Res Judicatæ: Papers and Essays

by Augustine Birrell

Authors are indeed a luckless race. To be deprived of your property by Act of Parliament is a familiar process, calling for no remarks save of an objurgatory character; but to petition Parliament to take away your property—to get up an agitation against yourself, to promote the passage through both Houses of the Act of spoliation, is unusual; so unusual indeed that I make bold to say that none but authors would do such things. That they did these very things is certain. It is also certain that they did not mean to do them. They did not understand the effect of their own Act of Parliament. In exchange for a term of either fourteen or twenty-one years, they gave up not only for themselves, but for all before and after them, the whole of time. Oh! miserable men! No enemy did this; no hungry mob clamoured for cheap books; no owner of copyrights so much as weltered in his gore. The rights were unquestioned: no one found fault with them. The authors accomplished their own ruin. Never, surely, since the well-nigh incredible folly of our first parents lost us Eden and put us to the necessity of earning our living, was so fine a property—perpetual copyright—bartered away for so paltry an equivalent.

This is how it happened. Before the Revolution of 1688 printing operations were looked after, first by the Court of Star Chamber, which was not always engaged, as the perusal of constitutional history might lead one to believe, in torturing the unlucky, and afterwards by the Stationers' Company. Both these jurisdictions revelled in what is called summary process, which lawyers sometimes describe as brevi manu, and suitors as 'short shrift.' They hailed before them the Mr. Thomas Teggs of the period, and fined them heavily and confiscated their stolen editions. Authors and their assignees liked this. But then came Dutch William and the glorious Revolution. The press was left free; and authors and their assignees were reduced to the dull level of unlettered persons; that is to say, if their rights were interfered with, they were compelled to bring an action, of the kind called 'trespass on the case,' and to employ astute counsel to draw pleadings with a pitfall in each paragraph, and also to incur costs; and in most cases, even when they triumphed over their enemy, it was only to find him a pauper from whom it was impossible to recover a penny. Nor had the law power to fine the offender or to confiscate the pirated edition; or if it had this last power, it was not accustomed to exercise it, deeming it unfamiliar and savouring of the Inquisition. Grub Street grew excited. A noise went up 'most musical, most melancholy,

‘As of cats that wail in chorus.’

It was the Augustan age of literature. Authors were listened to. They petitioned Parliament, and their prayer was heard. In the eighth year of good Queen Anne the first copyright statute was passed which, 'for the encouragement of learned men to compose and write useful books,' provided that the authors of books already printed who had not transferred their rights, and the booksellers or other persons who had purchased the copy of any books in order to print or reprint the same, should have the sole right of printing them for a term of twenty-one years from the tenth of April, 1710, and no longer; and that authors of books not then printed, should have the sole right of printing for fourteen years, and no longer. Then followed, what the authors really wanted the Act for, special penalties for infringement. And there was peace in Grub Street for the space of twenty-one years. But at the expiration of this period the fateful question was stirred—what had happened to the old Common Law right in perpetuity? Did it survive this peddling Act, or had it died, ingloriously smothered by a statute? That fine old book—once on every settle—The Whole Duty of Man, first raised the point. Its date of publication was 1657, so it had had its term of twenty-one years. That term having expired, what then? The proceedings throw no light upon the vexed question of the book's authorship. Sir Joseph Jekyll was content with the evidence before him that, in 1735 at all events, The Whole Duty of Man was, or would have been but for the statute, the property of one Mr. Eyre. He granted an injunction, thus in effect deciding that the old Common Law had survived the statute. Nor did the defendant appeal, but sat down under the affront, and left The Whole Duty of Man alone for the future.

Four years later there came into Lord Hardwicke's court 'silver-tongued Murray,' afterwards Lord Mansfield, then Solicitor-General, and on behalf of Mr. Jacob Tonson moved for an injunction to restrain the publication of an edition of Paradise Lost. Tonson's case was, that Paradise Lost belonged to him, just as the celebrated ewer by Benvenuto Cellini once belonged to the late Mr. Beresford Hope. He proved his title by divers mesne assignments and other acts in the law, from Mrs. Milton—the poet's third wife, who exhibited such skill in the art of widowhood, surviving her husband as she did for fifty-three years. Lord Hardwicke granted the injunction. It looked well for the Common Law. Thomson's Seasons next took up the wondrous tale. This delightful author, now perhaps better remembered by his charming habit of eating peaches off the wall with both hands in his pockets, than by his great work, had sold the book to Andrew Millar, the bookseller whom Johnson respected because, said he, 'he has raised the price of literature.' If so, it must have been but low before, for he only gave Thomson a hundred guineas for 'Summer,' 'Autumn,' and 'Winter,' and some other pieces. The 'Spring' he bought separately, along with the ill-fated tragedy, Sophonisba, for one hundred and thirty-seven pounds ten shillings. A knave called Robert Taylor pirated Millar's Thomson's Seasons; and on the morrow of All Souls in Michaelmas, in the seventh year of King George the Third, Andrew Millar brought his plea of trespass on the case against Robert Taylor, and gave pledges of prosecution, to wit, John Doe and Richard Roe. The case was recognised to be of great importance, and was argued at becoming length in the King's Bench. Lord Mansfield and Justices Willes and Aston upheld the Common Law. It was, they declared, unaffected by the statute. Mr. Justice Yates dissented, and in the course of a judgment occupying nearly three hours, gave some of his reasons. It was the first time the court had ever finally differed since Mansfield presided over it. Men felt the matter could not rest there. Nor did it. Millar died, and went to his own place. His executors put up Thomson's Poems for sale by public auction, and one Beckett bought them for five hundred and five pounds. When we remember that Millar only gave two hundred and forty-two pounds ten shillings for them in 1729, and had therefore enjoyed more than forty years' exclusive monopoly, we realise not only that Millar had made a good thing out of his brother Scot, but what great interests were at stake. Thomson's Seasons, erst Millar's, now became Beckett's; and when one Donaldson of Edinburgh brought out an edition of the poems, it became the duty of Beckett to take proceedings, which he did by filing a bill in the Court of Chancery.[8]

These proceedings found their way, as all decent proceedings do, to the House of Lords—farther than which you cannot go, though ever so minded. It was now high time to settle this question, and their lordships accordingly, as was their proud practice in great cases, summoned the judges of the land before their bar, and put to them five carefully-worded questions, all going to the points—what was the old Common Law right, and has it survived the statute? Eleven judges attended, heard the questions, bowed and retired to consider their answers. On the fifteenth of February, 1774, they reappeared, and it being announced that they differed, instead of being locked up without meat, drink, or firing until they agreed, they were requested to deliver their opinions with their reasons, which they straightway proceeded to do. The result may be stated with tolerable accuracy thus: by ten to one they were of opinion that the old Common Law recognised perpetual copyright. By six to five they were of opinion that the statute of Queen Anne had destroyed this right. The House of Lords adopted the opinion of the majority, reversed the decree of the Court below, and thus Thomson's Seasons became your Seasons, my Seasons, anybody's Seasons. But by how slender a majority! To make it even more exciting, it was notorious that the most eminent judge on the Bench (Lord Mansfield) agreed with the minority; but owing to the combined circumstances of his having already, in a case practically between the same parties and relating to the same matter, expressed his opinion, and of his being not merely a judge but a peer, he was prevented (by etiquette) from taking any part, either as a judge or as a peer, in the proceedings. Had he not been prevented (by etiquette), who can say what the result might have been?

Here ends the story of how authors and their assignees were disinherited by mistake, and forced to content themselves with such beggarly terms of enjoyment as a hostile legislature doles out to them.

As the law now stands, they may enjoy their own during the period of the author's life, plus seven years, or the period of forty-two years, whichever may chance to prove the longer.

So strangely and so quickly does the law colour men's notions of what is inherently decent, that even authors have forgotten how fearfully they have been abused and how cruelly robbed. Their thoughts are turned in quite other directions. I do not suppose they will care for these old-world memories. Their great minds are tossing on the ocean which pants dumbly-passionate with dreams of royalties. If they could only shame the English-reading population of the United States to pay for their literature, all would be well. Whether they ever will, depends upon themselves. If English authors will publish their books cheap, Brother Sam may, and probably will, pay them a penny a copy, or some such sum. If they will not, he will go on stealing. It is wrong, but he will do it. 'He says,' observes an American writer, 'that he was born of poor but honest parents, I say, "Bah!"'[9]