some to

who buys a printed copy of a book? etc., it is apprehended that a clue to the whole difficulty will be found in the simple consideration-founded. in the same natural law, or, at least, in (what we have seen has been considered by some be the same thing) the common consent of mankind— that property is support, income, means of livelihood; that by a man's property he must subsist, and that from it he must produce his living, and the living of those for whom the law has decreed he must provide..

6. For property, again, is capital. One man's capital may be in a certain number of acres or feet of the earth's surface. Another's may be in houses, or ships, or shares of stock, or money. A blacksmith's capital may consist in the strength of his arm; a dancer's, in the lightness of his limbs and feet; a contortionist's, in the suppleness of his joints and frame; a scrivener's, in the nimbleness of his fingers; a musician's, in the acuteness of his ear. Would it not be unjust and a hardship to decree that because the capital of still another citizen was in brains, that therefore he should be deprived of the living which is to be earned by all of these?

Lord Camden, indeed, in the argument' to which definito aliquo præcepto juris naturalis debuerunt proprietatem subire; sed hæc est introducta, prout par mortalium id requirere visa fuit."—Copinger on Copyright, p. 3.

1 Delivered in the House of Lords, in answer to Lord Mansfield, in Millar v. Taylor: "If, then, 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 anything in the world common to all mankind, science and learning are, in their nature, publici juris, and they ought to be as 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

allusion has been made, disclaimed, with aristocratic bitterness, the idea that any one worthy to write at all, should write for bread. "Glory," he exclaimed, 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 Providenee 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 Glory is the reward of science, and those who deserve it scorn all meaner views. I speak not of the scrib blers 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 pounds 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 the Lintons of the age, who will set what price upon it their avarice chooses to demand, till the public become as much their slaves, as their own hackney compilers are."-17 Parl. Hist. 999, 1000.

Lord Camden, however, seems to have been wrong in his facts. It seems that it was only for an immediate payment of five pounds (in those days not such a very inconsiderable sum, either), that Milton sold his copy to Samuel Simmons in 1667. The agreement with Simmons besides entitled him to

"is the reward of science, and those who deserve it, scorn all meaner views." But, unfortunately for Lord Camden, among the class whom he designated as a payment of five pounds more when thirteen hundred copies should be sold of the first edition; of the like sum after the same number of the second edition; and of another five pounds after the same sale of the third edition. The number of each edition was not to exceed fifteen hundred copies. In two years, Milton appears to have signed a receipt on the 26th of April, 1669, for the second payment. The second edition was not printed till 1674, and Milton did not live to receive his third payment. The third edition was published in 1678; and his widow agreed with Simmons to receive eight pounds for her right, as appears by her receipt, dated December 21, 1680; and she gave him a general release, April 29, 1681. Simmons sold the copyright to one Brabason Aylner for twenty-five pounds, and Aylner sold it in 1633 to the publisher Johnson, who appears to have excited his Lordship's displeasure (Todd's Life of Milton, 193-195. London, 1826.). In commenting on these facts, Mr. Curtis, in his valuable work on Copyright (Boston, 1847, p. 63), remarks with great propriety, "It thus appears that the poet was very careful to assert his full right of property, as he and others understood it at the time, and to make it available to his family. The amount which he chose to receive, compared with the real value of the poem, measured by a modern standard, seems very trifling. But as such rights were estimated then, and considering that the poem gained slowly upon the attention of his own age, it was not a grossly inadequate price. When it had been published fourteen years and upwards, the copyright between one bookseller and another brought only twenty-five pounds. Yet its value could not have been affected by any apprehension at the time of this sale that it was not protected by common law. Such a notion had not then arisen: and long after, viz., in 1739, Lord Hardwicke protected by injunction, the title of Tonson, derived under the assignment made by the poet in 1667. Doubtless Milton did not write his grand poem for money; but we have seen that he supposed the right of exclusive property in authors was acknowledged by the law of his country, and he took pains practically to assert the right in his own case. It seems to me by no means a wild conjecture that he did this for the sake of example, as well as in order to preserve his reputation, by keeping the control of his own poem."

"scribblers for bread," the greatest names in literature, and the profoundest benefactors of their race, have been numbered. The literature of the world has been written in garrets, no doubt; but to a noble mind, the poverty of a man of letters would seem an argument the more, instead of an argument the less, for protecting him in the possession of his own, however small and meager. Lord Camden appears to have been one of those who would have given more abundantly to him that had already, and from him that had not, have taken away even that he had!1

7. Assuming, then, that the author's means of support is in the employment of the capital which he possesses in his own brain, we purpose devoting the following pages to a consideration of the means by which the law will permit him to make that capital available for the purpose. For it is the policy of the law to encourage every man to provide his own livelihood, and not to become a burden upon his neighbors, or upon the State.

2

'If any author does write" for glory," it probably is the writer of a legal text book, since, it seems, that a law writer is not to be considered an authority in his own lifetime. (Reg. v. Son, 2 Den. C. C. 475; 6 Cox's. C. C. 1; 16 Jur. 746; 14 Eng. Law & Eq. R. 556; 1 Ben. & H. Lead Cas. 400; 3 Bing. 259; Reg. v. Drury, 3 Cox's C. C. 1st Rep. Eng. Com. Law Commissioners.) So, unless he write for purely literary purposes, he may be supposed to speak to posterity alone!

2 General convenience is a principle of legal judgment. (4 Durn. & E. 243, 245; 1 Taunt. 366; 1 Eden, 230; 1 W. Bl. 166; 3 Barn. & Cr. 156.) Non solæm quod licet, sed quid est conveniens est considerandum. (Co. Lit. 660.) Convenience may be used, "not indeed so as to control the law, but as a guide in doubtful cases, and upon untrodden ground." (King v. St. Catherine's Hall, 4 Durn. & E. 233. Sadgrove v. Kirby, 6 Id. 483.) Argumentum ab in convenienti plurimum valet in lege. (Co. Lit. 66a.) The argument of inconvenience is, under

8. The right of property is a right dual in its nature. It is the right of the owner of possessionsfirst, to use and enjoy the thing possessed, unrestrictedly and indefinitely (subject only to the maxim sic utere1), and secondly, to prevent and exclude others from the use of it without his license; and this dual right continues in the owner, until he shall voluntarily alienate and part with his possession.

4

3

The possessor of literary property enjoys this two-fold right in common with the possessor of each and every other sort of property. Nor will the law attempt any discrimination between his case, and the case of any other owner of chattels. It does, indeed -as seems necessary from the peculiar nature of the thing to be protected-ordain distinct and particular methods to be observed in securing it; but the right many circumstances, allowed to avail to this extent, that the law will sooner suffer a private mischief than a public inconvenience. Lex cetius tolerare vælt privatum damnum quam publicum malum. (Co. Lit. 152, c., and see Ram's Science of Legal Judgment, pp. 111-117.)

1 Traites de Legislation (Dumont), 95.

2 Sic utere tuo ut alienum non lædas (9 Rep. 59; Broom. Log. Max. 328). See, however, this maxim doubted in Bonomi v. Backhouse (27 L. J., N. S.; 388 Q. B).

3 Austin Jur. iii. 19.

"There is still another species of property which (if it subsists by the common law), being grounded on labor and invention, is more properly reducible to the head of occupancy than any other; since the right of occupancy itself is supposed by Mr. Locke (on Govt., part 2, ch. 5) to be founded on the personal labor of the occupant. And this is the right which an author may be supposed to have in his own original literary composition; so that no other person, without his leave, may publish or make profit out of the copies. When a man, by the exertion of his rational powers, has produced an original work, he seems to have clearly a right to dispose of that identical work as he pleases, and any attempt to vary the disposition he has made of it, appears to be an invasion of that right."--1 Black. Com. p. 405.