Front Page Titles (by Subject) SECTION IV.: Review of the Case of Donaldson and another, vs. Becket and another. - The Law of Intellectual Property; or An Essay on the Right of Authors and Inventors to a Perpetual Property in their Ideas
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SECTION IV.: Review of the Case of Donaldson and another, vs. Becket and another. - 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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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.
[* ]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.