great species of property which the law has left without that protection to which it is entitled. Even to inventions a protection is guaranteed by the United States which is denied to literature; for our laws make no distinction between a native and a foreign applicant for a patent, while the works of a foreign author are laid open to piracy. The manufacturers, farmers, and manual laborers of England and the United States toil in the confidence that the fruits of their industry will be protected and shielded for their children by the same law that defends their lives and liberties. The maker of a piece of cloth, a box, a wagon, or a house, has therein a title whose duration is not limited. His property is protected because it is the product of his labor. But time and money spent in producing a work of

and, in the mean time, the estate being notoriously infested with poachers, is as remarkably unprotected by gamelaws. An author's winged thoughts, though laid, hatched, bred, and fed within his own domain, are less his property than is the bird of passage that of the lord of the manor on whose soil it may happen to alight. An author cannot employ an armed keeper to protect his preserves; he cannot apply to a pinder to arrest the animals that trespass on his grounds; nay, he cannot even call in a common constable to protect his purse on the king's highway! I have had thoughts my self of seeking the aid of a policeman, but counsel learned in the law have dissuaded me from such a course: there was no way of defending myself from the petty thief but by picking my own pocket! Thus I have been compelled to see my own name attached to catchpenny works, none of mine, hawked about by placard-men in the street; I, who detest the puffing system, have apparently been guilty of the gross forwardness of walking the pavement by proxy for admirers, like the dog Bashaw! I have been made, nominally, to ply at stage-coach windows with my wares, like Isaac Jacobs with his cheap pencils, and Jacob Isaacs with his cheap penknives to cut them with; and without redress.

For whether I had placed myself in the hands of the law, or taken the law in my own hands, as any bumpkin in a barn knows, there is nothing to be thrashed out of a man of straw. Now, with all humility, if my poor name be any recommendation of a book, I conceive I am entitled to reserve it for my own benefit. What says the proverb? 'When your name is up, you may lie abed.' But what says the law; at least, if the owner of the name be an author? Why, that any one may steal his bed from under him, and sell it; that is to say, his reputation, and the revenue which it may bring.

"In the mean time, for other street frauds there is a summary process. The vender of a flash watch, or a razor 'made to sell,' though he appropriates no maker's name, is seized without ceremony by A 1, carried before B 2, and committed to C 3, as regularly as a child goes through its alphabet and numeration. They have defrauded the public, forsooth, and the public has its prompt remedy; but for the literary thus doubly robbed of his money and his reputation, what is his redress but by injunction, or action, against walking shadows?—a truly homœopathic remedy, which pretends to cure by aggravating the disease." 6 Hood's Works (10 vols. London), 381.

man,

literature capable of doing good to men through all coming time, give to the producer no title beyond a brief term of years. If Tennyson or Darwin, Emerson or Worcester, had spent their lives in making bricks, digging for gold, or hunting for diamonds, no English law would deny them everlasting title to the products of their industry.

The law which puts an arbitrary terminus on the ownership of literary property is the same in principle with one that would abridge the farmer's right to his orchards and grainfields. If there were the remotest danger that this principle would ever be applied to material possessions, every English tongue would clamor for a new Magna Charta. Its actual application would raise every Saxon hand in rebellion. And yet, for a century, the same principle has been applied with impunity to a species of property no less valuable, no less inviolable.1 To-day the English nation says to its greatest poet: "Queen Mary shall be yours for forty-two years, and no longer." If the same genius had made a beer-barrel, his title to it would run against all future time. To take from one and give to all is not less communism in the case of literary property than it is in that of any other kind of property. There is still too much truth in Thomson's words:

"Is there no patron to protect the Muse,

And fence for her Parnassus' barren soil?

To every labor its reward accrues,

And they are sure of bread, who swink and moil :

But a fell tribe the Aonian hive despoil,

As ruthless wasps oft rob the painful bee;

Thus while the laws not guard that noblest toil,

Ne for the Muses other meed decree,

They praised are alone, and starve right merrily."

During this century, the progress in legislation has been steady toward a juster recognition of the rights of authors. In England, the absolute duration of copyright has, by two exten

1 "We should be all shocked if the law tolerated the least invasion of the rights of property in the case of merchandise; whilst those which justly belong to the works of authors are exposed to daily violation, without the

possibility of their invoking the aid of the laws." Report in favor of international copyright, submitted to the United States Senate by Henry Clay, in 1837. 2 Senate Documents, 24th Cong. 2d Sess. (1836-37), Rep. No. 179.

sions, been made three times greater than it was before 1814. The exclusive right of dramatists and composers to represent their productions on the stage has been recognized and protected by statute. Statutory protection has been provided for works of art. Foreign authors and dramatists have been admitted to the privileges of the English laws. The nation is now, doubtless, on the eve of another important advance toward a higher recognition and better protection of property in intellectual productions. The Royal copyright commissioners, whose report was submitted to Parliament in June, 1878, recommend that the duration of copyright be enlarged; that all works be effectively protected against piratical translation, abridgment, and dramatization; and that the same privileges provided for Englishmen be given to foreign authors. The International Literary Congress, which was called together by the Société des Gens de Lettres de France, and met in Paris in June, 1878, under the presidency of Victor Hugo, affirmed the principle that the right of an author to his intellectual productions is a species of property whose ownership is unlimited in duration, and declared that in all countries better protection should be provided for the fruits of literary labor. Similar good signs are to be found in the judicial treatment of questions relating to copyright. While authors have suffered much from narrow and unsound decisions, there are many recent cases in which the courts have risen to a high level in determining rights of literary property, and there are indications. that such rights will be better understood and recognized in the future than they have been in many instances in the past.

The progress of legislation and jurisprudence is constantly uprooting bad laws. The light of to-day shows the mistakes of yesterday. The errors of to-day will be exposed by the enlightenment of to-morrow. Progress is fatal to wrong. Time alone will show whether the grand principles governing literary property so well expounded by Lord Mansfield and other great jurists will again prevail; whether the judgment proclaimed by the Court of King's Bench in 1769 will again be recognized as the true law; whether the truth will again become clear to all, as it was to Mr. Justice Thompson when he said, "Every principle of justice, equity, morality, fitness, and sound policy, con

curs in protecting the literary labors of men to the same extent that property acquired by manual labor is protected;"1 and as it was to Mr. Justice Baldwin when he maintained, that "to place the proprietors of literary property on a worse footing in courts of equity than the owners of other property would not only be subversive of all principles of justice, but in direct repugnance to the spirit of the Constitution and laws."2 But, until these things shall come to pass, an inviolable right will be denied to men of letters.3

HISTORY OF LITERARY PROPERTY.

THE history of literary property in England may be traced with satisfactory precision through this and the preceding century; but beyond that the recorded facts are of doubtful import, and their interpretation has given rise to conflicting opinions. It has been claimed, that since the introduction of printing into England, in the latter half of the fif teenth century, the right of publishing and selling a literary production has existed as a species of property.1 There is, however, no direct evidence that copyright was recognized by the law as a species of private property before 1558. In 1534, Henry VIII. granted to the University of Cambridge the right of printing certain books, in which the crown claimed à prerogative right. Afterward, patents cum privilegio were granted to individuals. From the middle of the sixteenth to the close of the seventeenth century, numerous decrees, ordinances, and acts, relating to the publication of books, were passed; but what was their relation to literary property, or their effect upon the rights of authors, cannot be determined with precision.

Decrees were promulgated by the Star Chamber in 1556, 1585, 1623, and 1637, regulating the number of presses and the manner of printing throughout the kingdom, providing for the licensing of printing, and prohibiting the publication and importation of unlicensed books.3 Ordinances and acts for

1 The date of the introduction of printing into England has been a subject of dispute. According to the generally received account, the art was brought from Holland by John Caxton, about 1471; but it has also been claimed to have been first practised at Oxford, in 1468.

2 Baskett v. University of Cambridge, 1 W. Bl. 105.

3 In 1556, by a decree of the Star Chamber, it was forbidden, among other things, to print contrary to any ordinance, prohibition, or commandment in any of the statutes or laws of the realm; or in any injunction, letters