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confined; but, upon further consideration, I did not feel bold enough to encounter the risque with which such an attempt would have been attended, and being strongly impressed with the conviction that the undertaking, if fairly executed, would be productive of considerable utility; I have devoted much time and attention to the formation of the numerous notes which now accompany it, and which I hope will have the effect, not only of supporting its legality, but of increasing its utility, although the preparation of them has very considerably retarded its appearance.

If any apology should be thought necessary for the length of a discussion which will probably be considered immaterial, as affecting its immediate objects, and as applying the test of argument to a question which may be probably concluded by authority, that apology will, I hope, be found in the importance of some of the principles with which the discussion is connected, and a steady attention to which, in respect of questions still within the reach of argument, is essentially conducive to the preservation of some of the highest excellencies in the law and constitution of the country.

[11] It seems to have been agreed, that the privileged copies may be printed by others than those having the patent right, if accompanied by bona fide notes. In the case of Baskett v. Cunningham, 1 Bl. Rep. 370. the defendant, in conjunction with several booksellers, was publishing, in weekly numbers, a Digest of the Statute Law, methodized under alphabetical heads, with large notes from Lord Coke and other writers on the law. He had contracted with Strahan and Woodfall, the proprietors of the patent for printing law books, to print this work, and it was printed at their press. Baskett, the King's printer, (whose patent extended to all statutes,) filed a bill for an injunction. It was urged, that the book was not within the meaning of the letters patent, being a work of labour and industry, and the method entirely new; and the Lord Chancellor was of opinion, that the work was entirely within the patent of the King's printer, and that the notes were merely collusive. But he would not interfere between the two contending patents, in the summary method of injunction, but left them to adjust their respective rights in the course of law. He therefore ordered an injunction to issue to restrain the proprietors from printing at any other than a patent press, which, as Woodfall and Strahan were secretly in league with Baskett, and were at that time jointly concerned in a new edition of the Statutes, was equivalent to a total injunction, the law printers finding means to elude their contract with Cunningham.

In what respect the notes in that case were collusive does not appear; but, according to the present state of the law, a general patent for printing law books would be only laughed at. There seems to be very little reason to suppose, that a digest of the substance and effect of the statute law would be considered, by any tribunal, as the subject of a legal monopoly. Mr. Reeves, one of the royal patentees, and the writer of several learned juridical publications, in the Preface to his edition of the Bible, (divided into sections,) observes, that all the authorized bibles published by the King's printer and the Universities are wholly without explanatory notes. These privileged persons have confined themselves to printing the bare text, in which they have an exclusive right, forbearing to publish it with notes, which it is deemed may be done by any of the King's subjects as well as themselves. He subjoins to this passage a note in the following terms:-" I mean such notes as are bona fide intended for annotations, not the pretence of notes which I have seen in some editions of the Bible and Common Prayer book, placed there merely as a cover to the piracy of printing upon the patentees, as if fraud could make legal any thing that was in itself illegal. In some of these editions the notes are placed purposely to be cut off by the binder."

The admission of Mr. Reeves, considering his legal knowledge, his interest in the subject, and the turn of his political opinions on the subject of prerogative, seem sufficient authority for the general right of the subject, with respect to the publication of the privileged copies having the accompaniment of bona fide notes.

The writers of legal publications on any detached subject, as the Bankrupt Laws, the Poor Laws, the Game Laws, have never been molested since the time of the great discussion upon the subject of Copywright, in printing at large the statutes applicable to those respective subjects.

[12] Soon after the Restoration, an Act of Parliament having prohibited the printing of law books without the licence of the Lord Chancellor, the two chief justices, and the chief baron, it became the practice to prefix such a licence to all Reports published after that period, in which it was usual for the rest of the judges to concur, and to add to the imprimatur a testimonial of the great judgment and learning of the author. The Act was renewed from time to time, but finally expired in the reign of King William. But the same form of licence and testimonial continued

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in use until not many years ago, when, as the one had become unnecessary, and the other only a general commendation of the writer, and no voucher for the merit of the work, the judges (I believe) came to a resolution not to grant them any longer, and accordingly the more recent Reports have appeared without them."-Preface to Douglas' Reports. Sir James Burrow offers an apology for publishing his Reports without an imprimatur, and says he knows it is a contempt of that Court to publish their proceedings, and that it is against a standing order of the House of Lords to publish proceedings there, upon appeals or writs of error. He also adverts to the origin and continuance of the imprimatur, in the same manner as it is stated by Mr. Douglas-and adds, that he has been assured that some, who were possessed of judicial offices, had declared that they would never sign one, because it hangs out false colours.

The idea of such publication being a contempt of Court would probably give some assistance to the unfounded claim of a patent right for the exclusive printing of law books, since as long as such patents were granted, and the validity of them not contradicted by any judicial determination, the necessity of the licence might come in aid of the monopoly. I have met with an instance, which I cannot particularly refer to, of one of the Courts disapproving the citation of a case from modern Reports, not on the ground of their inaccuracy, but because they had been published without the authority of the judges. The prohibition by the House of Lords to publish the Reports of their decisions, (at the same time taking no care to furnish any authentic information upon the subject themselves,) seems founded upon very extraordinary policy, as keeping the public in ignorance of those adjudications by which they are most peculiarly bound; but this ground of contempt has long ceased to be the object of their animadversion, and Brown's Parliamentary Cases, with the recent Reports of Mr. Dow, are suffered to pass as unmolested as the diurnal accounts of the debates in Parliament. Indeed, I apprehend that the general monopoly of such publications would not be of sufficient pecuniary value to form a very probable subject of litigation; and the practical application of the doctrine of contempt has been much relaxed since about the commencement of the present reign, when the mention, in print, of the name of a peer, upon any accidental subject, (for instance, that of his fish ponds had been robbed, which I have heard stated, as a case that appears in print, to have really occurred,) was taken up as a contempt of the House. The ridiculous extent to which this practice was carried by the late Lord Marchmont, was probably the reason of its falling into disuse.

[13] But a remnant of this practice still prevails, where the temporary interest of the subject matter would lead to a competition of publication, and a monopoly may be attended with some advantage; the case of trial by impeachment or otherwise, before the House of Lords: and the right of exclusive publication in the person printing under the authority of the House, has been supported to a certain extent, as one not having merely the summary protection of that assembly as a subject of contempt, but as giving a property entitled to protection in the ordinary course of law. Lord Bathurst having, in a case of Bathurst v. Kearsley, granted an injunction in favour of the printer under his authority of the trial of the Duchess of Kingston; Lord Erskine, upon the precedent of that decision, ordered an injunction until the hearing, in the case of Gurney v. Longman, 13 Vesey, 493. with respect to the trial of Lord Melville, at the same time intimating that, unless he had a strong impression that at the hearing he should continue of the same opinion, and should grant a perpetual injunction, he would not grant an injunction then: but on the day of his quitting office as Lord Chancellor, he desired that it should be understood that he had not delivered any judgment further than by granting the injunction until the hearing upon the precedent of the former case of Bathurst v. Kearsley, and should therefore consider the question as open in any future stage. A demurrer was afterwards put in, but was never argued, a compromise taking place. The argument of counsel upon this case throws a considerable light upon the general subject. The counsel for the defendant admit that right of monopoly in prerogative copies, with respect to which I have manifested so strong an impression as militating against some important legal principles, but this admission, which did not immediately affect the interest of their client, leaves the general argument upon the subject to stand on its original merits.

[14] The Court of Chancery also exercises an authority with respect to restraining the publication from manuscripts of persons deceased. In the case of the Duke of Queensbury v. Shebbeare, before Lord Hardwicke, as cited by Willes, J. in Millar v. Taylor, 4 Burr. 2330. an injunction was granted against printing the Second Part of Lord Clarendon's History. Lord Clarendon, they say, let Mr. Francis Gwynn have a copy. His son and representative insisted that he had a right to print

and publish. The Court were of opinion, that Mr. Francis Gwynn might make every use of it, except the profit of multiplying in print. It was to be presumed (as Willes, J. observes) that Lord Clarendon never intended that when he gave him the copy. The injunction was acquiesced under, and Dr. Shebbeare recovered, before Lord Mansfield, a large sum against Mr. Gwynn, for representing that he had a right to print. Mr. Justice Willes adduces this case, as an argument for the general right of literary property, in which he is followed by Lord Mansfield, who observes, that Mr. Gwynn was entitled undoubtedly to the paper of the transcript of Lord Clarendon's History, which gave him the power to print and publish it, after the fire at Petersham, which destroyed the original. But at the distance of near a hundred years, the copy was adjudged the property of Lord Clarendon's representatives, and Mr. Gwynn's printing and publishing it without their consent, was adjudged an injury to that property, for which in different shapes he paid very dear; and after mentioning the case of Pope and Curl respecting the publication of letters, which will be presently referred to, Lord Mansfield puts a string of questions, tending to shew, that all the objections which had been urged against a general and unlimited copyright after publication, would equally apply to the case of an unpublished manuscript; as whether the right to prohibit the publication was real or personal, whether it was assignable, whether it could be taken in execution? could it be vested in the assignees of bankrupts? evidently intimating that the two cases stood upon an equal footing, and that if the one was negatived, there was no legal foundation for the other. In the review of the decisions of this eminent judge already alluded to, it occurred to me to observe, that a full consideration of the consequences of those questions might perhaps lead to a different conclusion, with respect to unpublished manuscripts, from that which is the foundation of several decisions in Chancery. During the life of a writer the publication may be deemed a personal injury, but after his death several material questions may arise with respect to the claim of his representatives. It is taken for granted, in Millar and Taylor, that the injunctions were founded upon clear property. An executor can only bring an action on the case for some damage, which reduces the assets, and to the extent of which assets he is accountable. But the right to prevent any person, having a manuscript of the deceased, from publishing it, is no property which can constitute part of the assets, in respect of which alone he represents the deceased. The same observation will, in some degree, apply to the heir. Besides which, this kind of property, is no wise analogous to any hereditament recognised by the law. The interpositions appear to be on behalf of the family of the writer. But it seems a legal anomaly to take notice of the family of a deceased person, in any other manner than as connected with the property, which constitutes real or personal assets. If ever the question should come solemnly before a court, great respect would be due to the illustrious characters whose decisions were impeached; but if the object of the suit appeared upon examination to be destitute of legal principle and analogy, the authority of those decisions would probably give way. Lord Mansfield, to support the perpetual right to werks published, argues, that an unpublished manuscript cannot be distinguished from them; and may not that argument now be applied to the ultimate decision of the House of Lords, against a perpetual common law right of publications, and extended to manuscripts?

I do not very well understand upon what principle the action could have been supported against Mr. Gwynn, unless he had expressly represented to Dr. Shebbeare, that he had an actual consent to publish the MS. for if the purchase was made generally, the seller could not be deemed to warrant the enjoyment of it in a particular manner, against the mere common course and operation of the law, as then understood and administered.

[15] The Court of Chancery interposed in the cases of Mr. Webb and Mr. Forrester, cited Ambler, 695. the former of whom had his Precedents of Conveyancing stolen out of his chambers and printed; and the latter had his notes copied by a clerk to the gentleman to whom he had lent the notes, and which were printed, and the parties were restrained by injunction from printing and publishing them. In Macklin v. Richardson, Ambler, ib. the defendant had employed a short-hand writer to take down the Farce of Love à la Mode upon its performance at the Theatre, and inserted one act in a Magazine, and gave notice that the second act would be published in the Magazine of the following month. Upon an application to Lord Camden for an injunction, he directed the case to stand over until that of Millar and Taylor, which was then depending, should be determined; and, after the determi⚫ nation, the injunction was by the Lords Commissioners, Smythe and Bathurst, made perpetual. Smythe, L. C. said, it has been argued to be a publication by being acted, and therefore the printing is no injury to the plaintiff, but that is a mistake; for, besides the advantage of the performance, the author has another source of pro

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fit from the printing and publishing, and there is as much reason that he should be protected in that right as any author. Bathurst "The printing it before the author is doing him a great injury." It does not distinctly appear whether this decision was influenced by the opinion of the general right of literary property having been settled by the decision in Millar and Taylor, or whether the restraining the publication of the farce, not then published by the author, was upon the ground of a distinct and independent equity, applicable only to publications not printed. In Coleman v. Wathen, 5 T. R. 245. it was determined that an action at law cannot be maintained for representing on the stage the production of another person as not being a publishing within the statute.

[16] In Pope v. Curl, 2 Atk. 341. Lord Hardwicke supported an injunction by Pope against the Defendant's vending a book intitled "Letters from Swift, Pope, and others." His Lordship observed, that the first question was, whether letters were within the grounds and intention of the Statute, 8 Anne, and said, he thought it would be extremely mischievous to make a distinction between a book of letters which came out into the world, either by the permission of the writer or the receiver of them, and any other learned work. The same objection would hold against sermons which the author may never intend should be published, but are obtained from loose papers, and brought out after his death. Another objection has been made, that when a man writes a letter, it is in the nature of a gift to the receiver; but I am of opinion that it is only a special property in the receiver, possibly the property in the paper may belong to him, but this does not give a license to any person whatsoever to publish them to the world, for at most the receiver has only a joint property with the writer." It is observable, that this case professes to proceed partly upon the statute, which gives only a right for fourteen years from the day of first publishing, and consequently has no relation to the case of unpublished letters; and supposing there to be a joint property in letters of correspondence between the sender and receiver, it does not seem by any means necessarily to follow that one of several joint owners may not exercise the right of publication. Supposing different persons to be possessed of manuscript copies of a given composition, in which no other has a paramount claim to restrain the publication, it cannot be supposed that any of them individually could prevent the publication by the others.

[17] In Thompson v. Stanhope, Ambler, 737. it appears that the executors of Lord Chesterfield obtained an injunction till the hearing against the widow of Mr. Stanhope, with respect to the publication of his lordship's letters to her husband, and of characters of different persons, the originals of which characters she had delivered to Lord Chesterfield, who said he meant to burn or destroy them, and, upon her offering to give up the letters, declined taking or looking at them. Lord Apsley, according to the report, recommended it to the executors to permit the publication in case they saw no objection to the work upon reading it and having copies delivered to them. In 2 V. & B. 21. it is said, that by the register's book it does not appear that an injunction was actually granted. It is well known that the publication did appear, but whether upon the judgment of the executors that they saw no objection to the work, or upon what other ground we are not informed.

In the late case of the Earl of Gramond v. Dunkin, 1 Ball and Beatie, 207. the executors of Lady Tyrawley obtained an injunction in the first instance against the defendant publishing letters to Lady Tyrawley from different correspondents, and which he had got possession of by being permitted to reside in her house, and continuing to do so after her death.

The last case upon the subject is Lord and Lady Percival v. Phipps and Mitford, 2 V. and B. 19. The Bill stated, that Lady Percival had written to Mitford several letters of a private nature, in confidence that he would not part with them, nor publish or permit them to be published, but that he had communicated them to Phipps, who had published one, and announced an intention to publish others, and prayed an injunction. Phipps by his answer stated, that he had published in a newspaper certain intelligence as communicated to him by Lady Perceval for that purpose, and disavowed by her, and that the letters in question were written to Mitford upon similar subjects, materially tending to shew that the intelligence did come from Lady Perceval, and that as she had denied being privy to the former publication, the character of Phipps and the value of his paper were in danger of falling into discredit with the public. The vice-chancellor dissolved the injunction leaving the plaintiffs to do what they could at law.

In the view which he took of the subject he observed, that this equity stands not upon breach of confidence or the injury to the feelings of the parties, but upon this broad basis, the invasion of literary property. The following passage from the judgment is very material:

"This is the naked case of a bill, certainly, to prevent the publication of private

letters; not stating the nature, subject, or occasion of them, or that they were intended to be sold as a literary work for profit; or are of any value to the plaintiff. Upon such a case it is not necessary to determine the general question, how far a court of equity will interpose to protect the interest of the author of private letters. The interposition of the Court in this instance certainly is not a consequence from the cases that were cited; upon which I shall merely observe, that, though the form of familiar letters might not prevent their approaching the character of literary work, every private letter, upon any subject, to any person, is not to be described as a literary work, to be protected upon the principle of copy-right. The ordinary use of correspondence by letters is to carry on the intercourse of life between persons at a distance from each other, in the prosecution of commercial or other business; which it would be very extraordinary to describe as a literary work, in which the writers have a copyright. Another class is the correspondence between friends or relations upon their private concerns; and it is not necessary here to determine, how far such letters falling into the hands of executors, assignees of bankrupts, &c. could be made public in a way that must frequently be very injurious to the feelings of individuals. I do not mean to say, that would afford a ground for a court of equity to interpose to prevent a breach of that sort of confidence, independent of contract and property."

[18] A case was mentioned as having recently occurred of an injunction restraining the publication of letters from an old lady under the influence of a weak attachment to a young man. The case had been heard privately before the Lord Chancellor; but the defendant in that case, as stated by the Vice-Chancellor in his judgment, had received a sum of money not to publish the letters, and the attempt to publish them was therefore a violation of contract.

With respect to these private hearings it has lately been declared, in allusion to some commentaries in the public prints, that they never take place but at the request of both parties. I am very far from being clear that this circumstance renders them entirely unobjectionable, because it is of great importance that decisions which, as matter of precedent, are to give the law to the country at large, should be promulgated in such a manner that they may be generally known and acted upon, and not kept up as a kind of pocket-pistol law, ready to be let off as may happen to suit the purposes of the few individuals who, from the accidental connection with a particular case, may happen to get possession of it,

[19] In Hogg v. Kirby, 8 Vesey, 215. an injunction was granted against the defendant from publishing a number of a Magazine, which was so printed as to appear a continuation of a work published by the plaintiff, and from selling, &c. any other work or publication as or being a continuation of the plaintiff's work, or of the defendant's work, which had been published as such continuation. The case was partly argued upon the ground of a breach of contract by the defendant, who had been the original publisher of the work of the plaintiff; but the Court seemed to admit the general principle, that a person cannot publish a work professing to be and handed out to the world as the continuation of a work published by another. It was said, in argument, to have been determined, that property exists in a newspaper, and that an action lies for publishing under the same title.

[20] With respect to subjects more immediately depending upon the statute, and not referred to in the preceding part of the note, it was decided in Bach v. Longman, Cowp. 623. that the protection extends to musical compositions by force of the words books and other writings. "It is not," said Lord Mansfield, "confined to language or letters-music is a science, it may be written, and the mode of arranging the ideas is by signs and marks, and the right may subsist as to a single sheet of music."-Clementi v. Goulding, 11 East. 244. and cases there cited; and it seems that the words of a song applied to an old tune, and published with it on a single sheet of paper, are privileged as a book-Hime v. Dale, 2 Campb. 29. n. And in Storace v. Longman, 2 Campb. 27. n. Lord Kenyon held, that the right of the author was not divested, by shewing that the song was written to be sung at the Opera, and that all compositions so performed were the property of the house, not of the composer; but, query, as to the accuracy of this opinion, as nothing is more usual than for an author to dispose of MS. and copyright, and a general usage and understanding upon the subject may be evidence of such a disposition.

[21] It is often a matter of consideration whether the work, represented as an infraction of copy-right, is or is not substantially the same with that for which the property is claimed: where the subject will not admit of much variety, the original labour of one person will produce the same results with the original labour of another; but even in these cases, if the work is made out to be merely an adoption of the labour employed in the first, the publication of it will be restrained.

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