was practically undeveloped for nearly a century after the art of printing was practised. The legislature at length began to discover that there were such articles of commerce as books, and that ships could be laden with them, and that these books were often imported from foreign parts; but the only noticeable thing about them was, that they usually swarmed with heresies, and on that ground alone attracted what attention was given to them. It never dawned on the legislature or the courts of law, that there were such people as authors, probably because books were hastily assumed to be the direct emanations of some Satanic impulse, requiring to be watched, as portending danger to all government, to all law, and all order. If it had been more carefully examined it would have been self-evident, that the author merely created the material of a book by the use of his faculties, and by a long studied industry in nowise distinguishable from the industry applied in innumerable other forms.

Bracton had so vague a notion of copyright, that he thought that "letters, though golden, belonged to the parchments and papers, as much as things built on or inserted in the soil belonged to the soil;" whereas he admitted the rule was the reverse as to paintings.1 He thought the

nearest analogy between paper and what was written upon it was that of the soil with trees planted in it according to the maxim of the Roman law-" if a stranger plant trees in another's soil the trees become the property of the owner of the soil." The same delusive maxim was relied upon so late as a century ago by some of those who argued against copyright at common law; and even Lord Camden had not apparently outgrown its misleading influence.

None of the early statutes, though dealing, as we have seen, with printing and books, touched upon copyright. The legislature, in the time of Henry VIII., made it the duty of the Lord Chancellor and chief justices to inquire into the price of books, and to limit not only the price, but the cost of binding; and the offender against the statutory restrictions was to forfeit a sum for each book.2 Coke, in noticing this statute, seemed to have no appreciation of the author's right, but dwells on the importance of this duty

1 Bract. b. ii. c. 2.

225 Hen. VIII. c. 15; 2 Inst. 744. See other statutes bearing on the same subject, ante, pp. 44, 51.

cast on the judges of fixing the price. Yet the courts seem to have taken usually a correct view, in times a little later, of the author's right in the book which he produced, and treated it as his property. No recorded decisions of the courts, it is true, are to be found until about the end of the seventeenth century; and they all show somewhat vague ideas of the relations of the rights involved.1 The Stationers' Company had obtained a charter from Philip and Mary in 1556, the policy of the Crown at that time being to prevent the propagation of the reformed religion. Presses, as already stated in a former chapter, required to be licensed, and the Crown, through the machinery of the Star Chamber, had enforced its powers of search, forfeiture, and imprisonment, against offenders. In 1559 the registers of the Stationers' Company contain records of fines for evading the copyright; and in 1573 there are entries of the sale of copies (i.e., copyrights), with their prices.2

The first Copyright Act of Anne in 1709.-About 1709 authors and publishers began grievously to complain of piracy and the difficulty they had in tracing the wrongdoers, and recovering damages or stopping the mischief. And they petitioned Parliament for an Act to give them better remedies. And in 1709 an Act passed which recited, that "persons had of late reprinted books without the consent of the authors, to the very great detriment and too often to the ruin of them and their families." This Act caused afterwards great litigation, and, as authors discovered to their cost, caused nothing less than confiscation of their property. "This was done," as Lord Lyndhurst, LC., remarked, "by the introduction of one or two

They are reviewed in the case of Millar v Taylor in 1769.-4 Burr. 2317. And see Lilly's Entries, 67; Carter, 89; Skinner, 234 ; 1 Mod. 257.

* Chalmers' Apol. Shaksp. 298. When Captain Bell in 1646, "at great cost and pains discovered a manuscript of Luther's Table Talk marvellously preserved" and published his translation, the House of Commons magnanimously resolved, that he should have the sole disposal and benefit of printing it for fourteen years, and that none should print the same unless licensed by him.-Journ. H. C., 24 Feb. 1646. This crude resolution, which presented to a man his own property for fourteen years, probably gave the cue to the unknown author of the first copyright act of Anne.

ill-considered words in a statute which was meant to be a benefit to literature, but turned out a fatal gift.” 1

This statute of Anne, though professing to be "for the encouragement of learned men to compose and write useful books," in its main enactment said, that "the author of a book shall have the sole liberty of printing and reprinting such book for fourteen years and no longer;" but if the author was alive at the end of fourteen years, then for fourteen years more. Then penalties were imposed on those who printed and sold the book, namely, forfeiture of the books printed and one penny for every sheet found in the offender's possession. The benefit of the Act was, however, given only to those who registered their title with the Stationers' Company before publication, and this was made a condition precedent to any remedy whatever. Any person who thought the price of a book too high might complain to the Archbishop of Canterbury or the judges, who had power at the cost of the bookseller or printer to settle the price as seemed just. And nine copies were to be given to certain libraries named. Though the statute said nothing about the author being entitled to bring an action during the statutory term against any piratical publisher, the courts about a century later held that this was necessarily implied.2 In 1801 the penalties were somewhat increased, the term of copyright was extended, and some details amended. In 1814 the term was made twenty-eight years in all cases, and if the author then lived it was to extend till his death. In 1842 the term was extended to forty-two years, or to the term of natural life, and seven years more, if this last term exceeded forty-two years.5

But the theory of all these Acts was one and the same, namely, that whereas at common law the author had the same perpetual right in his property as other proprietors

1 H. L., 63 Parl. Deb. (3) 782. The real author or draughtsman of the act of Anne is unknown, and the Act excited little attention at the time, and the authors in Anne's reign seem to have shown about as little knowledge and appreciation of the law affecting themselves as those who at that date directed the legislation. It was a peculiarity of Swift, that he never cared about any of his copyrights.

2 Beckford v Hood, 7 T. 4 54 Geo. III. c. 156.

R. 620.

3 41 Geo. III. c. 107.

5 5 & 6 Vic. c. 45.

have in lands and houses and ships and horses, yet in the single case of authors their right has been confiscated without compensation, after at first fourteen and now after forty-two years.1

Practical effect of the Copyright Acts on authors.— This last view requires to be here explained a little more fully, so that any ordinary understanding can comprehend the situation. The statute of Anne affected authors in this way. Before that act (according to the opinion of eight against three judges in 1774) the author had not only the right to maintain an action against pirates, but had that right in perpetuum, that is to say, until he or his executors sold it. But half of the judges in 1774 further held, that the statute, owing to its peculiar language, cut down this absolute (or, as it was sometimes called, this perpetual) right to fourteen years, and then confiscated the rest altogether without giving any compensation. In the case of all other kinds of property, whether land or houses, or cattle or ships, no instance has ever occurred in which the legislature has confiscated the right of property, after a stated term of years in the same way. It

1 The statute of Anne, as ASTON, J., observed, was apparently introduced merely to give a speedier and better remedy for a limited time, and not to interfere with a property which existed à priori, and which would outlast that temporary collateral remedy.-Aston, J., Millar v Taylor, 4 Burr, 2350.

It is quite possible that a legislature may blunder in the words used to express its meaning; and though courts also freqently blundered in former times, yet they might on this occasion have rightly held, that owing to the crude and unworkmanlike language used by the unknown draughtsman of this act, there was no alternative for them but to hold, that that act extinguished the common law perpetual copyright after the statutory period had elapsed. Such at least was the decision, though probably judges in modern times would have decided differently.

That the act of Anne would not have been construed in modern times so as to confiscate without compensation the author's commonlaw right is obvious from this, that by the 9th section of that act, it is provided that "nothing in the act contained shall extend or be construed to extend either to prejudice or confirm any right that any person or persons have or claim to have to the printing or reprinting any book or copy already printed or to be printed." How half of twelve judges could have overlooked this proviso does not anywhere appear. Their opinions are nowhere printed at length, and are not even preserved in the House of Lords' Library, so that we cannot know by what reasoning they disposed of that proviso.

has, for example, never ordered the property in a farm or a house, or a horse or a ship, or an advowson, to be confiscated after fourteen years, and the proceeds given to the poor of the parish or to any persons who choose to scramble for it. Yet this has been done in the single case of authors, and no reason has been given except that the invidious distinction is apparently due to a blunder of an Act of Parliament in 1709, which has never yet been rectified, though somewhat palliated by extending the term from fourteen to forty-two years. The act of Anne in all its sections bears the marks of crude and imperfect acquaintance with the subject. In former times, printing and types were put in the same category as gunpowder and poison, being illegal in themselves, and yet no statute has ever passed, which, after a term of fourteen or fortytwo years, confiscates the property even in poison and gunpowder, or in the vested rights of their manufacturers, or which gives the accumulated value of the good-will to the poor. Authors thus stand in the invidious position of being the only skilled workmen known to mankind, who, after creating and enjoying their property for forty-two years, are obliged to surrender it for no other reason except that all the rest of their fellow-creatures are extremely anxious to have possession of all the benefits. derivable from that property, without the trouble of paying for it.

Progress of early decisions as to common law copyright. All the cases reported in the law books up to the case of Millar v. Taylor in 1769 were reviewed by Lord Mansfield and other judges, and these were said to be consistent with the notion, that, at common law, apart from statute, the right inherent in the author of a manuscript and book was an exclusive right to turn that manuscript to advantage in the only way in which it could be so dealt with, namely, by printing and selling copies as articles of commerce. At all events, even if those authorities were somewhat vague and confused, this has often before happened with novel rights emerging in the law. As to their precise measure and status, courts usually at first vacillate till a firm view is obtained and adhered to. And, at all events, those authorities do not contradict the doctrine, that there was and is such a common-law right