Res Judicatæ: Papers and Essays

by Augustine Birrell

Great books have naturally enough, being longer lived, come into court even more frequently than great authors. Paradise Lost, The Whole Duty of Man, The Pilgrim's Progress, Thomson's Seasons, Rasselas, all have a legal as well as a literary history. Nay, Holy Writ herself has raised some nice points. The king's exclusive prerogative to print the authorised version has been based by some lawyers on the commercial circumstance that King James paid for it out of his own pocket. Hence, argued they, cunningly enough, it became his, and is now his successor's. Others have contended more strikingly that the right of multiplying copies of the Scriptures necessarily belongs to the king as head of the Church. A few have been found to question the right altogether, and to call it a job. As her present gracious Majesty has been pleased to abandon the prerogative, and has left all her subjects free (though at their own charges) to publish the version of her learned predecessor, the Bible does not now come into court on its own account. But whilst the prerogative was enforced, the king's printers were frequently to be found seeking injunctions to restrain the vending of the Word of God by (to use Carlyle's language) 'Mr. Thomas Teggs and other extraneous persons.' Nor did the judges, on proper proof, hesitate to grant what was sought. It is perhaps interesting to observe that the king never claimed more than the text. It was always open to anybody to publish even King James's version, if he added notes of his own. But how shamefully was this royal indulgence abused! Knavish booksellers, anxious to turn a dishonest penny out of the very Bible, were known to publish Bibles with so-called notes, which upon examination turned out not to be bonâ-fide notes at all, but sometimes mere indications of assent with what was stated in the text, and sometimes simple ejaculations. And as people as a rule preferred to be without notes of this character they used to be thoughtfully printed at the very edge of the sheet, so that the scissors of the binder should cut them off and prevent them annoying the reader. But one can fancy the question, 'What is a bonâ-fide note?' exercising the legal mind.

Our great lawyers on the bench have always treated literature in the abstract with the utmost respect. They have in many cases felt that they too, but for the grace of God, might have been authors. Like Charles Lamb's solemn Quaker, 'they had been wits in their youth.' Lord Mansfield never forgot that, according to Mr. Pope, he was a lost Ovid. Before ideas in their divine essence the judges have bowed down. 'A literary composition,' it has been said by them, 'so long as it lies dormant in the author's mind, is absolutely in his own possession.' Even Mr. Horatio Sparkins, of whose brilliant table-talk this observation reminds us, could not more willingly have recognised an obvious truth.

But they have gone much further than this. Not only is the repose of the dormant idea left undisturbed, but the manuscript to which it, on ceasing to be dormant, has been communicated, is hedged round with divinity. It would be most unfair to the delicacy of the legal mind to attribute this to the fact, no doubt notorious, that whilst it is easy (after, say, three years in a pleader's chambers) to draw an indictment against a man for stealing paper, it is not easy to do so if he has only stolen the ideas and used his own paper. There are some quibbling observations in the second book of Justinian's Institutes, and a few remarks of Lord Coke's which might lead the thoughtless to suppose that in their protection of an author's manuscripts the courts were thinking more of the paper than of the words put upon it; but that this is not so clearly appears from our law as it is administered in the Bankruptcy branch of the High Court.

Suppose a popular novelist were to become a bankrupt—a supposition which, owing to the immense sums these gentlemen are now known to make, is robbed of all painfulness by its impossibility—and his effects were found to consist of the three following items: first, his wearing apparel; second, a copy of Whitaker's Almanack for the current year; and third, the manuscript of a complete and hitherto unpublished novel, worth in the Row, let us say, one thousand pounds. These are the days of cash payments, so we must not state the author's debts at more than fifteen hundred pounds. It would have been difficult for him to owe more without incurring the charge of imprudence. Now, how will the law deal with the effects of this bankrupt? Ever averse to exposing anyone to criminal proceedings, it will return to him his clothing, provided its cash value does not exceed twenty pounds, which, as authors have left off wearing bloom-coloured garments even as they have left off writing Vicars of Wakefield, it is not likely to do. This humane rule disposes of item number one. As to Whitaker's Almanack, it would probably be found necessary to take the opinion of the court; since, if it be a tool of the author's trade, it will not vest in the official receiver and be divisible amongst the creditors, but, like the first item, will remain the property of the bankrupt—but otherwise, if not such a tool. On a point like this the court would probably wish to hear the evidence of an expert—of some man like Mr. George Augustus Sala, who knows the literary life to the backbone. This point disposed of, or standing over for argument, there remains the manuscript novel, which, as we have said, would, if sold in the Row, produce a sum not only sufficient to pay the costs of the argument about the Almanack and of all parties properly appearing in the bankruptcy, but also, if judiciously handled, a small dividend to the creditors. But here our law steps in with its chivalrous, almost religious respect for ideas, and declares that the manuscript shall not be taken from the bankrupt and published without his consent. In ordinary cases everything a bankrupt has, save the clothes for his back and the tools of his trade, is ruthlessly torn from him. Be it in possession, reversion, or remainder, it all goes. His incomes for life, his reversionary hopes, are knocked down to the speculator. In vulgar phrase, he is 'cleaned out.' But the manuscripts of the bankrupt author, albeit they may be worth thousands, are not recognised as property; they are not yet dedicated to the public. The precious papers, despite all their writer's misfortunes, remain his—his to croon and to dream over, his to alter and re-transcribe, his to withhold, ay, his to destroy, if he should deem them, either in calm judgment, or in a despairing hour, unhappy in their expression or unworthy of his name.

There is something positively tender in this view. The law may be an ass, but it is also a gentleman.

Of course, in my imaginary case, if the bankrupt were to withhold his consent to publication, his creditors, even though it were held that the Almanack was theirs, would get nothing. I can imagine them grumbling, and saying (what will not creditors say?): 'We fed this gentleman whilst he was writing this precious manuscript. Our joints sustained him, our bread filled him, our wine made him merry. Without our goods he must have perished. By all legal analogies we ought to have a lien upon that manuscript. We are wholly indifferent to the writer's reputation. It may be blasted for all we care. It was not as an author but as a customer that we supplied his very regular wants. It is now our turn to have wants. We want to be paid.'

These amusing, though familiar, cries of distress need not disturb our equanimity or interfere with our admiration for the sublime views as to the sanctity of unpublished ideas entertained by the Court sitting in Bankruptcy.

We have thus found, so far as we have gone, the profoundest respect shown by the law both for the dormant ideas and the manuscripts of the author. Let us now push boldly on, and inquire what happens when the author withdraws his interdict, takes the world into his confidence, and publishes his book.

Our old Common Law was clear enough. Subject only to laws or customs about licensing and against profane books and the like, the right of publishing and selling any book belonged exclusively to the author and persons claiming through him. Books were as much the subjects of property-rights as lands in Kent or money in the bank. The term of enjoyment knew no period. Fine fantastic ideas about genius endowing the world and transcending the narrow bounds of property were not countenanced by our Common Law. Bunyan's Pilgrim's Progress, in the year 1680, belonged to Mr. Ponder: Paradise Lost, in the year 1739, was the property of Mr. Jacob Tonson. Mr. Ponder and Mr. Tonson had acquired these works by purchase. Property-rights of this description seem strange to us, even absurd. But that is one of the provoking ways of property-rights. Views vary. Perhaps this time next century it will seem as absurd that Ben Mac Dhui should ever have been private property as it now does that in 1739 Mr. Tonson should have been the owner 'of man's first disobedience and the fruit of that forbidden tree.' This is not said with any covered meaning, but is thrown out gloomily with the intention of contributing to the general depreciation of property.

If it be asked how came it about that authors and booksellers allowed themselves to be deprived of valuable and well-assured rights—to be in fact disinherited, without so much as an expostulatory ode or a single epigram—it must be answered, strange as it may sound, it happened accidentally and through tampering with the Common Law.