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AUTHORS IN COURT.
It is per
There is always something a little been pleased to abandon the preroludicrous about the spectacle of an gative, and has left all her subjects author in pursuit of his legal remedies. free (though at their own charges) to It is hard to say why, but like a sailor publish the version of her learned preon horseback, or a Quaker at the play, decessor, the Bible does not now come it suggests that incongruity which is into Court on its own account. But the soul of things humorous. The whilst the prerogative was enforced, courts are of course as much open to the King's printers were frequently to authors as to the really deserving be found seeking injunctions to remembers of the community; and, to strain the vending of the Word of do the writing fraternity justice, they God by (to use Carlyle's language) have seldom shown any indisposition “Mr Thomas Teggs and other exto enter into them-though if they traneous persons.
Nor did the have done so joyfully, it must be attri- judges on proper proof hesitate to buted to their natural temperament, grant what was sought. which (so we read) is easy, rather haps interesting to observe that the than to the mirthful character of legal King never claimed more than the process.
text. It was always open to anybody To write a history of the litigations to publish even King James' version, in which great authors have been en if he added notes of his own. But gaged would indeed be renovare dolorem, how shamefully was this royal inand is no intention of mine; though dulgence abused ! Knavish booksellers, the subject is not destitute of human anxious to turn a dishonest penny out interest-indeed, quite the opposite. of the very Bible, were known to pub
Great books have naturally enough, lish Bibles with so-called notes, which being longer lived, come into court upon examination turned out not to even more frequently than great be bond-fide notes at all, but someauthors. Paradise Lost, The Whole times mere indications of assent with Duty of Man, The Pilgrim's Pro what was stated in the text, and somegress, Thomson's Seasons, Rasselas, times simple ejaculations. all have a legal as well as a literary people as a rule preferred to be withhistory. Nay, Holy Writ herself has out notes of this character they used raised some nice points. The King's to be thoughtfully printed at the very exclusive prerogative to print the edge of the sheet, so that the scissors authorised version has been based by of the binder should cut them off and some lawyers on the commercial cir prevent them annoying the reader. cumstance that King James paid for
can fancy the question, it out of his own pocket. Hence, “What is a bond-fide note?” exercisargued they, cunningly enough, it be- ing the legal mind. came his, and is now his successor's. Our great lawyers on the bench bave Others have contended more strikingly always treated literature in the abthat the right of multiplying copies of stract with the utmost respect. They the Scriptures necessarily belongs to have in many cases felt that they too, the King as head of the Church. A but for the grace of God, might have few have been found to question the been authors. Like Charles Lamb's right altogether and to call it a job. solemn Quaker “they bad been wits As her present gracious Majesty has in their youth.” Lord Mansfield never
forgot that, according to Mr. Pope, he difficult for him to owe more withwas a lost Ovid. Before ideas in their out incurring the charge of imprudivine essence the judges have bowed dence. Now, how will the law deal down. "A literary composition," it with the effects of this bankrupt ? Ever has been said by them, “so long as it averse to exposing any one to criminal lies dormant in the author's mind, is proceedings, it will return to him his absolutely in his own possession." clothing, provided its cash value does Even Mr. Horatio Sparkins, of whose not exceed twenty pounds, which, as brilliant table-talk this observation authors have left off wearing bloomreminds us, could not more willingly coloured garments even as they have have recognised an obvious truth. left off writing Vicars of Wakefield, it
But they have gone much further is not likely to do. This humane rule than this. Not only is the repose
As to the dormant idea left undisturbed, but Whitaker's Almanack, it would prothe manuscript to which it, on ceasing bably be found necessary to take the to be dormant, has been communicated opinion of the court; since, if it be a is hedged round with divinity. It tool of the author's trade, it will not would be most unfair to the delicacy vest in the official receiver and be of the legal mind to attribute this to divisible amongst the creditors, but, the fact, no doubt notorious, that like the first item, will remain the whilst it is easy (after, say, three property of the bankrupt-but otheryears in a pleader's chambers) to draw wise, if not such a tool. On a point an indictment against a man for steal like this the court would probably ing paper, it is not easy to do so if he wish to hear the evidence of an experthas only stolen the ideas and used his of some man like Mr. George Augustus own paper.
There are some quibbling Sala, who knows the literary life to observations in the second book of Jus. the backbone. This point disposed of, tinian's Institutes, and a few remarks or standing over for argument, there of Lord Coke's, which might lead the remains the manuscript novel, which, thoughtless to suppose that in their as we have said, would, if sold in the protection of an author's manuscripts Row, produce a sum, not only sufficient the courts were thinking more of the to pay the costs of the argument about paper than of the words put upon it;
the Almanack and of all parties probut that this is not so, clearly appears perly appearing in the bankruptcy, from our law as it is administered in but also, if judiciously handled, a the Bankruptcy Division of the High small dividend to the creditors. But Court.
here our law steps in with its chivalSuppose a popular novelist were to rous, almost religious, respect for ideas, become a bankrupt — a supposition
- a supposition and declares that the manuscript shall which owing to the immense sums not be taken from the bankrupt and these gentlemen are now known to published without his consent. In make is robbed of all painfulness by ordinary cases everything a bankrupt its impossibility-and his effects were has, save the clothes for his back and found to consist of the three following the tools of his trade, is ruthlessly items :-first, his wearing apparel : torn from him. Be it in possession, second, a copy of Whitaker's Alma reversion, or remainder, it all goes. nack for the current year; and third, His incomes for life, his reversionary the manuscript of a complete and hopes, are knocked down to the specuhitherto unpublished novel, worth in lator. In vulgar phrase, he is "cleaned the Row, let us say, one thousand
But the manuscripts of the pounds. These are the days of cash bankrupt author, albeit they may be payments, so we must not state the worth thousands, are not recognised author's debts at more than fifteen as property : they are not yet dedicate hundred pounds. It would have been to the public. The precious papers,
despite all their writer's misfortunes, Books were as much the subjects of remain his—his to croon and to dream property-rights as lands in Kent or over, his to alter and re-transcribe, money in the bank. The term of enhis to withhold, ay, his to destroy if joyment knew no period. Fine fanhe should deem them, either in calm tastic ideas about genius endowing the judgment or in a despairing hour, un world and transcending the narrow happy in their expression or unworthy bounds of property were not counteof his name.
nanced by our Common Law. Bunyan's There is something positively tender Pilgrim's Progress, in the year 1680, in this view. The Law may be an ass, belonged to Mr. Ponder: Paradise but it is also a gentleman.
Lost, in the year 1739, was the proOf course, in my imaginary case, if
perty of Mr. Jacob Tonson. Mr. the bankrupt were to withhold his con Ponder and Mr. Tonson had acquired sent to publication, his creditors, even these works by purchase. Propertythough it were held that the Almanack rights of this description seem strange was theirs, would get nothing. I can to us, even absurd. But that is one imagine them grumbling, and saying of the provoking ways of property(what will not creditors say ?): “We rights. Views vary. Perhaps this fed this gentleman whilst he was time next century it will seem writing this precious manuscript. Our absurd that Ben Mac Dhui should joints sustained him, our bread filled ever have been private property as it him, our wine made him merry. With now does that in 1739 Mr. Tonson out our goods he must have perished. should have been the owner " of man's By all legal analogies we ought to first disobedience and the fruit of that have a lien upon that manuscript. forbidden tree.” This is not said with We are wholly indifferent to the
the any covered meaning, but is thrown writer's reputation. It may be blasted out gloomily with the intention of confor all we care. It was not as an tributing to the general depreciation author but as a customer that we sup of property. plied his very regular wants. It is If it be asked how came it about now our turn to have wants. We that authors and booksellers allowed want to be paid."
themselves to be deprived of valuable These amusing, though familiar, cries and well-assured rights-to be in fact of distress need not disturb our equa- disinherited, without so much as an nimity or interfere with our admira- expostulatory ode or a single epigram tion for the sublime views as to the -it must be answered, strange as it sanctity of unpublished ideas enter may sound, it happened accidentally tained by the Court of Bankruptcy. and through tampering with the ComWe have thus found, so far as we
mon Law. have gone, the profoundest respect
Authors are indeed a luckless race. shown by the Law both for the dor To be deprived of your property by Act mant ideas and the manuscripts of
of Parliament is a familiar process, the author. Let us now push boldly calling for no remarks save of an obon, and inquire what happens when jurgatory character ; but to petition the author withdraws his interdict, Parliament to take away your property takes the world into his confidence, - to get up an agitation against yourand publishes his book.
self, to promote the passage through Our old Common Law was clear both Houses of the Act of spoliation, enough. Subject only to laws or cus is unusual ; so unusual indeed that I toms about licensing and against make bold to say that none but authors profane books and the like, the right would do such things. That they did of publishing and selling any book these very things is certain. It is also belonged exclusively to the author certain that they did not mean to do and persons claiming through him. them. They did not understand the
effect of their own Act of Parliament. and savouring of the Inquisition. Grub In exchange for a term of either four Street grew excited. A noise went up teen or twenty-one years, they gave up "most musical, most melancholy," not only for themselves, but for all
“As of cats that wail in chorus." before and after them, the whole of time. Oh! miserable men ! No
enemy It was the Augustan age of literature. did this: no hungry mob clamoured Authors were listened to. They petifor cheap books : no owner of copy
tioned Parliament, and
their prayer rights so much as weltered in his gore.
In the eighth year of The rights were unquestioned : no one good Queen Anne the first copyright found fault with them. The authors statute was passed which, " for the enaccomplished their own ruin. Never,
Never, couragement of learned men to compose surely, since the well-nigh incredible and write useful books," provided that folly of our first parents lost us Eden the authors of books already printed and put us to the necessity of earning who had not transferred their rights, our living, was so fine a property
and the booksellers or other persons perpetual copyright-bartered away who had purchased the copy of any for so paltry an equivalent.
books in order to print or reprint the This is how it happened. Before same, should have the sole right of the Revolution of 1688 printing opera- printing them for a term of twenty-one tions were looked after, first by the years from the tenth of April, 1710, Court of Star Chamber, which was and no longer; and that authors of not always engaged, as the perusal books not then printed should have of constitutional history might lead the sole right of printing for fourteen one to believe, in torturing the un years, and no longer. Then followed, lucky, and afterwards by the Stationers' what the authors really wanted the Company. Both these jurisdictions Act for, special penalties for infringerevelled in what is called summary ment. And there was peace in Grub process, which lawyers sometimes de Street for the space of twenty-one scribe as brevi manu, and suitors as years. But at the expiration of this “short shrift.” They haled before them period the fateful question was stirred the Mr. Thomas Teggs of the period, -what had happened to the old Comand fined them heavily and confiscated mon Law right in perpetuity? Did it their stolen editions. Authors and survive this peddling Act, or had it their assignees liked this. But then died, ingloriously smothered by a stacame Dutch William and the glorious tute? That fine old book-once on Revolution. The press was left free ; every settle—The Whole Duty of Man, and authors and their assignees were first raised the point. Its date of reduced to the dull level of unlettered
publication was 1657, so it had had persons; that is to say, if their rights its term of twenty one years. That were interfered with, they were com term having expired, what then? The pelled to bring an action, of the kind proceedings throw no light upon the called “trespass on the case,” and to vexed question of the book's authoremploy astute counsel to draw plead- ship. Sir Joseph Jekyll was content ings with a pitfall in each paragraph, with the evidence before him that, in and also to incur costs; and in most 1735 at all events, The Whole Duty cases, even when they triumphed over of Man was, or would have been but their enemy, it was only to find him a for the statute, the property of one pauper from whom it was impossible Mr. Eyre. He granted an injunction, to recover a penny. Nor had the Law thus in effect deciding that the old power
to fine the offender or to confis Common Law had survived the statute. cate the pirated edition ; or if it had Nor did the defendant appeal, but sat this last power, it was not accustomed down under the affront, and left The to exercise it, deemirg it unfamiliar Whole Duty of Man alone for the
future. Four years later there came court had ever finally differed since into Lord Hardwicke's court "silver Mansfield presided over it. Men felt tongued Murray,” afterwards Lord the matter could not rest there. Nor Mansfield, then Solicitor-General, and did it. Millar died, and went to his on behalf of Mr. Jacob Tonson moved own place. His executors put up for an injunction to restrain the pub- Thomson's Poems for sale by public lication of an edition of Paradise Lost. auction, and one Beckett bought them Tonson's case was that Paradise Lost for five hundred and five pounds. belonged to him, just as the celebrated When we remember that Millar only ewer by Benvenuto Cellini belonged gave two hundred and forty - two to the late Mr. Beresford Hope. He pounds, ten shillings, for them in proved his title, by divers mesne assign- 1729, and had therefore enjoyed more ments and other acts in the law, from than forty years exclusive Mrs. Milton-the poet's third wife, poly, we realise not only that Millar who exhibited such skill in the art of had made a good thing out of his widowhood, surviving her husband as brother Scot, but what great interests she did for fifty-three years. Lord were at stake. Thomson's Seasons, Hardwicke granted the injunction. It erst Millar's, now became Beckett's ; looked well for the Common Law. and when one Donaldson of Edinburgh Thomson's Seasons next took up the brought out an edition of the poems, wondrous tale. This delightful author, it became the duty of Beckett to take now perhaps better remembered by his proceedings, which he did by filing a charming habit of eating peaches off bill in the Court of Chancery. the wall with both hands in his pockets, These proceedings found their way, than by his great work, had sold the as all decent proceedings do, to the book to Andrew Millar, the bookseller House of Lords-farther than which whom Johnson respected because, said you cannot go though ever so minded. he, “ he has raised the price of litera It was now high time to settle this ture." If so, it must have been but question, and their lordships accordlow before, for he only gave Thomson ingly, as is their proud practice in a hundred guineas for Summer,Autumn, great cases, summoned the judges of and Winter, and some other pieces. the land before their bar and put to The Spring he bought separately, along them five carefully-worded questions, with the ill-fated tragedy, Sophonisba, all going to the points—what was for one hundred and thirty-seven the old Common Law right and has it pounds, ten shillings. A knave called survived the statute? Eleven judges Robert Taylor pirated Millar's Thom attended, heard the questions, bowed son's Seasons; and on the morrow of All and retired to consider their answers. Souls in Michaelmas, in the seventh On the fifteenth of February, 1774, year of King George the Third, Andrew they re-appeared, and it being anMillar brought his plea of trespass on nounced that they differed, instead of the case against Robert Taylor, and being locked up without meat, drink, gave pledges of prosecution, to wit or firing until they agreed, they were John Doe and Richard Roe. The case requested to deliver their opinions was recognised to be of great import with their reasons, which they straightance, and was argued at becoming way proceeded to do. The result may length in the King's Bench. Lord be stated with tolerable accuracy thus : Mansfield and Justices Willes and by ten to one they were of opinion Aston upheld the Common Law. It was, they declared, unaffected by the i Donaldson was a well-known man in Edinstatute. Mr. Justice Yates dissented, burgh. He was Boswell's first publisher, and and in the course of a judgment occupy
on one occasion gave that gentleman a dinner
consisting mainly of pig. Johnson's view of ing nearly three hours, gave some of
his larcenous proceedings is stated in the Life. his reasons.
It was the first time the Thurlow was his counsel in this litigation.