IT

T is time, and more than time, that something were done by our national legislature, towards securing the claims of foreign authors to their works. We have considered the subject in its pros and cons, for many years; the bearings of it are well understood, and the public mind has attained as great a uniformity of conviction, in regard to it, as it is possible to attain in the existing diversity of human interests and feelings. Many, who were once hostile to any aotion in the premises, now profess to be in favor of it; no formidable opposition to the scheme exists anywhere. that we are aware of, and the inauguration of a new administration is an auspicious hour for the initiation of a new policy.

All times, however, are fitting times for doing justice to our neighbors; and this question is one, as it has always seemed to us, not of expediency, merely, but of positive right. It is preeminently a question of justice. Has the maker of a book-by which we mean, of the inward contents, and not of the outward form alone-a title to the control of its publication, and to the profits that accrue from the sale of it? Has he a proprietary interest in it, to the extent of declaring when, and where, and how, it shall be used, as the owner of other property has? If he has, then the laws of every civilized country ought to proclaim that right, and protect him in the enjoyment of it; and, if he has not, then the laws which already recognize it, in so many forms, as the patent laws and domestic copyright, are a gratuity, and ought to be repealed.

Property, which is rightfully held as property-that is, as what strictly and indefeasibly belongs to one man and not to another, and which is no mere concession of a privilege-ought to be respected by the laws everywhere, without regard to the domicile of the claimant, and subject only to the superior right of society to direct the manner of its use, so that it shall not interfere with the well-being of men. The greater number of our personal and proprietary rights are so respected by the universal jurisprudence of Christendom. Travel in any part of the civilized world that you please, and you will find that the

law throws its protecting ægis about you, that not only is your body safe from injury, but the smallest article of value, you have with you, is recoverable when wrongfully taken or detained. Nay, our merchants will send their goods among the wildest inhabitants of Asia, in the South Pacific, secure in the feeling that the rude justice of those distant regions will shelter their possessions from invasion and wrong.

Now, what difference, in respect to the question of ownership. is there between a bale of cloth which a man has woven, and a book of history which he may have written? In the one case, he spends his capital, his time, and his ingenuity in fabricating a new form of cotton or wool, and, in the other, in fabricating a new form of thought or language, and, though the labor in the latter is of an infinitely higher order than that of the former, the results are the same. Both are products of skill; both represent a large amount of value consumed in the production of them; both contribute to the supply of human wants, and possess exchangeable properties; and, surely, the laws which guaranty the inviolability of one, ought to guaranty the inviolability of the other. What would be thought of a nation which should refuse to recognize the right of the owner of the bale of cloth to his property-which should authorize the first chance comer whom he should meet, on landing on its shores, to seize and carry off his goods? Would it not be reduced to the level of the savage and semi-barbarous nations, with which civilized people would hold no intercourse, save at the point of the bayonet or sword?

We are aware that attempts have been made to distinguish between immaterial and material productions, but

we do not conceive them to have been

very successful. Mr. Carey, for instance, in his Letters on International Copyright, argues that the literary craftsman really furnishes us with no new products, but takes old materials and facts, and simply dresses thom after a new fashion.

"Examine Mr. Macaulay's History of England," he says, "and you will find that the

body is composed of what is common property. Not only have the facts been recorded by others, but the ideas, too, are derived from the works of men who have labored for the world without receiving, and frequently without the expectation of receiving, any pecuniary compensation for their labors. Mr. Macaulay has read much and carefully, and he has thus been enabled to acquire great skill in arranging and clothing his facts; but the readers of his books will find in them no contribution to positive knowledge. The works of men who make contributions of that kind are necessarily controversial and distasteful to the reader; for which reason they find few readers, and never pay their authors. Turn, now, to our own authors, Prescott and Bancroft, who have furnished us with historical works of so great excellence, and you will find a state of things precisely similar. They have taken a large quantity of materials out of the common stock, in which you, and I, and all of us have an interest; and those materials they have so reolothed as to render them attractive to purchasers; but this is all they have done. Look to Mr. Webster's works, and you will find it the same. He was a great reader. He studied the constitution carefully, with a view to understand what were the views of its authors,

and those views be reproduced in a different and more attractive clothing, and there his work ended. He never pretended, as I think. to furnish the world with any new ideas; and, If he had done so, he could have claimed no property in them. Few now read the heavy volames containing the speeches of Fox and Pitt. They did nothing but reproduce ideas that were common property, in such clothing as answered the purposes of the moment. Sir Robert Peel did the same. The world would now be just as wise had he never lived, for he made no contribution to the general stock of knowledge. The great work of Chancellor Kent is, to use the words of Judge Story, but a new combination and arrangement of old materials, in which the skill and judgment of the author, in the selection and exposition and accurate use of the materials, constitute the basis of his reputation as well as of his copyright. The world at large is the owner of all the facts that have been collected, and of all the ideas that have been deduced from them, and its right in them is precisely the same that the planter has in the bale of cotton that has been raised on his plantation; and the course of proceeding of both has, thus far, been precisely similar; whence I am induced to infer that, in both cases, right has been done. When the planter hands his cotton to the spinner and the weaver, he does not say, 'Take this and convert it into cloth, and keep the cloth:' but he does say, 'Spin and weave this cotton, and for so doing you shall have such interest in the cloth as will give you a fair compensation for your labor and skill, but, when that shall have been paid, the cloth will be mine.' This latter is precisely what society. the owner of facts and ideas, says to the author: 'Take these raw materials that have been collected, put them together, and clothe them after your own fashion, and for a given time we will agree that nobody else shall present them in the same dress. During that time you may ex hibit them for your own profit, but at the end of that period the clothing will become common property, as the body now is. It is to the contributions of your predecessors to our com.

mon stock that you are indebted for the power to make your book, and we require you, in your turn, to contribute towards the augmentation of the stock that is to be used by your successors. This is justice, and to grant more than this would be injustice."

The illustration is an unhappy one, because it may be turned against the rightfulness of nearly all property. There is no kind of production, material or immaterial, which is the creation of something absolutely new. Here is a

farmer, for instance, with his bushel of wheat, which he brings to you to sell. But, paraphrasing Mr. Carey's argument, you turn upon him, and say, "My dear agricultural friend, you are mistaken as to the ownership of that bushel of wheat. The entire substance of it is composed of what is common property. You have read and observed much and carefully, no doubt, to enable you to work the soil to the best advantage; you have worked hard all your life to acquire skill in arranging and forwarding your crops; you have given your time, in sunshine and rain, for nearly a year, in caring for your grain, but in what you now present us, we chemical analysts find no positive contribution to the world's possessions. It is all carbon, hydrogen, nitrogen, or ammonia, which existed before, in a free state, in the soil, or the air, or the rain, and belonged to everybody or nobody. You have simply reproduced them in a different and more attractive clothing; but the world would have had just as much of those materials if you had never lived. Nevertheless, for the trouble and expense you have been at, in doing so, we will allow you a small toll, while the mass of the product, we, the people, will reserve to ourselves." We fancy that the farmer to whom Mr. Carey should address this kind of communism, would incontinently catch up his wheat, and make out of his presence.

It is true, as this argument supposes, that the writer, whether historian or novelist, draws from a common stock of learning; he has been built up intellectually by the labors of others; and it is only once or twice in the age that a man arises of such eminent originality and power as to fructify the realm of thought with a genuine new truth; but it is no more true of the writer than it is of the miner, the manufacturer, the merchant, or the mechanic. All alike draw the substance of the goods, on which they operate, from the common

bosom of nature or art. They create nothing-they merely reproduce the existing mass of materials in new forms. But what the right of property attaches to in these things, and what the world pays for, is not the material but the form or the use to which that material may be put. It is not the albumen and gluten that we value in wheat, but the wheat itself which has taken that form in consequence of the labors of the husbandman. And so it is not the extracts from Herodotus and Thucydides which we value in Grote's Greece, but the book itself, which has given a peculiar collocation and significance to those extracts. But if we pay the husbandman for his labor, by surrendering to him the complete right of control over his product, why should we not pay Mr. Grote in the same way? The husbandman has simply taken the common materials of earth and water, and, by his skill and industry, converted them into nutriment for our bodies, while Mr. Grote has taken the common materials of Grecian literature and converted them into nutriment for our minds.

In essence, then, the two methods of industry are the same, and the only difference is in the infinitely higher cost of the intellectual labor, and the infinitely superior worth and durability of its products. It requires but little previous training, and but a small expenditure of means, to fit a man for almost any meobanical pursuit, while the result of his work, for the most part, perishes in the using. But to the training of the great writer, there goes an immense outlay of capital, and long and weary days and nights of preparatory discipline. The actual execution of his work supposes still other years of research and thought, and often his whole life is consumed before he has more than begun his task. The literary man must be educated, which takes ten or fifteen years of his life at least, and costs a fortune to his parents or relatives; he must be provided with a library of books, which are the tools of his profession; he projects a great work, and exhausts a dozen years more in preparing for it; in the course of that preparation he is obliged, perhaps, to visit distant countries, or to institute dangerous experiments, or to furnish himself with rare and expensive manuscripts; and, when he is done, he

expects to realize, and ought to realize, by the sale of his work, not a mere profit on the paper and typography, but a substantial recompense for his outlay and toils. Is it not proper that he should be so recompensed? Has he not, like the agriculturist or the merchant, contributed uses to the world? His work may not be a strictly original one; it may not contain a single sentence for which he does not himself give you an authority in some previous writer; it may be entirely compiled from documents to which you may have as free an access as he had; and yet it may be a signally valuable work-for which scholars will consent to pay an almost incredible price, and the public at large evince an extreme avidity. On what ground, then, of reason or principle, can we deny his positive right of property in the results of his undertaking?

Mr. Goodrich, in his recent work, endeavors to show, if we understand him aright, what the late Mr. Clay was accused of saying, that "that is property only which the law makes property;" and yet his reasoning is so confused that we are not sure of stating him rightly in thus speaking. On page 361 of volume second, he remarks that the right of the author to his works is substantially the same as the right of the farmer to his corn, and that "no ingenuity has been able to show any distinction whatever between the principle on which the author's copyright is founded, and that on which the farmer's right to his crop is founded." At the same time, for two or three pages subsequently, he argues, quoting learned authorities, therefore, that property is merely a possession according to law." He does not deny, any more than his authorities, that there may be an abstract natural right of property, but he contends that, in the actual condition of society, this abstract natural right has been in some way lost or merged" in the considerations of policy," by which all nations are practically governed. But if that principle is to be admitted, if our rights of property aro only what the law allows to be such, what is to save us from absolute despotism, or the wildest sansculottic liberty? Surely, there must be some limit, in natural right, to the interferences of "policy!" The instincts of

the child, of the savage, and of civilized man, which proclaim an individual circle of the rights within which the law itself can step only wrongfully are not wholly unfounded. How broad this circle is at what precise point natural right ceases and social right begins, it may be difficult to say, but that there is a marked distinction between the two, all the betler writers on law, as well as the unperverted dictates of the human heart, declare. In no sense, it seems to us, can the law be said to constitute or create property, it merely defines and declares it. Property may exist where there is no law-wherever human labor has given a new form or place to that which is adapted to the supply of human want, there is property; and the function of law, when it intervenes, is only to regulate the methods of its use, its transmission, and its tenure.

If it be asked, then, why, granting the author a positive right to his works, the laws of all nations presume to limit that right? we answer that they do so on the same ground, and for the same reasons, that they limit the exercise of all other rights on the ground of what are conceived to be the more important interests of general society. Rights of property of all kinds are positive, but they are not absolute-they are positive, because they are rights, belonging to one man, and not to another—and they are not absolute, because they may, and often must be, qualified by the superior rights of others. But this qualification ought never to be of an arbitrary kind there ought always to be a good reason subsisting in the actual needs of society, for any, even the least, interference with the valid claims of the individual. Much more ought there to be a good reason for any interference which proposes to annihilate the claims of the individual altogether.

Let us apply these principles to the matter in hand.

Inventors, as we know, are allowed to enjoy their patents but for seven years, and the writers of books but for fourteen, with a privilege of renewal, in both cases, under certain circumstances.

Why?

The reason of this, in the case of inventors, is a special one, namely, that the experience of mankind, in regard to inventions, has demonstrated, that even the most ingenious contrivances are as much a product of the wants of the age as of the creative faculties of any individual man. Fulton is said to have invented the steamboat, but there are a dozen claimants to the honor besides Fulton. Morse was, un

questionably, the inventor of the electric telegraph, but there were others who did invent it, or would have invented it, if his discovery had not been announced, about the same time. To give to Fulton or Morse, then, a perpetual right to their claims, would have excluded others, equally deserving, from their Tights. It is by way of compromise, therefore, that the law limits the right, so that the first inventor shall enjoy the fruits of his priority, and yet not prevent the future enjoyment of others, or stand in the way of future improvements. A similar, but more general policy, is adopted in respect to authors. The great majority of books, such as schoolbooks, histories, works of science, charts, etc., etc., are of a kind which, if one man did not prepare, another man could and would-which are susceptible of great improvement, in the course of experience, and in other hands, by notes, comments, emendations, etc., and which, if surrendered exclusively and in perpetuity to the first authors or compilers, would create an injurious monopoly. The law, consequently, looking to the larger interests of society, as well as to the interests of individuals, and, unable to discriminate between works of real originality and those which are not so, adjusts the difficulty by a limitation of the time for which a copyright may be held.

It would be better, and

more just, if the law did discriminate, and confer upon certain publications a longer hold; but as that could not be done without the establishment of a censorship or board of judges, which is objectionable, as open to numerous abuses, the existing system must be continued.t We are clear, however,

that, in this country, the term to which the right of the author is restricted, is too short; it extends only to twentyeight years, with a renewal for fourteen years; while, in England, it is for life, and seven years after death; in most of the states of Germany, for life, and, in France, for the life of the author and his wife, and to their children for twenty years afterwards. The provisions in this country, it will be seen, are less liberal, virtually, than those of any of the leading nations, although we boast of our superior intelligence, and evince such honorable pride in the growth and success of our young literature.

Conceding the right of the author, in the first instance, is there any national ground, any reason of state, any principle of domestic policy, which should induce us to refuse that right to the foreign author as well as our own? His rights at home, as our argument shows, are as good as those of the merchant to his bale of goods, or of the mechanic to his implements. Why should we not acknowledge the one as well as the other? What is there in a book, to shut it out from the sympathies of the law, which is not also in the bale of goods or the tools of trade? Why are authors made an exception to all producers and proprietors? What is there so sacred in a fabric of silk or a cask of wine, that all the courts of the country will run to its protection, if it is invaded, which is not also in Thackeray's novels or Macaulay's history? We confess that we could never discern the difference. The principle of society, in respect to all property, is, that the owner has a right to the control of it; the limitation imposed by society on all property is, that such control shall be subordinate to its own highest interests, or its own welfare -and with what equity, then, do we make a particular species of property an anomaly-extinguishing it wholly, and saying that it is no property at all? Now, we do this in the instance of foreign authors; we do not limit their claims, or qualify, or regulate them, but we ignore them, refuse to acknowledge them, by converting their special possessions into a common of pasturage.

As to the terms on which the rights

of foreign authors ought to be recognized, that is a question of legislative wisdom, to be determined, like every other question in which a right is involved, by a proper adjustment of the individual's claims to the good of the public. If the admission of the right, in one form, would be detrimental to the public interests, then it must be secured in some other form. If a broad and open recognition of the claims of British authors and publishers would seriously injure our own authors and publishers, it is clear that some other method must be devised to accomplish the end. We deal with native writers on the principle that their rights of property, though conceded to them as valid, are yet held in subordination to the public good, and foreign writers can claim no higher justice than what is meted to our own. The essential point is, that substantial justice be done to all parties. But is it true, that a satisfaotory recognition of the rights of foreign authors would damage our own interests in any way? By a satisfactory recognition, we mean, not precisely such an ample recognition as we give to the rights of our native authors, but one that shall at least confess and establish the right of the alien author. Let us suppose him placed in this category-that on the actual publication or getting out of his work in this country, we grant him a copyright for the requisite number of years-what would be the result? There are but three classes who could possibly be affected by the operationAmerican authors, American publishers, and the American reading public; and we do not see how either of these could be very injuriously affected.

American authors relieved from the disadvantages of an unpaid competition, it is universally allowed, would be great gainers by the change. They now come into their own market, against the powerful and active intellect of Great Britain, under the singular drawback that their works must be paid for by the publishers, while the works of their rivals are procured for little or nothing. But no one disputes this position, and we need not argue it. How, then, would it be with the publishers—we refer to

17.