tester à Pothier le droit de la poursuivre comme contrefacteur? Qui est-ce qui oserait dire que Pothier, en compilant à sa manière les Institutes, le Digeste, le Code et les Novelles de Justinien, n'a pas fait un ouvrage qu'il n'appartenait qu'à un jurisconsulte du premier ordre d'entreprendre et d'achever? Qui est-ce qui oserait dire qu'un simple copiste eût pu, commelui, tirer tous les textes du droit romain de l'espèce de chaos dans lequel ils sont dispersés; les ranger dans un vaste cadre où, enchaînés les uns aux autres, ils s'expliquent mutuellement; rapprocher de chaque règle générale toutes les exceptions qui la limitent; placer à côté de la loi ancienne, la loi moderne qui la modifie; et la loi plus moderne encore qui l'abroge; en un mot, substituer l'ordre à la confusion, la lumiere, a l'obscurité, la facilité d'etudier et d'apprendre aux dégouts et aux épines qui arretent, des leurs premiers pas, tous les aspirants à l'exacte connaisance des lois romaines? Compiler de cette maniêre ce n'est pas copier c'est créer; c'est faire ce que ferait un architecte qui, apres avoir demoli un edifice gothique-en emploierait tous les materiaux pour élever un superbe palais, un temple majestueux."

"Mais il est aussi des compilations qui se font comme on le dit vulgairement avec des ciseaux, qui n'exigent, qu'un travail de manoeuvre et qui, pour cette raison, ne peuvent pas mériter a leurs artisans le titre d'auteurs.” 1

151. In the legal sense, then, of the word, the originality of a literary production will be found to exist:

1

First. In its author (if an original work).

Second. In its compiler or arranger-(if a com

Merlin, Repertoire de Jurisprudence, titre Contrefacon,

pilation, such as a dictionary, glossary, gazetteer, encyclopedia, abridgment, guide-book, text-book, manual of an art, of a science, or, generally; any other book of reference),—or,

Third. Its translator-(in case of a translation). And the ownership of the work will follow the individual or individuals in whom its originality exists, until he or they part with the same by his or their

own act.

152. An author is well described, by Dryden, as one who "has the choice of his own thoughts and words." And, following him, we may define an author as, one who by his own intellectual labor produces a new work, composed in his own thoughts and words.1

1

A compiler is one who by his own intellectual labor, makes, arranges, or frames a composition or collection of literary or scientific matter, not originally produced by him; but which he has himself first brought together in an arrangement new with himself.2

It is important, at the outset, to remark that the words compiler, editor, arranger, codifier, abridger, &c., though technically distinguished, will be regarded by the law as one and the same; that is, in so far as their legal rights and liabilities are concerned.

1

If it were otherwise, the law of copyright might be

1 Author.--(Latin, auctor; Italian, autore; Spanish, autor; French, autour or auteur).-He to whom anything owes its origin; originator; maker; first cause; one who composes a work of science or literature; the first writer of a thing; distinct from a translator or compiler; a composer; a writer. -Worcester.

2

* Compiler.-(Greek, wilów, to press close; Latin, pilo; Italian, compilare; Spanish, compilare; French, compiler).— One who frames a composition from various sources; a collector of literary fragments.-Worcester.

come a complicated and intricate mass of subtleties instead of the simple and logical thing it is.

153. The law can recognize but two classes of intellectual labor, viz., original labor and secondary labor. An original work alone has, properly speaking, an author. The producer of a secondary work, that is, a work consisting of parts, passages, or matters collected, condensed, or amplified from various sources, is a compiler,1 editor, arranger, or abridger, as the case may be.

An editor is also one who superintends, revises, or prepares a work for publication, or-in popular language—one who conducts a newspaper, but none the less his labors are secondary, and not original.

154. There is, however, a third sort of literary laborers, in the classification of whom, and of the results of whose labors, an apparent, though—as we think will presently appear-no real difficulty arises. This class of intellectual laborers are translators.

A translator is one who renders or interprets literary matter from one language into another, reṭaining the idea and the sense, which are not his, and clothing them in words which are his own.

Now, a translation, under the division above indicated, is clearly a secondary work. A translator, however, is not a secondary laborer; and it is not erroneous, but perfectly correct and proper, to speak of the author of a translation.2

1 In the time of Alfred the local customs of the several provinces of the kingdom were grown so various that he found it expedient to compile the Dome Book. 4 Blackstone Com. Atwill v. Ferrett, 2 Blatchf. 45; DeWitt v. Brooks, MS. N. Y. 1861; Nelson, J., cited in Law's Digest of Patent and Copyright Cases, 174.

2 All translations, I suppose, may be reduced to these three heads: first, that of metaphrase, or turning an author, word for word and line by line, from one language into another.

155. The apparent paradox, therefore, arises, that while the labor is original, the result is secondary; and hence the difficulty to which allusion has been made.

The work of a translator is clearly original, since it not only presupposes and requires knowlege, care, foresight, and a wide appreciation of the difference between the real and popular significance of idioms, expressions, phrases, and words in the language into which, as well as in the language out of which, he translates; but a positive primary labor-as contradistinguished from the secondary labor of selecting transcribing, and compiling, which the mere collector or editor performs.

Again, the labor of a conscientious and faithful translator is much more original and primary, for instance, than the labor of a mere paraphraser; since a creditable paraphrase may be produced without the slightest knowledge of, or familiarity with, or reference to, the language of the original work, by mere reference to a previous translation, and a book of synonyms. The paraphraser's labor might be secondary, but the work of a translator is at least original, in the contemplation of the common law and statutes of cop right,

This manner was: Horace--"His Art of Poetry," translated by Bengonson. The second way is that of paraphrase, or translation with latitude, where the author is kept in view by the translator so as never to be lost; but his words are not so strictly followed as his sense, and that, too, is admitted to be amplified, but not altered. Such is Mr. Waller's translation of Virgil's fourth Æneid. The third way is that of imitation, where the translator (if now he has not lost that name) assumes the liberty, not only to vary from the words and sense, but to forsake them both, as he sees occasion, and taking only some general limits from the original to run divisions on the groundwork as he pleases. Such is Mr. Cowley's practice in turning two odes of Pindar's and one of Horace's into English. Dryden's Works, Scott's Ed. xxii.

and of the definition given by them of the word "author."

In the earliest days of our literature, the translator's work was regarded as one of much greater merit and genius than the author's. The mere faculty of invention was formerly little prized; while the learning required to translate, was of the highest value, and exacted the highest respect.

Chaucer, the father of English literature, never attempted invention; neither did the author of Shakespeare, whose stories are, without exception, taken from the classics, or the Italian, and from other and foreign

sources.

The reason undoubtedly was, and is, that education does not develop (possibly by affording ruts and grooves for the intellect, it rather retards) the faculty of literary invention; and in the days when education was a thing very rarely met with, the mere faculty of story-telling was of no estimation whatever."

It is an interesting reflection that stories, legends, and tales-what in fact is now learnedly known as "folk-lore," sprung entirely from the lowest classes intellectually from the utterly uneducated, in whom superstition and imagination go hand in hand-the imagination of one generation becoming, in the course of time, the superstition of the succeeding, and the fancy of each lending new exaggerations and amplifications to the superstition of the age before it.

It is essential, of course, that the translated work should be in a language foreign to the one into which it is translated. One who should take a work by an author of his own country, and carefully change each word into a synonym, thus destroying the identity

1For curious confirmation of this fact, see Prof. John Fisk's "Folk Lore." Boston, 1872.