DONALDSON V. BECKETT [ 1 7 7 4 ] H BKTftTT.

sending the appellants to a trial at law as to the execution of the deed-poll, it seemed
to have been understood, that if the [128] deed was duly executed, the appellants
were entitled to relief thereon; for otherwise such trial was altogether unnecessary.
That though no other consideration but natural love and affection was expressed
in the deed-poll, yet there was manifestly another consideration for it, namely, the
appellant Robert's abridging himself of the power he had over his own estates, by
agreeing to settle them upon his wife for life; with remainder to her son in tail. And
though a chose en action is not assignable, yet nothing is more frequent than the
establishing such assignments in a Court of Equity ; and in that respect, the respon-
dents ought to be considered as trustees for the appellants. That the cross bill
ought to have been dismissed with costs, not only because no relief was given thereon,
but because the allegations of it appeared, by the verdict, to be false and groundless :
it ought also to be discountenanced, on account of the extraordinary and unusual
management of the respondents, in examining witnesses with a view to relief upon a
bill of discovery only, and in applying for and obtaining leave to amend this bill, as
a matter of course, after publication had actually passed.
On the other side it was contended (C. Talbot, N. Fazakerley) to have been Mr.
PenneVintention, to reserve to himself a power during his life, of calling in all or any
part of the money secured by this bond; and that by the deed he intended only to
give the appellant Elizabeth so much of that money, as he should think fit to leave
outstanding at the time of his death. That it appeared from the many endeavours
which Mr. Penne from time to time made use of to get the appellant Robert arrested
on the bond, that he meant to call in all the money thereby secured, and that no part
thereof should remain uncalled in at the time of his death, and consequently, that
neither of the appellants should have any benefit thereof. And that the artful
endeavours of the appellant Robert to prevent being arrested, ought not to turn
to his benefit, or to the diminution of Mr. Penne's estate.
After hearing counsel on this appeal, it was ORDERED and ADJUDGED, that the same
should be dismissed, and the decree therein complained of, affirmed. (Jour. vol.
23. p. 671.)

[129] BOOKS.

ALEXANDER DONALDSON, and Another,—Appellants; THOMAS BECKETT, and

Others,—Hespondents [22d February 1774].

[Mew's Dig. iv. 512 ; Millar v. Taylor, 1769, 4 Burr. 2303; 17 Cobbett Pari. Hist.
954, 1003. Copyright Act, 1842 (5 & 6 Vict. c. 45), s. 3. 15 Geo. III. c. 53.]
[The copy-right of books is only under the statute of 8 Ann, c. 19, whereby
the sole right of printing and disposing of copies is vested in the author,
or his assigns, for fourteen years from the first publication. But if the
author be living at the expiration of that term, then the right returns
to him for another term of fourteen years—But this law does not extend to
either of the Universities of Oxford or Cambridge, or to the Colleges of
Eton, Westminster, or Winchester, who have a perpetuity in all copies
belonging to them.]
James Thomson, esq. deceased, was in his lifetime the author of a tragedy called
Sophonisba, and also of a poem intitled Spring.—In January 1729, Andrew Millar,
deceased, contracted with Mr. Thomson for the purchase of this tragedy and poem ;
and by indenture dated the 16th of January 1729, Mr. Thomson, in consideration
of £ 137 10s. paid to him by Millar, did assign to Millar, his executors, administrators,
and assigns, the true copies of the said tragedy and poem, and the sole and exclusive
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n BEOWK. DONALDSON V. BECKETT [1774]
right and property of printing the said copies for his and their sole use and benefit,
and also all benefit of all additions, corrections, and amendments which should be
afterwards made in the said copies.
Mr. Thomson was also the author of several other poems, intitled, Summer,
Autumn, Winter, Britannia, a Poem sacred to the Memory of Sir Isaac Newton,
an Hymn on the Succession of the Seasons, and an Essay on Descriptive Poetry :
and in consideration of £ 105 which by a receipt under his hand, dated the 28th of
July 1729, he acknowledged to have received from Mr. John Millan, bookseller, Mr.
Thomson sold to Millan the copies of the said several poems, with the sole right of
printing and publishing them, together with such alterations and additions as the
author should afterwards occasionally make.
About June 1738, Andrew Millar contracted with the said John Millan for the
purchase of the several poems last mentioned, so sold to him by Mr. Thomson; and
by an indenture dated the 16th of June 1738, John Millan, in consideration of £ 105
paid to him by Andrew Millar, did assign to the said Andrew Millar, his executors,
administrators, and assigns,the several copies of the said poems, with all the corrections,
alterations, and additions which the author had made or should make; and all the
right, title, interest, property, claim, and demand of the said John Millan to or in the
said copies; and also the several plates of the prints of the seasons, and the plate of
the print of Sir Isaac Newton's monument; all which prints had been'usually bound
up with the said poems.
[130] By virtue of this indenture, Andrew Millar became lawfully entitled to
all the profits arising by the printing and publishing of the several poems before
mentioned, and to all the sole and exclusive property and right of printing copies
of them, and of vending and disposing of the same.
Andrew Millar died in June 1768, having first made his will, dated the 20th of
February 1768, and thereof appointed his wife Jane Millar, William Millar, Thomas
Longman, and the respondent Thomas Cadell, executors. And soon after his death,
his will was duly proved by his widow, and the said William Millar and Thomas Cadell,
who thereby became entitled to the several copies of the poems before mentioned,
and to the sole right of printing, publishing, and vending the same.
On the 13th of June 1769, the copy-right of the said several poems, with the sole
right of printing, publishing, and vending them, was sold by order of Andrew Millar's
executors, by auction, at the Queen's Arms Tavern, in St. Paul's Church-yard,
London : and at this sale the respondents purchased the copy-right of the said poems
in certain proportions, for £ 505.
After this purchase of the copy-right in the said poems, the appellants published
and sold several thousand copies of the poems called Spring, Summer, Autumn, and
Winter, and the Hymn on the Succession of the Seasons, in a volume intitled THE
SEASONS, by James Thomson: Edinburgh, printed by A. Donaldson, 1768: and
thereby acquired considerable profits, to the great loss and prejudice of the
respondents. Whereupon the respondents, on the 21st of January 1771, filed a
bill in Chancery against the appellants, thereby stating the several facts before men-
tioned, and praying that the appellants might come to an account with the respon-
dents, for the money which the appellants had received by the sale of the said poems
and hymn; and that the appellants might for ever after be restrained, by the
injunction of the court, from publishing the said poems and hymn, and from selling
any copies of them in future.
On the 16th and 20th of July 1771, the appellants put in their answers, and
thereby admitted, that Mr. Thomson was the author of the several poems mentioned
in the bill, but denied all knowledge of the several assignments which the bill stated,
and said they believed, that Andrew Millar, by virtue of the several indentures men-
tioned in the bill, or by any other means, did not become entitled to the copy-right
in the poems before mentioned, for a longer time than the several terms limited by
an act passed in the eighth year of her Majesty Queen Ann, intitled, An act for the
encouragement of learning, by vesting the copies of printed books in the authors
or purchasers of such copies, during the times therein mentioned. The clauses relied
upon in the answers of the appellants were, that by which it is enacted, " That the
" author of any book or books, then already composed and not printed or published,
" or that should thereafter be composed, and his assignee or assigns, should have the
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 DONALDSON V. BECKETT [1774] H BROWN.
u
sole liberty of printing and reprinting such book and books for the term of fourteen
" years, [131] to commence from the day of first publishing the same, and no longer."
And a proviso, by -which it is further enacted, " That after the expiration of the said
H
term of fourteen years, the sole right of printing and disposing of copies shall return
" to the authors- thereof, if they are then living, for another term of fourteen years."
The appellants in their answers also said, that the copies of the several works, in the
bill mentioned to have been written by Mr. Thomson, having, as appeared by the
bill, been assigned by him and first published in 1729, the sole right of printing,
publishing, and selling the same, could not be extended beyond the term of twenty-
eight years, from the time of such first publication, which term expired in 1757.
They denied, that during that term they were concerned in the printing, publishing,
or selling any copies of the said works. They admitted the death of Andrew Millar,
and that before his death he made his will, and appointed such persons executors,
as in the bill were named ; and that it was proved, in the manner therein mentioned.
But they insisted, for the reasons aforesaid, that the executors of Andrew Millar,
did not by his will, or otherwise, become entitled to the sole right of printing and
publishing the said poems. The appellants also admitted, that they had since the
expiration of the said term of twenty-eight years, without the consent of the respon-
dents, printed, published, and sold several copies of the poems in the bill mentioned ;
and insisted, that unless the respondents were able to make out a title to the sole and
exclusive property of the said poems, paramount the aforesaid act of parliament,
the appellants were, by virtue of that act, well authorised in printing, publishing,
and selling the said poems, and were not compellable to account for or discover the
number of copies they had printed, published, or sold, and ought not to be restrained
from the further publication and sale of the same; and therefore they claimed the
benefit of the said act of parliament, as if they had. pleaded the same in bar to the
relief and discovery sought by the bill.
On the 16th of November 1772, the cause was heard before the Lord Chancellor
Bathurst, when his Lordship was pleased to decree, that the injunction which had
been before granted in the cause, should be made perpetual; and that it should be
referred to the Master, to take an account of what had been received by the appellants,
or either of them, or by any other person by their order or for their use, from the
publishing and sale of the poems in the pleadings mentioned, and that the appellants
should pay the respondents what should be found due to them on the balance of the
said account; and his Lordship reserved the consideration of costs, until the Master
should have made his report; and any of the parties were to be at liberty to apply
to the court, as there should be occasion. (See note 1, p. 847.)
[132] In order to obtain a final determination of this great question of literary
property, the present appeal was brought; and on be-[133]-half of the appellants
it was said (E. Thurlow, J. Dalrymple, A. Murphy), that the object contended for
by the respondents, was of so abstruse and chimerical a nature, [134] that it was
hardly capable of being defined. It was sometimes called property, and for the sake
of distinction, literary property. The word property has various significations. In
a philosophical sense, the qualities inherent in any subject, or thing, are ealled its
properties. In a civil sense, property is corporeal or incorporeal. Corporeal property
is tne actual possession of some substance, with the power of enjoying and disposing
of i t ; but the object now contended for, was not corporeal property. Incorporeal
property is of two sorts : 1st, It is a right relating to some substance, as a right to
take the profits of land, without having the possession of the land, or a title to it. 2dly,
It is a right to exercise some faculty, or to do some particular thing for profit. The
)erception of the profits, is a taking of some substance or corporeal property; and
lence the incorporeal right is metaphorically called property. The word thus used
becomes equivocal, importing alternately the right, and the profits resulting from
the right. In like manner, land and the right to it, are both called property. If
the respondents object was an incorporeal right, it is a mere right to do some particular
thing for profit. The thing to be done, is the multiplying of copies of books. The
sole right of multiplying copies, is a sole right to exercise a natural faculty ; and this,
it is obvious, is an extraordinary'privilege. A sole right to take the profits arising
from the exercise of a natural faculty, is a monopoly in itself very extraordinary. This
privilege and this monopoly, the respondents chose to call their property, and thev
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H BEOWK. DONALDSON V. BECKETT [1774]
were to maintain their title to it at common law. But by that law, it was submitted
on the part of the appellants, that the privilege and monopoly never did, nor ever
could exist. For a right at common law must be founded on principles of conscience
and natural justice. Conscience and natural justice are not local, or municipal.
Natural justice is the same at Athens, at Rome, in France, Spain and Italy. Copies
of books have existed in all ages, and they have been multiplied; and yet an exclusive
privilege, or the sole right of one man to multiply copies, was never dictated by natural
justice in any age or country ; and of course the sole liberty of vending copies could
not exist of common right, which gives an equal benefit to all. An exclusive privilege
to exercise a natural faculty, is an encroachment upon the rights of man. A natural
faculty differs from the execution of an office. An office is the work of civil policy,
and being of positive institution, may be granted to one, without injury to the rest;
but when that which of common right should be free to all, becomes confined to any
one man, or any body of men, the rest of the community suffer an abridgement of
their natural liberty; and such a restraint of the liberty of many, for the sake of one,
was never established by natural justice. If it ever has existed, it has been the creature
of the civil magistrate, upon principles of policy; but [135] the respondents disclaimed
the aid of the Legislature upon the present question, and derived their claim from
the common law.
The common law has ever regarded public utility, as the mother of-justice and
equity. Public utility requires, that the productions of the mind should be diffused
as wide as possible; and therefore the common law could not, upon any principle
consistent with itself, abridge the right of multiplying copies. When the common
law took root in this kingdom, literary composition stood, in regard to the manner
of making it public, upon the same footing as in Greece or Home. Writing was,
in those states, the only method of multiplying copies. To transcribe, or copy out
a book, was the right of every individual; there was no other way of propagating
knowledge; but of a perpetual right in one man to write out books, or to make
copies, there is not a single trace in any author that has come down from antiquity.
Atticus retained a number of slaves, who were trained up to writing ; and it appears
in Tully's Epistles, that Attieus transcribed not only for his own use, but to sell again
to Cicero. In like manner, the natural liberty of transcribing books was never
checked by the common law. From Ames, and other compilers of the History of
Letters, we learn, that from the slow progress of transcribing, books were held'up at an
enormous price. Livy was sold for 120 crowns of gold for each book ; and a French
Romanee, called La Romans de la Rose, was sold for £ 33 6s. 6d. The common law
could not, with justice, uphold a price so prejudicial to the cause of learning. Accord-
ingly, he who possessed a Braeton, or a Chaucer, had an undoubted right to make
as many true copies as he pleased. A monopoly would have been pernicious, and
learning, in consequence, must have gone to ruin. The common law is immemorial
usage. If" therefore there was a time, when the privilege and monopoly now con-
tended for, could not, and in fact did not exist at common law, they never can exist
by that law. But such a time has been, namely, from the beginning of our history,
down to the GREAT JERA of printing ; and printing, which is only a more expeditious
method of multiplying copies, could not change the principles of right and wrong,
or innovate the law. Printing was invented at Mentz in Germany,- anno 1458. In
1471,'Caxton, a mercer of London, brought the art into this kingdom. In acts of
parliament it is called a trade, or manufacture of the kingdom. To exercise the art,
was the right of the subject; and in this light the first printers considered it. Chaucer's
works were printed by Caxton in 1498, when the author had been long dead. Another
edition of Chaucer was soon given by Thomas Godfrey. Littleton's Tenures were
printed in 1481, by John Lettou, and in a short period by Richard Pinson, 1526,
by Thomas Berthelet in 1530, by William Rastall in 1534, and by Robert Redman
in 1540. Pinson, indeed, says, in the wit of that age, that Redman should be called
Rudeman; quia hominum Rudiorem vix invenias. He abuses Redman's edition,
but not a word about an invasion of property.
But it is said on the part of the respondents, that the name, copy of a book, has
been a term used for many ages, to signify the [136] sole right of printing, publish-
ing, and selling; and that this species of property has existed in usage, as long as
the name. But as the respondents admit, that there is no bye-law, or ordinance
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relative to copies, till after the year 1640 ; the usage, whatever it be, is therefore not
immemorial.
It is also said, that from the erection of the Stationer's Company, copies were
entered as property, and pirating was punished. The common law, according to
this, begins with the Stationer's Company. The first charter was in 1556, 3d and
4th Philip and Mary, and was founded on principles of bigotry, to prevent, as it recites,
the renewal of great and detestable heresies. The new members of the Company,
in number ninety-seven, were made literary constables to search for books, etc. and
though the Crown had no right over the trade of printing, it was ordered, " That
" no man should exercise the mystery of printing, unless he was of the Stationer's
" Company, or had a licence." To this Company so constituted, and thus armed
with a general warrant, we are referred for evidence of the common law.
But it is further said, that in the year 1558, the charter was confirmed, in the
1st of Eliz. and that in that year, there are entries of copies to particular persons,
and down from .that time.—To this it is answered, that patent rights began soon
after the first introduction of printing. Froissart's Chronicles of England, France,
and Spain, were published cum privilegio a rege indulto, by Richard Pinson, 1525.
From that time, the patents ad solum imprimendum were innumerable. Men who
had such rights, might enter their books as property in the Stationer's Register j
but neither the patent or the entry can be received "as evidence of a common law
right. The charter embraced all the printers in England: the new Company had
the sole privilege of printing, and they agreed to divide the spoil amongst themselves ;
but authors were not parties to the agreement.
Still it is said, that the Stationer's Company was empowered to make bye-laws.
—They were so ; and those bye-laws might create a relative right among the members
of the Company. In 1681, a bye-law declares, that where a book was entered to
any member, such person, by ancient usage of the Company, has been reputed and
taken to be the proprietor : by ancient usage of the realm, had been more conducive
to the point. But it was not competent to the Stationer's Company, to make laws
for the rest of the kingdom; and if it had, it would not be common law.
But the decrees of the Star Chamber have been cited as strong authorities, in
support of the bye-laws and customs of the Stationer's Company; and that a Star
Chamber decree in 1637, expressly supposes a copy-right to exist, otherwise than
by patent, order, or entry, which could only be by common law. The Star Chamber
was a criminal court, and had not constitutional authority to determine civil rights.
That court has long since been abolished, without regret; and it is the happiness
of the subject, that the common law has flowed through purer channels. The relative
rights of the Company were supported per fas et nefas, in [137] those times of high
{>rerogative : licences from the Archbishop of Canterbury were frequent; and such
icences were neither patent, order, or entry. Moreover, a common law right is
never expressly mentioned in any ordinance, proclamation, or bye-law. It is often
called the right, privilege, authority, or allowance solely to print. Had the Star
Chamber, and the High Commission Court, expressly stated a common law right, it
could not be received as an authority in point; and a common law usage cannot arise
by mere implication from dark hints of the Star Chamber. The same argument
applies to acts of the Privy Council, to edicts, proclamations, the ordinance of the
two houses in 1642, and all the ordinances during the usurpation. This whole body
of precedents forms the history of despotism, but not of the common law. The
most that can be said in their favour is, that they supported an usage, first set on
foot by acts of state, by patents, bye-laws, etc.
It has been said, that in those times, copies were protected by a much speedier
and more effectual remedy, than actions at law, or bills in equity; namely, the licensing
act, whereby the printing of any book without consent of the owner was forbidden ;
and that soon after the expiration of that act, it appears by Lilly's Entries, p. 67, that
in Hil. 31 Car. II. there was a case of Ponder v. Bradyll, for printing 4000 copies of
the Pilgrim's Progress, whereof the plaintiff was proprietor. One successful action
at law would have been a better proof of the right, than a thousand instances of
arbitrary power. The ownership was created by patent, order, bye-law of the
Stationers, etc. and if the licensing act recognized a right so created, it was an act
of the Legislature ; but this act, with all the other encroachments upon liberty, has
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n BBOWff. DONALDSON V. BECKETT [ 1 7 7 4 ]

long since gone to rest, to revive no more. And as to the case of Ponder v. Bradyll, it
is no more than a declaration, in the book of a special pleader; and if the defend-
ant printed and exposed to sale 4000 books, he was left in possession of them.
But the respondents, as if conscious that the ground of bye-laws, ordinances,
etc. is not tenable, resort to a Court of Equity; and rely much upon the injunctions
which have issued out of the Court of Chancery. These injunctions may be all drawn
into a narrow compass, and it will be seen, that they do not apply to the point in
question.
I. Injunctions before the 8th Ann, c. 10.
15th November 1681. Stationers v. Lee, for printing Psalters and Almanacks.
17th November 1681. Stationers v. Wright, for publishing Almanacks.
9th and 22d February 1709. Stationers v. Partridge, for selling Almanacks.—
All these are prerogative rights.

II. Injunctions upon the right given by the statute of Queen Ann.
9th November 1722. Naplock v. Curl, for printing Prideaux's Directions to
Church-wardens.
[138] 11th December 1722. Tonson v. Clifton, for Sir Richard Steele's Conscious
Lovers.
19th and 23d May 1729. Gulliver v. Watson, for printing Pope's Dunciad.
26th November 1735. Motte v. Falkiner, for Pope and Swift's Miscellanies.
27th January 1736. Walthoe v. Walker, for Nelson's Festivals.
6th December 1737. Ballex v. Watson, for Gay's Polly.
13th March 1740. Gyles v. Wilcox, for Hale's Pleas of the Crown.
19th May 1740. Read v. Hodges, for the History of Peter the Great.
. 6th November 1757. Tonson v. Mitchell, for Byng's Expedition to Sicily.
n i . Injunctions for printing unpublished MSS. without licence from the author.
24th May 1732. Webb v. Rose, for Webb's Conveyancer.
5th June 1741. Pope v. Curl, for printing Pope's Letters.
13th June 1741. Forrester v. Walker, for Forrester's Reports.
Duke of Queensbury v. Shebbeare, for Lord Clarendon's Life.
Trinity term 1768. Macklin v. Riehardson, for printing Love A-la-mode.
IV. Injunctions as to old books, after the twenty-one years granted by the 8th Ann.
9th June 1735. Eyre v. Walker, for the Whole Duty of Man. This could not
be the Old Duty of Man; if it was, the right must have been founded upon an assign-
ment from the author, but the author is unknown to this hour.

V. Injunctions relative to books, after the twenty-eight years given by the 8th Ann.
Trinity term 1765. Millar v. Donaldson, for Thomson's Seasons, Pope's Iliad,
Swift's Works, with the Life and Notes by Dr. Hawkesworth.—As to Swift's Works,
the Life and Notes being within the statute, the injunction was continued; but as
to Thomson's Seasons, and Pope's Iliad, being beyond the twenty-eight years, the
injunction was dissolved. And from all these cases it appears, that the general
uestion touching the common law right has never been determined by any
S hancellor.
Mechanieal instruments, and also prints made by engravers, have ever been open
to all artists, unless secured to the inventor by patent, or act of parliament. Between
sueh inventions and copies of books, no sensible distinction can be made. An orrery
represents the planetary system. He who makes one after the first model, takes
the science of astronomy as represented by the [139] orrery ; and he who prints a
book, takes the author's sentiments.—Where is the difference 1 Prerogative copies,
such as the Bible, and books of Divine Service, do not apply to the present case; they
are left to the superintendance of the Crown, as the head and sovereign of the state,
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upon principles of public utility. But to prescribe to the Crown a perpetual right to
the Bible, upon principles of property, is to make the King turn bookseller : and if
it be true, that the King paid for the translation of the Bible, it was a purchase made
for the whole body of the people, for the use of the kingdom.—Acts of parliament,
it is admitted, are the work of the Legislature, and therefore under the direction
of the Crown, as the executive part of the constitution. Property therefore is not
the foundation of prerogative copies. King Charles I. published a translation of
David's Psalms, written, as his Majesty says in the preface, by his Royal Father;
but the idea of a perpetual property was not then conceived, and therefore a patent
was granted, to give the sole right to the bookseller.
But it is said, that the authority of such a man as Milton is of great weight; and
he is represented as speaking, after much consideration, on the very point. His
words are, the just retaining of each man's copy, which God forbid should be gainsaid.
Milton's Prose Works, 4to. vol. 1. p. 172.—Milton, in the close of his famous speech,
" for the liberty of unlicensed printing," in 1644, says, the ordinance of the two houses,
for subjecting the press to a licenser, was obtained by indirect means. It may, says
he, be doubted, whether there was not in it the fraud of some old patentees and mono-
polizers in the trade of bookselling, who, under pretence of the poor in their Company
not being to be defrauded, and the just retaining of each man's copy (which God
forbid should-be gainsaid) brought divers glossing colours to the house, etc. Milton's
idea of each man's copy arises from the old patentees and monopolizers; and certainly,
while there was a relative property in the Stationer's Company, the poorer members
ought not to be defrauded. But he does not say how long the copy should be retained;
and that is the very point in this cause. It may be presumed, that Milton could not
wish that Paradise Lost, which was sold for £ o, and two further sums of £ 5 to be paid
conditionally, should continue a splendid fortune in the hands of a bookseller, and
his own grand-daughter be obliged to beg a charity play, at Drury Lane theatre,
1752. Dr. Swift and Mr. Pultney were both clearly of opinion, that there was no
common law right; vide Swift's Letters, vol. 3. And the opinion of such a man as
Mr. Pultney, who was for years of the first ability in parliament, may be allowed to
have some weight. Br. Watts published a volume of sermons in 1720." Mr. Longman,
one of the present respondents, republished it in 1758 ; and though the period of
twenty-eight years was expired, a common law right, if it existed, would have pro-
tected the property; but Mr. Longman annexed to his edition, a patent for fourteen
years, dated the 21st of March 1758.
Whatever encouragement may be due to authors, the common law cannot, after
the silence of ages, pronounce at once upon a [140] new species of right, which has
been hitherto property, not properly known. Bank notes are of a value well ascer-
tained, and yet the common law did not adapt it-self to that emergence of commerce ;
but it was for the Legislature to make the stealing it, or taking it by robbery, a felony,
2 Geo. II. c. 25. The statute of Ann was not declaratory of the common law, but
introductive of a new law, to give learned men a property which they had not before.
i But it has been contended on the part of the respondents, that the act of Queen
Ann is an accumulative statute, declaring the common law, and giving additional
penalties. And in support of this, a pamphlet, said to have been given to the members
in 1709, has been cited, and it appears, that the booksellers meant to inculcate the
idea of ancient usage ; but what that usage was, how it took its origin, or how it was
stated in the pamphlet, the extract leaves in obscurity. Contemporary exposition
will, no doubt, deserve attention. To this end, the history of the bill, as it stands
upon the Journals of the House of Commons, together with the account of the con-
ference with the Lords, will clearly evince, that the legislature were not employed
in securing an antecedent property, but expressly declared, " That authors and
" booksellers had the sole property of books vested in them by that act, for the terms
" therein mentioned." Vide the Journals, 12th December 1709, when the book-
sellers petition was presented ; also their second petition, 2d February 1709.—14th
March 1709, Resolved, that the title be, " A bill for the encouragement of learning,
" by vesting the copies in the authors or purchasers, etc."—5th April, the bill returned
from the Lords. 5th April 1710, a conference with the Lords, and Mr. Addison,
one of the Commons.
Of this evidence the respondents feel the weight, and therefore they resort to
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n BB0W2T. DONALDSON V. BECKETT [1774]
a variety of comments upon the statute itself. They rely much upon the preamble,
which says, " Whereas printers, booksellers, and other persons, have of late frequently
" taken the liberty of printing, etc. books and other writings, without the consent
" of the authors or proprietors of such books, to their very great detriment, and too
" often to the ruin of them and their families ; for preventing therefore such practices
for the future," etc. From the words taking the liberty, and such practices, it is
inferred, that the persons within the description of them were wrong-doers. A
question is put, When the legislature speak of a liberty taken, could they mean a
claim founded on any right 1 And by practices, did they mean to describe the exercise
of a legal right 1 The word practices, is properly applied to the doing of illegal acts.
If they were wrong-doers, the legislature has used the mildest terms in the compass
of our language; but surely they were not trespassers. After the final extinction
of the licensing act in 1694, men had a right to reprint books, in the same manner as
printsellers had lawful authority to copy, engrave, and publish all works, designs,
and prints, which were not secured to the inventors by patent for a term of years;
and yet the legislature, 8 Geo. II. c. 13. in the very same words, recites in the pre-
amble, "* Whereas divers printsellers, etc. have of late taken the liberty [141] of copy-
" ing, engraving; and for preventing therefore such practices,'' etc. Again, in 7 Geo.
III. c. 38. the printsellers who engraved and exposed to sale the designs and prints
of the late William Hogarth, after the period of fourteen years granted to him by
parliament, are in that act called the proprietors of the copies of William Hogarth's
works; and then the legislature proceeds to restrain those very proprietors from
vending the copies which were their legal property. Thus it is plain, that the legis-
lature speaking of a legal right, described it by the words, taking the liberty, and
such practices. If by the terms taking the liberty, and such practices, it can by fair
construction be intended, that injustice, fraud, and rapine are implied, the like
imputation is thrown upon the printsellers, who exercised a legal right, and are allowed
to be proprietors. It may be presumed, that if the legislature had seen actual guilt,
or illegal practices, they would, agreeably to their own dignity, have kept no terms
with men who violated laws, and wrought the ruin of families. But learning, to
the honour of the legislature, was to be encouraged; and it may be asked, if the
statute of Queen Ann did not create a new property, what was done for learning?
If the right was antecedent to the act, how did the legislature vest the property in
authors 1 If they had the faintest idea of a pre-existing property, why was the sole
right of reprinting books, which had been previously published, restrained to twenty-
one years, and no more 1 A strange way of encouraging learning, by abridging
ancient rights ! If the act of Queen Ann intended merely to give additional penalties,
by way of new fences to a common law right, why give those penalties for fourteen
years only ? If the property is perpetual, why should not the remedy be co-extensive ?
If by copy be understood a perpetual property, the author who sold his copy under
the idea of a transfer for fourteen years only, may be told by an artful bookseller,
that more was meant than meets the ear, and that a sale of his copy, imports a sale
for ever. The consequence will be, that instead of encouraging learning, a snare
has been unwittingly spread for men of genius and industry ; and the clause of the
statute, which gives a reversion to the author at the end of fourteen years, if he live
so long, will be eluded by the craft, and, as Milton phrases it, by the sophisms of mer-
chandise. If the book at the end of fourteen years reverts to the author, his interest
is served : if it does not, the legislature, by such a construction, has extended no benefit
to learned men. But it happily appears, that parliament has revised its own acts,
and, in terms as clear as the English language affords, declared, that the property
was given by the act of Queen Ann. For 7 Geo. II. c. 24. is intitled, " An act for
" granting to Samuel Buckley the sole liberty of printing and reprinting the Histories
" of Thuanus." The preamble recites, that Buckley, at a very great expence, had
prepared an edition of Thuanus in seven volumes folio, and then adds, " Whereas
" the sole liberty of printing and reprinting books for the term of fourteen years,
* to commence from the day of publishing the same, granted to the proprietors thereof,
" was granted to the proprietor thereof by an act 8 Anne, [142] intitled, An act for
" the encouraging of learning, by vesting the copies of printed books, in the authors
" or purchasers," etc. Of the sense and meaning of the legislature, we are now fully
informed by the highest authority: he that runs may read the intent and scope of
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the statute, namely, the sole liberty of printing and reprinting was granted for the
term of fourteen years. The law was made for the encouragement of learning:
ingenuity has endeavoured to puzzle it, but the legislature has given the exposition.
The notion of a perpetual privilege and monopoly, was within these few years
hatched among the booksellers, who now come with glossing colours, and under
a pretence of serving the cause of literature, mean only to get the fruits of genius
into their own hands for ever. But the consequences of this new doctrine, were it
established, would be fatal to the interest of letters, and the fame of every valuable
author. Books may be held up at too high a price. Notes and illustrations may be
wanted, and in thirty or forty years generally are; for not only the manners, but
even science changes in the progress of time. Moral philosophy and mathematics
should keep pace with thevieissitudes of the world. Useful commentaries upon valuable
works, cannot be made without the licence of the bookseller who has purchased the
copy : his avarice, his timidity, his want of sense, may tell even the original author,
that he shall not reprint his own book, with further improvements. If the author
should happily be permitted to do it, it must be upon the bookseller's terms; but
more probably, the frugality of the bookseller will grudge an additional expence, and
taking upon him to pronounce upon wit, he may say, that he likes the book as it is.
Milton, in his famous speech, has thought this head of argument an important topic
against a licenser of the press. His words are, " What if the author shall be one so
" copious of fancy, as to have many things well worth the adding, come into his mind
" after licensing, while the book is yet under the press, which not seldom happens-to
" the best and diligentest writers, and that perhaps a dozen times in one book. The
" printer dares not go beyond his licensed copy ; so often then must the author trudge
u
to his leave-giver, that those his new insertions may be viewed; and many a jaunt
" will be made, ere that liscenser (for"it must be the same man) can' either be found,
" or found at leisure. Mean while either the press must stand still, which is no small
" damage, or the author lose his accurate thoughts, and send the book forth into the
" world worse than he could make it, which to a diligent writer is the greatest
" melancholy and vexation that can befall." In the case of a perpetual privilege and
monopoly, the bookseller becomes the author's leave-giver; many a jaunt may be
made that his new insertions may be viewed, and at length he may sit down with
the melancholy and vexation of leaving his book worse than he could make it. But
should the work, pursuant to the statute of Queen Ann, revert to- the author in
fourteen years, he will become the guardian of his own fame; and in consequence, [143]
learned and industrious men will be enabled to reap not only the fame, but the profits
of their labours, to the honour and advantage of themselves and their families.
It has however been colourably said, that for a perpetual property, authors may
rise in their demand, and gain a much larger sum for the copy ; or they may publish
on their own account, and feel the pulse of the public before they dispose of the copy.
Except in one or two modern instances, a competent price has never been given. If
booksellers have hitherto been dealing under the idea of a perpetual monopoly, thfey
have not paid an adequate compensation for it, and the same phlegm will govern their
future transactions. It is a melancholy consideration, that even a writer of Mr.
Thomson's merit does not appear to have received £ 100 for the poems called the
Seasons. The whole sum paid to him for a variety of articles was £ 242 13s. The
tragedy of Sophonisba, at the old price of a play, was worth £ 105. The poem sacred
to the memory of Sir Isaac Newton, Britannia, and an Essay on Descriptive Poetry,
were worth a considerable sum. How much then remains for the Seasons % No
work of late years has been more generally received. The profits to Millar must there-
fore have been large; and after all the copy sold for £ 505 at a public auction. If
authors had always access to a Clarendon press, where the precise number ordered
would be printed, and no more, the impression might be distributed to the London
booksellers, and an author might stand the hazard. But authors are not often in
that situation, and besides, the immediate expence of paper and print is not favourable,
to such experiments. A period of fourteen years is a sure teat of every book. If
after that time it be worth reprinting, the author's most accurate thoughts may be
interwoven, and the fame and profit will accrue to the man of labour and invention.
But if a perpetual privilege and monopoly are to interrupt his hopes, the purchasers
of the copy will be enriched, and, in the emphatic words of Dryden, It will continue
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II BBOWN. DONALDSON V. BECKETT [ 1 7 7 4 ]

to be the ingratitude of mankind, that they who teach wisdom by the surest means,
shall generally live poor and unregarded; as if they were born only for the public,
and had no interest in their own well-being, but were to be lighted up like tapers,
and waste themselves for the benefit of others.
On behalf of the respondents it was contended (A. Wedderburn, J. Dunning,
F. Hargrave), that the claim of authors to the sole and exclusive right of printing
and publishing their own works, is founded upon principles of reason and natural
justice. It is just and equitable, that those who labour in the advancement of know-
ledge, and communicate their ideas in written compositions to the public, should have
a recompence; and in order to obtain a suitable one, authors, when they publish
their works, mean to reserve to themselves the right of multiplying printed copies;
and the nature of printing, and the circumstances attending publication being con-
sidered, there is an implied agreement, on the sale of each particular copy, that the
purchaser shall not invade the beneficial right of multiplying copies, intend-[144]-ed
to be reserved by the author. Prom the first introduction of the art of printing into
England, this peculiar species of property has been known by the expressive name
of copy right; has continually been the subject of sale, gift, and family settlement;
has always been protected from invasion; and in some instances has even been re-
cognized by the legislature. It is a point too well established to be denied, that at
common law the sole and exclusive right of multiplying for sale, the copies of acts
of parliament, proclamations, and other papers of a public nature, belongs to the
King and his patentees ; not in consequence of any prerogative over the art of print-
ing, but on account of his peculiar interest, as the executive power, in all publications
and acts of state, flowing from himself, or parliament. This shews that an interest
or property similar to that claimed by authors, may subsist at common law; and
though the reasons on which authors claim an interest in their own private copies,
are not precisely the same as those from which the interest of the crown in public
copies is derived, yet they are not less forcible; but give to authors a title of property
as well founded in justice, as the title of the crown is founded in policy, and one equally
consistent with public utility.
There is nothing in the statute of Queen Ann to take away that interest or pro-
perty, to whieh authors were before entitled, in the publication and sale of their own
works. The object of that statute was to secure literary property, by penalties, from
piracy and invasion; and though the protection given is only temporary, yet so far
from being made so under an idea of the legislature, that authors had no property
in their works before, or with an intention to limit its duration, the statute expressly
declares, that nothing contained in it shall prejudice or confirm any right which the
universities, or any person or persons, might claim to the printing or reprinting of
any book or copy then printed, or afterwards to be printed. Since this statute, many
injunctions have been granted by the Court of Chancery, to restrain the invasion
of copy right, notwithstanding the expiration of the term, during which only the
statute gives a protection by penalties; and the opinion of the Chancellors who granted
those injunctions, has been confirmed by a judgment of the Court of King's Bench
(4 Burr. 2303), in favour of literary property, which was given after solemn argu-
ment. Upon the faith of the protection which has hitherto been given to literary
property, independently of the statute of Queen Ann, great sums of money have
been expended in purchasing copies, and in the printing and manufacturing books
from such copies; vast stocks of which books, from the unalterable nature of printing,
are unavoidably in hand; and if such protection should be now withdrawn, many
families would lose their whole estates, and necessarily be involved in ruin.
After hearing counsel on this appeal, the following questions were put to the
judges, viz. u I. Whether, at common law, an author of any book or literary eom-
" position had the sole right of first printing and publishing the same for sale, and
" might [145] bring an action against any person who printed, published, and sold
" the same without his consent % II. If the author had such right originally, did the
" law take it away upon his printing and publishing such book or literary composi-
" tion; and might any person afterwards reprint and sell, for his own benefit, such
" book or literary composition, against the will of the author % III. If such action
" would have lain at common law, is it taken away by the statute 8th A n n ; and is
" an author, by the said statute, precluded from every remedy except on the founda-
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 DONALDSON V. BECKETT [ 1 7 7 4 ] H BEOWN.

" tion of the said statute, and on the terms and conditions prescribed thereby 1 IV.
" Whether the author of any literary composition, and his assigns, had the sole right
" of printing and publishing the same in perpetuity by the common law ? V. Whether
" this right is any way impeached, restrained, or taken away by the statute 8th
" Ann 1" The judges differing among themselves, delivered their opinions seriatim;
when five of them, namely, Mr. Justice Ashhurst, Mr. Justice Blackstone, Mr. Justice
Willes, Mr. Justice Aston, and the Lord Chief Baron of the Court of Exchequer, were
of opinion in favour of the perpetuity, or common law right; and the other sis,
namely, Mr. Baron Eyre, Mr. Justice Nares, Mr. Baron Perrott, Mr. Justice Gould,
Mr. Baron Adams, and the Lord Chief Justice of the Court of Common Pleas, were
of opinion against i t : whereupon it was ORDERED and ADJUDGED, that the decree com-
plained of should be reversed; and that the respondents bill should be dismissed,
without costs. (MS. Jour, sub anno 1774. p. 130.) (See note 2, p. 849.)

NOTE 1.—[131] After thus stating the facts of the case now in judgment, the
appellants, previous to assigning any reasons in support of their appeal, made the
foil[owing observations:
[132] On this state of the case they said it was observable, that the respondents
derived a title through executors, eo nomine; and not by means of any specific devise
to them. From hence it was conjectured, that they meant to claim some chattel or
other, and to complain of a wrong done to that species of property. Of chattels, it
is certain that they all go absolutely to executors, together with all the rights which
can exist in them. The case is the same of rights purely incorporeal, which lie only
in action, and are independent of any subject, real or personal, if they are for terms
of years, as an annuity, a franchise, or a privilege, such as monopolies, etc. for a limited
time. But it was conceived that a perpetual annuity, franchise, or privilege, must
be a fee simple, and descend to heirs. If this be so, the main difficulty would then
consist in ascertaining the chattel claimed by the respondents, and how, and in what
manner, the wrong complained of applied to it.
The bill in this cause was penned by the respondents with extreme caution,
solicitous, as it should seem, to avoid entangling themselves in a variety of circum-
stances, which yet make part of the special verdiet in the cause of Millar v. Taylor,
and in the report of Sir James Burrow (vol. 4. p. 2303) are stated to be highly
material, although in support of that opinion no reason is alledged. It might therefore
be inferred, that the present attempt was an experiment, to try how far the doctrine
of that case may be extended beyond the case itself. What was done with the poems
in question, between the time of their being first written and the 16th of January,
or the 28th of July 1729, when the copies were sold, did not appear in any part of
these proceedings. The respondents had not thought fit, in support of their claim,
to alledge, that the author had neither published, sold, or given true copies of them
to other persons before those particular days; indeed such an allegation could not
have been made with truth, because it was notorious that they were published at
separate and distinct times, as they happened to be written. The Seasons, in parti-
cular, were found by the special verdict in the cause of Millar v. Taylor, to have been
published in the year 1727, at several times.between the beginnning of that year and
the end of the year 1729, and of course many true copies of them were sold to various
persons, before the purchase by Andrew Millar and John Millan, supposed by the
bill. But it was immaterial to the present claim, in what manner, or with what
view the author published originally, since if any property adhered to him after, and
notwithstanding his first publication, the same, without any manner of doubt, was
disposable by. him at his pleasure. Upon the same principle the respondents had
industriously declined to charge, that the said James Thomson was a natural-born
subject, or resident in that part of Great Britain called England; or that the poems
in question were first printed and published in the city of London, the same having
never before been published elsewhere; meaning apparently to insist, that the right
which they claimed, being derived from property, could not depend for its existence
on such accidents ; and that, therefore, this case had to do with that of foreign books,
which do not, in their apprehension, stand on a different footing from copies printed
and published in the city of London. The respondents had, for the same reasons,
declined to charge, if the truth was so, that the work now in question, was upon the

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n BBOWN. DONALDSON V. BECKETT [ 1 7 7 4 ]

said purchases of the several parte thereof, by the said Andrew Millar and John Millan
respectively, and before the publication thereof, duly entered in the Register of the
Company of Stationers of the city of London, as the whole and sole property of the
said Andrew Millar and John Millan; to avoid the. appearance of recourse to a statute
made in their favour, but now under the ill luck of being thought an impediment.
And by the omission of these circumstances, the respondents no doubt intended,
for reasons sufficiently obvious, if the foundation of their argument was found, to
insist that the species of right to which they set up their claim, was not liable to a
supposition that the author had relinquished the copy, and consequently given a
general licence to print. They denied that many of the best books fell under that
description, and that a very little evidence might be sufficient, after the author's death,
to imply such a tacit consent; as, if the book had not been entered before publication,
it would be a circumstance to be submitted to a jury, that the copy was intended to
be left open. In fact Mr. Thomson, their author, died, in 1748, and they disregarded
the rest of the inference ; but had they admitted the circumstance above stated to be
material to themselves, it would have been equally so to the author, who likewise
omitted to enter his poems in the Stationer's Register. For the same reason the re-
spondents had not pretended, that from the time of the said two several purchases,
Andrew Millar and John Millan, and the executors, of the former, and their assigns,
had printed and sold the said works as their property, and constantly had a sufficient
number of books exposed to sale at a reasonable price. To their unbounded claim
of property it was certainly repugnant, that the owner should be obliged to part with
it at any price, but that which he sets himself. Nor would they admit that their
relief might be rebutted, by shewing that they meant to enhance the price, which
is against law. The statutes of [133] 1 Rich. III. and 25 Hen. VIII. relate to the
importation of books from foreign parts, and extend in no case to property or privilege;
and the price of books has nothing to do with ingrossing, forestalling, regrating,
or any other, offences against the police of a public market. The respondents had
likewise forborn to charge, that before the reign of Queen Ann, it was usual to purchase
from authors the perpetual copy right of their books, and to assign from hand to
hand for valuable considerations, and to make the same subject'to family settlements,
for the provision of wives and children; as judging perhaps, that if such a property
had always existed at common law, the purposes to which it had been applied would
be perfectly immaterial; and if it did not exist, the application of it to family interests,
would not be a sufficient ground to build up a new and unheard-of property; perhaps
conceiving, that what was done among others, would not be received as evidence in
the Court of Chancery ; and perhaps convinced, that no such usage could be proved,
or that such usage, if stated in all its circumstances, would be seen advantageous
to booksellers only, and not to authors, and upon the whole might turn out just so
much of nothing to their purpose. They had likewise avoided to charge any sup-
posed bye-laws of the Stationers Company; aware, perhaps, that such bye-laws
would imply a special right created by themselves, and extending only to their own
members ; perhaps considering, that the appellants, not being members of that com-
pany, would not be affected by such bye-laws, even to the extent of making them
competent evidence; and perhaps apprehending, that such bye-laws would throw
a light upon the imaginary usage above-mentioned, and by revealing the origin,
nature, and extent of the property contended for, point the force of it against their
own argument.
The question therefore before the Court of Chancery stood in this simple form ;
Whether the author having sold and delivered, for a competent price, one, or five
hundred true copies of his work, retains in each of the copies so sold and delivered,
by the true construction of such contract, the mere and absolute dominion and "pro-
perty, conveying to the vendee no more than a special limited use thereof; or k converse,
whether such vendee, or rather baillee, acquires, by the true construction of the con-
tract of sale and delivery, no absolute property to himself, but only a right of using,
to a certain extent, the property of another 1 If this proposition be maintainable
by the respondents, the consequence insisted upon is, that, in respect to the property
BO retained, the mere and absolute owner, viz. the person who has sold, may maintain
.an action for the exclusive use of it by the baillee, viz. the buyer. But to avoid the
difficulty of making out the whole of the idea, some have taken part of it, and they

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 DONALDSON V. BECKETT [1774] H BBOWK.
divide it thus: every book, they say, consists of two distinct parts; the material
part,'namely, the paper, print, and binding, which is a manufacture; and the im-
material part, namely, the doctrine contained in it, which is the facture of the mind.
The property in the material part, passes according to the law in all other cases ; but
the property in the immaterial part remains to the author, which is about as intel-
ligible as if one should state John to be the owner of the carcase and limbs of a horse,
and Thomas the owner of his colour, shape, speed, and mettle. This seems to have
led to an elaborate discussion of the principles of property; whether it could exist
in an idea, for want of substance, physical locality, distinguishing marks, and many
other enquiries of the same abstract nature. A mere scio-machina, wherein, by no
uncommon accident, the absurdity of the position made a serious answer seem
ridiculous. Some have stated the property to exist in the profits of the sale, which,
as they assume for the purpose, belong to the original author. But this is only sub-
stituting another, and, as it seems, a less proper phrase in the place of the word
monopoly, which, to use the words of Brooke, is property not properly known. The
privilege, however, of monopoly, is an interest or estate well known to the law. It
only remains to shew what title the author has to it. Some have contented them-
selves with declaiming upon the moral fitness, the reasonableness, the justice and
public conveniency, of putting into the hands of an author the means of raising upon
the world, for his own profit, the utmost sum of money for the use of his book, and
this can only be done by giving him a monopoly. Now, if the truth of all this were
admissible and clear, it would prove at most that it ought to be done, not that it has
been done, and that those who alone can do it, ought to consider and pronounce upon
i t : but in fact they have considered of it, and pronounced upon it otherwise. Some
contend, that such a monopoly is already established by law, and appeal to usage
for the proof of i t ; but the usage adduced is incompetent, for want of time beyond
memory, and in truth does not exist, as appears abundantly by the instances pro-
duced to prove it. Some draw their proof of the common law, from the injunctions
granted by the Court of Chancery; admitting, or rather insisting, that such in-
junctions ought to be granted only where the common law is known and clear;
admitting also, that [134] the case is new to the common law, and was. therefore
properly sent thither by the Court of Chancery. After which it will not be wonderful,
if injunctions granted in a Court of Equity, should not be thought an indisputable
proof of the common law.

NOTE 2.—[145] The universities were so much alarmed by this determination, that
in the year 1775, they applied"for and obtained an act of parliament for securing to
them and the colleges of Eton, Westminster, and Winchester, the perpetuity in all
copies then, or at any time afterwards given to, or acquired by them. Vide stat. 15
Geo. 111. c. 53.

H.L. I. 849 . 54
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