or to have lived in quiet for what he had written. An author’s life is therefore too often deprived of all social comfort whether he be the writer for a minister, or a bookseller—but their case requires to be stated.
THE CASE OF AUTHORS STATED,
INCLUDING THE HISTORY OF LITERARY PROPERTY.
Johnson has dignified the booksellers as “the patrons of literature,” which was generous in that great author, who had written well and lived but ill all his life on that patronage. Eminent booksellers, in their constant intercourse with the most enlightened class of the community, that is, with the best authors and the best readers, partake of the intelligence around them; their great capitals, too, are productive of good and evil in literature; useful when they carry on great works, and pernicious when they sanction indifferent ones. Yet are they but commercial men. A trader can never be deemed a patron, for it would be romantic to purchase what is not saleable; and where no favour is conferred, there is no patronage.
Authors continue poor, and booksellers become opulent; an extraordinary result! Booksellers are not agents for authors, 16 but proprietors of their works; so that the perpetual revenues of literature are solely in the possession of the trade.
Is it then wonderful that even successful authors are indigent? They are heirs to fortunes, but by a strange singularity they are disinherited at their birth; for, on the publication of their works, these cease to be their own property. Let that natural property be secured, and a good book would be an inheritance, a leasehold or a freehold, as you choose it; it might at least last out a generation, and descend to the author’s blood, were they permitted to live on their father’s glory, as in all other property they do on his industry.[10] Something of this nature has been instituted in France, where the descendants of Corneille and Molière retain a claim on the theatres whenever the dramas of their great ancestors are performed. In that country, literature has ever received peculiar honours—it was there decreed, in the affair of Crebillon, that literary productions are not seizable by creditors.[11]
The history of literary property in this country might form as ludicrous a narrative as Lucian’s “true history.” It was a long while doubtful whether any such thing existed, at the very time when booksellers were assigning over the perpetual copyrights of books, and making them the subject of family settlements for the provision of their wives and children! When Tonson, in 1739, obtained an injunction to restrain 17 another bookseller from printing Milton’s “Paradise Lost,” he brought into court as a proof of his title an assignment of the original copyright, made over by the sublime poet in 1667, which was read. Milton received for this assignment the sum which we all know—Tonson and all his family and assignees rode in their carriages with the profits of the five-pound epic.[12]
The verbal and tasteless lawyers, not many years past, with legal metaphysics, wrangled like the schoolmen, inquiring of each other, “whether the style and ideas of an author were tangible things; or if these were a property, how is possession to be taken, or any act of occupancy made on mere intellectual ideas.” Nothing, said they, can be an object of property but which has a corporeal substance; the air and the light, to which they compared an author’s ideas, are common to all; ideas in the MS. state were compared to birds in a cage; while the author confines them in his own dominion, none but he has a right to let them fly; but the moment he allows the bird to escape from his hand, it is no violation of property in any one to make it his own. And to prove that there existed no property after publication, they found an analogy in the gathering of acorns, or in seizing on a vacant piece of ground; and thus degrading that most refined piece of art formed in the highest state of society, a literary production, they brought us back to a state of nature; and seem to have concluded that literary property was purely ideal; a phantom which, as its author could neither grasp nor confine 18 to himself, he must entirely depend on the public benevolence for his reward.[13]
The Ideas, that is, the work of an author, are “tangible things.” “There are works,” to quote the words of a near and dear relative, “which require great learning, great industry, great labour, and great capital, in their preparation. They assume a palpable form. You may fill warehouses with them, and freight ships; and the tenure by which they are held is superior to that of all other property, for it is original. It is tenure which does not exist in a doubtful title; which does not spring from any adventitious circumstances; it is not found—it is not purchased—it is not prescriptive—it is original; so it is the most natural of all titles, because it is the most simple and least artificial. It is paramount and sovereign, because it is a tenure by creation.”[14]
There were indeed some more generous spirits and better philosophers fortunately found on the same bench; and the identity of a literary composition was resolved into its sentiments and language, besides what was more obviously valuable to some persons, the print and paper. On this slight principle was issued the profound award which accorded a certain term of years to any work, however immortal. They could not diminish the immortality of a book, but only its reward. In all the litigations respecting literary property, authors were little considered—except some honourable testimonies due to genius, from the sense of Willes, and the eloquence of Mansfield. Literary property was still disputed, like the rights of a parish common. An honest printer, who could not always write grammar, had the shrewdness to make a bold effort in this scramble, and perceiving that even by this last favourable award all literary property would necessarily centre with the booksellers, now stood forward for his own body—the printers. This rough advocate observed that “a few persons who call themselves booksellers, about the number of twenty-five, have kept the monopoly of books and copies in their hands, to the entire exclusion of all others, but more especially the printers, whom they have always held it a rule never to let become purchasers in copy.” Not a word for the authors! As for them, they were doomed by both parties as the fat oblation: they indeed sent forth some meek bleatings; 19 but what were AUTHORS, between judges, booksellers, and printers? the sacrificed among the sacrificers!
All this was reasoning in a circle. Literary property in our nation arose from a new state of society. These lawyers could never develope its nature by wild analogies, nor discover it in any common-law right; for our common law, composed of immemorial customs, could never have had in its contemplation an object which could not have existed in barbarous periods. Literature, in its enlarged spirit, certainly never entered into the thoughts or attention of our rude ancestors. All their views were bounded by the necessaries of life; and as yet they had no conception of the impalpable, invisible, yet sovereign dominion of the human mind—enough for our rough heroes was that of the seas! Before the reign of Henry VIII. great authors composed occasionally a book in Latin, which none but other great authors cared for, and which the people could not read. In the reign of Elizabeth, Roger Ascham appeared—one of those men of genius born to create a new era in the history of their nation. The first English author who may be regarded as the founder of our prose style was Roger Ascham, the venerable parent of our native literature. At a time when our scholars affected to contemn the vernacular idiom, and in their Latin works were losing their better fame, that of being understood by all their countrymen, Ascham boldly avowed the design of setting an example, in his own words, TO SPEAK AS THE COMMON PEOPLE, TO THINK AS WISE MEN. His pristine English is still forcible without pedantry, and still beautiful without ornament.[15] The illustrious Bacon condescended to follow this new example in the most popular of his works. This change in our literature was like a revelation; these men taught us our language in books. We became a reading people; and then the demand for books naturally produced a new order of authors, who traded in literature. It was then, so early as in the Elizabethan age, that literary property may be said to derive its obscure origin in this nation. It was protected in an indirect manner by the licensers of the press; for although that was a mere political institution, only
