of the four judges in Millar v. Taylor, was intended expressly to save the common-law right, and to guard against the possibility of the statute being construed to take away that right. Section 9 declared "that nothing in this act contained shall extend, or be construed to extend, to prejudice or confirm any right that the said universities, or any of them, or any person or persons, have, or claim to have, to the printing or reprinting any book or copy already printed or hereafter to be printed." "It has been said," remarked Mr. Justice Aston, "that this was inserted that the rights which the universities or others had under letters-patent might not be affected. There can be no ground for this; for the act does not at all meddle with letters-patent, or enact a title that could either prejudice or confirm them. This proviso seems to be the effect of extraordinary caution that the rights of authors at common law might not be affected; for, if it had not been inserted, I apprehend clearly, they could not have been taken away by construction, but the right and the remedy would still remain unaffected by the statute." 1

If the reasoning which has here been followed be correct, the only sound conclusions are these:

1 4 Burr. 2352. "Had there been the least intention," said Lord Mansfield, "to take or declare away every pretence of right at the common law, it would have been expressly enacted, and there must have been a new preamble, totally different from that which now stands. But the legislature has not left their meaning to be found out by loose conjectures. The preamble certainly proceeds upon the ground of a right of property having been violated, and might be argued from as an allowance or confirmation of such right at the common law. The remedy enacted against the violation of it, being only temporary, might be argued from as implying there existed no right but what was secured by the act. Therefore, an express saving is added, that nothing in this act shall extend or be construed to extend to prejudice or confirm any right,' &c.; any right' is manifestly any other right than the term secured by the act. The act speaks of no right whatsoever but

that of authors, or derived from them: no other right could possibly be prejudiced or confirmed by any expression in the act. The words of the saving are adapted to this right: 'Book or copy already printed, or hereafter to be printed.' They are not applicable to prerogative copies. If letters-patent to an author or his assigns could give any right, they might come under the generalty of the saving. But so little was such a right in the contemplation of the legislature, that there is not a word about patents in the whole act. Could they have given any right, it was not worth saving; because it never exceeded fourteen years." Ibid. 2406.

Literary property, like all property, has its origin in natural law, and not in legislation; it is, therefore, a natural and not an artificial right.

It has the same general attributes, is governed by the same general principles, and is subject to the same general conditions, that obtain in the case of all property.

Its ownership, like that of all property, is transferred only with the consent of the owner. It is no more lost by publication than the ownership of land is lost by a grant of the privilege of hunting, felling timber, or digging minerals, within its borders. The legislature may rightfully interfere with it, only as it may interfere with other property.

In passing the statute of Anne, Parliament did not intend to destroy or prejudice the common-law rights and remedies of authors. The judicial interpretation given to that act by the House of Lords, in 1774, is contrary not only to right and justice, but to the true purpose and meaning of the statute as determined by settled rules of construction.

JUDICIAL HISTORY RELATING TO THE ORIGIN AND NATURE OF

LITERARY PROPERTY.

A review of the judicial history of this subject will show that common-law copyright in published works was recognized by the English courts until 1774; that this principle has been maintained by many of the most learned British jurists; and that the decisions which support the prevailing doctrine rest on one disputed precedent, like a pyramid on its

apex.

Prior to the statute of Anne, authors had a perpetual property in their works, by the common law. During half a century after this statute was passed, its meaning was not disputed; it being generally understood that the only purpose and effect of the act was to provide a cumulative remedy against piracy. The Court of Chancery proceeded uniformly on this assumption, and granted, between 1735 and 1752, not fewer than five injunctions restraining piracy of printed books not protected by the statute.2 The injunctions were granted and

1 See History of Literary Property, Walthoe v. Walker, Tonson v. Walker, post, pp. 58-68. cited 4 Burr. 2325; Tonson v. Walker, Eyre v. Walker, Motte v. Falkner, 3 Swans. 672.

acquiesced in on the ground that the ownership of literary property was perpetual by the common law, and had not been taken away or abridged by the statute. These were equity decisions; but, in speaking of their weight, Lord Mansfield said that "the judicial opinions of those eminent lawyers and great men who granted or continued injunctions, in cases after publication, not within 8 Queen Anne, uncontradicted by any book, judgment, or saying, must weigh in any question of law; much more in a question of mere theory and speculation as to what is agreeable or repugnant to natural principles. I look upon these injunctions as equal to any final decree." "The whole jurisdiction exercised by the Court of Chancery since 1710," said Mr. Justice Willes in 1769," against pirates of copies, is an authority that authors had a property antecedent to which the act gives a temporary additional security." 2

In 1760, the plea was first raised in an English court of law, that the purpose and effect of the statute of Anne were to give to authors a limited monopoly in their productions; that copyright had been created by the statute, and existed only by virtue of it; and that no author had an exclusive right to his book after publication, and consequently no remedy against piracy, except under the statute. This theory found no favor with the judges, who had not, however, the opportunity to expose its unsoundness; for the case was discovered to be one of collusion, and was therefore thrown out of court. But all of the judges are known to have favored the plaintiff.3

1 Millar v. Taylor, 4 Burr. 2399. They considered the act," said Lord Mansfield, "not as creating a new offence, but as giving an additional security to a proprietor grieved; and gave relief without regard to any of the provisions in the act, or whether the term was or was not expired. No injunction can be obtained till the court is satisfied that the plaintiff has a clear legal right. And where, for the sake of the relief, the Court of Chancery proceeds upon a ground of common or statute law, their judgments are precedents of high authority in all the courts of Westminster Hall." Ibid.

2407.

2 Ibid. 2323.

3 Tonson v. Collins, 1 W. Bl. 301, 321. "I have been informed, from the best authority, that, so far as the court had formed an opinion, they all inclined to the plaintiff." Willes, J., Millar v. Taylor, 4 Burr. 2327. In 1765, doubtless in consequence of the legal questions raised but not decided in Tonson v. Collins, the Lord Chancellor dissolved the injunction which had been granted against the publication of a book in which the copyright had expired. Osborne v. Donaldson, and Millar v. Donaldson, 2 Eden, 328. As early as 1748, it was held in Scotland that copyright in a published book

Soon after, the same plea was again offered in defence of piracy. The fact that this was a bold attack upon the citadel of literary property; that the work in controversy was Thomson's Seasons; that in the contest were the first lawyers of the English bar; that Lord Mansfield, then in the noon of his fame, as Chief Justice of the King's Bench, presided over the trial, make the case of Millar v. Taylor one of the most important, as it is one of the most famous, in the English reports. The action was brought in 1766, and was decided by the Court of King's Bench in 1769.1 The copyright secured by the statute of Anne had expired. The direct issue was raised, whether a right of property in a published work was given by the common law.

The origin and nature of literary property were discussed by the judges in the most elaborate opinions that have ever been pronounced on the subject. The questions considered were: 1. Whether intellectual productions have the attributes of property; 2, whether the exclusive right of an author to multiply copies of his book existed by the common law, and had been recognized prior to the statute of Anne; 3, whether this right is lost by publication; 4, whether it had been taken away or abridged by the statute of Anne.

Three of the four judges-Lord Mansfield, and Justices Aston and Willes-maintained, with a degree of learning and thoroughness that has not since been equalled in the examination of this question, that literary property did exist by the common law, and that its ownership was neither lost by publication nor abridged by the statute of Anne. Their opinions were founded on the general principle underlying all property, that the laborer is entitled to enjoy the fruits of his labor, whether manual or mental; that the common law existence of literary property was attested by the history of two centuries; that the author's rights could not be prejudiced by publication, which was the only means of rendering his property useful or

did not exist by the common law independently of the statute of Anne. Midwinter v. Hamilton, 10 Mor. Dict. of Dec. 8295; on ap. (Midwinter v. Kincaid) 1 Pat. App. Cas. 488. To the same effect are Hinton v. Donaldson,

decided in 1773, 10 Mor. Dict. of Dec. 8307; Cadell v. Robertson (1804), Ibid. Lit. Prop. App. 5; on ap. (1811) 5 Pat. App. Cas. 493.

1 4 Burr. 2303.

valuable; that the obvious intent of the legislature in framing the act of Anne was to provide a cumulative remedy against piracy, without disturbing the existing right of literary property; and that there was nothing in the act to indicate that such was not its sole object and effect. The sound and enlightened views expressed by Lord Mansfield may well be quoted here:

"From premises either expressly admitted, or which cannot and therefore never have been denied, conclusions follow, in my apprehension, decisive upon all the objections raised to the property of an author in the copy of his own work, by the common law. I use the word 'copy' in the technical sense in which that name or term has been used for ages, to signify an incorporeal right to the sole printing and publishing of somewhat intellectual communicated by letters. It has all along been expressly admitted that by the common law an author is entitled to the copy of his own work until it has been once printed and published by his authority; and that the four cases in chancery cited for that purpose are agreeable to the common law; and the relief was properly given in consequence of the legal right. The property in the copy thus abridged is equally an incorporeal right to print a set of intellectual ideas or modes of thinking, communicated in a set of words and sentences and modes of expression. It is equally detached from the manuscript, or any other physical existence whatso

ever.

"No disposition, no transfer, of paper upon which the composition is written, marked, or impressed, though it gives the power to print and publish, can be construed a conveyance of the copy, without the author's express consent to print and publish, much less against his will. The property of the copy thus narrowed may equally go down from generation to generation, and possibly continue for ever, though neither the author nor his representatives should have any manuscript whatsoever of the work, original, duplicate, or transcript. . . .

"If the copy belongs to an author after publication, it certainly belonged to him before. But, if it does not belong to him after, where is the common law to be found which says there is such a property before? All the metaphysical subtleties from the nature of the thing may be equally objected to the property before. It is incorporeal; it relates to ideas detached from any physical existence. There are no indicia; another may have had the same thoughts upon the same subject, and expressed them in the same language, verbatim. At what time and by what act does the property commence? The same string