thereof, from the person who has pirated from the plain- CAP. VIII. tiff's works, and moreover that an injunction may be issued

to restrain the further sale (a).

Should the cause be brought to a hearing, and a perpetual injunction be issued, the right to the account will invariably be decreed as incidental to the plaintiff's other relief (b). The account is in practice generally waived; but where it is not, the court grants it upon the principles enumerated in Colburn v. Simms (c). "It is true," said Sir James Wigram in that case, "that the court does not, by an account, accurately measure the damage sustained by the proprietor of an expensive work from the invasion of his copyright by the publication of a cheaper book. It is impossible to know how many copies of the dearer book are excluded from sale by the interposition of the cheaper one. The court, by the account, as the nearest approximation which it can make to justice, takes from the wrongdoer all the profits he has made by his piracy, and gives them to the party who has been wronged. In doing this the court may often give the injured party more, in fact, than he is entitled to, for non constat that a single additional copy of the more expensive book would have been sold, if the injury by the sale of the cheaper book had not been committed. The Court of Equity, however, does not give anything beyond the account."

We will conclude this subject with the words of Sir William D. Evans: "It is clear," says he in the second volume of his 'Statutes' (d), "that the proceeding by injunction is the most ready and effectual remedy which can be resorted to on the part of the plaintiff, but that a great degree of caution in the application of that

(a) Where in America an account only was sought for, and no injunction applied for, the court held that the party must proceed at law for damages: Monck v. Harper, 3 Edw. Ch. (Amer.) 109.

(b) Hogg v. Kirby, 8 Ves. 215; Baily v. Taylor, 1 Russ. & My. 73; Sheriff v. Coates, 1 R. & M. 159; Kelly v. Hooper, 1 Y. & Coll. 197; Grierson v. Eyre, 9 Ves. 341; Univer. of Oxf. and Cam. v. Richardson, 6 Ves. 689; 2 Story's Eq. Jur. s. 933.

(c) 2 Hare, 543, 560.

(d) Part iii. class 1, note 29.

CAP. VIII. proceeding, in the first instance, is requisite for preventing injustice to the defendant, whose loss does not, from the nature of it, admit of reparation if the injunction should, upon further investigation, be found to have been erroneously applied; and the judges of courts of equity have in many cases expressed a strong sense of the importance of this principle."

CHAPTER IX.

CROWN COPYRIGHT.

THE prerogative copyrights of the Crown constitute a Prerogative peculiar branch of literary property which has given rise copyright. to much controversy.

The sovereign's prerogative in granting letters patent for the privilege of printing prerogative copies, as they are called, is said to embrace the English translation of the Bible, the Book of Common Prayer, the statutes, almanacs, and the Latin grammar.

The validity of this privilege has been questioned on the ground that grants of this exclusive nature, tend to a monopoly. They contribute forcibly to enhance the prices of books, to restrain free trade, to discourage industry, and by discountenancing competition they serve to render the patentees careless and remiss in their duty. Notwithstanding, it must be admitted that the sovereign has a peculiar prerogative in printing, which has been vindicated, allowed, and maintained through all ages.

The right is said to be founded on grounds of public Nature of the policy. Lord Mansfield considered it as merely a modifi- right. cation of the general and common right of literary property; and from the cases which had been decided in favour of the particular copies, he inferred, as a necessary consequence, the existence of the general right. They rested upon property arising from the king's right of original publication. The copy of the Hebrew Bible, of the Greek Testament, or of the Septuagint, did not belong to the king —it was common; but the English translation he bought, and therefore it was concluded to be his property.

Printing, on its first introduction, was considered, as

K

CAP. IX. well in England as in other countries, to be a matter of state. The quick and extensive circulation of sentiments and opinions which that invaluable art produced could not but fall under the gripe of government, whose principal strength was built upon the ignorance of the people governed. The press was, therefore, wholly under the coercion of the Crown, and all printing, not only of public books, containing ordinances, religious or civil, but of every species of publication whatsoever, was regulated by the king's proclamations, prohibitions, charters of privilege, and, finally, by the decrees of the Star Chamber. After the demolition of that odious jurisdiction (a), the Long Parliament, on its rupture with Charles I., assumed that power which had previously existed solely in the Crown. After the Restoration, the same restrictions were re-enacted and re-annexed to the prerogative by the statute 13 & 14 Car. 2, and continued down, by subsequent Acts, until after the Revolution. The expiration of these disgraceful statutes, by the refusal of Parliament to continue them any longer, formed the great era of the liberty of the press in this country, and stripped the Crown of every prerogative over it, except that which, upon just and rational principles of government, must ever belong to the executive magistrate in all countries, namely, the exclusive right to publish religious or civil constitutions, in a word, to promulgate every ordinance by which the subject is to live and be governed. These always did belong, and from the very nature of civil government always ought to belong, to the sovereign, and hence have gained the title of "prerogative copies" (b).

The Bible and
Common

The Bible and Book of Common Prayer (c).

For two hundred years and more the kings have in Prayer Book. England granted patents to their printers. From the time of Henry VIII. have different persons enjoyed, by letters

(a) "Where change of fav'rites made no change of laws,
And senates heard before they judged a cause "(?)-JOHN.

(b) Lord Erskine's Speeches, vol. i. p. 40, by Ridgway.

(c) See Mayo v. Hill, cited 2 Show. 260; King's Printer v. Bell, Mor. Dict. of Dec. 19–20, p. 8316.

patent, the privilege of printing prerogative copies to the exclusion of all other persons.

These patents have, from time to time, come under the consideration of the courts, and the judges have been invited to settle their limits. Many have given it as their opinion, that the prerogative is founded on the circumstance of the translation of the Bible having been actually paid for by King James, and its having thus become the property of the Crown (a). Others have referred it to the circumstance of the king of England being the supreme head of the Church of England, and have invested him with the prerogative in virtue of that character. This latter argument, Mr. Godson (b) contends, destroys the proposition it is adduced to support; for, if the sovereign as head of the church, has the exclusive right of printing all books of Divine service, why not, as head of the church, have a right to print the principal book used in the Divine service-the Bible and all kinds of Bibles, in whatever language they may be written? And yet the principle of property is resorted to for the right of printing the present edition of the Bible; and Lord Mansfield has declared that there is no prerogative right to the Bible in the original languages (c).

Others again have been of opinion that it is to be referred to another consideration, namely, to the character of the duty imposed upon the chief executive officers of the government, to superintend the publication of the acts of the legislature and acts of state of that description; and also of those works upon which the established doctrines of our religion are founded, that it is a duty imposed upon the first executive magistrate, carrying with it a corresponding prerogative. That was the opinion of Lord Camden as expressed in the case of Donaldson v. Becket, and of Chief Baron Skinner in Eyre and Strahan v. Carnan (d).

(a) Nullum tempus occurrit regi. Rex nunquam moritur.

(b) Patents and Copyrights,' p. 437.

(c) 4 Burr. 2405, cited Godson's Pat. and Copy. 437.

(d) Exchequer, 1781, cited 6 Ves. 697, and reported at length in 6 Bac. Abr., tit., Prerog. 509.

CAP. IX.