“I have been a practitioner at law but four days, and it becomes me to be modest; yet I will hazard the remark, that a verbal agreement without witnesses, between two dead men, is as near nothing as anything in the way of evidence can well be.
“Mr. Parry affirms that Mrs.——'s sister afterwards examined their books and found nothing wrong therein, and that Mrs.—— was subsequently satisfied. I saw Mrs.—— in Paris on her way to Asia, and it seemed to me that she was very far from satisfied, but that she was worried out, and preferred peace to pence. One can imagine Miss—— hunting up Messrs. Hunt, Parry, & Co.'s account books in pursuit of knowledge!
“Neither do I accept accounts as proofs of a verbal agreement. My accounts ran on for years, unchallenged, without any such agreement, though that agreement is now alleged as the basis of the accounts. J. wrote to me, May 11, 1768, ‘In the accounts of sale I believe the price paid me was ten per cent. of the original retail price, that is, the ‘Ambrosia’ was published at a dollar fifty and I have always received fifteen cents a copy on that. When paper became so high during the war, the price of the book was raised to $1.75, but I am pretty sure I never received seventeen and a half cents, but always only fifteen, yet, as the papers are at home, I cannot be certain; only in a little account of sale sent here this winter the reckoning was at fifteen cents a copy for one, and twelve and a half cents for the other, but the account covered a space of three years during which the books had been selling at $1.75 and $1.50 respectively; so that, literally, he has not been paying me ten per cent.; but I did not think much about it, taking it for granted that the extra price was due to hard times. But I do not know why our labor is the only labor to remain low-priced.’ Here it will be seen that for three years J.'s accounts might have been cited at any time as proof of a verbal agreement, though no such agreement had ever been made or even alleged. Messrs. H., P., & Co. may say that they have a right to infer that silence gives consent, and that authors have no right to be so loose in money matters. Leaving out any silence which might arise from delicacy, I would say, it is true that they ought to be more accurate and systematic, but surely we may say to our publishers, as the crab remarked to his father, when rebuked for going sidewise, ‘Gladly, my father, would we walk straight, if we could first see you setting the example!’
“But authors are not always to be blamed for their silence. We are not very large buyers of our own books and do not always know when the price is raised. Surely we cannot be expected to sit inflexibly upon our property, like Miss Betsy Trotwood, watching the rates of sale. It was a considerable time after L.'s story-book advanced in price before its author discovered it; as soon as she did, she made a note of it, and after a little trouble succeeded in having her contract fulfilled. But any time between the change and her discovery of it, her account might have been alleged as proof of a verbal agreement which did not exist. I am, of course, not saying that it would have been so, but that it might have been so. What we want, therefore, is facts, Mr. Gradgrind.
“Since writing this, Mr. Markman's memoranda of contracts have put in an appearance, and if correct, show beyond question, that their letter of September, 1768, was true, and that the statement in Mr. Hunt's September 1764 letter was not true. There is scarcely an approach to uniformity in the arrangements made with authors. Taking those books which most resemble mine, the contracts are of every species. There are contracts for twenty per cent. where the author owns the plates, and ten per cent. where the publisher owns them. Books that retail at $1.25 pay the author ten cents per volume, or fifteen cents per volume, he owning the stereotype plates, or twelve cents per volume, or twelve and a half cents per volume; books that retail at $1.50 pay the author fifteen cents, and ten cents; books that retail at seventy-five cents pay five per copy; books that retail at $1.00 pay twenty cents per copy; books that retail at $2.00 and $1.75 do the same; books that retail at $1.12 pay ten cents. When a verbal agreement is alleged as a substitute for a written contract, the substitute also varies. Some of the contracts are for half profits. I do not find a single example of a book that retails at $2.00 and pays the author fifteen cents. I shall depend upon the referees to discover any fault in my figures, but I believe they are correct. When a change is made from percentage to a fixed sum, there is generally a decrease to the author, but not so great as in my case. The aggregate of one set of books at a percentage was $1.36¼; after the change to a fixed sum it amounted to $1.68. On some of the books there has been no change. So that when Mr. Hunt says, ‘this arrangement we make now with all our authors,’ whether he means that they change from percentage to a fixed sum, or whether he means that they make with all the same ratio of decrease that they make with me, he is equally incorrect. There is no sense in which his words can be understood, in which they are true.”
[There is one sense in which they may be counted correct. If we construe them to mean, “We pay all our authors just as little as we think they will stand. You, being rather the most pliable of any, will bear the greatest reduction, and we have accordingly reduced you to the lowest point,” they appear to be marvellously accurate.]
“I claim, therefore, that I never assented to the second contract because I never understood it, and because the representations made to me as inducements were not correct. I claim that Mr. Hunt's letter was calculated (I do not say intentionally) to mislead and deceive me; that I was misled and deceived by it, and as the result of this deception, I signed a contract which deprived me of my plainest rights in the premises; and the accounts subsequently rendered were accepted by me in the same good faith with which I sought the contract, with scarcely an examination, certainly without the least suspicion.
“Of the books not named in the contracts I believe I need say little. Even had the second contract been valid, no understanding can be inferred from it as to the five books not included in it. Why should the second contract be taken as a guide any more than the first? The first was made under ordinary circumstances, the second under peculiar ones which soon changed. They did not themselves understand that the second contract governed all the rest, for they did not pay me fifteen cents but only ten cents on ‘Holidays.’ They say that it was a small book; but so was ‘The Rights of Men.’ Yet ‘Holidays’ contained 141 pages, was retailed at $1.50, and paid me ten cents, while ‘The Rights of Men’ contained 212 pages, retailed at $1.50, and paid me fifteen cents—no accounts being rendered till after the trouble began. Mr. Parry says that ‘Holidays’ was a different kind of book, a children's book with pictures, and therefore he supposed they did not class it with the others, but simply fixed a price which they thought equitable. But X.'s story-book was also a juvenile book, with pictures, of the same class as mine; yet on that they paid by contract ten per cent. C.'s story-book was also an illustrated juvenile, and on that they paid half profits.
“But I hold that the contract pretending to cover ‘Dies Alba,’ ‘Rocks of Offense,’ and ‘Old Miasmas,’ is inoperative and void, and cannot regulate the compensation to which I am entitled by copyright on these three books; still less can it regulate the compensation to which I am entitled on subsequent ones. If a contract is void in the direct operation claimed for it, its inferential operation must be shadowy indeed. With all due respect, I hold that it is little less than absurd for Messrs. Hunt, Parry, & Co. to claim that I am bound to accept that contract as the basis of settlement for subsequent publications. I hold that on these five books, published under no contract, I may claim what is just according to the usages of the trade.
“I do not know what may be the result of the inquiries of the referees among publishers. Mr. Dane, as his letter shows, made careful investigations, and found no one who did not say that ten per cent. was the minimum price. I believe that no respectable publisher can be found in the country who, regarding the cost of the books and the number sold, will not say that ten per cent. on the retail price is the very lowest sum that an honorable publisher would have paid me had the whole matter been referred to his own honor.