“When I wrote to Mr. Hunt about the last of August, 1768, that, contrary to what I had understood his assertion to be, several authors had ten per cent., and therefore I thought I ought to have ten per cent., the firm did not deny my premise, but simply said, ‘In your letter you assume that we have but one set of terms with the various authors whose works we publish. In this you are in error. What we pay to any individual author is a matter quite between him, or her, and ourselves, and it is not our custom to make one author the criterion for another. Many elements enter into the case that would make a uniform rate impracticable. Independently of other considerations, the varying cost of manufacture caused by different styles of publication would alone preclude such an arrangement. We must therefore decline to admit such an argument into the case.’
“The fact is, it was not necessary to admit it, since it was already there—placed there by Mr. Hunt's own hands. It was offered as an inducement for me to accept the new terms, “this arrangement we now make with all our authors.” Either, then, Messrs. Brummell & Hunt do make a uniform arrangement with all their authors or they do not. If they do, this last letter cannot be a correct statement of facts, and the question arises, what is that uniform arrangement? If they do not, then Mr. Hunt's letter of September 23, 1764, cannot be true, and the representation which he held out to me of a uniform mode of payment as an inducement for me to come into the arrangement, was not a correct representation. To ascertain whether or not they did make such an arrangement, I applied to such authors as were within reach to know what were and had been their rates of payment. A. writes, ‘I have always received a percentage. I remember no change in 1764, unless that B. & H. about that time (perhaps earlier), without my asking it, raised the sum they paid me for a poem, by one third.’ B. says, ‘I have been content with ten per cent.’ Messrs. Hunt, Parry, & Co. write to C., ‘Even D. now has only ten per cent.’ E. says, ‘I never published but one book (prose) with Brummell & Hunt.... I received on this the usual beggarly percentage.’ F. says, ‘Generally we go on the system of half profits.... In regard to ‘Old King Cole,’ they print and sell and allow me a certain sum on each copy sold.’ G. says, ‘Brummell & Hunt have, I believe, allowed me ten per cent. on the retail price of my books.’ H. says, ‘I believe it (the book) was to have yielded ten per cent. if anything.’ I. says, ‘Messrs. H., P., & Co. have published four books for me. The three first sell for $1.25, and I receive twelve cents each copy. The last is a joint affair, published by subscription.’ K. says, ‘All my contracts have been for one half the net profits. The two volumes published by the Troubadours, were offered to Parry, but as he wanted to make other terms, I declined, and they went to the Troubadours. This is the sum of my transactions with Messrs. B. & H.’
“On Friday, April 16, Mr. Dane sent to Messrs. Hunt, Parry, & Co. certain questions, in writing, which the referees now hold, asking them to cite their contracts with other authors, and giving a list of names. Did they meet this question fairly? On Friday, April 23, they made their reply to my statement. On the question of contracts, they cited A.'s collected poems, B.'s poems, F.'s ‘Old King Cole,’ M.'s works (collected), a part of which had to be bought from another publisher, and the works of Theodore Winthrop, which I believe were not asked for. All these they cited as examples of works on which similar contracts to mine had been made, and they cited no others. If these persons had written no other works this would have been fair as far as it goes. But these persons had written other works, and I maintain that Messrs. Hunt, Parry, & Co. had selected out of these works those that were most unlike mine in scope, style, cost, and probable circulation, and said nothing whatever about books by the same authors which would more nearly resemble mine in these respects. A., besides his collected poems, his blue and gold and cabinet editions of his poems, has written separate poems and prose works, which have been issued in separate editions, and which, therefore, furnish a far more proper basis of comparison with mine. But about these separate books they said nothing. Of his separate books, a, b, c, d, e, they made no mention. They brought up B. as one whose works were treated in the same way as mine; but they mentioned only his Poems, blue and gold, and his Songs. They never hinted that he had printed and they had published any prose book for him. Yet it is these prose books, his novels and essays, which form the true basis of comparison between him and me. They cited F., but they cited only his ‘Old King Cole,’ which they did not originally publish, and which they own by a peculiar bargain, and said nothing about the original books which they have published for him, novels, essays, and stories. They cited M., but while bringing in his collected poems, which were entangled in a bargain with some previous contumacious publisher, one Fussey, they said nothing of his separate volumes. They cited Winthrop, but Winthrop, like Marley, was dead to begin with; and if the living have hard work to hold their own against this enterprising firm, what can be expected of the dead?
“Here they rested their case so far as the contracts go; but as a desire was expressed to see the contracts, they promised to produce them next morning. On Saturday, accordingly, we began with one set of contracts which proved to be a most perplexing medley—a sort of contra dance between written contracts and verbal agreements with the rattling of stereotype plates for tambourines. As the government of Russia is said to be despotism tempered by assassination, so the business of Messrs. Hunt, Parry, & Co. may be said to be conducted on the basis of written contracts annulled by verbal agreements. If we were met for the purpose of preparing a Mars Hill House Shorter Catechism and should ask, ‘What is the chief end of a written contract?’ Messrs. H., P., & Co. would promptly reply, ‘A written contract's chief end is to be canceled by a verbal agreement and annihilated forever!’ According to their practice, it seems that we all agree, in writing, as to what we will do, for the sake of saying afterwards that we won't do it.
“However, plodding my way along as best I could through the contracts, with Mr. Markman's kind assistance, I found, or thought I found, that for one book its author received at first twenty per cent., he owning the stereotype plates. Whether this was by written contract or verbal agreement Mr. Markman does not recollect. From 1762 to 1764, he received twenty cents a volume, the retail price, meanwhile, having advanced from one to two dollars. Since then a written contract gives him twenty cents a volume, the retail price being two dollars.
“A second book by the same author is on the same principle, except that there is no written contract.
“A third, in 1762, either by contract or verbal agreement, was receiving twenty per cent. on $1.00, retail price, the author owning stereotype plates. In 1764 it was changed verbally from percentage to twenty cents a volume, the price having gone up to two dollars.
“While I was painfully thridding these labyrinthine ways, I was arrested by a proposition from some quarter that time should be saved by intrusting the further examination of these contracts to the referees. I had every confidence in the referees, but how could I make my argument concerning these contracts without having seen them? It was said that I should be present and examine them with the referees; but the referees were about to disperse to the four quarters of the earth—or, as there are only two of them, I suppose it might be more strictly accurate to say, the two hemispheres—not to meet again till Thursday, when I was to make my final statement. Mr. Markman then said that he would have the principal points of the contracts copied and sent to me either Saturday afternoon or Monday; but on Tuesday I received a letter from him saying that his time has been so much occupied with matters relating to Mr. Hunt's absence, that he has not had time to complete the copyright memorandum which he promised to send me, but will surely send it to-morrow—all of which I do not in the least doubt, but it does not alter the fact that the information concerning the contracts, for which I asked ten days ago, has not yet been furnished; that I am to hand in my argument on Wednesday, and find myself at home to write up the play of Hamlet with a pretty important part of Hamlet left out.
“From what goes in, however, I am left, like Providence among the heathen, not without witness. Accepting alleged verbal agreements, it seems that the author cited, in changing from percentage to a fixed sum, came down to a sum fixed as high as the highest of my percentage. That is, he, at his lowest, is precisely where I was at my highest. My sole ambition was to climb as high as the point where he stopped falling! Does this fairly make out the assertion, ‘this arrangement we make now with all our authors’?
“But I cannot reason upon contracts which I have never seen. I fall back upon the statements made to me by the authors I have quoted, and on this ground I affirm that I have not fared as the other authors, even of Messrs. Hunt, Parry, & Co., have fared. Neither can I accept their allegations of verbal agreements which cancel written contracts. The only verbal agreement I know anything about is one that never existed. I did not intend to mention Mrs.—— any further than I have done, but Mr. Parry has cited her case and I may therefore be permitted to say that verbal agreements and explanations were brought to bear on her in the same way. In a letter to me dated August 9, 1768, she says, ‘A letter arrived from Mr. Hunt [Thursday] telling me that he had explained as I knew, just what he had never once explained as he knew—and I read it and denied totally all his assertions.’ August 20, 1768, she says, ‘Do you see all the contracts Mr. Hunt tells Mr. E. were verbal. I do not believe Mr.—— ever consented to change to ten per cent., because he would have told me, and besides you see he had fifteen per cent. for the very last book he gave them!... And now they say he made a verbal agreement with Mr. Brummell who is dead and cannot say anything. But they show no papers.’