[1] Narrative of the Surveying Voyage of H. M. S. Fly; in Torres Strait, New Guinea, and other Islands of the Eastern Archipelago. By J.B.Jukes, Naturalist to the Expedition. 2 Vols. Boone, London.
AMERICAN COPYRIGHT.
New York, August, 1847.
My Dear Godfrey,—I am sorry to begin my letter with an apology, but I feel that one is due for the very unsatisfactory manner in which, on a former occasion, I answered your grave inquiries about the pirates who thrive on the plunder of Maga. The jocular vein which I incontinently struck and perseveringly followed up, led me very wide of your mark, and I was obliged to leave you quite unsatisfied on another point, about which, for one who is not an author, you seem to be singularly excited. To waive my astonishment at the Benthamism of the phrase, pray what is "International Copyright" to Godfrey, that he should weep for such a Hecuba? I should have been as little surprised, had you asked me to inquire the opinion of the Indians as to the best regimen for infants. A veritable author, suffering by wholesale American rapine, would have commanded my sympathies, and I should have replied instinctively, in that tone of consideration which is always due to dignified misfortune; but when you, with your rod and gun, soberly popped me a query in which I could not see that either widgeon or gudgeon were particularly concerned, I confess I feared you were quizzing me, and was fairly off my guard. Forgive me that I was so slow to appreciate the true state of the case. It has only very lately occurred to me that both you and I are somewhat changed since we placed the summum bonum in Waltonian idleness, and that you have very possibly renounced fly-fishing, and settled down into a literary incubation, likely to bless the world with a brood of booklings. With this consideration, I now again address you, intending to preserve that propriety of thought and speech, which on the subject of literary property, I feel due to the future Great Unknown of Southern Britain. You observe that I take it for granted, you will affect the anonymous; and I would venture to add my counsel to your choice of a course so judicious. You have no idea how great an inconvenience you would suffer, should Godfrey Hall be turned prematurely into another Abbotsford—an event which is certain, should you allow the secret of your new character to transpire. Your comparative nearness to the metropolis would greatly facilitate the irruption of bores; especially as there would probably be a branch railway chartered forthwith, for the express purpose of setting down company at the nearest possible point of access to your venerable gateway. Besides, even you have too much regard to the land of Kit North, to entertain any desire to see its most attractive shrine of pilgrimage too suddenly eclipsed; and why should you court such an exposure of popular fickleness, when about to become yourself "the comet of a season," and to go through that brilliant perihelion, in which, reversing the feat of Horace with his lofty head, you will sweep away all other stars with a swinge of your luminous caudality? Yes, Godfrey—spare your own feelings, and treat us to another Great Unknown! I am sure such will be your determination, and so I will simply subjoin the hope that nothing will interfere with the speedy completion of your maiden effort—"Napper Tandy; or, 'Tis Fifty Years Since." Don't startle at my naming your hero, and suggesting your plot; for though I will venture to say that I have hit the nail on the head, I assure you it is only a happy surmise. You must know that nothing could be so interesting as a recurrence to the exciting epoch of Ninety-eight; and why should not the sister kingdom have its romance, as well as the land of the Scots? I have always thought that Stuart rising very much overrated—a mere scratch to what happened in Ireland. Kilmarnock was a poor-spirited fellow compared with Emmet; and though there were many better men than Balmerino among the United Irishmen, it would be hard to find a worse one than Lord Lovat. I suspect, therefore, that besides your design, I have
actually discovered your title page; though it is barely possible that the melancholy fate of Wolfe Tone, with the indistinct tone of ferocity that is perceptible in his name, may have suggested the compellation of that unfortunate gentleman, as more significant of the wolfish atrocities with which your tale will necessarily abound. Whatever be the name, make haste with the book, and do not wait ten years in order to have another "Sixty Years Since." You must see that congruity requires the semi-centenary, and that Sir Walter was a full decennium behind-hand. The demise of O'Connell at this interesting juncture, must be regarded as a coincidence every way satisfactory, whether we consider the fulness of his fame, the conclusion of an era, or the interests of your forthcoming work. It has prepared public sympathy, and tuned the strings upon which you call successfully play for the next quarter of an age; and I hazard little in arguing that your literary nativity will be accomplished under the ascendant of the most favourable planet.
Regarding you, then, as what you will speedily become—a successful adventurer, with a whole navy of American corsairs in chase of your literary cargo—the question takes this shape:—How does the American law of copyright affect you as a British author, and what can be done to save "Napper Tandy"? To answer you properly, let me first expound the law itself, which, for your special benefit, I have taken pains to examine.
You are doubtless aware that the constitution of this republic is one which answers the great test proposed by Tom Paine, who imagined it to be of the essence of a free constitution that it should be capable of being put into the pocket! That splendid capability was never more fully realised by the laws of a sixpenny club, than by the great charter of American liberties. It is a thing written on paper, and may be thrust into the breeches, or hung up on the wall, as best suits the notions of its worshipper, and his manner of exhibiting respect. Now the law of copyright is not here, as you suppose, a mere matter of statute; nor is the doctrine that an author has no perpetual property in what his intellect creates, a simple decision of courts. It is a part of the constitution, which empowers the national Congress "to promote the progress of science and useful arts, by securing for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries." An American writer has remarked, that its equivalent would have been the concession of a power to promote the fisheries, by allowing to fishermen a limited number of the cod-fish and herrings which they take on a Newfoundland fog-bank. Here then, you will say, is a fundamental obstruction to literary justice in America! But your hasty conclusion will show that you have thought but little on written constitutions. I agree with the Count de Maistre, that such instruments are of all things the most slippery. What is easier than for Congress to evade its restriction, and make the limited time exactly the years of Methusaleh! Such a limit would be about as good as "to one's heirs for ever." But there is yet another facility in written constitutions: "a breath unmakes them, as a breath has made." In America, a constitution is as easily overhauled, new-ribbed, and launched again, as ever a sloop-of-war was dry-docked and new-coppered. Here, for instance, is the great "Empire State" of New York, with a constitution hardly a year old! The stripling who has just attained his majority, has actually survived the whole life of its predecessor; and he who lives half as long again, will see the new one superannuated and going the way of all written constitutions. The late constitution of this State was in many respects a noble one; but its successor plays the mischief with every thing; and I have heard an old freeholder complain that he hardly knows whether he has a house, a wife, or a head on his shoulders; so radically has the revolution affected whatever is social and civil. This will show you that there is, after all, no necessary perpetuity in the present condition of things; and so I come to the statute, which is the only just cause of complaint.
The English origin of the law is very apparent. It retains some features of the old statute of Queen Anne, with others of 54 Geo. III., which has lately been made so familiar in parliamentary reports. It secures authors in their property for a term of twenty-eight years, and provides for renewing this security for half that period, upon a renewal of entry. One copy of every work thus protected, must be deposited with the Clerk of the United States' Court for the District where it is entered; and by a late enactment, the author must contribute another copy to the library of "the Smithsonian Institute,"—that unmeaning benevolence of an unfortunate scion of the Northumberland family, which is already beginning to be regarded as a folly, and which one would think might have been made to subserve the interests of authors, rather than furnish another occasion for the exercise of legislative ingenuity, in adding to their many annoyances. The other important features of the Act are the penalty for piracy, and the restriction of protection to citizens and residents; in other words, the punishment of piracy in certain cases, and its license in others. Thus the same Act is dainty of rights, if the craft swim in rivers and bays, but hands over to the black flag whatever is found on the highway of nations. Persons pirating a copyright work are liable to a forfeiture of every copy in their keeping, whether of their own manufacture or otherwise; and besides this, to a fine of one dollar a sheet upon the same, of which one moiety goes to the author, and the residue to the government. Why should it be culpable to steal from a resident, and laudable to do the same thing with a stranger? If a foreign mechanic exports his goods, they are as safe in New York, as the wealth of John Jacob Astor; but no kind of mercy is shown to the product of a foreigner's brain—than which one would think nothing but his soul should be more sacred among all Christian men. On the contrary—not content with leaving him unprotected, there is in the tariff an express provision for the encouragement of plunder. No one pretends that the revenue of the United States requires the tax of ten per cent. ad valorem, upon all importations of "books printed, magazines, pamphlets, and illustrated newspapers, bound or unbound;" yet, such are the terms of the tariff of 1846, and it was designed expressly to prevent importations, and encourage the piratical, manufacture of such things at home. I say so, because it is notorious, and has been exposed by American writers themselves.
Now, let us see how "Napper Tandy" is likely to fare under regulations like these! Can it be possible, you will say, that the Model Republic cherishes designs so predatory; and is there no other explanation of a law which seems so outrageous? There are laws, I am aware, which are by no means what they seem, and British law is the last to dispense with a concession so important. I have, therefore, put this American statute into every light that seemed likely to show it to better advantage, and I confess there is one view of the subject, which, as being myself a resident, it gives me pleasure to suggest. Is it not conceivable, after all, that the original purpose of the statute was merely to extend, to exactly such worthies as the author of "Napper Tandy," a polite invitation to a literary sojourn in America? You know how many British authors, with no such inducements, have preferred Italy to their native land; and why should not this country, at least in the partial eyes of its own legislators, be worthy of a share of their company? The suggestion is equally complimentary to the law-givers, and to those whose society is thus held at a premium. It is true, that, excepting Will Cobbett, few English writers of eminence have taken the hospitable hint; but who could have foreseen this result, when so many of the literary race are perpetually sighing for lodges in the wilderness, and dwellings in the desert! Monsieur Dumas might indeed be reluctant to accept the flattering overtures of a country which is known to cherish such antipathies to his great ancestor Ham, and all that interesting family; and is quite, excusable for preferring the persecutions of French courts of justice, to