sale of an edition! All our learning will be locked up in the hands of the Tonsons and the Lintons of the age, who will set what price upon it their avarice chooses to demand, till the public become as much their slaves as their own hackney compilers are." 1 It would seem that this extravagant speech would have moved the peers only to disgust; that the highest judicial tribunal of England, deliberating on one of the greatest questions ever brought before it, would have been guided by the pure principles which had been so forcibly expounded by the Chief Justice and the profoundest jurists of England, rather than by the fallacious theories of Judge Yates and the Sophomoric rhetoric of Lord Camden. But it was not so. Contrary to right and reason, it declared that literary property may be lost by the only act publication which renders it useful; contrary to the intention of that body, as it had been judicially interpreted for half a century, it decided that Parliament, in legislating" for the encouragement of learned men to compose and write useful books," meant to afford such encouragement by taking from authors far more than it gave to them; contrary to these and other considerations, it fixed in English jurisprudence an unjust law, which has ruled the legislatures and courts of England and America for a century. It would be natural to suppose that if the House of Lords had been moved by a sincere desire to reach the truth, to ascertain what the law really was, to rest their judgment on a foundation of rock, they would have sought the opinion of that chief justice sitting in their presence whose profound knowledge of the law had given honor to English jurisprudence in every country of Europe; whom Lord Campbell pronounced "the brightest ornament to the profession of the law that appeared in England during the last century; "2 who, in the language of Lord Thurlow, himself a great jurist, was "a surprising man; ninety-nine times out of a hundred, he was right in his decisions and opinions; and, when once in a hundred times he was wrong, ninety-nine men out of a hundred would not discover it."8 1 17 Cobb. Parl. Hist. 999. 2 4 Lives of the Chief Justices, 13. 471. Lord Chatham, long the political opponent of Lord Mansfield, comparing him with those great jurists, Nor was this mere rhetoric. For it is a matter of history that, of the many thousand judgments pronounced by him during the third of a century that he was chief justice of the Court of King's Bench, all but two received the unanimous approval of his associate judges; and, what is still more remarkable, only two were reversed on appeal to a higher tribunal; and, what is more extraordinary still, in all this time, when among the political opponents who argued causes before him were such lawyers as Dunning and Erskine, there never was a bill of exceptions tendered to his direction. And yet among his judgments were many that have become historic. When the law was yet unsettled, he proclaimed from the English bench that the owner's title to a wreck, when no living thing had come to the shore, was superior to that claimed by the king; that governors of English provinces must answer in English courts for wrongful acts against individuals; that Turks, Hindoos, men of every creed, might be sworn as witnesses in English courts, according to the forms of their own religion; that "Slaves cannot breathe in England: if their lungs They touch our country and their shackles fall." Errare, mehercule, malo cum Platone quam cum istis vera sentire. Rightly, then, did the continental lawyers place the bust of Lord Mansfield beside those of Grotius and D'Aguesseau.2 Somers and Holt, said: "I vow to God, I think the noble lord excels them both in abilities." 13 Campbell's Lives of the Chief Justices (4 vols., London), 265, 266. ? Probably no English judge of the last century studied the subject of literary property so thoroughly as did Lord Mansfield. In concluding his opinion in Millar v. Taylor, 4 Burr. 2407, he said: "The subject at large is exhausted, and therefore I have not gone into it. I have had frequent opportunities to consider of it. I have travelled in it for many years. I was counsel in most of the cases which had been cited from Chancery; I have copies of all from the Register Book. The first case of Milton's Paradise Lost was upon my motion. I argued the second, which was solemnly argued by one on each side. I argued the case of Millar against Kincaid, in the House of Lords. Many of the precedents were tried by my advice. The accurate and elaborate investigation of the matter in this cause, and in the former case of Tonson and Collins, has confirmed me in what I always inclined to think, that the Court of Chancery did right in giving relief upon the foundation of a legal property in authors, independent of the entry, the term for years, and all the other provisions annexed to the secu rity given by the act.” - That the peers did not seek light from this pure source, that they did not follow the safe counsel of that great teacher of law, Sir William Blackstone, is as little to their credit as the unsound and unjust law they proclaimed. And Lord Mansfield himself has been justly censured, that at this, the greatest crisis in the history of literary property, he allowed a trivial matter of etiquette to prevent him from repeating and emphasizing those unanswerable arguments on which his great judgment of five years before rested. Perhaps he did not realize that the grand structure of literary property was in danger of falling, -that his peers could be moved by the empty declamation of Lord Camden to set aside the authority of two centuries, and proclaim a doctrine condemned by the best lawyers of England. The only question decided in Donaldson v. Becket, in conformity with the expressed opinions of a majority of the judges, was that the common-law copyright in a book after publication in print was taken away by the statute of Anne. On this point alone the House of Lords can be rightly said to have overruled the judgment in Millar v. Taylor. Two-thirds of the judges who advised the Lords, or three-fourths including Lord Mansfield, held to the doctrine that, in the absence of any statute, literary property exists by the common law, and is not lost or prejudiced by publication. There is nothing in the judgment of the House of Lords to unsettle this doctrine, or to overrule the authority of Millar v. Taylor as far as it affirmed it. On the other hand, the decision in Donaldson v. Becket, that common-law copyright in published works was taken away by the statute of Anne, necessarily implied the existence of that right.1 The judgment rendered by the House of Lords in 1774 has continued to represent the law; but its soundness has been questioned by very high authorities. In delivering the opinion. of the full bench of the Court of Exchequer in 1851, in Boosey V. 1 Referring, in the House of Lords, ever, reversed the decree under appeal, to the judgment in Donaldson in accordance with the opinion given Becket, and the different opinions on the main point by the majority of expressed by the judges on the ques- the judges; and, upon the general tions, whether there was copyright at question of literary property at comcommon law, and whether it had been mon law, no judgment whatever was taken away by the statute, Lord pronounced." Jefferys v. Boosey, 4 Brougham said: "This House, how. H. L. C. 961. v. Jefferys, Lord Campbell said: "The first question discussed before us was whether authors have a copyright in their works at common law. This is not essential for our determination of the present case. If it were, we are strongly inclined to agree with Lord Mansfield and the great majority of the judges, who, in Millar v. Taylor and Donaldson v. Becket, declared themselves to be in favor of the common-law right of authors."1 And when the same case came before the House of Lords, in 1854, although the consideration of this subject was not essential to the determination of the issue before the house, Mr. Justice Erle delivered an elaborate argument in support of the doctrine maintained by Lord Mansfield.2 Mr. Justice Coleridge gave expression to similar views, and added: "If there was one subject more than another upon which the great and varied learning of Lord Mansfield, his special familiarity with it, and the philosophical turn of his intellect, could give his judgment peculiar weight, it was this. I require no higher authority for a position which seems to me in itself reasonable and just."3 In the Scotch case of Cadell v. Robertson, decided by the Court of Session in 1804, Lord Monboddo, dissenting from the opinions of his colleagues, maintained that copyright existed in a published work by the common law, and was not taken away by the statute of Anne. In the United States, the authorities have been divided not less than in England, regarding the origin and nature of literary property. Indeed, the doctrines there prevalent have ruled our courts. In 1834, it became the duty of the Supreme Court of the United States, in the case of Wheaton v. Peters, to declare the meaning of the law of 1790, and to determine the same question that had been decided by the Court of King's Bench in 1769, and by the House of Lords in 1774; viz., whether copyright in a published work existed by the common law, and, if so, whether it had been taken away by statute. The court held that the law had been settled in England to the effect that, since the passing of the 8 Anne, c. 19, an author had no right in a published work excepting that secured by statute; that there 16 Exch. Rep. 592. 2 Jefferys v. Boosey, 4 H. L. C. 866-877. 8 Ibid. 903. 45 Pat. App. Cas. 518. was no common law of the United States, and that the common law as to copyright had not been adopted in Pennsylvania, in which State the cause of action before the court arose; that, by the copyright statute of 1790, Congress did not affirm an existing right, but created one.1 This judgment, like that of the House of Lords in Donaldson v. Becket, which was followed, rests on a divided opinion of the judges. Three agreed with Mr. Justice McLean, who delivered the opinion of the court, two dissented, and one was absent. In opposing the opinion of the majority, Justices Thompson and Baldwin expounded the true principles governing literary property, with a clearness and force, a comprehensive grasp, that recall the great arguments on this question by Sir William Blackstone, Lord Mansfield, and Justices Aston and Willes. Their opinions are among the most masterly to be found on the subject of copyright. Mr. Justice Thompson based his argument on the firm ground, that "the great principle on which the author's right rests is, that it is the fruit or production of his own labor, and that labor by the faculties of the mind may establish a right of property as well as by the faculties of the body." "Whether literary property," he added, "is sui generis, or under whatever denomination of rights it may be classed, it seems founded upon the same principle of general utility to society which is the basis of all other moral rights and obligations. Thus considered, an author's copyright ought to be esteemed an inviolable right established in sound reason and abstract morality."2 He then maintained that the right of an author in his published works was recognized and protected as property by the common law in this country; that it was farthest from the intention of Congress, in legislating for the "encouragement of learning," to take away or abridge that right; and that the statute could not be properly construed to have that effect. "Congress having before them," he said, "the statute of Anne, and apprised of the doubt entertained in England as to its effect upon the 1 8 Pet. 591, 654. published report of Wheaton v. Peters, 2 Ibid. 670, 672. The language 110, 112. quoted is taken from the separately |