Now if Mr. Hunt should gratify himself with the wished-for oath, I am sure that the accusing angel who flies up to Heaven's chancery with it, will blush as he gives it in, and the recording angel as he writes it down, will drop a tear upon the word and blot it out forever.]
“But it may be urged, giving up the conversation and relying only on the letter, that in any event I accepted and assented to the new contract with a full understanding of its meaning and effect, and am hence bound by it. This I deny. The law always scrutinizes transactions between parties in confidential relations, as father and son, guardian and ward, attorney and client, husband and wife, and demands the utmost frankness and fullest disclosure of circumstances, allows no concealments, and sets aside all contracts where any advantage is gained by reason of the confidence reposed. It recognizes the influence of superior position, and the right to trust in the party occupying it, and demands the strictest honor on his part. I think my position with my publishers comes within the scope of this principle. In respect of the matters involved in this contract, were we or could we be equal? They were practiced business men living in the city, with full knowledge of all the details of their affairs. It was their business to manage the external material parts of books. I was living in the country, with no knowledge of these affairs, and as I supposed, no need and no means of acquiring it. It was my part to attend to the interior and intangible souls of books. I could not look into their business without neglecting my own; as indeed I have been forced to do for sixteen months past, and as I should do with equal pertinacity for sixteen years, were it necessary. I never sent for my accounts, except when I wanted money and wished not to overdraw. When they came, I scarcely did more than glance at the footing to ascertain what was due me. Nor do I now see of what use it would have been to examine them ever so minutely. I was proceeding entirely on a basis of confidence, which I think I had a clear right to assume, and which was complete and unimpaired until the date mentioned in my first paper, when I awoke to the fact that I was not receiving what I seemed to be entitled to, and what, on the closest scrutiny, I believe to be my legal and equitable dues.
“Such being the relation of the parties, let us examine for a moment—that is a pulpit fiction, I mean for a good many moments—the inducements held out to me by my publishers, as they are found in this letter. I maintain that the proposed change from percentage to a fixed sum is so mentioned as directly—I do not say intentionally—to mislead me. It is held up as an arrangement peculiarly to my advantage, as guaranteeing me in any event against a loss to which I might otherwise be exposed, and as securing me my profits by some stronger safeguard than I had before possessed. But whereas I was blind I now see that it guarantees me against no loss, and the only safeguard it presents, is a safeguard against any benefit which might accrue to me from the rise in prices. Mr. Hunt says, “if it should cost $1.50 to make the volumes, you are sure of your author profits of fifteen cents,”—as if I should not have been just as sure of them had I received percentage! “The price at retail may be $1.50, $2.00, or $3.00, as the high or low rates of paper, binding, etc., may be, but you are all right,”—whereas I was all wrong, for if I had kept to a percentage, and the retail price had become $3.00, I should have had thirty cents instead of fifteen.
“It was almost immediately after this contract that the retail price of all my books went up to $2.00, and has remained so ever since. This was a fact which my publishers had the means to foresee, but which I could not and did not anticipate or even conjecture. The absolute identity of ten per cent. and a fixed sum at the time of the new contract, together with their representations of its superior advantage to me, and my confidence in them, all combined to deceive me. I should have adopted the same reasoning and drawn the same inference if a year earlier I had been asked to change the ten per cent. to twelve and a half cents, which at that time amounted to precisely the same thing.
“Had I been distinctly told that my books were largely to advance in price, but that all the profit of the advance was to accrue to the publishers and none of it to me, should I have consented to such an arrangement? The referees and my publishers, in discussing these matters, plunged into an abyss of figures into which I cannot attempt to follow them. I do not even understand the jargon—I trust they will pardon the term—in which they appeared to be communicating ideas. I had provided myself with a friend who was, I believed, fully competent to dive as deep as the best of them. But I was not allowed to retain him, and I could only sit in despair on the brink of the gulf and stare at the spectacle. From the few intelligible sounds that did reach me I infer that the sacrifices of publishers in behalf of authors have never been fully appreciated. I felt that in claiming ten per cent. I was guilty of an extortion second only to that of David Copperfield in suggesting to Mr. Dolloby eighteen pence as the price of ‘this here little weskit.’ ‘I should rob my family,’ says Mr. Dolloby, ‘if I was to offer ninepence for it.’ It is gratifying to recollect that the last winter was a mild one, so that the cases of extreme suffering must have been rare. If it were not for an occasional glimpse at our impertinent income-returns one would be inconsolable. As it is, would the referees count it as bringing in new facts if I should send one or two postage-stamps to the retired clergyman whose sands of life have nearly run out, and beg a receipt for returning an income of fifty thousand dollars on a bi-annual cash profit of three hundred dollars?
“But though I cannot bring up a fact from the bottom of the sea, I can see a fact when it stares me in the face on land. If there was any reason except uncovenanted mercies for advancing my copyright from twelve and a half cents to fifteen, when the books went from $1.25 to $1.50, it must have applied with equal force to advancing my copyright from fifteen to twenty cents when the books advanced from $1.50 to $2.00. I deny that the increased cost of doing business should be reckoned solely on the side of the publisher as the justification of his receipts and profits, while the author should be held down to the same fixed sum. The same causes that increased the cost of doing business to Messrs. Brummell & Hunt as publishers, increased in quite as large a ratio the cost of my doing business as an author. Every conceivable form of expenditure to which I was subjected was all the time increasing, and I was as much in need of a pro rata increase of receipts from my books as the publishers could be. But Messrs. Brummell & Hunt take the opposite ground and maintain that no matter what the added expenditure of the author may necessarily become, only a fixed sum shall be allowed to meet it, while the vast increase of receipts and of profits shall be absorbed by the publisher alone. If this be justice, equity, or law, I think we would better stop hammering on the jubilee house, and begin back again at the Ten Commandments.[13]
“But though I was not able to follow my publishers through the technics and tactics of their business, there were two ways in which I might have formed and presented some opinion of the justice of their course. Had I been allowed, I would have called in other publishers and have asked them what would be a fair price for books with the character, dress, and sales of mine. I do not see that there could be any unfairness in this. They surely would not be likely to decide unjustly against their own craft, and they surely would be able to give an intelligent answer.
“From the inquiries which Mr. Dane has made among other publishers, I believe that the sum which Messrs. Brummell & Hunt allege that they have made on all my books represents much more nearly the profits which they made on a single one of them, ‘City Lights,’ and that the profits which accrued to themselves from the rise in the prices of books are much larger than they represent them.
“It was for the purpose of elucidating this matter, also, that the questions were sent to Messrs. Hunt, Parry, & Co. some days before the reference began. Had I known the profits of their firm, the number and sales of their books, and the profits of their periodicals, I should have been in a position to judge of the correctness of their statements regarding the cost and profits of my books. Mr. Parry objects to such testimony, as he says they may make a great deal of money in outside ways, by speculating in butter, for instance. Precisely. But they advertise themselves as a publishing house solely, not as a publishing and butter house. It is Hunt, Parry, & Co., publishers, not publishers and dairymen. When I am charged in my books with the cost of store-rent, I wish to know whether the rent is for packing-cases or butter-tubs. I am charged for insurance and clerk-hire. How can I tell whether the insurance and clerk-hire cover my share alone or whether they may not also embrace the safety and the management of the “Adriatic?” There is a separate item for the cost of advertising; but I am told that in a single year the receipts of the firm for advertising in their periodicals are ten thousand dollars more than the cost to them of all the advertisements which they publish elsewhere. Undoubtedly the sagacity of the firm in managing their periodicals has much to do with that circulation which makes them so valuable as advertising mediums; but is it not just possible that the quality of the writing has some slight influence on their circulation. Yet not only are the authors of the books and of the magazine articles often one and the same, but the articles themselves are frequently but extracts from the books, and the books themselves are frequently made up in part or in whole from the articles. I do not mention this as an advantage to the publishers and a disadvantage to the author, but simply to show that the book business and the magazine business are so interwoven that an investigation of the one, to be exhaustive, must be, to some extent, an investigation of the other. Messrs. Hunt, Parry, & Co. must give us all the data if we are to make their ‘sums prove,’ as the children say. As they decline to do this, and as I never learned to ‘cipher in turkey rule,’ they have everything their own way in arithmetic.
“Another point in Mr. Hunt's letter of explanation was, as he says, ‘This arrangement we make now with all our authors.’