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An essay by Augustine Birrell

Authors In Court

Title:     Authors In Court
Author: Augustine Birrell [More Titles by Birrell]

There is always something a little ludicrous about the spectacle of an author in pursuit of his legal remedies. It is hard to say why, but like a sailor on horseback, or a Quaker at the play, it suggests that incongruity which is the soul of things humorous. The courts are of course as much open to authors as to the really deserving members of the community; and, to do the writing fraternity justice, they have seldom shown any indisposition to enter into them--though if they have done so joyfully, it must be attributed to their natural temperament, which (so we read) is easy, rather than to the mirthful character of legal process.

To write a history of the litigations in which great authors have been engaged would indeed be renovare dolorem, and is no intention of mine; though the subject is not destitute of human interest--indeed, quite the opposite.

Great books have naturally enough, being longer lived, come into court even more frequently than great authors. Paradise Lost, The Whole Duty of Man, The Pilgrim's Progress, Thomson's Seasons, Rasselas, all have a legal as well as a literary history. Nay, Holy Writ herself has raised some nice points. The king's exclusive prerogative to print the authorised version has been based by some lawyers on the commercial circumstance that King James paid for it out of his own pocket. Hence, argued they, cunningly enough, it became his, and is now his successor's. Others have contended more strikingly that the right of multiplying copies of the Scriptures necessarily belongs to the king as head of the Church. A few have been found to question the right altogether, and to call it a job. As her present gracious Majesty has been pleased to abandon the prerogative, and has left all her subjects free (though at their own charges) to publish the version of her learned predecessor, the Bible does not now come into court on its own account. But whilst the prerogative was enforced, the king's printers were frequently to be found seeking injunctions to restrain the vending of the Word of God by (to use Carlyle's language) 'Mr. Thomas Teggs and other extraneous persons.' Nor did the judges, on proper proof, hesitate to grant what was sought. It is perhaps interesting to observe that the king never claimed more than the text. It was always open to anybody to publish even King James's version, if he added notes of his own. But how shamefully was this royal indulgence abused! Knavish booksellers, anxious to turn a dishonest penny out of the very Bible, were known to publish Bibles with so-called notes, which upon examination turned out not to be bonâ-fide notes at all, but sometimes mere indications of assent with what was stated in the text, and sometimes simple ejaculations. And as people as a rule preferred to be without notes of this character they used to be thoughtfully printed at the very edge of the sheet, so that the scissors of the binder should cut them off and prevent them annoying the reader. But one can fancy the question, 'What is a bonâ-fide note?' exercising the legal mind.

Our great lawyers on the bench have always treated literature in the abstract with the utmost respect. They have in many cases felt that they too, but for the grace of God, might have been authors. Like Charles Lamb's solemn Quaker, 'they had been wits in their youth.' Lord Mansfield never forgot that, according to Mr. Pope, he was a lost Ovid. Before ideas in their divine essence the judges have bowed down. 'A literary composition,' it has been said by them, 'so long as it lies dormant in the author's mind, is absolutely in his own possession.' Even Mr. Horatio Sparkins, of whose brilliant table-talk this observation reminds us, could not more willingly have recognised an obvious truth.

But they have gone much further than this. Not only is the repose of the dormant idea left undisturbed, but the manuscript to which it, on ceasing to be dormant, has been communicated, is hedged round with divinity. It would be most unfair to the delicacy of the legal mind to attribute this to the fact, no doubt notorious, that whilst it is easy (after, say, three years in a pleader's chambers) to draw an indictment against a man for stealing paper, it is not easy to do so if he has only stolen the ideas and used his own paper. There are some quibbling observations in the second book of Justinian's Institutes, and a few remarks of Lord Coke's which might lead the thoughtless to suppose that in their protection of an author's manuscripts the courts were thinking more of the paper than of the words put upon it; but that this is not so clearly appears from our law as it is administered in the Bankruptcy branch of the High Court.

Suppose a popular novelist were to become a bankrupt--a supposition which, owing to the immense sums these gentlemen are now known to make, is robbed of all painfulness by its impossibility--and his effects were found to consist of the three following items: first, his wearing apparel; second, a copy of Whitaker's Almanack for the current year; and third, the manuscript of a complete and hitherto unpublished novel, worth in the Row, let us say, one thousand pounds. These are the days of cash payments, so we must not state the author's debts at more than fifteen hundred pounds. It would have been difficult for him to owe more without incurring the charge of imprudence. Now, how will the law deal with the effects of this bankrupt? Ever averse to exposing anyone to criminal proceedings, it will return to him his clothing, provided its cash value does not exceed twenty pounds, which, as authors have left off wearing bloom-coloured garments even as they have left off writing Vicars of Wakefield, it is not likely to do. This humane rule disposes of item number one. As to Whitaker's Almanack, it would probably be found necessary to take the opinion of the court; since, if it be a tool of the author's trade, it will not vest in the official receiver and be divisible amongst the creditors, but, like the first item, will remain the property of the bankrupt--but otherwise, if not such a tool. On a point like this the court would probably wish to hear the evidence of an expert--of some man like Mr. George Augustus Sala, who knows the literary life to the backbone. This point disposed of, or standing over for argument, there remains the manuscript novel, which, as we have said, would, if sold in the Row, produce a sum not only sufficient to pay the costs of the argument about the Almanack and of all parties properly appearing in the bankruptcy, but also, if judiciously handled, a small dividend to the creditors. But here our law steps in with its chivalrous, almost religious respect for ideas, and declares that the manuscript shall not be taken from the bankrupt and published without his consent. In ordinary cases everything a bankrupt has, save the clothes for his back and the tools of his trade, is ruthlessly torn from him. Be it in possession, reversion, or remainder, it all goes. His incomes for life, his reversionary hopes, are knocked down to the speculator. In vulgar phrase, he is 'cleaned out.' But the manuscripts of the bankrupt author, albeit they may be worth thousands, are not recognised as property; they are not yet dedicated to the public. The precious papers, despite all their writer's misfortunes, remain his--his to croon and to dream over, his to alter and re-transcribe, his to withhold, ay, his to destroy, if he should deem them, either in calm judgment, or in a despairing hour, unhappy in their expression or unworthy of his name.

There is something positively tender in this view. The law may be an ass, but it is also a gentleman.

Of course, in my imaginary case, if the bankrupt were to withhold his consent to publication, his creditors, even though it were held that the Almanack was theirs, would get nothing. I can imagine them grumbling, and saying (what will not creditors say?): 'We fed this gentleman whilst he was writing this precious manuscript. Our joints sustained him, our bread filled him, our wine made him merry. Without our goods he must have perished. By all legal analogies we ought to have a lien upon that manuscript. We are wholly indifferent to the writer's reputation. It may be blasted for all we care. It was not as an author but as a customer that we supplied his very regular wants. It is now our turn to have wants. We want to be paid.'

These amusing, though familiar, cries of distress need not disturb our equanimity or interfere with our admiration for the sublime views as to the sanctity of unpublished ideas entertained by the Court sitting in Bankruptcy.

We have thus found, so far as we have gone, the profoundest respect shown by the law both for the dormant ideas and the manuscripts of the author. Let us now push boldly on, and inquire what happens when the author withdraws his interdict, takes the world into his confidence, and publishes his book.

Our old Common Law was clear enough. Subject only to laws or customs about licensing and against profane books and the like, the right of publishing and selling any book belonged exclusively to the author and persons claiming through him. Books were as much the subjects of property-rights as lands in Kent or money in the bank. The term of enjoyment knew no period. Fine fantastic ideas about genius endowing the world and transcending the narrow bounds of property were not countenanced by our Common Law. Bunyan's Pilgrim's Progress, in the year 1680, belonged to Mr. Ponder: Paradise Lost, in the year 1739, was the property of Mr. Jacob Tonson. Mr. Ponder and Mr. Tonson had acquired these works by purchase. Property-rights of this description seem strange to us, even absurd. But that is one of the provoking ways of property-rights. Views vary. Perhaps this time next century it will seem as absurd that Ben Mac Dhui should ever have been private property as it now does that in 1739 Mr. Tonson should have been the owner 'of man's first disobedience and the fruit of that forbidden tree.' This is not said with any covered meaning, but is thrown out gloomily with the intention of contributing to the general depreciation of property.

If it be asked how came it about that authors and booksellers allowed themselves to be deprived of valuable and well-assured rights--to be in fact disinherited, without so much as an expostulatory ode or a single epigram--it must be answered, strange as it may sound, it happened accidentally and through tampering with the Common Law.

Authors are indeed a luckless race. To be deprived of your property by Act of Parliament is a familiar process, calling for no remarks save of an objurgatory character; but to petition Parliament to take away your property--to get up an agitation against yourself, to promote the passage through both Houses of the Act of spoliation, is unusual; so unusual indeed that I make bold to say that none but authors would do such things. That they did these very things is certain. It is also certain that they did not mean to do them. They did not understand the effect of their own Act of Parliament. In exchange for a term of either fourteen or twenty-one years, they gave up not only for themselves, but for all before and after them, the whole of time. Oh! miserable men! No enemy did this; no hungry mob clamoured for cheap books; no owner of copyrights so much as weltered in his gore. The rights were unquestioned: no one found fault with them. The authors accomplished their own ruin. Never, surely, since the well-nigh incredible folly of our first parents lost us Eden and put us to the necessity of earning our living, was so fine a property--perpetual copyright--bartered away for so paltry an equivalent.

This is how it happened. Before the Revolution of 1688 printing operations were looked after, first by the Court of Star Chamber, which was not always engaged, as the perusal of constitutional history might lead one to believe, in torturing the unlucky, and afterwards by the Stationers' Company. Both these jurisdictions revelled in what is called summary process, which lawyers sometimes describe as brevi manu, and suitors as 'short shrift.' They hailed before them the Mr. Thomas Teggs of the period, and fined them heavily and confiscated their stolen editions. Authors and their assignees liked this. But then came Dutch William and the glorious Revolution. The press was left free; and authors and their assignees were reduced to the dull level of unlettered persons; that is to say, if their rights were interfered with, they were compelled to bring an action, of the kind called 'trespass on the case,' and to employ astute counsel to draw pleadings with a pitfall in each paragraph, and also to incur costs; and in most cases, even when they triumphed over their enemy, it was only to find him a pauper from whom it was impossible to recover a penny. Nor had the law power to fine the offender or to confiscate the pirated edition; or if it had this last power, it was not accustomed to exercise it, deeming it unfamiliar and savouring of the Inquisition. Grub Street grew excited. A noise went up 'most musical, most melancholy,

'As of cats that wail in chorus.'

It was the Augustan age of literature. Authors were listened to. They petitioned Parliament, and their prayer was heard. In the eighth year of good Queen Anne the first copyright statute was passed which, 'for the encouragement of learned men to compose and write useful books,' provided that the authors of books already printed who had not transferred their rights, and the booksellers or other persons who had purchased the copy of any books in order to print or reprint the same, should have the sole right of printing them for a term of twenty-one years from the tenth of April, 1710, and no longer; and that authors of books not then printed, should have the sole right of printing for fourteen years, and no longer. Then followed, what the authors really wanted the Act for, special penalties for infringement. And there was peace in Grub Street for the space of twenty-one years. But at the expiration of this period the fateful question was stirred--what had happened to the old Common Law right in perpetuity? Did it survive this peddling Act, or had it died, ingloriously smothered by a statute? That fine old book--once on every settle--The Whole Duty of Man, first raised the point. Its date of publication was 1657, so it had had its term of twenty-one years. That term having expired, what then? The proceedings throw no light upon the vexed question of the book's authorship. Sir Joseph Jekyll was content with the evidence before him that, in 1735 at all events, The Whole Duty of Man was, or would have been but for the statute, the property of one Mr. Eyre. He granted an injunction, thus in effect deciding that the old Common Law had survived the statute. Nor did the defendant appeal, but sat down under the affront, and left The Whole Duty of Man alone for the future.

Four years later there came into Lord Hardwicke's court 'silver-tongued Murray,' afterwards Lord Mansfield, then Solicitor-General, and on behalf of Mr. Jacob Tonson moved for an injunction to restrain the publication of an edition of Paradise Lost. Tonson's case was, that Paradise Lost belonged to him, just as the celebrated ewer by Benvenuto Cellini once belonged to the late Mr. Beresford Hope. He proved his title by divers mesne assignments and other acts in the law, from Mrs. Milton--the poet's third wife, who exhibited such skill in the art of widowhood, surviving her husband as she did for fifty-three years. Lord Hardwicke granted the injunction. It looked well for the Common Law. Thomson's Seasons next took up the wondrous tale. This delightful author, now perhaps better remembered by his charming habit of eating peaches off the wall with both hands in his pockets, than by his great work, had sold the book to Andrew Millar, the bookseller whom Johnson respected because, said he, 'he has raised the price of literature.' If so, it must have been but low before, for he only gave Thomson a hundred guineas for 'Summer,' 'Autumn,' and 'Winter,' and some other pieces. The 'Spring' he bought separately, along with the ill-fated tragedy, Sophonisba, for one hundred and thirty-seven pounds ten shillings. A knave called Robert Taylor pirated Millar's Thomson's Seasons; and on the morrow of All Souls in Michaelmas, in the seventh year of King George the Third, Andrew Millar brought his plea of trespass on the case against Robert Taylor, and gave pledges of prosecution, to wit, John Doe and Richard Roe. The case was recognised to be of great importance, and was argued at becoming length in the King's Bench. Lord Mansfield and Justices Willes and Aston upheld the Common Law. It was, they declared, unaffected by the statute. Mr. Justice Yates dissented, and in the course of a judgment occupying nearly three hours, gave some of his reasons. It was the first time the court had ever finally differed since Mansfield presided over it. Men felt the matter could not rest there. Nor did it. Millar died, and went to his own place. His executors put up Thomson's Poems for sale by public auction, and one Beckett bought them for five hundred and five pounds. When we remember that Millar only gave two hundred and forty-two pounds ten shillings for them in 1729, and had therefore enjoyed more than forty years' exclusive monopoly, we realise not only that Millar had made a good thing out of his brother Scot, but what great interests were at stake. Thomson's Seasons, erst Millar's, now became Beckett's; and when one Donaldson of Edinburgh brought out an edition of the poems, it became the duty of Beckett to take proceedings, which he did by filing a bill in the Court of Chancery.[8]



[8] Donaldson was a well-known man in Edinburgh. He was Boswell's first publisher, and on one occasion gave that gentleman a dinner consisting mainly of pig. Johnson's view of his larcenous proceedings is stated in the Life. Thurlow was his counsel in this litigation. Donaldson's Hospital in Edinburgh represents the fortune made by this publisher.


These proceedings found their way, as all decent proceedings do, to the House of Lords--farther than which you cannot go, though ever so minded. It was now high time to settle this question, and their lordships accordingly, as was their proud practice in great cases, summoned the judges of the land before their bar, and put to them five carefully-worded questions, all going to the points--what was the old Common Law right, and has it survived the statute? Eleven judges attended, heard the questions, bowed and retired to consider their answers. On the fifteenth of February, 1774, they reappeared, and it being announced that they differed, instead of being locked up without meat, drink, or firing until they agreed, they were requested to deliver their opinions with their reasons, which they straightway proceeded to do. The result may be stated with tolerable accuracy thus: by ten to one they were of opinion that the old Common Law recognised perpetual copyright. By six to five they were of opinion that the statute of Queen Anne had destroyed this right. The House of Lords adopted the opinion of the majority, reversed the decree of the Court below, and thus Thomson's Seasons became your Seasons, my Seasons, anybody's Seasons. But by how slender a majority! To make it even more exciting, it was notorious that the most eminent judge on the Bench (Lord Mansfield) agreed with the minority; but owing to the combined circumstances of his having already, in a case practically between the same parties and relating to the same matter, expressed his opinion, and of his being not merely a judge but a peer, he was prevented (by etiquette) from taking any part, either as a judge or as a peer, in the proceedings. Had he not been prevented (by etiquette), who can say what the result might have been?

Here ends the story of how authors and their assignees were disinherited by mistake, and forced to content themselves with such beggarly terms of enjoyment as a hostile legislature doles out to them.

As the law now stands, they may enjoy their own during the period of the author's life, plus seven years, or the period of forty-two years, whichever may chance to prove the longer.

So strangely and so quickly does the law colour men's notions of what is inherently decent, that even authors have forgotten how fearfully they have been abused and how cruelly robbed. Their thoughts are turned in quite other directions. I do not suppose they will care for these old-world memories. Their great minds are tossing on the ocean which pants dumbly-passionate with dreams of royalties. If they could only shame the English-reading population of the United States to pay for their literature, all would be well. Whether they ever will, depends upon themselves. If English authors will publish their books cheap, Brother Sam may, and probably will, pay them a penny a copy, or some such sum. If they will not, he will go on stealing. It is wrong, but he will do it. 'He says,' observes an American writer, 'that he was born of poor but honest parents, I say, "Bah!"'[9]


[9] I was wrong, and this very volume is protected by law in the United States of America--but it still remains pleasingly uncertain whether the book-buying public across the water who were willing to buy Obiter Dicta for twelve cents will give a dollar for Res Judicata.

[The end]
Augustine Birrell's essay: Authors In Court