases, as well as the extant records of the Stationers' Company, will, we think, support our conclusion.
The first reported case of piracy was in 1735, when the Master of the Rolls enjoined publication of "The whole Duty of Man" (Morgan's "Law of Literature," vol. ii., p. 672).
Whatever compensation the author of a work was able to obtain, he doubtless obtained beforehand, by sale of his manuscript, and dreamed not of setting up a tangible property as against any one who had obtained the Stationers' Company's license to print it. The Stationers' Company, at the outset of their career, opened a record, in which it entered the name of every book it licensed—the date, and the name of the person authorized to print it. * It was not until 1644, twenty-eight years after William Shakespeare's death (so far as we can ever know) that John Milton, in his "Are-opagitica"—the greatest state paper in the republic of letters, the declaration of independence, and the bill of rights of the liberty of literature—asserted * ** for the first time "the right of every man" to "his several copy, which God forbid should be gainsayd."
* For the text of the "Areopagitica" and copious notes as
to the history of the days which called it out, see edition
of J. VV. Hale's, Clarendon Press Series, Macmillan & Co.,
Oxford, 1874.
** In a pamphlet, "The Prayse of the Red Herring" cited by
Farmer, in his "Learning of Shakespeare," page 45.
Once in their hands, printers did what they pleased with a manuscript; abridged it if they found it too long, and lengthened it if they found it too short. Thomas Nashe says, that, in a play of his, called "The Isle of Dogs," four acts, without his consent "or the least guesse of his drifte or scope," were added by the printers. * The printers also assigned the authorship of the work to any name they thought would help sell the book, and dedicated it to whom they pleased. (Just as the first printer of the sonnets we call Shakespeare's, dedicated them to "W. H.," which two initials have supplied the Shakespeareans with an excuse for at least as many dozen octavo volumes of conjecture as to who "W. H." was.) Sometimes the author thus despotically assigned to the work rebelled. Dr. Heywood recognized two of his own compositions in a collection of verses called "The Passionate Pilgrim," printed by one Jaggard, in 1599, upon the title-page to which, this Jaggard had placed the name of William Shakespeare as author. Hey-wood publicly claimed his own, but William Shakespeare never denied or affirmed; his name, however, was removed by the printer from the title-page of the third edition of the book, in 1612. * But, as a rule, the Stationers' Company were too powerful, and the author too poor, to bring the trick to exposure.
* Shakespeare, by R. G. White. Vol. 1., page lxxvii.
It was under these circumstances, and in times like these, that the Shakespearean plays began to appear in print. Where did they come from? They were written to be played. According to all accounts they were very valuable to the theater which produced them. Every personal and selfish interest of the proprietors, whether of the theater or of the manuscript plays, dictated that they should be kept in secret—least of all that they should be printed and made accessible to the public outside of the theater, who otherwise, to see them, must become patrons of the house where they were performed. That the author or authors of the plays could have made them of more profit by selling them to the printers than to the players is doubtful; that they personally entered them—or such of them as were entered—on the books of the Stationers' Company, is certainly not the fact; the only persons to whose interest it was to print them were the printers themselves, and, in all probability, it was the printers who did cause them to be printed. But where did these printers procure the "copy" from which to set up the plays they printed? The question will never be answered. The manuscripts might have been procured by bribing individual actors, each of whom could have easily furnished a copy of his individual part, and so the whole be made up for the press. The fact that the plays never were printed without more or less of the stage directions or "business" included, lends probability to this theory: but, as to whether a play made up in this fashion would have resulted in any thing like what we possess to-day, we have considered further on. Mr. Grant White admits, * as must everybody who examines into the matter, that whatever the printers printed was unauthorized and surreptitious. But, having admitted this much, Mr. White is too ardent a Shakespearean not to make some effort to throw a guise of authenticity around the text he has so lovingly followed. In the article we have just quoted from in our foot-note, he says, "It is not improbable that, in case of great and injurious misrepresentation of the text of a play by" this surreptitious method of publication, "fair copies were furnished by the theatrical people at the author's request in self-defence." Perhaps these plays might have found their way into print just as the comedy of "Play" found its way into print in 1868, ** or the play of "Mary Warner," *** at about the same date. At any rate the editors of the first folio speak of the "stolne and surreptitious copies" which had preceded them.