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PART II: THE COMMON LAW OF ENGLAND. (VOL. I) - Lysander Spooner, The Law of Intellectual Property; or An Essay on the Right of Authors and Inventors to a Perpetual Property in their Ideas 
The Law of Intellectual Property; or An Essay on the Right of Authors and Inventors to a Perpetual Property in their Ideas (Boston: Bela Marsh, 1855).
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THE COMMON LAW OF ENGLAND. (VOL. I)
THE COMMON LAW OF ENGLAND RELATIVE TO INTELLECTUAL PROPERTY.
What is the Common Law of England?
In order to determine whether the Common Law of England sustains the right of authors and inventors to an absolute and perpetual property in their ideas, it is only necessary to determine what the Common Law of England really is.
To many unprofessional readers, the term Common Law will convey no very certain or precise idea; and as I am anxious that they should fully understand this discussion, at every step, I shall define the term more at length than would otherwise be necessary.
The Common Law of England, then, with a few exceptions, which are wholly immaterial to the question of intellectual property, consists of, and is identical with, the simple principles of natural justice. In ancient times, it was often called “right,” “common right,” and sometimes “common justice.” Magna Charta calls it “justice and right.” It is what unprofessional men have in mind when they speak of their “rights;” of “justice;” of men’s “natural rights,” &c. It is the principle, or rule, which rightfully determines what is one man’s property, and what is another’s. It is often called the science of mine and thine; meaning thereby the science, by which we ascertain what is rightfully one man’s, and what is rightfully another’s. It is the principle, which an honest man appeals to, when he says, this thing is mine, and such are my “rights.” It is that rule of judgment and decision, which impartial men usually, naturally, and intuitively perceive to be just, for the settlement of controversies between individuals in regard to their rights. It is the same principle, which writers on law usually call the law of nature, and the universal law. It is that natural law of justice, which Cicero says is the same at Rome and at Athens, the same to-day and to-morrow, and which neither the senate nor the people can abrogate. It is that natural and universal law of justice, which, over all the world, among civilized and savage men alike, is acknowledged as the obligatory rule of adjudication, in all legal controversies whatsoever, except those few, in regard to which some special or peculiar institution or enactment has been arbitrarily established to the contrary, by particular governments or people. It is the law, of which Sir William Jones speaks, when he says, “It is pleasing to remark the similarity, or rather the identity, of those conclusions, which pure unbiassed reason, in all ages and nations, seldom fails to draw, in such juridical inquiries as are not fettered and manacled by positive institutions.”* Kent says of it, “The Common Law includes those principles, usages, and rules of action, applicable to the government and security of person and property, which do not rest for their authority upon any express and positive declaration of the will of the legislature. A great proportion of the rules and maxims, which constitute the immense code of the Common Law, grew into use by gradual adoption, and received the sanction of the courts of justice, without any legislative act or interference. It was the application of the dictates of natural justice and cultivated reason to particular cases.”†
The Common Law, or the law of nature, is often called “the perfection of reason;” meaning thereby the conclusions, to which the highest reason has arrived, in its searches after the true principles of justice.
It will be seen from what has been stated, that, with the exceptions before alluded to,* the Common Law, or, what is the same thing, the law of nature, is a science, as much so as any of the other sciences. It is the science of justice, as mathematics is the science of numbers and quantities. As a science, it is applicable to all the infinity of relations, in which men can stand to each other, and to each other’s properties; and determines what are their respective rights, or what, in justice, belongs to one, and what to another. Like mathematics, it consists of certain elementary principles, the truth and justice of which are so nearly self-evident as to be readily perceived by nearly all persons of common understandings. And all the difficulty of settling new questions at Common Law, arises from the fact that every new law question depends upon a new state of facts, which call for new combinations, or applications, of these elementary principles; just as the solution of every new mathematical problem requires new combinations of the elementary principles of mathematics.
In the progress of the human race from savageism to civilization, and from brutish ignorance to the present state of enlightenment, this science of justice, which in England is called the Common Law, has of necessity made great progress; and this progress has been made from the same causes, by which the science of numbers and quantities has made progress—that is, from the fact that the circumstances and necessities of mankind have continually compelled them to such inquiries; and thus knowledge has been ever accumulating, in one science, as in the other. In the darkest periods of the human mind, doubtless men hardly knew that two and two were equal to four; or that two halves were equal to one whole. Now they can measure the size of planets, and the distances of stars. So in matters of justice—there was doubtless a time, when men were so nearly on a level with the brutes, as hardly to know that one man had not a right to kill his fellow man at pleasure. Now men have learned that they have separate, individual, and sacred rights of property in, and dominion over, things invisible by the eye, intangible by the hand, and perceptible only by the mind. And they have also learned at least the elementary principles, by which men’s separate rights to these invisible and intangible commodities can be determined.
The Common Law of England is often called the unwritten law; by which is meant that it was never enacted, in the form of statutes, by parliaments, or any other legislative body whatever. And for the most part it necessarily must have been so, since no legislative body could ever foresee the infinite relations of men to each other, so as to be able to enact a law beforehand for each case that might arise. The Common Law, therefore, does not depend at all, for its authority, upon the will of any legislative assembly. It depends, for its authority, solely upon its own intrinsic obligation—that is, the obligation of natural justice. And it ought always to have been held to be of superior authority to any legislative enactments opposed to it; because it is intrinsically of infinitely higher obligation than any legislative enactments, contrary to it, can be. In fact, legislative enactments are intrinsically of no obligation at all, when in conflict with it; because governments are as much bound by the principles of justice as are private individuals. Nevertheless, kings and parliaments have long assumed the prerogative of setting aside the Common Law, and setting up their own will in its stead, whenever their discretion or selfishness has prompted them to do so. And having judges and soldiers at their service, they have succeeded in having their arbitrary enactments declared to be law, in place of the Common Law, and carried into effect as such, against the natural rights of men. All this, however, has been done in violation of the English constitution, as well as of natural right.
Having thus shown, perhaps sufficiently, what the Common Law of England is, in theory, let us look, for a moment, at what it has been in practice. And this, it is evident, must have depended wholly upon the degree of civilization, and the nature of the legal questions arising from adjudication; and also upon the degree of enlightenment, on the part of the tribunals appointed to administer it.
In the earlier times of the Common Law—say six hundred to one thousand years ago—the state of society in England was very rude and simple, such as we should now call barbarous. Agriculture, carried on in a very ignorant and clumsy manner, was the principal employment of the people. Wealth, knowledge, and the arts had made very little progress; and the legal questions arising were correspondingly few and simple, being such as related to the little properties, the common rights, and every day concerns of the common people; and such also as the common people would generally understand, almost instinctively, or rather intuitively, without the aid of any elaborate processes of reasoning.
The tribunals for deciding these questions were of a correspondingly simple and unsophisticated character. They consisted of twelve men, taken from the common people, almost or entirely at random. These juries sat alone, and were the real judges in every cause, civil and criminal. It was seldom that any other judge, learned, or supposed to be learned, in the law, sat with them. And when such was the case, he had no authority over them, and could dictate nothing to them, either of law or evidence. He could only offer them his opinion, which they adopted or rejected, as they thought proper.
Very few laws were enacted in those days. There was no such body in existence as the modern parliament, nor any other legislative assembly. What few laws were enacted, were enacted by the king alone. But none of them could be enforced against the people, without the consent of the juries; and the juries were under no legal obligation to enforce them, and did not enforce them, unless they considered them just. The jurors were never sworn to try causes according to law, but only according to justice, or according to their consciences. Indeed, they could try them by no other law than their own notions of natural justice; for they could not read the king’s laws, since few or none of the common people could at that time read. Besides, printing being then unknown, very few copies of the laws were made. The laws, passed by the king, were generally made known, only by being proclaimed or read to such of the people, as might chance to be assembled on public occasions. Both theoretically and practically, they were simply recommendations, on the part of the king to the people, promulgated in the hope that the latter, as jurors, would enforce them.
Juries fixed the sentence in all criminal cases; and rendered the judgment in all civil cases; and no judgments could be given, except such as the twelve jurors unanimously concurred in as being just.
The decision of every jury was not necessarily enforced. An appeal was allowable to the king’s court, consisting of the king and certain of the nobility, who were assisted in their adjudications, by the king’s judges, or legal advisers. But this king’s court could enforce no decisions of its own, adversely to those given by the juries. It could only invalidate the judgment of a jury, and refer the cause to a new jury for a new trial. So that no judgment could be enforced against the person, property, or civil rights of any one, except such as had been unanimously agreed to by twelve of the common people, acting independently, according to their own ideas of justice.
The consequence of this state of things was, that while the Common Law, (with the exceptions which have before been alluded to,) was, in theory, a science, applicable, from its nature and intrinsic obligation, to the settlement of every possible question of justice, that could ever arise among men, in the most advanced and enlightened state of which humanity is capable, it was, in practice, confined to the determination of such few and simple questions, as a very rude and uncultivated state of society gave rise to, and such also as tribunals, composed of twelve simple and unlearned men, could all understand, and would all concur in.
Why this law of nature, or natural justice, thus administered, was called, in England, the “Common Law,” is a matter of some dispute; although the probability altogether is, that it was called the Common Law, because it was the law of the common people, as distinguished from the nobility, or military class of society.
This military class had both rights and duties different, in some particulars, from those of the common people. The law applicable to them was therefore somewhat different from the law of the common people. And individuals of each class were entitled to be tried by their “peers,” or equals—that is, individuals of the military class were to be tried by tribunals of their own order, and the common people by tribunals (juries) of their own order. The Common Law, then, was the law which the common people administered to each other, as distinguished from the law, which the military class administered to each other; and there is little doubt that this is the true origin of the name. The ancient coronation oath strongly corroborates this idea, for one part of that oath was, that “the just laws and customs, which the common people have chosen, shall be preserved.” By “the just laws and customs, which the common people have chosen,” were meant those principles, which juries of the “common people,” acting independently, and on their own consciences, were in the habit of enforcing as law—for the “common people,” had no other legal mode of making their wishes, on matters of law, authoritatively known.
It was this Common Law, and the right of the “common people” to be judged by it, and to have their rights determined by it, in all civil and criminal cases, in the manner that has now been described—that is, by juries acting according to their own notions of justice, and independently of all legislative authority on the part of the government—that constituted the ancient boasted liberties of Englishmen, and the very essence and life of the English Constitution.*
The reader will now be able to judge for himself whether the Common Law of England does, or does not, in theory, sustain the right of authors and inventors to a perpetual property in their ideas. In order to settle this question, he has only to decide whether it be just, and according to those principles of natural law, by which mankind hold their rights of property in all the other products of their labor, that they should also have the same rights of property in their ideas. If it were just, that men should have a right of property in their ideas, then the Common Law authorized it, and it was the duty of all Common Law tribunals to maintain that principle in practice.
Taking it for granted that the reader will have no doubt that the right of property in ideas came within the theory, and was embraced in the principles, of the Common Law, I shall now proceed to show why this right has not been hitherto more fully acknowledged.
Why the Common Law Right of Property in Ideas has not been more fully Acknowledged.
It will, I think, be hereafter rationally shown, that the nonestablishment, in England, of the right of property in ideas, is to be attributed solely to the overthrow of the ancient, constitutional, Common Law government, and to the establishment of arbitrary power in its stead. But to understand how such a cause has been productive of such an effect, we must attend somewhat to events and dates.
The Great Charter—which was at once the embodiment and guarantee of the Common Law form of government, and which, within about two hundred years from the grant of it in 1215, was confirmed more than thirty times, was confirmed for the last time in 1415. It had been much encroached upon before; but from this time the government degenerated rapidly into absolutism. And such has now been its character for some four hundred years.
In saying this, I do not mean that absolute power has been vested in the hands of the king alone; although at times his power has, in practice, very nearly approximated to absolutism. But I mean that there has existed in England a self-constituted, and unconstitutional legislative power, which has arbitrarily assumed the prerogative of setting aside the Common Law, or law of nature, and setting up its own will in its stead.
This legislative power, which was wholly unknown to the English Constitution, and which had its origin solely in a conspiracy between the king, the nobility, and the wealth of the kingdom, to rule and plunder the mass of the people, has consisted of the king and the parliament united; the parliament consisting of the higher orders of nobility, as one branch, and of a few representatives of the cities, boroughs, and wealthy freeholders, as a second branch, called the House of Commons.
The relative influence of the king, the nobility, and the House of Commons, in controlling legislation, has greatly fluctuated. Each House of Parliament has at times been the tool or confederate of the king against the other. At other times the king would call a parliament only at long intervals; exercising nearly absolute power meanwhile. But since 1688, the power of the crown has been effectually broken. Nevertheless the government has hardly been less arbitrary or tyrannical, as against the mass of the people, than it was before. The nobility, of course, have represented only their own interests. The House of Commons, (falsely so called,) has, in its best estate, represented, at most, only the wealth of the kingdom, instead of the people. In its worst estate, it has been made up of tools of the king, tools of the nobility, and the representatives and tools of wealth. The suffrage has been so limited, and otherwise arranged, as designedly to secure these results.
One of the first acts of parliament, on obtaining its ascendancy, in 1688, was to impose upon the king an oath, “To govern the people of this kingdom of England, and the dominions thereto belonging, according to the statutes in Parliament agreed on, and the laws and customs of the same;” in the place of the ancient and constitutional oath, that “the just laws and customs, which the common people [acting as jurors] had chosen, should be preserved;” thus formally abolishing the authority of the Common Law, as compared with the will of parliament.
To give more certain effect to the arbitrary legislation of the king, and of the king and the parliament, the Common Law juries have been abolished, for some five hundred years last past, by laws fixing such property qualifications for jurors as would exclude a large, probably much the largest, portion of the people, and include generally only such as were represented in the House of Commons; and also by laws authorizing the king’s sheriffs and other officers to select the jurors; thus enabling them to secure those favorable to the government.
The judges too have always been appointed by the king; and until 1688, were removable by him at pleasure. But for five hundred years they have also been liable to impeachment and punishment by parliament. The consequence has been that they have always been mere tools of the king, or of parliament, or of both; so much so that, notwithstanding since 1344, (without any exception, so far as I know,) they have been sworn to maintain the Common Law, and deny it to no man for any cause, they have for a long period unanimously adopted and acted upon the doctrine, that parliament is omnipotent, and its statutes obligatory in all cases whatsoever, the Common Law to the contrary notwithstanding. And they have also been the instruments of the government for imposing this doctrine upon juries. When the truth all the while was, that, by the English Constitution, both Houses of Parliament, as legislative bodies, were purely usurpers, and never had the slightest particle of authority to legislate for, or bind the people.
In addition to all these usurpations, for the overthrow of the Common Law, the king, for the two or three hundred years ending in 1640, maintained an extraordinary and unconstitutional court, of the most arbitrary character, called the Star-chamber court, composed wholly of his ministers and instruments, who exercised the power of summoning before them, and punishing at discretion, any one who had been guilty of any thing, which they chose to consider a contempt of the royal authority. Members of parliament were not exempt from this usurped jurisdiction. Jurors were often brought before it, and reprimanded or punished for the verdicts they had rendered. Private citizens, who had violated the king’s authority in any way, were brought before it, summarily tried, and punished at discretion. Under some reigns the audacity and tyranny of this court were such as to make it the terror of the kingdom.
Such, in general terms, has been the absolute and unconstitutional character of the English government for some four hundred years. And the consequence has been, that there has been no Common Law in force in England, during that time, except such as this arbitrary legislative power has seen fit to spare.
But we are now to show how this state of things has operated to prevent the acknowledgment of the Common Law right of property in ideas.
It is within four hundred years that the art of printing was introduced into England. But it was then in so rude a state, and the people in a condition of such ignorance, that little printing was done for many years. Consequently few persons were engaged in it. And very few persons wrote books. Under such circumstances, no questions of copyright would be likely to arise. At length the art attracted the attention of the government, from its being foreseen that it might prove dangerous both to the church and the state. And from this time the government assumed unlimited authority over the press, prohibiting the publication of every thing heretical in politics or religion, and enforcing its restrictions by means of the Star-chamber court and otherwise, in the most summary and tyrannical manner. These restrictions continued, with no important interruptions, down to 1694; and were effectual in confining the liberty of printing to such books as the government approved. One mode of restriction, which prevailed for about one hundred years, was that of requiring each book to be specially licensed by the government, before it could be printed. When a book was allowed to be printed at all, the permission was without limitation as to time; and was usually, if not universally, confined to authors and their assigns. These restrictions upon the press, therefore, necessarily operated as a perpetual copyright upon the books allowed to be published; and so long as they were continued, no question of copyright at Common Law would be likely to arise in the courts. If any unlicensed person published a book, he was punished, not for infringing the author’s copyright, but for printing without the king’s permission; which answered the same purpose for the author.
At the expiration of these restrictions, still another circumstance tended to keep the law question out of the courts. The great body of the publishers were members of an ancient association, called the Stationers’ company. And when they found that their copyrights were no longer protected by the licensing act of the government, they adopted an ordinance among themselves, imposing penalties upon any of their own number, who should infringe another’s copyright.
Furthermore, in the year 1710, an act of parliament went into effect, securing to the proprietors of books already printed, a copyright for twenty-one years from the date of tho operation of the act, and to the authors of books thereafter to be printed, a copyright for fourteen years, with a right of renewal at the end of that time, for another fourteen years, if the authors should then be living. This act kept the question of copyright, at Common Law, out of the courts for still another period.
After the expiration of the terms granted by this act, some injunctions were granted against infringements, apparently upon the ground that a right existed at Common Law. These injunctions, however, were acquiesced in, and the question was not tried at law.
And the question never came before the King’s Bench until the case of Tonson vs. Collins,* in 1760, and 1761, when the arguments were heard, but the court refused to give any decision, from a discovery of collusion between the parties. And it was not until the case of Millar vs. Taylor, in 1769, that the opinion of the King’s Bench was obtained; when three of the justices decided in favor of the right, and one opposed it.
Although, therefore, from various causes, the question never came to a clear decision, until some three hundred years after the introduction of printing, yet it is a well known historical fact, that for some hundred and fifty or two hundred years prior to that decision, (if not from the first introduction of printing,) it was a prevailing opinion among authors, publishers, and in the government itself, that the Common Law gave to authors a perpetual property in their works. John Milton, as early as 1644, speaking in behalf of the right of authors to print their thoughts freely without getting a license for each book, alluded to the subject of copyright, and said, “That part [of an order of parliament for licensing books] which preserves justly every man’s copy [right], or provides for the poor, I touch not” [do not object to]. Also, “The just retaining of each man his several copy [right], God forbid should be gainsaid.”
My argument now is, that if the Common Law, and the ancient constitutional, or Common Law form of government, had been preserved, this question would have been brought to the same decision long before three hundred years from the introduction of printing should have elapsed. And why would it have been thus brought to this decision? For various reasons, as follows.
The question would, in the first instance, have come before juries; and those juries would have been free from all legislative authority, and sworn simply to do justice. And it is hardly probable they would ever have puzzled themselves, for a moment, with any of the abstruse objections which lawyers have raised. They would have promptly followed both their instincts and their reason, in saying that authors, like other men, should control the products of their labor. If the question had then been carried to the king’s court, it would still have to be decided on natural principles, unembarrassed by any legislative interference. And it would very likely have been decided rightly from the first. But even if the judgments of the juries had at first been reversed, and the cases sent back to new juries for new trials, the new juries would most likely have repeated the original judgments, inasmuch as the opinions of the king’s court was of no legal authority over them. And thus by repeated judgments in the same cases, and by new judgments in new cases, the juries would have forced upon the king’s court the conclusion, that the sense of the nation was in favor of the right; and the law would consequently have been so recognized.
If, however, it shall be thought by any one, that the question could not have been so easily settled, and that juries would have been incompetent and unfavorable tribunals for adjudicating on such a matter, he will perhaps change that opinion when he reflects, that, if Common Law principles in general, and the Common Law form of government, had been preserved, the common people, living under the protection of equal laws, and in the enjoyment of such freedom as the Common Law form of government secured, would have rapidly advanced in wealth and intelligence, instead of being condemned to such poverty, ignorance, and degradation, as the tyrannical character of the government has subjected them to. Printing, too, would always have been free, from its first introduction; for it is not to be supposed that juries could ever have been influenced by such motives for restraining the freedom of the press, as have influenced religious and political tyrants, who feared its effects on their power. The press being free, and the people being both free and prosperous, literature would have flourished; and the rapid enlightenment of the whole nation, the common people no less than others, would have been the result. Under these circumstances, authors would have brought the question of their rights both before the public, and into the courts, at an early period after the introduction of printing. And the question, after being once brought before the public, and the courts, could never have been laid to rest, until the rights of authors were acknowledged. And that this would have been done long before 1769, (three hundred years after the introduction of printing,) I think it would be unreasonable to doubt; because, before that time, the people would not only have sufficiently comprehended the question, as one of natural justice, but they would also have learned that it was for their own true interests to encourage literature, by protecting the property of authors in their works.
If the right of property of authors in their works had been once established, under the Common Law form of government, the right would have been perpetual of course; because juries would never have thought of so absurd an idea, as that of acknowledging the property, and yet limiting the right in point of time; and there was no other legislative power competent to establish such a monstrosity.
Such, then, we may conclude, would have been the result, as regards the rights of authors.
The next question is, what would have been the fate of the rights of inventors, had the Common Law system of government been preserved?
But, before answering this question, let us see what their fate has actually been, under the arbitrary system that has prevailed.
Patents for new inventions have, in England, always been classed under the head of “monopolies” arbitrarily granted by the crown.
Now the granting of monopolies—by which I mean the granting exclusively to one what is the right of all—was plainly incompatible with the Common Law. It must also have been impossible for the king, in cases where his grants were clearly unjust and unreasonable, to maintain their inviolability, so long as the ancient constitutional form of government was preserved; because he could punish infringements upon his grants, only by the consent of juries, who would judge of the matter on its merits, independently of his authority. Nevertheless, we are told that, from a very ancient date, the kings have been in the habit of granting to individuals the exclusive right to practice new arts and manufactures, introduced by them into the kingdom. It was immaterial whether those, who introduced them, were also the inventors of them, or had learned them in foreign countries. It was enough that they were the first to introduce them into England.
How far these grants were effectual, in the early times, for the purposes intended by them—that is, how far they were sustained by the judgments of juries—I do not know. To my mind, it is not at all probable that they were universally sustained. Yet I think we may reasonably conclude that some of them were sustained; otherwise the practice of granting them would hardly have been continued. If, then, any considerable portion of them were sustained, that fact indicates that even in that rude and ignorant age, the unlearned common people—of whom the juries were composed—had some natural and just, though imperfect, appreciation, either of a man’s right of property in his invention, or of their moral indebtedness to one who gave a new and valuable art to the public. And this fact tends also to show that, with the progress of knowledge, and the increased experience of the utility of new inventions, the principle of a man’s right of property in his ideas, would have made its way, as a principle of natural law, into the minds of the people, and long ere this have been acted upon, as such, by the juries, had the Common Law institutions been preserved.
English judges, as far back at least as 1366, have held that grants by the king to individuals of the exclusive privilege of practising for a time a new art or manufacture introduced by them into the kingdom, were consistent with the Common Law. The reason given, in a case of that date, was “that arts and sciences, which are for the public good, are greatly favored in law, and the king, as chief guardian of the common weal, has power and authority, by his prerogative, to grant many privileges, for the sake of the public good, although prima facie they appear to be clearly against common right.”
Coke says, “The reason wherefore such a privilege is good in law, [that is, at the Common Law,] is because the inventor bringeth to and for the commonwealth a new manufacture by his invention, costs, and charges, and therefore it is reason that he should have a privilege for his reward, (and the encouragement of others in the like,) for a convenient time.”*
Now, I do not cite these opinions of judges as any proof at all, that the Common Law recognizes a man’s right of property in his inventions. No such proof is needed, for the nature of the Common Law itself establishes that point. Besides, the opinions themselves are altogether too loose and crude to be worth any thing for that purpose; for they apply as well to persons who bring inventions from other countries, as to inventors themselves; and they also absurdly assign reasons of expediency to the public, instead of reasons of right to the inventor, as the grounds on which the Common Law allows of such grants. The opinions were also given by judges, who were either the creatures of the crown alone, or of the crown and parliament, and who doubtless were in the habit of sanctioning every thing which the king and the parliament desired them to sanction. But I cite them as evidence that, for at least five centuries, there have prevailed, in England, a general sense of obligation, or indebtedness, on the part of the public, towards one who introduces a new art, and an idea that he ought in some way to be paid. And my argument is, that if arbitrary power had never interfered to check the progress of knowledge, and to exercise absolute authority over the rights of inventors, as well as of others, this public sense of obligation, and this vague idea that an inventor should be paid, would long ago have found body and form in a well digested system of natural law, based on the principle of a man’s absolute right of property in the productions of his mind.
The tendency towards this result has been greatly obstructed by the arbitrary character of the English government, for the last four or five centuries. For example, in those periods, when the power of the king was at its height, he was in the habit of granting a great variety of monopolies, without any pretence of new inventions, but only as a means of rewarding favorites, or of raising revenue. And these monopolies were maintained through the instrumentality of the Star-chamber court, which summarily punished infringers. These monopolies were so numerous, unjust, and oppressive, that parliament, in 1623, interfered to suppress them; and an act was passed for that purpose, specially on the ground that they were contrary to the Common Law. Yet, in this act, which was intended to be effectual for the suppression of all monopolies, except such as were either consistent with the Common Law, or supposed to be beneficial to the public, patents for new inventions, and licenses for printing, were specially excepted from the general prohibition; thus again partially recognizing the right of property in ideas, by indicating it to be the sense of the nation, that both justice and policy required that authors and inventors should receive some reward for their labors; and that the most reasonable and expedient mode of securing this end, was, by giving to authors an unlimited monopoly of their works, and to inventors a monopoly of their inventions for a limited time.
But from all this it must not be inferred that correct scientific views of the law of nature on this subject, had made any great progress; nor could they do so, for scientific views of the law of nature, relative to any subject, make little progress in the midst of despotism and ignorance. But my argument is, that, but for the despotism, no general ignorance would have prevailed; the press would have been free; the people would have become enlightened; would have been free in the choice of their pursuits; inventions would have multiplied; their importance would have come to be more justly appreciated; the law relative to them, being left to rest, as it would have done, upon natural principles, would necessarily have become an important subject of investigation, (in connexion with the rights of authors,) and from the necessity of the case, it would have made progress.* And is it in the least extravagant—is it not indeed entirely within the limits of probability, to suppose that an inventor’s property in his invention would long ago have been recognized as a right, founded in nature, instead of being regarded as that contemptible and detestable thing, which the English government persists in regarding it, to wit, not a right, but a privilege, granted to an inventor by the crown, as a mere matter of royal grace, favor, and discretion?†
But I wish now to show why the rights of inventors, to a perpetual property in their inventions, has never come distinctly before the English courts, as a question of Common Law.
Prior to the introduction of printing, and for a considerable time after, there could have been but very few inventions, of any considerable importance, made in England.* The English were not naturally an inventive people. The Italians and Germans were much in advance of them in that respect. The English were an agricultural and military, and not a mechanical, people. Most of their inventions were brought from the continent, and even those doubtless were not numerous. The art of printing, after some lapse of time, began to increase the mental activity of the people. Yet this activity, for a long time, took the directions of literature, politics, religion, colonization, commerce, and war, rather than of invention, or progress in the arts. Indeed it is only within the last hundred years, or thereabouts, that many important inventions have been made in England.
Under these circumstances, it was natural that the rights of inventors, as a question of Common Law in the courts, should lag behind those of authors; and for various reasons, as follows.
1. One’s authorship of a book could much more easily be proved, to the satisfaction of a jury, than one’s authorship of an invention. That proof could also be much more easily perpetuated, than in the case of an invention; because a book, once published, generally carried the author’s name with it, whereby the latter became at once notorious, and false claims to the authorship became forever after impossible to be established. Whereas, in the case of an invention, unless the proof of authorship were made at once, to the satisfaction of the king, and a patent obtained, the evidence would soon either be entirely lost, or become so uncertain as to be insufficient to establish one’s right.
2. The number of printers were so few, and those few so well known, that the infringement of an author’s copyright was much more sure of being detected, than an infringement of one’s invention. The latter could easily be concealed, if perpetrated at some distance from the locality of the inventor; because there was so little travel and intercourse in those days, among the common people, that an invention could be easily practised a long time so privately as not to become known to a person at a distance.
3. Copyrights were perpetual; whereas patents for new inventions were temporary. The former too were obtained without any important cost or trouble; whereas it was doubtless a very serious and expensive undertaking to prove, to the satisfaction of the crown, one’s authorship of an invention, and get a patent for it. There were also doubtless many more books written, than there were important inventions made. For these reasons, the copyrights of books were doubtless much more numerous than the patents for inventions. These copyrights, too, very many of them, went into the hands of printers, who were able to defend them in the courts; whereas it is likely the inventors were generally too poor to go to law for their rights.
4. Since 1623, (until 1835,) patents have been granted but for fourteen years; and (before the English became so eminently a manufacturing nation) a new manufacture could be introduced but so slowly, that unless the invention were of great importance, a patent for so short a period, would be of too little value to be worth the cost of procuring.
5. The fact, that the government made no distinction between those who imported inventions, and those who made them, tended to confuse men’s notions as to the rights of real inventors. And the further fact, in this connexion, that patents granted to mere importers of inventions, would justly be regarded with odium, if prolonged for any considerable time, tended to reconcile men to the practice of protecting original inventors for a short period also; and this made their rights of too little value to be worth protecting by expensive litigation.
6. A mechanical invention is much more difficult to be defined, or described, to the satisfaction of a jury, than the contents of a book; and therefore it would be much more difficult to prove, to the satisfaction of a jury, the infringement of a patent, than of a copyright.
7. A claim for copyright would meet with fewer obstacles from the prejudices of a jury, than a claim for an invention; because a book interfered with no man’s interests; whereas labor-saving inventions were often very odious, on account of their turning large numbers of people out of employment. We, of this day, who have become accustomed to look upon a new labor-saving invention as one of the greatest blessings, can hardly fail to be astonished at the ancient prejudices against such as superseded other labor. As an illustration of these prejudices, it may be stated, that it is less than two hundred years, since a saw-mill in England was pulled down by a mob, on account of its interfering with the employment of the splitters and hewers of timber. Coke also gives a curious illustration, not merely of the popular prejudice, but also of the government’s prejudice, against a new invention, if it were one that would deprive many persons of their employment. He says,
“There was a new invention found out heretofore that bonnets and caps might be thickened in a fulling mill, by which means more might be thickened and fulled in one day, than by the labors of fourscore men who got their living by it. It was ordained that bonnets and caps should be thickened and fulled by the strength of men, and not in a fulling mill, for it was holden inconvenient to turn so many laboring men to idleness.”*
8. Inventors not being literary men, and perhaps often wholly illiterate men, could not advocate their own rights, as the authors could theirs. They had no John Miltons among them to speak for them. They could only let their deeds speak for themselves. Besides, they were doubtless too much engrossed in their inventions, (as most inventors are even at this day,) to give much thought to their legal rights. They naturally accepted such protection as the government offered them, without raising any further question about it.
For all these reasons, and perhaps for others, it was natural that the perpetual right of inventors should be behind the perpetual right of authors, in coming into the courts, as a question of Common Law. And such was the fact. Not only so, but, unfortunately for the inventors, when the rights of authors did finally come before the King’s Bench, as a Common Law question, in 1769, that court, while it sustained the rights of authors, gratuitously prejudged and condemned the rights of inventors without a hearing, as we shall hereafter sec. The House of Lords virtually did the same in 1774.
Beyond and above all this, the act of parliament of 1628, expressly forbade patents to be granted for a longer period than fourteen years. And this prohibition remained in force until the act of 1835, which allowed an extension of seven years in certain cases. So that the Common Law rights of inventors could be set up, in court, only on one or both of these two grounds, viz.: 1. That the act of parliament, limiting the duration of the patent, was constitutionally void—a ground, which is true in itself, but which no court in England would think of sustaining. 2. That the rights of inventors were not derived from, and did not depend on, their patents—a ground, which is also true in itself, but which patentees could not be expected to understand, or at least to have confidence in, as a ground of successful litigation, considering that the uniform practice of the courts had been to hold the contrary.
Besides, the task of inventors to secure to themselves even such rights as the acts of parliament intended they should enjoy, has always been too hard a one, to leave them any confidence for advancing new claims, (however just in themselves,) in manifest opposition to the intention of parliament, and the practices of courts. For the courts, persisting in the idea that a patent was, in some sort at least, an arbitrary grant of an unjust monopoly, have, until quite recently, been in the habit of exerting their ingenuity to invalidate even such patents as were granted. For example. If a specification claimed a particle too much, or was a particle deficient in the description of the art, the courts, instead of holding the patent good for whatever was good, as they were bound to do, would take advantage of the error to invalidate the patent altogether. Thus, as late as 1829, “in the case of Felton vs. Greaves, the title of the plaintiff’s patent described the invention to be a machine for giving a fine edge to knives, razors, scissors, and other cutting instruments; but it appeared that the invention, as described in the specification, was inapplicable for the sharpening of scissors; and Lord Tenterden, Chief Justice, therefore held the patent to be void, and nonsuited the plaintiff.”* And in 1816, “in the case of Cochrane vs. Smethurst, it appeared that the plaintiff’s patent was for an improved method of lighting cities, towns, and villages; but his invention really was an improved street lamp; and it was held by Mr. Justice Le Blanc that the title was too general in its terms, and the patent void.”†
These cases are given merely as illustrations of the absurdities and atrocities, which the courts have habitually practised, up to a very recent date, when adjudicating upon the rights of inventors. It seems never to have entered their heads, that it was any part of the object of a patent, to secure to an inventor the quiet possession of what was exclusively his own. On the contrary, they have treated a patent as a bargain, between the public and the inventor, of this kind, to wit. They considered that the art, instead of being an honest product of the inventor’s labor, and therefore his own, was one, which rightfully belonged to the public, and which had merely happened to become known only to the inventor; and that he, like the dog in the manger, would neither use it, nor let others use it, unless he could get something for his secret. They of course held that he really ought to give the secret freely to the public; and that any attempt, on his part, to get a price for it, was merely an attempt at levying black mail, and should be defeated if possible. They then considered that the public, finding themselves in this unfortunate predicament, their rights locked up in the breast of a scoundrel, acting under the force of an unjust necessity, made a contract with him, (through their representative, the king,) by which they agreed to give him a monopoly of the art for fourteen years, provided he would give the art freely to the public forever afterwards. To secure the benefits of this bargain to the public, the king required the villain to put on the king’s records such an accurate description of the art, as that other men, by reading the description, might be able to understand and practise the art. If, now, this specification have described the invention as being a particle more than it really was, the courts have said that the inventor had practised a fraud, and obtained a patent, without giving for it the full price agreed upon; and that therefore the patent was void: If, on the other hand, the specification have not so fully described the invention, as that it may be entirely known by other persons on reading the description, then the courts have said that the inventor was a cheat, because he had not made known the invention, which he agreed to make known, as the price of his patent; that he has therefore obtained his patent on false pretences, and that it is consequently void. Thus, if the courts, by splitting a hair ’twixt north and north-west side, could so construe a specification as to make the patentee to have defrauded the public, to the amount of a farthing, in the price agreed to be paid by him for his patent, they have held that the patent was void; as if the patentee were a swindler, getting unjust monopolies out of the public by false representations, instead of being, as he no doubt usually has been, a simple honest man, who wished to secure to himself the products of his honest labor, but who was not sufficiently skilled in letters, law, and the arts, to know whether or not his invention were described with the greatest possible accuracy, of which the case admitted.
This is the spirit in which English courts up to a very recent date, if not indeed up to the present date, have adjudicated upon the rights of inventors. Whereas, if the Common Law rights of inventors were acknowledged, it would be the duty of courts to recognize the sufficiency of a specification, if it described the invention with such general accuracy, as to put second persons reasonably on their guard against infringing it.
When we consider for how long a period inventors have been compelled to deal with such pettifoggers, sharpers, and asses, as these courts have thus shown themselves to be, it is perhaps not to be wondered at, that they have never seen fit to ask any thing more at their hands than was given them by acts of parliament—the only law the judges have acknowledged on this question. They have accordingly turned their attention to getting improvements in acts of parliament, rather than to asserting their Common Law rights.
Looking back, now, over the ground, for five hundred years, we see, on the one hand, the advantages, which the Common Law rights of inventors have enjoyed; and, on the other, the disadvantages under which they have labored.
Under the head of advantages, we may reckon, that during all that time, (five hundred years,) it has been held, by kings, courts, and parliaments, to be consistent with the Common Law, for the king to grant, both to actual inventors, and to the mere importers of new inventions, a temporary monopoly of the use of their inventions; and that for more than two hundred years, (since 1623,) the sentiment on this point has been so strong, and so strong also the conviction of the good policy of encouraging the arts in this way, that these monopolies have, by a special act of parliament, stood excepted out of the prohibition laid upon monopolies in general.
Under the head of disadvantages, we may reckon, that the English were not originally an inventive people; that it is only within a hundred years, or thereabouts, that their minds have been particularly turned in the direction of inventions; that from the first, the grant of a patent for a new invention, has been held, by the government, to be an act of grace, favor, and discretion, on the part of the crown, and not any thing which a subject could claim as a right; that the rights of a real inventor have always been placed on the same footing with the impertinent and groundless claims of a mere importer of an invention, and have, therefore, necessarily been discredited by the association; that patents for new inventions, from being always classed among arbitrary monopolies, have always had to bear, by association, more or less of the odium which justly attaches to those violations of common right; and, finally, that for more than two hundred years, (that is, since 1623,) there has been an imperative act of parliament, (which judges, in violation of their oath, and their duty, always bow to, in preference to the Common Law,) prohibiting the grant of a patent for any more than a limited period.
Now, the whole object of the argument in this section, is simply this. First, to prove, reasonably, that if the ancient Common Law system of government had been preserved, and arbitrary power, neither that of the king, nor that of the king and parliament, had ever interfered with the question of intellectual property, the rights of authors, to a perpetual property in their ideas, would have been first established; and that, too, long before the decision in their favor by the King’s Bench in 1769. And, secondly, that the establishment of the rights of actual inventors, (not of importers of inventions,) to a perpetual property in their ideas, would also have speedily followed the establishment of the rights of authors. And that both these events would have occurred long before now.
Considering, then, on the one hand, that the claims of inventors, as being founded in the Common Law, were at least partially recognized so long ago as five hundred years; and considering also, that the rights of authors were also, at least partially, recognized, nearly as soon after the invention of printing as there were any authors having rights to be protected; and then considering also, on the other hand, the arbitrary character of the government during all this time, the restrictions on the press, the oppression, and consequent poverty and ignorance of the people; and also the arbitrary limitations, imposed by acts of parliament, for the last two hundred and thirty years, upon the rights of inventors, and for the last one hundred and forty years, upon the rights of authors; considering all these things, I think the conclusion is certainly a reasonable one, that if the ancient constitutional Common Law form of government had been preserved, and knowledge and wealth had been, (as under such circumstances they would have been,) not only immensely increased, but more equally diffused among the people, the Common Law, as a science, would have made such progress, and literature and the arts would have so commended themselves to the approbation and protection of the people, that the rights of both authors and inventors, to a perpetual property in their ideas, would have been long since established.
And the true method of proceeding, at this day, in order to establish the rights of authors and inventors, is to re-establish the constitutional authority of the Common Law over acts of parliament.
Review of the Case of Millar vs. Taylor.
The question of an author’s copyright at Common Law, first came to a decision by the court of King’s Bench in 1769, in the case of Millar vs. Taylor.* Three of the Justices, Willes, Aston, and Lord Mansfield, decided in favor of the right; one, Justice Yates, opposed it.
Each of the judges gave a written argument on the question. The want of unanimity in the court, and the inconsistency and deficiency of the arguments of the three Justices in favor of the right, have prevented their decision from being received as a settlement of the question; and there has probably been nearly or quite as much doubt on the point, among lawyers, since that decision as before.
The Justices argued the question, both on precedent, and as an abstract one of natural, or common law. The precedents were from the court of chancery; and the most of them were encumbered with so many collateral questions, that, although they indicated very strongly, and perhaps quite clearly, that the chancellors had, in some instances at least, assumed that there was a Common Law copyright, still, as the decrees had never been rendered on a discussion of that point, they could not be held as decisive of the abstract question.
The objections of Yates, on abstract grounds, so far as they were worthy of notice, have been noticed, and replied to, in “Part First,” of this Essay.
The arguments of the three Justices, who favored the right, were erroneous and deficient to such a degree, that it can hardly be said that they threw any light upon the points where the real difficulties lay. This is perhaps not to be wondered at. The question was essentially a new one, so far as any critical investigation of it was concerned. Being a new one, an abstruse one, and liable to objections, which could not all be answered without much reflection, it is perhaps not surprising that, in the hurried and superficial examination, which alone judges can give to new questions, their views should be, as they were, crude, inconsistent, superficial, and unsatisfactory; and that, instead of settling the questions involved, they did little or nothing more than bring to light the real questions to be settled.
Some of the most important of the errors and deficiencies of their arguments were the following.
1. While asserting that authors had a Common Law right of property in their works, they conceded and asserted that inventors had no Common Law right of property in their inventions; that their rights depended wholly on the patents granted them by the king.
So glaring an inconsistency as this was of course wholly indefensible; and it was turned against them, in the following terms, by Yates, who opposed the right. He said:
“The inventor of the air pump had certainly a property in the machine which he formed; but did he thereby gain a property in the air, which is common to all? Or did he gain the sole property in the abstract principles upon which he constructed his machine? And yet these may be called the inventor’s ideas, and as much his sole property as the ideas of an author.” 4 Burrows 2357.
Also, “Examples might be mentioned, of as great an exertion of natural faculties, and of as meritorious labor, in the mechanical inventions, as in the case of authors. We have a recent instance in Mr. Harrison’s time-piece; which is said to have cost him twenty years application. And might he not insist upon the same arguments, the same chain of reasoning, the same foundation of moral right, for property in his invention, as an author can for his?
“If the public should rival him in his invention, as soon as it comes out, might not he as well exclaim as an author, ‘that they have robbed him of his production, and have iniquitously reaped where they have not sown?’ And yet we all know, whenever a machine is published, (be it ever so useful and ingenious,) the inventor has no right to it, but only by patent; which can only give him a temporary privilege.” Same, p. 2360.
And again, “The whole claim that an author can really make, is on the public benevolence, by way of encouragement; but not as an absolute coercive right. His case is exactly similar to that of an inventor of a new mechanical machine; it is the right of every purchaser of the instrument to make what use of it he pleases. It is, indeed, in the power of the Crown to grant him a provision for a limited time; but if the inventor has no patent for it, every one may make it, and sell it.
“Let us consider, a little, the case of mechanical inventions.
“Both original inventions stand upon the same footing, in point of property; whether the case be mechanical, or literary; whether it be an epic poem, or an orrery. The inventor of the one, as well as the author of the other, has a right to determine ‘whether the world shall see it or not;’ and if the inventor of the machine choose to make a property of it, by selling the invention to an instrument maker, the invention will procure him benefit. But when the invention is once made known to the world, it is laid open; it is become a gift to the public; every purchaser has a right to make what use of it he pleases. If the inventor has no patent, any person whatever may copy the invention, and sell it. Yet every reason that can be urged for the invention of an author, may be urged with equal strength and force, for the inventor of a machine. The very same arguments ‘of having a right to his own productions,’ and all others, will hold equally, in both cases; and the immorality of pirating another man’s invention is full as great, as that of purloining his ideas. And the purchaser of a book and of a mechanical invention has exactly the same mode of acquisition; and therefore the jus fruendi [the right of enjoyment] ought to be exactly the same.
“Mr. Harrison (whom I mentioned before) employed at least as much time and labor and study upon his time-keeper, as Mr. Thompson could do in writing his Seasons; for, in planning that machine, all the faculties of the mind must be fully exerted. And as far as value is a mark of property, Mr. Harrison’s time-piece is surely as valuable in itself, as Mr. Thompson’s Seasons.
“So the other arguments will equally apply. The inventors of the mechanism may as plausibly insist, ‘that in publishing their invention, they gave nothing more to the public than merely the use of their machines;’ ‘that the inventor has the sole right of selling the machines he invented;’ ‘and that the purchaser has no right to multiply or sell any copies.’ He may argue, ‘that though he is not able to bring back the principles to his own sole possession, yet the property of selling the machines justly belongs to the original inventor.’
“Yet with all these arguments, it is well known, no such property can exist, after the invention is published.
“From hence it is plain, that the mere labor and study of the inventor, how intense and ingenious soever it may be, will establish no property in the invention; will establish no right to exclude others from making the same instrument, when once the inventor shall have published it.
“On what ground then can an author claim this right? How comes his right to be superior to that of the ingenious inventor of a new and useful mechanical instrument? Especially when we consider this island as the seat of commerce, and not much addicted to literature in ancient days; and therefore can hardly suppose that our laws give a higher right, or more permanent property, to the author of a book, than to the inventor of a new and useful machine.” Same, p. 2386-7.
To these arguments the three Justices offered only these replies.
Willes said, “But the defendant’s insist, ‘that by the author’s sale of printed books, the copy [right] necessarily becomes open; in like manner as by the inventor’s communicating a trade, manufacture, or mechanical instrument, the art becomes free to all who have learnt, from such communication, to exercise it.’
“The resemblance holds only in this—As by the communication of an invention in trade, manufacture, or machines, men are taught the art or science, they have a right to use it; so all the knowledge, which can be acquired from the contents of a book, is free for every man’s use; if it teaches mathematics, physic, husbandry; if it teaches to write in verse or prose; if, by reading an epic poem, a man learns to make an epic poem of his own; he is at liberty.
“But printing is a trade or manufacture. The types and press are the mechanical instruments; the literary composition is as the material, which is always property. The book conveys knowledge, instruction, or entertainment; but multiplying copies in print is quite a distinct thing from all the book communicates. And there is no incongruity, to reserve that right, and yet convey the free use of all the book teaches.” 4 Burrows 2331.
This argument is utterly absurd, inasmuch as it assumes—what is not true—that if an inventor employ a mechanic, to construct a machine, in accordance with his invention, and thereby learn him how to construct similar machines, the mechanic thereby acquires a right to construct such machines in future, without the consent of the inventor! It is true such an idea once prevailed in England, and was acted upon by courts. But there would be just as much sense in saying that, if an author employ a printer to print his book, and thereby learn him how to print similar books, the printer thereby acquires a right to print similar books, (that is, the same literary composition,) without the author’s consent.
The argument is just as strong in favor of the right of the printer to print the book, as it is in favor of the right of the mechanic to construct the machine. Or, rather, the argument is just as weak, instead of strong, in one case as in the other.
Aston said, “That the comparison made betwixt a literary work and a mechanical production; and that the right to publish the one, is as free and fair, as to imitate the other; carries no conviction of the truth of that position, to my judgment. They appear to me very different in their nature. And the difference consists in this, that the property of the maker of a mechanical engine is confined to that individual thing which he has made; that the machine made in imitation or resemblance of it, is a different work in substance, materials, labor, and expense, in which the maker of the original machine cannot claim any property; for it is not his, but only a resemblance of his; whereas the reprinted book is the very same substance; because its doctrine and sentiments and its essential and substantial part are. The printing of it is a mere mechanical act, and the method only of publishing and promulgating the contents of the book.
“The composition therefore is the substance; the paper, ink, type, only the incidents or vehicle.
“The value proves it. And though the defendant may say ‘those materials are mine,’ yet they cannot give him a right to the substance, [the literary composition,] and to the multiplying of the copies of it; which (on whose paper or parchment soever it is impressed) must ever be invariably the same. Nay, his mixing, if I may so call it, his such like materials with the author’s property, does not (as in common cases) render the author’s property less distinguishable than it was before; for the identical work or composition will still appear, beyond a possibility of mistake.
“The imitated machine, therefore, is a new and different work; the literary composition, printed on another man’s paper, is still the same.
“This is so evident to my own comprehension, that the utmost labor I can use in expressions, cannot strengthen it in my own idea.” 4 Burrows 2348.
This argument of Aston is equally absurd with that of Willes; because two books, of the same kind, are just as much two different things, (and not “the same,” as Aston asserts,) as are two machines, of the same kind. The ideas also, described in a book, are just as much distinct entities from the book itself, as the idea, after which a machine is constructed, is a distinct entity from the machine itself. The ideas, described in a book, no more compose the “substance” of the book, and are no more “mixed” with the “materials” of the book, as Aston asserts, than the idea, after which a machine is constructed, composes the “substance” of the machine, or is “mixed” with the “materials” of the machine. But this point has been sufficiently explained in a previous chapter.*
The objects of a book and a machine are somewhat different. The object of a book is simply to communicate ideas. A machine communicates ideas equally as well as a book (to those who understand the language of mechanics); but it also has another object, which a book has not, viz.: the performance of labor. This is the most noticeable difference between them; a difference of no legal importance whatever, unless it be to prove that the mechanical idea is the more valuable of the two, and therefore the more worthy of protection as property.
Lord Mansfield made no argument of his own, as to the resemblance, or difference, between mechanical inventions and literary compositions; but he must be considered to have indorsed the arguments of Willes and Aston, on this point, as well as on all others; for he said he had read them (throughout), and “fully adopted them.” p. 2395-6.
There can certainly, I think, be no necessity for any additional remarks on this subject. The identity of principle, in the two cases, is so perfect, and so palpable, that any theory, that excludes an inventor’s ideas from the category of property, must equally exclude those of authors. And any theory, that includes the ideas of authors in the category of property, must equally include those of inventors. Aston himself, five years afterwards, in the case of Donaldson vs. Becket, had changed his mind so far as to say, that “He thought it would be more liberal to conclude, that previous to the monopoly statute, there existed a common law right, equally to an inventor of a machine, and an author of a work.”*
We, of this day, may well feel amazed that three out of four, of the judges, occupying so high a seat as that of the King’s Bench, could fall into an error so absurd in itself, and so evidently fatal to the cause they were advocating. The fact, that they did so, is one of the numberless instances, that show how the minds of judicial tribunals are fettered by the authority, or their consciences swerved by the influence, of the government, whose servants they are; and consequently how little reliance is to be placed upon the correctness of judicial decisions.
Many persons, no doubt, will think that in this case, the consciences of the judges were swerved, rather than that their judgments were fettered; that inasmuch as the granting of patents had, for hundreds of years, been held to be a branch of the royal prerogative; and in some reigns, if not in all, a somewhat lucrative branch; the judges had not the courage to strike such a palpable blow at the authority, dignity, and revenues of the king, as they would do by declaring that inventors could hold their property independently of his “gracious pleasure and condescension.”
Other persons may perhaps imagine, that an unwillingness, on the part of the judges, to impeach their own infallibility, and that of their court, by acknowledging the error of all their former decisions, in regard to inventions, was at the bottom of the absurd distinction, which they attempted to set up, between the rights of authors and inventors, to a property in their respective ideas.
Still other persons, however, of a more charitable disposition, especially if they are familiar with the unreasoning stupidity, with which courts are habituated to acquiesce in every thing, however absurd in itself, that has the odor of authority or precedent, will perhaps give these judges credit for honestly imagining, that there must be some difference between the rights of authors and inventors, notwithstanding they themselves (the judges) were unable to make that difference appear.
But whatever may have been the cause of so patent an inconsistency on their part, the inconsistency itself was sufficient to deprive their decision of all weight as an authority.
2. The arguments of the three Justices, in favor of the right, were imperfect for another reason, to wit: that they failed to answer the following argument of Yates against the right, viz.: That it was a supposable case that two men might produce the same ideas, independently of each other; and that, in such a case, it would be unjust to give, to the one who first produced them, an exclusive property in them.
The three judges made no reply to this argument.
I have attempted to answer this objection, in a former chapter,* and need not repeat what is there said.
3. A third error, or deficiency, in the arguments of the three Justices, in favor of the Common Law copyright, arose in this way.
It is not now, and I suppose never has been, the custom in England, to make any entry—such as “copyright reserved,” or other equivalent expression—on the title page, or other part of a book itself, to give notice to purchasers that the copyright is retained by the author.
The act of parliament required no such entry to be made in the books themselves. It only protected the copyright of those books, whose title should be entered in the register book of the Company of Stationers. But as this was a merely arbitrary provision, the entry or non-entry of the title there, could have nothing to do with the question of copyright at Common Law.
Hence the important question arose, How is a purchaser of a book to know how much he purchases? That is, How is he to know whether, in buying a book, he also buys the right to reprint it, or only the right to read it? On what legal grounds can it be said, that there is any implied contract between the author and the purchaser, by which the former reserves the exclusive right to multiply copies?
These were important questions, which the three Justices, who favored the common law copyright, were bound to answer. But they did not answer them satisfactorily or fully. I have attempted to answer them in a former chapter.*
4. A fourth error, in the argument, of the three Justices, who favored the right, was this.
Willes said, (and it was apparently concurred in by both Aston and Mansfield,) that “All the knowledge, which can be acquired from the contents of a book, is free for every man’s use. * * * The book conveys knowledge, instruction, or entertainment; but multiplying copies in print is quite a distinct thing from all the book communicates. And there is no incongruity, to reserve that right, and yet convey the free use of all the book teaches.” p. 2331.
This is error throughout. It is, of course, generally true, that “All the knowledge that can be acquired from the contents of a book, is free for every man’s use,” in every way except that of reprinting descriptions of it; but it is, by no means, a necessary consequence of the publication of a book, that all the knowledge it conveys, is, even thus far, free for the use of every body, or even for the use of the purchaser of the book. Suppose a book describe a steam engine so fully, that a mechanic, from the knowledge thus conveyed, would be able to construct and operate a steam engine; does it follow, because he has obtained that knowledge from a book, (even though the book were written and sold by the inventor of the engine,) that it is therefore free for his use? Not at all. The book may have been, and most likely was, written by the inventor, simply for the purpose of conveying, to the reader, such a knowledge of the steam engine, as would induce him to purchase the right to construct, or use one.
If special notice be given, in the book, that the copyright is reserved, that notice may—and, in the absence of any ground of presumption to the contrary, perhaps would—imply that the author reserves nothing else than the right of multiplying copies; and that the knowledge conveyed by the book, is therefore free for all other uses. But, in England, where no notice is given, in the book, that the copyright is reserved, no implication can be drawn, from the simple fact of publication alone, that the knowledge conveyed is designed to be free. The law must infer, from the nature of the knowledge conveyed, and from other circumstances, whether the author designs the knowledge to be free, or not. In a large proportion of the books printed, the knowledge is of such trivial market value, that, in any other form than in a book, it would bring nothing worth bargaining for. In such cases, it would be reasonable for the law to infer that the knowledge was designed to be free for all uses, except that of being reprinted. But wherever the knowledge had an important market value, independently of the book, it would be reasonable to infer, that the object of the book was, to advertise the knowledge, with a view to its sale for use, rather than that the price of the book, was the price also for the free use of the knowledge.
This matter, however, has perhaps been sufficiently discussed in a former chapter.*
Willes says, “There is no incongruity, to reserve that right, [the right of multiplying copies,] and yet convey the free [unlimited] use of all the book teaches.” Yes, there is a plain incongruity; because the “multiplying copies in print,” is itself one of the “uses,” which is made of what the book teaches. We cannot multiply copies of the book, without using the ideas it communicates; for these ideas are an indispensable guide to the work of setting the type for the new copies. The use of the ideas, for this purpose, is generally the only “use,” from which the author derives his pecuniary profit. And it is because this “use” of them is lucrative, that he reserves it exclusively to himself. To say, therefore, that an author reserves to himself the copyright—that is, the exclusive right of using the ideas to multiply copies of the book—and yet that he conveys to others the free [unlimited] use of the same ideas, is a contradiction; because the unlimited use of the ideas, would include the use of them for multiplying copies of the book. He may, therefore, reserve the right of multiplying copies, and yet convey a right to use, in every other way, than that of multiplying copies, “all that the book teaches;” but he cannot reserve the copyright, “and yet convey the free [unlimited] use of all the book teaches.”
In reprinting the book, the ideas, which the book teaches, or communicates, are necessarily used as a guide to the work of printing; and the sole right of using them, for that purpose, is the copyright, or right of property, which the author has reserved to himself.
But Willes says that “multiplying copies in print is quite a distinct thing from all the book communicates.”
He obviously means, by this remark, that the right of “multiplying copies [of the book] in print, is quite a distinct thing from” the right of property in the ideas, “that the book communicates.” But in this, he is in a great error; for it is the right of property alone, in the ideas, “that the book communicates,” that gives him the exclusive right to use them for the purpose of “multiplying copies [of the book] in print.”
Before the book was printed, all the ideas it describes, (or so many of them as were original with him,) were the sole property of the writer. By printing the book, and selling it, with a reservation of copyright, he conveyed a partial property in the ideas, to his readers. That is, he conveyed to them a right of possession, in common with himself, of all the ideas “the book communicated;” and (in most cases) he abandons (as being worthless to himself) his exclusive right to the “use” of them, for every purpose, except that of reprinting descriptions of them. The sole right of using them, for the purpose of reprinting descriptions of them, is a part of his original exclusive right of property, or dominion, in the ideas themselves. It is the part, of that original exclusive right of property, or dominion, which he has reserved to himself. The rest of his original right of property in them, he has (in most cases) conveyed, or abandoned, to be enjoyed by others, in common with himself. The copyright, therefore, is a remnant, remainder, or reserved portion, of his original exclusive right of property in the ideas “that the book communicates,” or describes; and it is nothing else.
This attempt, on the part of the three Justices, (or certainly on the part of Willes,) to make it appear, that the right of multiplying copies of a book, was “quite a distinct thing” from all right of property in, or dominion over, the ideas, “that the book communicates,” confused and destroyed their whole argument; for it was an attempt to prove a legal impossibility, viz.: the existence of a legal right, which attached to no legal entity.
The idea, that an author could retain an exclusive right of multiplying copies of a book, after he had parted with every vestige of exclusive property in “all that the book communicated,” is a perfect absurdity.
The copyright, or the right of multiplying copies, therefore, although it is not necessarily a sole and absolute right of property, in the ideas themselves, for all uses and purposes whatsoever, is, nevertheless, a sole and absolute right of property, in the ideas themselves, for a particular use and purpose, to wit: that of printing books describing them. It is not, therefore, as these Justices assumed, a mere shadow, or phantom of a right, existing independently of all exclusive right of property whatever, in the ideas themselves. It is a substantial property right, in the ideas themselves, which the book describes, and which are necessarily used in reprinting the book.
If, as these Justices held, the exclusive right of multiplying copies of the book, were a right existing independently of all exclusive right of property, in the ideas described in the book, these questions would arise, viz.: Where did this anomalous right come from? How did it originate? What legal entity does it attach to? And how came it in the possession of the author of the book, in preference to any body else? And these questions, I apprehend, would be wholly unanswerable.
5. The argument of the three Justices—or rather of two of the Justices, Willes and Mansfield—in favor of the right, were imperfect for still another reason, viz.: that their definitions of Common Law were inaccurate, and indefinite.
Thus Justice Willes said, that “private justice, moral fitness, and public convenience, when applied to a new subject, make common law without a precedent; much more, when received and approved by usage.” p. 2312.
Lord Mansfield said, “I allow them sufficient to show ‘it is agreeable to the principle of right and wrong, the fitness of things, convenience, and policy, and therefore to the common law, to protect the copy [right] before publication.’ ”
If they had said simply that natural justice was common law (in all cases whatsoever, new and old, except perhaps those very few, which have before been alluded to, where some positive-institution to the contrary has been in practical efficient operation from time immemorial)—their definition would have been correct. It would also have been definite, precise, and certain, inasmuch as natural justice is a matter of science. But when they add that “moral fitness, and public convenience,” and “the fitness of things, convenience, and policy,” must conspire with “private justice,” and “the principles of right and wrong,” in order to make Common Law, they introduce confusion and uncertainty into their definition; inasmuch as “moral fitness and public convenience,” “the fitness of things, convenience, and policy,” if considered as any thing separate from natural justice, are terms that convey no precise meaning, and open the door to an endless diversity of opinion. No stronger proof of this last assertion need be offered than the great diversity of opinion that exists as to the policy, expediency, and moral fitness, of the principle of property in ideas.
These terms are also improper and unnecessary ones to be introduced into a legal definition, for the reason that, in matters of government and law, natural justice itself has the very highest degree of “moral fitness;” it subserves, in the very highest degree, the “public convenience;” and its principles are the soundest of all principles of “public policy.” The simple definition, natural justice, is therefore complete and sufficient of itself; and needs no additions or qualifications.
Aston’s definition of Common Law was better, for he held that “Right reason and natural principles [were] the only grounds of Common Law, originally applicable to this question;” that “the principles of reason, justice, and truth,” were the principles of the Common Law; that “the Common Law, now so called, is founded on the law of nature and reason;” that it is “equally comprehensive of, and co-extensive with, these principles and grounds from which it is derived;” that “the Common Law, so founded and named, is universally comprehensive, commanding what is honest, and prohibiting the contrary;” that “its precepts are, in respect to mankind, to live honestly, to hurt no one, and to give to every one his own.” p. 2337—8, 2343—4.
Justice Yates, who opposed the copyright, held nearly the same views of the Common Law, with Aston. He said:
“It was contended ‘that the claim of authors to a perpetual copyright in their works, is maintainable upon the general principles of property.’ And this, I apprehend, was a necessary ground for the plaintiff to maintain; for, however peculiar the laws of this and every other country may be, with respect to territorial property, I will take upon me to say, that the law of England, with respect to all personal property, had its grand foundation in natural law.” p. 2355.
Review of the Case of Donaldson and another, vs. Becket and another.
This case came before the House of Lords, in 1774,* on an appeal from an injunction against publishing a book, whose statutory term of copyright had expired.
The Lords directed the judges to give their opinions to the House on the following questions, viz.:
1. “Whether at common law, an author of any book or literary composition had the sole right of first printing and publishing the same for sale; and might bring an action against any person who printed, published and sold the same without his consent?”
2. “If the author had such a right originally, did the law take it away, upon his printing and publishing such book or literary composition; and might any person afterward reprint and sell, for his own benefit, such book or literary composition, against the will of the author?”
3. “If such action would have lain at common law, is it taken away by the statute of 8th Anne? And is an author, by the said statute, precluded from every remedy, except on the foundation of the said statute, and on the terms and conditions prescribed thereby?”
4. “Whether the author of any literary composition and his assigns, had the sole right of printing and publishing the same in perpetuity, by the common law?”
5. “Whether this right is restrained, impeached, or taken away by the statute 8th Anne?”
On these questions eleven of the judges delivered their opinions. Lord Mansfield, from motives of delicacy, declined giving his opinion, although it was well known that he adhered to that he had given in the case of Millar vs. Taylor.
On the first of these questions, ten of the judges answered in the affirmative, and one in the negative.
Two of the ten, however, qualified their opinion, by saying that the author of a book “could not bring an action against any person who printed, published, and sold the same, unless such person obtained the copy by fraud or violence.”
On the second question, four of the judges answered in the affirmative, and seven in the negative.
On the third question, six of the judges answered in the affirmative, and five in the negative.
On the fourth question, seven answered in the affirmative, and four in the negative.
On the fifth question, six answered in the affirmative, and five in the negative.
The result, therefore, stated in brief, was as follows:
1.Eight of the judges (including Lord Mansfield) were of the opinion that “The author of any literary composition, and his assigns, had the sole right of printing and publishing the same in perpetuity, by the common law;” and four were of a contrary opinion.
2.Six of the judges (including Lord Mansfield) were of the opinion that this common law right was not taken away by the statute 8th Anne; and six were of a contrary opinion.
After the judges had delivered their opinions, the lords reversed the decree appealed from, by a vote of twenty-two to eleven. And this decision has since stood as the law of England.
How many of those lords, who voted for the reversal, did so in the belief that there was no copyright at common law; and how many did so in the belief that the common law copyright had been taken away by the statute, does not appear. The decision, therefore, does not stand as a decision that an author had not a perpetual copyright at common law; but only as a decision that, if he had such a right at common law, that right had been taken away by the statute.
The diversity of opinion, both among the judges and the lords, deprive this decision of all weight as an authority. The only things really worthy of consideration are the arguments urged on the one side and the other. These arguments were very similar to those in the case of Millar vs. Taylor; and the rights of authors were lost from substantially the same errors, inconsistencies, and deficiencies, in the arguments of their advocates, that have been pointed out in that case.
To show the views that prevailed, on both sides, regarding the most prominent points in the case, I give the following extracts.
1. On the point of similarity between a mechanical invention, and a literary composition, I give the whole of the arguments, on both sides, so far as they are reported, as follows.
Wedderburn, counsel, speaking for the copyright, made the fatal concession that the author of a mechanical invention had, at common law, no property in his invention, but only in the machines he made; and for such absurd reasons as these. He said:
“It had been contended that the inventor of an orrery was in the same predicament as an author, when he published. Such an allusion came not to the point. The first sheet of an edition, as soon as it was given impression, in a manner loaded an author with the expenses of a whole edition; and if that edition was five thousand [in] number, the author was not repaid for his labor and hazard, till the last of the five thousand was sold. The maker of an orrery was at no other trouble and charge, than the time, ingenuity, and expense, spent in making one orrery; and when he had sold that one, he was amply paid. [!!] Orrery making was an invention, and the inventor reaped the profit accruing from it. Writing a book was an invention, and some profit must accrue after publication; who should reap the benefit of it? Authors, he contended, both from principles of natural justice, and the interest of society, had the best right to the profits accruing from a publication of their ideas.” p. 965.
Thurlow, counsel, in reply, against the copyright, said:
“With regard to the observation, that the inventor of an orrery was not at all to be compared to the inventor of a book, because he was paid for his labor when he had sold one orrery; there was not a more fallacious doctrine in the power of words. The maker of a time-piece, or an orrery, stood in the same, if not in a worse predicament, than an author. The bare invention of their machines might cost them twenty of the most laborious years in their whole life; and the expense to the first inventors in procuring, preparing, and portioning the metals, and other component parts of their machines, was too infinite to bear even for a moment the supposition that the sale of the first orrery recompensed it. And yet no man would deny that after an orrery was sold, every mechanist had a right to make another after its model.” p. 969.
Baron Eyre, giving his opinion against the copyright, “considered a book precisely upon the same footing with any other mechanical invention. In the case of mechanic inventions, ideas were in a manner embodied, so as to render them tangible and visible; a book was no more than a transcript of ideas; and whether ideas were rendered cognizable to any of the senses, by means of this or that art, of this or that contrivance, was altogether immaterial. Yet every mechanical invention was common, whilst a book was contended to be the object of exclusive property! So that Mr. Harrison, after constructing a time-piece, at the expense of forty years labor, had no method of securing an exclusive property in that invention, unless by a grant from the state. Yet if he was in a few hours to write a pamphlet, describing the properties, the utility, and construction of his time-piece, in such a pamphlet he would have a right secured by common law; though the pamphlet contained exactly the same ideas on paper, that the time-piece did in clock-work machinery. The clothing is dissimilar; the essences clothed were identically the same.
“The baron urged the exactitude of the resemblance between a book and any other mechanical invention, from various instances of agreement. On the whole, the baron contended, that a mechanic invention and a literary composition exactly agreed in point of similarity; the one therefore was no more entitled to be the object of common law property than the other; and as the common law was entirely silent with respect to what is called literary property, as ancient usage was against the supposition of such a property, and as no exclusive right of appropriating those other operations of the mind, which pass under the denomination of mechanical inventions, was vested in the inventor by the common law, the baron, for these reasons, declared himself against the principle of admitting the author of a book, any more than the inventor of a piece of mechanism, to have a right at common law to the exclusive appropriation and sale of the same.” p. 974.
Justice Ashurst, giving his opinion in favor of the copyright, said:
“Since the statute of monopolies, no questions could exist about mechanical inventions. Manufactures were at a very low ebb till queen Elizabeth’s time. In the reign of James the First, the statute of monopolies was passed. Since that act no inventor could maintain an action without a patent. It is the policy of kingdoms, and preservation of trade, to exclude them.” p. 977.
Justice Aston, giving his opinion in favor of the copyright, said:
“With regard to mechanical instruments, because the act against monopolies had rendered it necessary for the inventors of them to seek security under a patent, it could be no argument why in literary property there should be no common law copyright. He thought it would be more liberal to conclude, that previous to the monopoly statute, there existed a common law right, equally to an inventor of a machine, and an author of a book.” p. 981.
Baron Perrott, speaking against the copyright, said:
“An inventor of a machine or mechanical instrument, like an author, gave his ideas to the public. Previous to publication, he possessed the jus utendi, fruendi, et disponendi, [the right of using, enjoying, and disposing of,] in as full extent as the writer of a book; and yet it never was heard that an inventor, when he sold one of his machines, or instruments, thought the purchaser, if he choose it, had not a right to make another after its model. The right of exclusively making any mechanical invention was taken away from the author or inventor by the act against monopolies of the 21st of James the First. Which act saved prerogative copyrights, and which would have mentioned what was now termed literary property, had an idea existed that there was a common law right for an author or his assigns exclusively to multiply copies.” p. 982.
Lord Chief Baron Smythe, speaking for the copyright, said:
“As to mechanical inventions, he did not know that, previous to the act of 21st James the First, [the statute against monopolies,] an action would not lie against the person who pirated an invention. An orrery none but an astronomer could make; and he might fashion a second, as soon as he had seen a first; it was then, in a degree, an original work; whereas, in multiplying an author’s copy, his name, as well as his ideas, were stolen, and it was passed upon the world as the work of the original author, although he could not possibly amend any errors which might have escaped in his first edition, nor cancel any part which, subsequent to the first publication, appeared to be improper.” p. 987.
Lord Chief Justice De Grey, speaking against the copyright, said:
“Abridgments of books, translations, notes, as effectually deprive the original author of the fruit of his labors, as direct particular copies; yet they are allowable. The composers of music, the engravers of copper-plates, the inventors of machines, are all excluded from the privilege now contended for; but why, if an equitable and moral right is to be the sole foundation of it? Their genius, their study, their labor, their originality, is as great as an author’s; their inventions are as much prejudiced by copyists, and their claim, in my opinion, stands exactly on the same footing. A nice and subtle investigation may, perhaps, find out some little logical or mechanical differences, but no solid distinction in the rule of property that applies to them, can be found.” p. 990.
Lord Camden, speaking against the copyright, said:
“With respect to inventors, I can see no real and capital difference between them and authors. Their merit is equal; they are equally beneficial to society; or perhaps the inventor of some of those masterpieces of art, which have been mentioned, have there the advantage. All the judges, who have been of a different opinion, conscious of the force of the objection from the similarity of the claim, have told your lordships they did not know but that an action would lie for the exclusive property in a machine at common law, and chose to resort to the patents. It is, indeed, extraordinary that they should think so; that a right that never was heard of, could be supported by an action that never was brought. If there be such a right at common law, the crown is an usurper. But there is no such right at common law, which declares it a monopoly. No such action lies. Resort must be had to the crown [that is, to the king’s patent] in all such cases.” p. 999.
The foregoing extracts contain all that was said in the case, or at least all that is reported, relative to the similarity between the rights of authors and inventors, to a common law right of property, in their ideas. If the advocates of the rights of authors had had the courage to advocate also the rights of inventors, as stoutly as those, who resisted the rights of authors, insisted upon the similarity of rights in the two cases, a different decision of the cause might possibly have been effected. At any rate, such an impulse would have been given to inquiry in the true direction, as would very likely have resulted ere this in the full establishment of the rights of both authors and inventors.
The only argument, given against the copyright, that had any intrinsic weight or merit, was that of Lord Chief Justice De Grey, which has already been commented upon in a former chapter;* and need not be further noticed here.
Some of Lord Camden’s arguments are worthy of notice; not however for their intrinsic weight, but because of the high judicial rank of their author; and because also they seem to have had great influence with the lords, in inducing them to vote against the copyright.
1. He held that the want of precedent to sustain the right, was fatal to it. Thus he said:
“That excellent judge, Lord Chief Justice Lee, used always to ask the counsel, after his argument was over, ‘Have you any case?’ [precedent.] I hope judges will always copy the example, and never pretend to decide upon a claim of property, without attending to the old black letter of our law; without founding their judgment upon some solid written authority, preserved in their books, or in judicial records. In this case I know there is none such to be produced.” p. 998.
And again, alluding to the idea, thrown out by Aston and Smythe, that but for the statute against monopolies, an action at common law might be sustained against one who should pirate a mechanical invention, he said:
“It is, indeed, extraordinary that they should think so; that a right, that never was heard of, could be supported by an action that never was brought.” p. 999.
I repeat his words so far as to say, “it is, indeed, extraordinary” that an ex-Lord Chancellor should utter such opinions as these. If, as he pretends, “a case,” a precedent, is necessary to make Common Law, we are bound at once to renounce the whole body of the acknowledged Common Law as illegitimate, and declare the impossibility of there being any such thing as Common Law at all; because there was a time when a common law “case” had never been decided; when indeed a common law right had “never been heard of;” when a common law action “had never been brought;” and when, of course, according to Lord Camden’s argument, no common law court had any just authority “to decide upon a claim of property.” All common law decisions hitherto, have, therefore, on his theory, been mere usurpations, and of course can be no authority now; and all our common law rights of property, of every name and nature, of necessity fall to the ground. This is the legitimate conclusion of his argument.
This argument of the want of precedent is utterly worthless, where the case is a clear one on principle. New questions in common law—or, what, on this point is the same thing, in natural law—have been continually arising ever since mankind first had controversies with each other about their respective rights; and old ideas have given place to new ones, as knowledge has progressed. And such will continue to be the course of things as long as man is a progressive being, and has rights to be adjudicated upon. And the fact, that such or such a particular question has never arisen before, or that legal science has never heretofore been sufficiently advanced to decide it correctly, is no reason at all why the principles of justice and reason are not now the true and imperative rules for its decision. Neither the ignorance, nor the injustice of the past, has any innate authority over the present, or the future. They have not altered the nature of men’s rights, nor the nature of truth, nor abolished the obligations of justice. If mankind have not a right to the benefit of all new discoveries in law, as in the other sciences, as fast as they are made, they have no right to any old discoveries of the same kind; for the latter were as illegitimate in their origin as the former; and on this principle, the law of nature would stand shorn of her authority to control either the decisions of courts, or the conduct of men.
This pretence of the necessity of a precedent, is the pretence of a pettifogger, and not the argument of a lawyer. Lord Camden himself, in another part of his speech, virtually acknowledges its unsoundness; for he says, “Our law [the common law] argues from principles, cases, and analogy.” (p. 995.) Yes, from “principles” and “analogy,” no less than from “cases.” And he should have said, “from principles and analogy,” in preference to “cases;” for wherever previous “cases” have been decided contrary to the general “principles and analogies” of the common law, courts are bound to overrule them, in all subsequent decisions.
Lord Camden’s great predecessor in the chancellorship, Lord Bacon, inculcated no such narrow and absurd ideas, as to the necessity of precedents, or their authority to deprive mankind of the benefits of whatever knowledge they might afterwards acquire. Speaking “Of Cases Omitted in Law,” he says:
“The narrow compass of man’s wisdom cannot foresee all the cases which time may produce; and therefore cases omitted and new do often arise.” He then gives rules for judging of these cases; among which rules is this. “Let reason be a fruitful, and custom a barren thing.”*
It requires no words to prove which was the greater philosopher of the two—Lord Bacon, when he said that mankind did not know every thing from the beginning, and that, in judging of new questions, reason should be allowed to be a fruitful, and custom but a barren, source of authority; or Lord Camden, when he held it indispensable that we should have a precedent for every thing—or, what is virtually the same thing, that mankind have now a right to use only that knowledge, which was possessed at the origin of the race; and, in truth, not even that.
But, leaving these considerations of an abstract nature—sufficient reasons have already been given in this chapter, why inventors have never brought their common law rights before the English courts for adjudication, without supposing it to have been owing to any want of solidity in the rights themselves. And when the judges of England, for hundreds of years, have been the servile tools, and nothing but the servile tools, either of kings or parliaments, or both; and, as such, have habitually withheld all the constitutional and common law rights of the people, at the slightest bidding of arbitrary power; it ill becomes one of these judges now to offer, as an argument against the existence of one of these proscribed common law rights, the fact that the right has never been brought before themselves for adjudication, with the certainty that it would be spurned and trampled under foot by them; and with the further certainty that such a precedent, once created, would be cited, by themselves and their successors, for an indefinite period thereafter, as a sufficient warrant for similar outrages in all subsequent cases.
When English judges shall have shown sufficient reverence for that Common Law, which they have been sworn to support, to maintain it against the authority of unconstitutional legislatures and legislation, it will be quite as soon as they can, with any decency even, offer such an objection as this of Lord Camden’s. And it would be but a poor compliment to their understandings, to suppose that, even then, they would seriously entertain it; inasmuch as the question of the Common Law rights of inventors, is one, which, in the nature of things, would be likely to acquire prominence, only in such an advanced state of both civilization and freedom, (especially the latter,) as can hardly be said to have ever existed in England; certainly not until within a comparatively recent period.
2. Another of Lord Camden’s arguments was this, viz.: “If there be such a right at common law, the crown is an usurper.” That is, if inventors have a common law right of property in their inventions, the crown is an usurper in granting them patents, on the assumption that they have no such rights, but can only enjoy such privileges as he, in his “gracious pleasure and condescension,” may see fit to grant them.
This argument, that “the crown is an usurper,” can hardly need an answer, in America. It certainly is not one that need frighten an American court out of its senses, or even out of its integrity; although it is one that would be very likely to frighten an English court out of both. And especially would it be quite certain to produce these effects upon such a body as the lords, who themselves, both in their legislative and judicial capacities, are, constitutionally, nothing but usurpers. They, of course, would not dare to gibbet the king, for acting as their own accomplice in usurpation. And hence the weight, which, we may reasonably presume, this argument had, in the decision of the question before them.*
But Lord Camden need not have been alarmed at the apprehension, that if inventors were allowed their common law rights, the crown would, by consequence, have been proved an usurper. The granting of patents was not, originally—whatever it be now—an act of usurpation on the part of the king. It was a legitimate act of legislation, at a time when the legislative power was practically, as it always was constitutionally, vested solely in himself. And it was also such an exercise of that power, as showed quite as much regard for justice, and for the constitutional and common law rights of the people, as could reasonably be expected of him, in the dark and barbarous age, in which the granting of patents originated. It was, in short, an honest attempt to do equity—according to the degree of knowledge then existing on the subject—towards acknowledged public benefactors; and, at the same time, to promote the interests of the people, by encouraging new inventions. The patent was simply an authenticated copy of a statute, passed by the king, enacting that the inventor, or the introducer of an invention, should have an exclusive privilege to use the invention for a specific term, as a just reward for his labors, and for the benefits he had conferred upon the nation. This patent, or copy of the statute, authenticated by the king’s seal, was given to the patentee, that he might produce it in courts or elsewhere, in proof of the existence of the statute itself; the statutes not being generally published in those days, except by proclamation. And this statute, so authenticated, was then entitled to respect and observance, by the judges and juries throughout the kingdom, so far as they should think it consistent with the common law, and no further. Such was the original, constitutional nature of a patent, for a mechanical invention.
The statutes, or patents, therefore, which secured to inventors the exclusive use of their inventions, were perfectly consistent with the common law, for the term for which they were in force; and they were inconsistent with the common law only in this, that they limited the rights of the inventors to a fixed term, instead of securing them in perpetuity.
The most important—if not the only important—“usurpations” there have been in the matter, have been of a more modern date, as follows. 1. The usurpations of an unconstitutional legislature—the Houses of Lords and Commons—in prohibiting the king from granting patents to inventors for any more than a limited time. 2. The usurpations of the judiciary, in holding that patents, though granted only for a brief term, were inconsistent with the common law, and therefore to be defeated, if possible, by principles of construction, which had no just application to them, and by groundless imputations of fraud, on the part of the patentee, in cases of the slightest variation from accuracy in the specification.
So far, therefore, from the king’s “usurpation” being proved, by proving the common law right of inventors, to an exclusive property in their ideas, the only way of disproving his usurpation, in granting such patents at this day, is by asserting, instead of denying, that right; and also by asserting that the patent is granted to make the right more secure than it would otherwise be.
The prerogative of granting such patents, is a mere relic of the ancient sole legislative power of the king. As such, it is perfectly constitutional. While the right, which it is used to protect, is also a perfectly constitutional one, inasmuch as it has its immutable foundations in the principles of that common, or natural law, which alone, with very few exceptions, it was the design of the English constitution to maintain.
3. Coming to the question of “policy,” Lord Camden said:
“If there be no foundation of right for this perpetuity, by the positive laws of the land, it will, I believe, find as little claim to encouragement upon public principles of sound policy, or good sense. If there be any thing in the world common to all mankind, science and learning are in their nature publici juris, [subjects of common right,] and they ought to be free and general as air or water. They forget their Creator, as well as their fellow creatures, who wish to monopolize his noblest gifts and greatest benefits. Why did we enter into society at all, but to enlighten one another’s minds, and improve our faculties, for the common welfare of the species? Those great men, those favored mortals, those sublime spirits, who share that ray of divinity which we call genius, are intrusted by Providence with the delegated power of imparting to their fellow creatures that instruction which heaven meant for universal benefit; they must not be niggards to the world, or hoard up for themselves the common stock. We know what was the punishment of him who hid his talent, and Providence has taken care that there shall not be wanting the noblest motives and incentives for men of genius to communicate to the world those truths and discoveries, which are nothing if uncommunicated. Knowledge has no value or use for the solitary owner; to be enjoyed it must be communicated. ‘Scire tuum nihil est, nisi te scire hoc sciat alter.’ [Your own knowledge is nothing, unless another know that you possess it.] Glory is the reward of science, and those who deserve it, scorn all meaner views. I speak not of the scribblers for bread, who tease the press with their wretched productions; fourteen years is too long a privilege for their perishable trash. It was not for gain, that Bacon, Newton, Milton, Locke, instructed and delighted the world; it would be unworthy such men to traffic with a dirty bookseller for so much a sheet of a letter press. When the bookseller offered Milton five pound for his Paradise Lost, he did not reject it, and commit his poem to the flames; nor did he accept the miserable pittance as the reward of his labor; he knew that the real price of his work was immortality, and that posterity would pay it. Some authors are as careless about profit as others are rapacious of it; and what a situation would the public be in with regard to literature, if there were no means of compelling a second impression of a useful work to be put forth, or wait till a wife or children are to be provided for by the sale of an edition? All our learning will be locked up in the hands of the Tonsons and 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.” 17 Parl. Hist. 999-1000.
I doubt if such poor fustian and sophistry as this can deserve an answer, even when coming from an ex-Lord Chancellor. Yet it may not be unworthy of attention, as an index to the motives which finally controlled the decision of the Lords; for it is fair to presume that Lord Camden had at least a tolerable understanding of the intellectual and moral attributes of the body he was addressing, and of the influences most likely to determine their adjudication.
If, then, he meant to lay it down as a rule, that “public principlesof sound policy and good sense” require that all “those great men, those favored mortals, those sublime spirits, who share that ray of divinity, which we call genius,” should be placed without the pale of the common principles of justice, and deprived of all their natural or common law rights of property, we can have no difficulty in appreciating his ideas of “public principles of sound policy and good sense.” But if he do not contemplate this general destruction of all their common law rights of property, it is not so easy to see on what “principle” it is, that he selects their intellectual productions, as special objects of confiscation.
If there really were any “men” so “great,” any “mortals” so “favored,” any “spirits” so “sublime,” that their bodies could live on the “glory” and “immortality,” which “posterity will pay,” there might be—what there is not now—some little reason why society, while being enriched and enlightened by them, should be execused for robbing them of all other means of subsistence. But since the greatest of men, the most favored of mortals, and the sublimest of spirits, will just as soon die without eating, as any of the rest of mankind, it is quite indispensable, in order that they may live, and give the world the benefit of their labors, that, while laboring, they have some nutriment more substantial than prospective “glory” and “immortality.”
But Lord Camden assumes—as men more ignorant, and therefore more excusable, than himself, have often done—that valuable ideas cost their authors neither time nor labor; that the production of them interrupts none of those common pursuits, by which other men procure their subsistence; and hence he brands them as “niggards,” and “rapacious,” if they demand any price for the invaluable commodities they offer to mankind. Yet he well knew the injustice and falsehood of such an idea. He knew that the greatest geniuses have usually been among the greatest laborers in the world. So rarely indeed has genius produced any thing valuable without effort, that it has been a very common opinion among men, that genius itself was only labor in its highest intensity.
More shameless meanness, injustice, or falsehood has seldom been seen, than in this attempt of Lord Camden to deprive the most useful and meritorious, as well as the most self-sacrificing individuals, of the benefit of the common principles of justice, in their efforts to live by performing for society the most valuable labors.
Perhaps, however—not to do him injustice—it may be thought that a clue to his reasons for this apparently arbitrary exception of intellectual property from the protection of the law, is to be found in his remark, that,
“If there be any thing in the world common to all mankind, science and learning are in their nature publici juris, [subjects of common right,] and they ought to be as free and general as air or water.”
The answer is, that there is not “any thing in the world”—not even “air or water”—that is, “in its nature,” “common to all mankind,” or “free or general,” in any such sense as he assumes it to be—that is, in any sense that forbids its being made private property to any possible extent, to which it is practicable for individuals to take exclusive possession of it.
“Air” and “water” are free and common to all mankind, only in the same sense in which land, and trees, and gold, and iron, and diamonds, and all other material things, are free and common to them. And that sense is this. Land, trees, gold, iron, and diamonds, in the state in which they originally exist in nature, to wit, unappropriated, are free and common to all mankind—that is, they are “free” to be appropriated, or made private property, by individuals; and all mankind have equal rights, and equal freedom, to appropriate them, or make them their private property. In this sense, those commodities are “free and common to all mankind,” and in no other. So soon as they are thus appropriated, they are no longer free or common to all mankind, but have become the private property of the individuals so appropriating them; who thenceforth have a right of absolute and exclusive dominion over them against the world. It is precisely the same with “air and water.” In their natural condition—that is, unappropriated—they are free and common to all mankind—that is, free to be appropriated, or made private property. And all mankind have equal rights and equal freedom to appropriate, or make them their private property. In this sense, air and water are free and common to all mankind, and in no other legal sense. So soon as they are thus appropriated, they are no longer free or common to all mankind; but have become the private property of the individuals so appropriating them; who thenceforth have a right of absolute and exclusive dominion over them, against the world, until they either consent to part with the right, or until they are deprived of it by the operation of some physical law of nature which they cannot resist.
There is nothing, therefore, “in their nature,” as Lord Camden assumes, that forbids “air or water” to be made private property; and, as a matter of fact, there are perhaps no material substances in the world, that are more frequently appropriated, or made private property, than air and water. At every breath we make private property of so much air as we inhale. When we exhale it, we abandon our right of property in it. We abandon our right of property in the air we exhale, for two reasons, namely, choice, and necessity; from choice, because it is not worth preserving—air being so abundant that we have no necessity to retain any portion of it for a second use; from necessity, because we exhale it into the surrounding air, where we can no longer identify it, as that which has been ours.
We make private property of air also, when we inclose it in our dwellings, and warm it to adapt it to our comfort. We abandon our right of property in it, when we open our doors and windows to let out the air that has become impure, and to let in that which is pure.
This air, which we thus inclose in our dwellings, and, by warming or otherwise, fit for our use, is as much private property, while it is thus inclosed, as the gold or the diamonds we have digged from the earth; and no man has any more right to inhale it, without our consent, or to open our doors and let it escape, than he has to steal our gold or our diamonds.
Men do not often buy and sell air, solely because it is so abundant, and so easy of acquisition by all, that it will seldom bring any price in the market; and not because, as Lord Camden assumes, there is any thing “in its nature,” that legally forbids our making merchandise of such quantities as we can take possession of.
The same is true of water as of air. Hardly any thing, except air, is more frequently made private property than water. Every time a man dips water from a spring or a stream, he makes it his private property. It at once becomes his, against the whole world besides. And no man has a right to object to its being made private property, on the ground that it is “in its nature,” free and common to all mankind. In its natural condition it is free and common to all mankind, only in the sense of being unappropriated—the property of no one—and therefore free to be appropriated by whomsoever pleases to take possession of it, and make it his property. It is only by being thus appropriated, and made private property, that it can be made useful to mankind.
The water in the ocean is free and common to all mankind, only in the sense that it is unappropriated—the property of no one—and therefore free to be appropriated by any one at his pleasure or discretion. And it is only by appropriating it, and making it private property, that it is made of any use to mankind. Thus that portion of the ocean, which a man, at any particular moment, occupies with his body, his vessel, his anchor, or his hook, is, for that moment, his private property against the world. When he removes his body, vessel, anchor, or hook, he abandons his private property in the water he once possessed. He makes this abandonment, both from choice, and from necessity; from choice, because he no longer needs that particular water for use; and from necessity, because he can no longer identify it as that which had been his.
Water is not only a legitimate object of private property, and continually converted into private property, but it is, to a very considerable extent, made an article of merchandise. For example, large quantities of water are brought, in aqueducts, into cities for sale. Single individuals sometimes bring it in, in small quantities, for the same purpose. In its congealed state, it is sent, in large quantities, to distant parts of the world as merchandise. Yet nobody, not even Lord Camden, was ever foolish enough to object to the legitimacy of this commerce, on the ground that water was, “in its nature,” free and common to all mankind, in the sense of being incapable of legal appropriation.
The idea, that “air and water”—meaning thereby the great body of air and water—are the common property of all mankind—using the term property in its legal sense—is a very common, but a very erroneous one; and it is one from which many fallacious arguments are drawn, that this, that, and the other species of property ought also to be free and common to all mankind. Whereas the truth is that the great body of air and water are not property at all. They are neither the “common property of all mankind,” nor the private property of individuals. They simply exist unappropriated; free to be made property; but when appropriated by one, they are no longer free to be appropriated by another.
The remark, therefore, that air and water are “free and common to all mankind,” can never be used, with truth, to signify that one man has any more legal right to interfere with, or lay any claim to, such quantities of air or water as another man has taken possession of or appropriated, than he has to interfere with, or lay claim to, such quantities of land, gold, iron, or diamonds, as another man has appropriated.
If, therefore, when Lord Camden speaks of air and water as being, “in their nature,” free and common to all mankind, he mean that they cannot lawfully or rightfully be appropriated, or made private property, he manifests a degree of ignorance, thoughtlessness, or mendacity, that is entirely disgraceful to him; since there is no legal proposition whatever, that is more entirely clear, or more universally acted upon, than that every individual has a natural right to make private property of air and water, to any possible extent that he can take possession of them, without interfering with others in the exercise of the same right. Air and water would be of no use to mankind, unless they could be made private property.
But if he only mean that air and water, unappropriated, are free and common to be appropriated, and made private property, by all mankind, then his assertion that “science and learning” ought to be equally free—that is, equally free to be appropriated, and made private property—only makes against the very point he was trying to establish, viz.: that science and learning ought not to be made private property. And there is consequently no sense whatever in his argument. It is mere idiocy.
If he mean that science and learning ought to be as free to be appropriated, or made private property, as air or water, neither authors nor inventors can object to the principle; for that is the very principle they themselves are contending for. They admit that the boundless fields of knowledge, like the boundless fields of air and water, are open and free to all mankind alike; and all they claim is, that each individual shall have an exclusive property in all the knowledge that he himself, by the exercise of his own powers, and without obstructing others in the exercise of theirs, can take exclusive possession of; that they have the same natural right to an exclusive property in their exclusive acquisitions of knowledge, which they and all other men have in their exclusive acquisitions of air, of water, of land, of iron, of gold, or of any other material commodities, which, so long as they remained unappropriated, were free and open to all mankind—that is, free and open to be appropriated; but which, when appropriated, are no longer free and open to all mankind, but are the private property of the individuals who have appropriated them. Can Lord Camden, or any one else, deny that the principle is as sound, or as applicable, in the one case, as in the other?
But perhaps it may be said that Lord Camden’s remark is to be taken in still another, and an economical sense, viz.: that “science and learning” ought to be as abundant, as easy of acquisition, and therefore as cheap, as “air or water.” If this be what he means, all that need be said in reply is, that the Author of Nature happened to differ from him in opinion. If He had been of Lord Camden’s mind, as to what was best for mankind in this respect, He would undoubtedly have made all the knowledge, which men ordinarily need or desire, as abundant, as easy of acquisition by all, and consequently as cheap, as are their requisite supplies of air and water. But He has not done so. On the contrary, while He has made many kinds of knowledge very easy of acquisition, and therefore very cheap, and even valueless, as articles of merchandise, He has made other kinds attainable, in the first instance, only by great toil and effort. These being of great value to mankind, and produced only by great labor, are capable of commanding a price in the market; because it is cheaper for men to buy them than to produce them for themselves. And this price, by the laws of trade, which are but the laws of nature, will be governed—like the prices of all other commodities—by the cost of production, and the demand for use. And there is no more reason why the producers of these rare, costly, and valuable ideas, should give them to the world, and receive no compensation for the labor of producing them, than there is why the producers of any other valuable commodities should give them to the world, and receive no compensation for their labor in producing them.
But Lord Camden’s principle is, that when one man has digged deep, and toiled hard, to acquire knowledge, another man should, by law, be free to share it with him, without his consent, and without making him any compensation. Was he ever willing to apply that principle to “water?” When he had digged deep, or toiled hard, to obtain water, was he willing that another, who had pursued his own pleasure or interests meanwhile, should, by law, have equal rights in it with himself, without asking his permission, or making him any compensation for his labor? Any thing but that! His principle, in regard to “water,” and to all material commodities, was—as he himself expressed it in regard to land, which is, “in its nature, as free and common to all mankind as air or water”—that “No man can set his foot upon my ground, without my license.”*
But he says, “They forget their Creator, as well as their fellow creatures, who wish to monopolize his noblest gifts and greatest benefits.”
This affectation of piety means that the producers of ideas are morally bound to give the products of their labor as freely to all mankind, as the Creator does the products of nature—that is, without money and without price. If men were like their Creator, not dependent upon their labor for subsistence, there would be some reason in such fantastical morality as this. But while the producers of ideas have bodies to be fed and clothed, it is as ridiculous to talk of their being under a moral obligation to give the products of their labor freely to all mankind, as it would be to talk of the moral obligation of the producers of food or clothing to give the products of their industry freely to all mankind. In reality, many of the producers of ideas are the greatest practical producers of food and clothing; for they supply that knowledge, which is the most efficient instrument in producing food and clothing.
Did Lord Camden, as judge or chancellor, ever act upon the principle that it was his duty to give his ideas freely to all mankind? Not he. He demanded titles, and salaries, and pensions, in exchange for his ideas; salaries and pensions too, not granted to him by voluntary contract on the part of the people who paid them—as are the prices paid to authors and inventors—but extorted from them by that arbitrary government, which he ought to have resisted, and, if possible, overthrown; but of which he choose rather to make himself the instrument. It was quite consonant with his ideas of law and morality, to assist this tyrannical power in actually plundering the people of their money, that it might be paid over to himself for his own false and worthless ideas; but it was, in his view, immoral and illegal for authors and inventors to sell their ideas for what they would bring, on voluntary contract, in free and open market.
Only two days after receiving his office as Lord Chancellor, this superlative moralist and judge wrote to the minister, to have his salary, pension, and equipage money, secured to himself, and a lucrative office for his son.* And the opinion he gave, in this case of Donaldson vs. Becket, vindicating the crown against the charge of usurpation, in denying the rights of inventors, and exhorting his own fellow usurpers, the Lords, to deny and destroy the rights of authors, is a specimen of the ideas he intended to furnish the government in return. To sell himself and all his false and tyrannical political ideas to the government, was, in his opinion, a perfectly legitimate commerce; but the sale of useful knowledge to the people, was an act interdicted by law and morality. There have been many such judges and moralists as he.
But he says that men of genius “are intrusted by Providence with the delegated power of imparting to their fellow creatures that instruction, which Heaven meant for universal benefit.”
Yes, men of genius are undoubtedly designed by Providence to labor intellectually for the benefit of mankind. Yet it was left for his lordship to announce the discovery of a special revelation, to the effect that it was also the design of Providence that they should live without eating; or, what is the same thing, that they should receive nothing in exchange for the products of their labor. This important revelation he thinks he has found in the parable of the slothful servant. “We know,” says he, “what was the punishment of him who hid his talent.” Selling ideas in the market, this sagacious lord holds to be equivalent to hiding them in the earth. They can be of no use to mankind, unless given to them “freely!”
Up to this time, the world had never, I believe, conceived this parable to be a rebuke for not giving away one’s talent; but only for not trading with it, or using it, in a way to bring an income. But taken in this last sense, it would not have greatly benefitted his lordship’s argument.
This new reading of the scripture, however, was quite apropos to the question before them, for the reason that English lords have, of course, been unable wholly to escape the taint of the common humanity, the common justice, and the common sense, of the common people; and there is no knowing how far their weaknesses, in those respects, might have carried them, in the adjudication of this question of intellectual property, if the conscientious and religious scruples, which their order have for ages entertained, against allowing mankind to enjoy the fruits of their labor, had not been appealed to, and fortified, by the authority of scripture.
Had this new interpretation of the parable, fallen from one of those dignitaries of the church, who occupy seats in the House of Lords, apparently to lend the light, as well as the sanction, of religion to the action of that body, we might have thought that it accorded perfectly, both with his profession, and his practice. But coming from a lay lord, and addressed to other lay lords, in their capacity of common law judges, and taken in connexion with the decision which followed, it is perhaps to be regarded only as an illustration of the sense, in which they hold Christianity to be a part of the Common Law.
But Lord Camden says further, that the producers of ideas “must not be niggards, and hoard up for themselves the common stock.”
This, we are to suppose, is but another specimen of the reasonings, by which men’s rights are determined in the House of Lords.
There would plainly be as much sense in saying that those who produce wheat, and bring it to market, and ask a price for it, are therefore “niggards to the world, and hoard up for themselves the common stock,” as there is in saying it of the producers of ideas. The producer of ideas, like the producer of wheat, brings the products of his labor to market to-day, that he may exchange them for the means of subsistence, and thus live and be able to produce other ideas to-morrow; which other ideas he will bring to market in like manner. He sells his ideas, too, or at least many of them, for one per centum of their actual value for economical purposes. If this is being a “niggard to the world, and hoarding up for himself the common stock,” it is unfortunate for the world that there have been so few such niggards in it; for it is only the want of a sufficient number of them, that has kept mankind in ignorance and poverty, and rendered them the easy dupes of such hypocrites as Camden, and the easy prey of such robbers as those to whom he was addressing his arguments.
But he says again, “What a situation would the public be in with regard to literature, if there were no means of compelling a second impression of a useful work to be put forth, or wait till a wife or children are to be provided for by the sale of an edition? All our learning will be locked up in the hands of the Tonsons and Lintons of the age, who will set what price upon it their avarice chooses to demand.”
This appalling interrogatory can perhaps be best answered by presenting another, which is at least equally alarming, and equally rational, viz.: What a situation would the public be in with regard to wheat, if there were no means of compelling the producers to bring it to market, until their wives or children were to be provided for by the sale of it? All the wheat will be locked up in the hands of the owners, who will set what price upon it their avarice chooses to demand.
The only remedy for this frightful state of things, would be, according to Lord Camden’s notions of “sound policy and good sense,” to declare that wheat ought to be as free and common to all mankind as air or water; that men forget their Creator, as well as their fellow creatures, when they claim to own the wheat they have produced by their labor; that they must not be niggards to the world, and hoard up for themselves the common stock; that they should bear in mind the punishment of him who hid his talent; that the man who freely gives away his wheat—especially if he do it in sufficient quantities to astonish, as well as to supply, the world, will be sufficiently rewarded by the sublunary “glory” and “immortality” which “posterity will pay;” and therefore it ought to be adjudged, by a nest of usurpers and tyrants, calling themselves the House of Lords, that those who produce wheat, have no exclusive right of property in it.
All this would be carrying out Lord Camden’s theory to the letter, and nothing more.
But his lordship’s resources, on this question, are not yet exhausted. He has one argument left, which perhaps overtops in dignity, as much as it overbalances in weight, all that have preceded it. It is this.
“It would be unworthy such men [as Bacon, Newton, Milton, and Locke], to traffic with a dirty bookseller!”
If these great men had been living at the time, they could not have felt otherwise than grateful for the anxiety which Lord Camden manifested for the preservation of their dignity; although they might, perhaps, have thought it was carrying the point a little too far, for him to think of taking the care of it out of their own hands. So excessive a guardianship as that, they might possibly have felt constrained to decline.
It is nevertheless true, that booksellers are—at least many of them—very “dirty” fellows. Yet, even here, there may be a question, as to who are the dirty, and who the respectable, ones. And on this point, I apprehend the world are likely to differ from his lordship, as widely perhaps as on the true interpretation of scripture, or the true “principles of sound policy and good sense.” He evidently esteemed those booksellers dirty, who pay authors for their works; while the world may possibly think those the respectable, and the others the dirty ones. It will be a difficult question to settle, if it shall be found that two such authorities, as the world and his lordship, differ in regard to it.
Lord Camden doubtless thought it would be much more consistent with the true dignity of a man of genius, to live, as so many men of genius have lived, in humiliating dependence upon some lord, who should condescend to patronize him, or to become a pensioner and flatterer of the crown, than to live by selling his works to the booksellers, and through them to the people. And he attempts to screen Milton from the disgrace, which he assumes would have attached to him, if he had accepted the five pounds for his Paradise Lost, out of any regard to the worldly value of that sum. He evidently imagines that Milton must have accepted it in some poetic or figurative sense, rather than from any such vulgar motive as a consideration of how much bread or meat it would buy. But in this he is unquestionably mistaken. It is morally certain that the price of the immortal poem went to pay butchers and bakers, the same as it would have done, if it had been the earnings of a cobbler; and that he accepted the five pounds, solely because the poem would bring no more, and because the utility of even such a sum as that, was something which he could not afford to disregard.
We can imagine some very tolerable reasons why lords should not “patronize” Milton, nor kings grant him pensions; such reasons, for example, as that, notwithstanding he was a poet, he had a somewhat inveterate habit of expressing the homely opinion, that, when kings did not behave themselves well, the people ought to cut their heads off. Nothing is more natural than that this vulgar turn of mind should have injured his prospects with the great, and consequently made it necessary for him to live by his own labor, independently of their bounty. Perhaps if he had been a contemporary of Lord Camden, the latter might have taken pity on him, appreciated him, and offered to instruct him in the art of living in a manner more consistent with the dignity of a gentleman. It would be interesting to know the particular way, in which his refined lordship would have introduced the subject of a royal pension, or some nobleman’s “patronage,” to the poor, but proud old Roundhead. Doubtless a prudent regard for his own dignity would have suggested to him, that such a proposition could be made with safety, only at a respectful distance from the poet’s boots.
If the scholars and poets of England, since Milton’s time, had inherited a tithe of his spirit, with but a tithe of his genius, no such body of usurpers as the House of Lords would have ever taken it upon themselves to adjudge, either that authors had no right of property in the products of their labor, or even that, if they had such rights by nature, parliament had authority to destroy them. In fact, there would, in 1774, have been no such judicial or political body as the Lords in existence.
If men ever deserved the political oppressions, to which they were subjected, there is perhaps no class of persons, who have more richly deserved to have their rights stricken down by the hand of usurpation, than those scholars of England, who have lacked the spirit and the principle to defend the constitution and liberties of their country, against the tyranny of such usurpers as the Houses of Lords and Commons.
I have now bestowed, perhaps more attention than they deserved, upon Lord Camden’s arguments in favor of what he calls those “public principles of sound policy and good sense,” which forbid that authors should be acknowledged to have any common law right of property in their ideas. Perhaps nothing could illustrate more forcibly the degradation of literature, and of literary men, than the fact that such false, frivolous, absurd, and shameless reasons could be gravely urged by an ex-Lord Chancellor, before the highest judicial tribunal of the kingdom, as arguments against the rights of intellectual men, and should apparently have produced the effects he designed by them, without bringing either upon himself or the tribunal, one effective retributory blow. It may reasonably be doubted whether, in five hundred years, the House of Lords, or indeed any other judicial tribunal, have struck down a principle, that was more important, or even equally important, to the progress of mankind in wealth, civilization, and freedom. And yet the immediate victims—men too, whose attainments and habits ought to fit them peculiarly for the defence of their own and the public rights—tamely acquiesce in the wrong for four-fifths of a century.
The injustice was done, too, under circumstances of unusual insult and oppression—that is, it was done on the most palpably frivolous, false, heartless, and ridiculous pretexts—(admitting that Lord Camden’s reasons of policy produced any effect;) and by a grossly and manifestly unconstitutional tribunal, sitting in a country boasting of its freedom. Still the men, who should have been aroused, by the act, to vindicate their own rights, and the rights of their nation, have ever since chosen, neither to resent the insult, nor retaliate the injury; but rather to forego their self-respect, as well as their rights, and to flatter and fawn upon those who thus trample them and their fellow men, the learned and the ignorant, the genius and the clown, indiscriminately under foot—sparing only such men as Charles Pratt, (afterwards made Lord Camden,) who could be bribed by offices, titles, salaries, and pensions, to become their tools in the work.
If the literary men of England do not hereafter set themselves to the work of writing this unconstitutional and tyrannical court out of existence, they will deserve little sympathy in any wrongs they may suffer at its hands.
By way of offset to Lord Camden’s “public principles of sound policy and good sense,” on this subject, I here offer a single suggestion.
It has hitherto proved as bad in policy, as it is in morals, for mankind to think of getting the use of men’s ideas by robbery, instead of compensation. Men, who have ideas to impart to others, are very apt also to have ideas for their own use; and no amount of hypocritical preaching, or judicial decisions, whether they come from a Lord Chancellor, or from such a body of vampires as the English House of Lords, or from any other quarter whatever, will be likely ever to persuade them, in any great numbers, to act upon the notion that it is their religious duty to die of starvation, in order that they may give their knowledge “freely to all mankind.” Their consciences are rarely so tender as to be in any danger on such a point as that. They know that they have as fair a right to acquire, by their labor, the necessaries, comforts, and even luxuries of life, as other men; and—reprehensible and lamentable as it may be and is—experience abundantly proves, that if their fellow men at large will seize the products of their intellectual toil, without making them compensation, very many of their number will sell their ideas to those who will pay—to kings, and lords, and tyrants—to aid in plundering, oppressing, and degrading their fellow men, instead of enlightening, enriching, and elevating them. And Lord Camden himself is by no means a very bad or remarkable example of this choice of alternatives, on the part of an intellectual man. He has generally been esteemed a good, rather than a bad man. Was a liberal man in his politics. His natural instincts, I think, would have much more strongly induced him to labor for mankind, than against them, if the labor could have been equally profitable to himself. And similar examples are every where thick around us. In fact, they constitute the rule, rather than the exception, in the case of intellectual men as a class.
It is poor economy, therefore, on the part of the common people, to attempt, by stealing their knowledge, instead of buying it, to defraud intellect of its wages. If they refuse to pay intellect for defending, enlightening, enriching, and elevating them, they will no doubt continue to find, as they ever hitherto have found, that intellect, by serving their oppressors, will compel them to pay for their own degradation and destruction.
[* ] Jones on Bailments 133.
[† ] 1 Kent 522. 7th edition.
[* ] Among the exceptions referred to, are these—that a women, on marriage, shall lose the control of her property, her natural right of making contracts, &c.; that a child, born out of wedlock, shall not inherit the father’s estate; and some others not necessary to be named. These exceptions to the principles of natural law, are of such antiquity, that the time and mode of their establishment are now unknown. And no laws whatever, contrary to the law of nature, are parts of the Common Law, unless they have been in force from time immemorial. It will be shown hereafter that no immemorial law has existed in England, adverse to the rights of authors and inventors to a perpetual property in their ideas.
[* ] For the historical proofs that the Common Law and the English Constitution were such as have here been described, I refer the reader to my “Essay on the Trial by Jury.”
[* ]Wm. Blackstone 301 and 321.
[* ] For these and various other authorities, showing the opinions of English judges, that patents for new inventions were good at Common Law, see Hindmarch on Patents, ch. 1 and 2. Also Coke’s chapter on Monopolies, 3 Inst. 181.
[* ] One reason why no more progress has been made in other branches of natural law, has been, that natural law has been superseded by arbitrary legislation; and all the legal mind of England and America, has been engrossed, for centuries, in interpreting and enforcing this legislation, instead of pursuing the study of natural law as a science. Another reason is, that the progress of natural law, in any direction, is dangerous to arbitrary institutions; and therefore courts, sitting under the authority of arbitrary governments, systematically ignore all discoveries in natural law, until they have first been sanctioned by the legislative power. And this last event generally happens only when the government finds that a revolution, dangerous to its existence, is impending.
[† ] An English patent is granted in these supercilious and insolent terms. After reciting that the applicant has “humbly petitioned” the crown for a patent, it adds,
“And we, [the queen,] being willing to give encouragement to all arts and inventions, which may be for the public good, are graciously pleased to condescend to the petitioner’s request. Know ye, therefore, that we, of our especial grace, certain knowledge, and mere motion, have given and granted, and by these presents, for us, our heirs, and successors, do give and grant unto the said A. B., his executors, &c., our especial license, full power, sole privilege, and authority, that he the said A. B., his executors, &c., shall and lawfully may make, use, exercise, and vend his said invention,” &c.
Is it not nearly an infinite insult, that such men as Arkwright and Watt, who were of ten thousand times more value to mankind than all the kings and queens that time has ever produced, or ever will produce, should be necessitated to hold their natural rights to the products of their own labor, on such terms as these? If a greater insult can be conceived, it would seem to be, that authors, and such authors as John Milton, should be compelled to ask “license” of a king to print their own thoughts. This insult to authors is no longer practised; because the authors, with truth on their side, proved themselves stronger than the king. When inventors assert their rights in like manner, they will no longer be necessitated to accept them as grants, or favors, “graciously” bestowed on them by the government.
The Common Law never required that a freeborn Englishman should “humbly petition” the crown for the enjoyment of his natural rights of property; nor that he should ever accept those rights as a grant originating in the “gracious pleasure and condescension” of the king. And if the constitutional system of government had been preserved, such degradation, on the part of inventors, would not, at this day certainly, have been witnessed.
[* ] During the first twenty years of the present century there were but one hundred and three patents a year, on an average, granted for both foreign and domestic inventions. (See Pritchard’s list of Patents.) From this fact one can judge somewhat how few inventions could have been made in former times, when the population was comparatively small, and the arts had made so little comparative progress.
[* ]Coke’s 3 Inst. 184.
[* ]Hindmarch 46. 3 Car. and Payne 611.
[† ]Hindmarch 46. 1 Starkie’s R. 205.
[* ] 4 Burrows 2303.
[* ]Chapteriv,pages 119-120-133.
[* ]Parliamentary History, Vol. 17, p. 981.
[* ]Page 68.
[* ]Chapteriv,page 113.
[* ]Parliamentary History, Vol. 17, p. 953.
[* ]Chapteriv,page 115.
[* ]Advancement of Learning, B. 8, Aphorisms 10 and 11.
[* ] I say, in the text, that “the lords, both in their legislative and judicial capacities, are, constitutionally, nothing but usurpers.”
By the English constitution, an order of nobility could exist only on the foundation of the feudal system. When that system was abolished, all distinctions of political rank, inferior to that of the king, were, constitutionally speaking, abolished with it. And all the legislative and judicial power, since exercised by the lords, as a body, has been a sheer usurpation. This usurpation was originally accomplished by them, by means of their wealth, and by conspiring with the king, the knights, and the “forty shilling freeholders,” so called (originally represented in the House of Commons); a class, whom Mackintosh designates as “a few freeholders then accounted wealthy.” (Mackintosh’s Hist. of Eng., Ch. 3.) The same kind of influences, which originally enabled them to accomplish this usurpation, have enabled them hitherto to sustain it. It never had the least authority in the constitution of the kingdom.
[* ]Campbell’s Lives of the Lord Chancellors, Vol. 5, p. 215. Entick vs. Carrington, 19 State Trials 1066.
[* ] The following is a copy of his note.
“The favors I am to request from your Grace’s despatch, are as follows.
1. My patent for the salary.
2. Patent for £1500 a year upon the Irish establishment, in case my office should determine before the tellership drops.
3. Patent for tellership for my son.
4. The equipage money; Lord Worthington tells me it is £2000. This I believe is ordered by a warrant from the Treasury to the Exchequer.”
Campbell’s Lives of the Lord Chancellors, Vol. v, p. 221.