happened in the present case, that the author and his assignee together, have enjoyed the emolument of this work between thirty and forty years: and the plaintiff still has the manuscript. If a stranger had taken his manuscript from him, or had surreptitiously obtained a copy of his work, and printed it before him, he might then complain of injustice. And here lies the fallacy of this specious argument: It was put as if the author was totally robbed of the profit of his labour; as if all his emolument was forestalled, without suffering him to reap any emolument whatever. In that case, it would be the highest injustice. But when no such intrusion has been made upon his property; when he and his assigns have enjoyed the whole produce of his labour for twenty-eight years together and upwards, what ground can remain for accusing the defendant of immorality; or for the author or his assigns to say "he is robbed of the fruits of his labour.” . . .

As, therefore, this charge of injustice depends upon the event of the author's property (for if no right is invaded, no injury is done), — Let us now consider the general rules concerning property, and see whether this claim will coincide with any one of them.

The claim is to the style and ideas of the author's composition. And it is a well known and established maxim, (which I apprehend holds as true now, as it did 2000 years ago,) "That nothing can be an object of property, which has not a corporeal substance." There may be many different rights, and particular distinct interests in the same subject, and the several persons entitled to these rights may be said to have an interest in them; but the objects of them all, the principal subject to which they relate, or in which they enjoy, must be corporeal. And this, I apprehend, is no arbitrary ill-founded position, but a position which arises from the necessary nature of all property. For, property has some certain, distinct, and separate possession; the object of it, therefore, must be something visible. I am speaking now, of the object to which all rights are confined. There must be something visible, which has bounds to define it, and some marks to distinguish it. And that is the reason why these great marks are laid down by all writers-it must be something that is visibly and distinctly enjoyed; that which is capable of all the rights and accidents, and qualities incident to property; and this requires a substance to sustain them.

But the property here claimed is all ideal; a set of ideas which have no bounds or marks whatever, nothing that is capable of a visible possession, nothing that can sustain any one of the qualities or incidents of property. Their whole existence is in the mind alone; incapable of any other modes of acquisition or enjoyment, than by mental possession or apprehension, safe and invulnerable, from their own immateriality; no trespass can reach them, no tort affect them, no fraud or violence diminish or damage them. Yet these are the phantoms which the author would grasp and confine to himself: and these are

what the defendant is charged with having robbed the plaintiff of. . . . Here, the maxim occurs which I have mentioned before, (a) That nothing can be an object of property, which is not capable of a sole and exclusive enjoyment. . . . The quotation from the Institutes relating to wild animals, is very applicable to this case. They are yours, while they continue in your possession, but no longer. So, from the time of publication, the ideas become incapable of being any longer a subject of property; all mankind are equally entitled to read them, and every reader becomes as fully possessed of all the ideas, as the author himself ever was. . .

But in the argument, it was contended, "that the author gives nothing to the public but the mere perusal of it, and still preserves the perpetual right to the work"; "that an author's publishing and selling a book is only like giving the buyers so many keys to a gate, or tickets to an opera"; "that those were only given for the parties themselves, but would not entitle them to forge other keys or tickets."

To this the answer is, I think, easy and evident. If the author had not published his work at all, but only lent it to a particular person, he might have enjoined that particular person "that he should only peruse it" because, in that case, the author's copy is his own; and the party to whom it is lent contracts to observe the conditions of the loan; but when the author makes a general publication of his work, he throws it open to all mankind. That is, then, very different from the case of giving keys or tickets to particular persons. The very condition of giving them is the exclusion of all other persons. And these keys or tickets give the party to whom they are given no property to the land they pass through, or to the opera house; they are given them for a particular time, and to give them a transient admission, a temporary privilege only. It is like an author's lending his manuscript to particular friends, who still retains the right over it, to recall it whenever he pleases. But when an author prints and publishes his work, he lays it entirely open to the public, as much as when an owner of a piece of land lays it open into the highway. Neither the book, nor the sentiments it contains, can be afterwards recalled by the author. Every purchaser of a book is the owner of it; and, as such, he has a right to make what use of it he pleases. . .

Therefore, it appears to me, that this claim of a perpetual monopoly, is by no means warranted by the general principles of property: and from hence I should have thought that it could not be a part of the common law of England.

But I will now consider the second general ground, upon which this perpetual copyright was argued at the bar: namely, the supposed usage and law of this kingdom. . . It was said, "that this statute of Queen Anne was merely declaratory of a common-law right; and that it was accumulative, and only introduced some additional remedies." But to me, from the title quite to the end of this Act, it seems very clearly

to be a declaration "that no such right exists at common law." The Act seems to me, manifestly designed to vest the property in the author and publisher during the time limited and prescribed by it. The design seems plainly and professedly to be, to give encouragement to learning by some new advantage; namely, by vesting the copy in the author and publisher during a certain time. The title is, "An Act for the encouragement of learning, by vesting the copies of printed books in the authors or purchasers of such copies, during the time therein mentioned," and by the enacting clauses, there is a right given in those already printed, for twenty-one years from the 10th of April, 1710. Does not this plainly imply, that they had no such right before the 10th of April, 1710?... The Legislature have provided the proper encouragements for authors and, at the same time, have guarded against all these mischiefs. To give that legislative encouragement a liberal construction, is my duty as a judge; and will ever be my own most willing inclination. But it is equally my duty, not only as a judge, but as a member of society, and even as a friend to the cause of learning, to support the limitations of the statute.

I shall therefore conclude, in the words of the Act of Parliament, “That the author or purchaser of the copy shall have the sole right for the particular term which the statute has granted and limited, but no longer": and consequently, that the plaintiff who claims a perpetual and unbounded monopoly, has no legal right to recover.

Lord MANSFIELD, (not intending to go into the argument) said— This is the first instance of a final difference of opinion in this Court since I sat here. Every order, rule, judgment, and opinion, has hitherto been unanimous.1

That unanimity never could have happened, if we did not among ourselves communicate our sentiments with great freedom; if we did not form our judgments without any prepossession to first thoughts; if we were not always open to conviction, and ready to yield to each other's reasons. . . . We have equally tried to convince, or be convinced, but in vain. We continue to differ. And whoever is right, each is bound to abide by, and deliver that opinion which he has formed upon the fullest examination. . . . 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.

1 Except in this, and one other case now depending (by writ of error) in the House of Lords, where Mr. Justice Yates differed from the other three, every rule, order, judgment and opinion, has, to this day, been, (as far as I can recollect,) unanimous. This gives weight and despatch to the decisions, certainty to the law, and infinite satisfaction to the suitors: and the effect is seen by that immense business which flows from all parts into this channel; and which we, who have long known Westminster Hall, behold with astonishment: the rather, as during this period, all the other courts have been filled with judges of unquestionable integrity, eminent talents, and distinguished abilities. - REP.

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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 whatsoever. . . . 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 subtilities 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 of questions may be asked upon the copy before publication..

From what source, then, is the common law drawn, which is admitted to be so clear, in respect of the copy before publication? From this argument because it is just, that an author should reap the pecuniary profits of his own ingenuity and labour. It is just, that another should not use his name without his consent. It is fit, that he should judge when to publish, or whether he ever will publish. It is fit, he should not only choose the time, but the manner of publication, how many, what volume, what print. It is fit, he should choose to whose care he will trust the accuracy and correctness of the impression; to whose honesty he will confide not to foist in additions; with other reasonings of the same effect. I allow them sufficient to show "it is agreeable to the principles of right and wrong, the fitness of things, convenience and policy, and therefore to the common law, to protect the copy before publication."

But the same reasons hold, after the author has published. He can reap no pecuniary profit, if, the next moment after his work comes out,

it may be pirated upon worse paper, and in worse print, and in a cheaper volume. . . . There is no peculiar objection to the property after, except, "that the copy is necessarily made common, after the book is once published." Does a transfer of paper upon which it is printed, necessarily transfer the copy, more than the transfer of paper upon which the book is written? . . . The author does not mean to make it com on and if the law says "he ought to have the copy after publication," it is a several property, easily protected, ascertained, and secured.

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The whole then must finally resolve in this question, "whether it is agreeable to natural principles, moral justice, and fitness, to allow him the copy, after publication, as well as before." The general consent of this kingdom, for ages, is on the affirmative side. The legislative authority has taken it for granted, and interposed penalties to protect it for a time.

1

I always thought the objection from the Act of Parliament the most plausible. It has generally struck at first view. But, upon consideration, it is, I think, impossible, to imply into this Act an abolition of the common-law right, if it did exist; or a declaration "that no such right ever existed." The word "vesting" in the title, cannot be argued from, as declaratory "that there was no property before." The title is but once read; and is no part of the Act. In the body the word "secured" is made use of.

Had there been the least intention 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 a right at the common law. .

3

Therefore my opinion is "That judgment be for the plaintiff." And it must be entered as on the day of the last argument of this case at the bar.

A writ of error was afterwards brought; but the plaintiff in error, after assigning errors, suffered himself to be non-prossed. And the Lords Commissioners, after Trinity Term, 1770, granted an injunction.

ORDERED, That the judges be directed to deliver their opinions upon the following questions; viz.

1. Whether at common law, an author of any book or literary com1 8 Anne, c. 19. 2 V. title "by vesting," &c.

V. ante, p. 2303.