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yet, from the instant of publication, the exclusive right of an author or his assigns to the sole communication of his ideas immediately vanishes and evaporates; as being a right of too subtile and unsubstantial a nature to become the subject of property at the common law, and only capable of being guarded by positive statutes and special provisions of the magistrate.

The Roman law adjudged, that if one man wrote anything on the paper or parchment of another, the writing should belong to the owner of the blank materials: (c) meaning thereby the mechanical operation of writing, for which it directed the *scribe to receive a satisfaction; for in works of genius [ *407] and invention, as in painting on another man's canvas, the same law (d) gave the canvas to the painter. As to any other property in the works of the understanding, the law is silent; though the sale of literary copies, for the purposes of recital or multiplication, is certainly as ancient as the times of Terence, (e) Martial, (f) and Statius. (g) Neither with us in England hath there been (till very lately) any final (h) determination upon the right of authors at the common law. (10)

(c) Si in chartis membranisre tuis carmen vel historiam vel orationem Titius scripserit, hujus corporis non Titius sed tu dominus esse videris. Inst. 2, 1, 33. See page 404. (d) Ibid. § 34. (e) Prol. in Eunuch, 20 (ƒ) Epigr. i. 67, iv. 72, xiii, 3, xiv, 194. (g) Juv. vii, 83.

(h) Since this was first written, it was determined, in the case of Miller v. Taylor, in B. R. Pasch. 9 Geo. III, 1769, that an exclusive and permanent copyright in authors subsisted by the common law. But afterwards, in the case of Donaldson v. Becket, before the house of lords, 22 Febr. 1774, it was held that no copyright now subsists in authors, after the expiration of the several terms created by the statute of Queen Anne.

(10) [For the history of the law of copyright see Lowndes on Copyright, and Miller v. Taylor, 4 Burr. 2303. In that case it was decided that the authors had, by the common law, a perpetual copyright in their works, and that the statute of Anne, without interfering with this right, gave them additional remedies during a certain term. But this doctrine was overruled in the house of lords in Donaldsons v. Becket, 4 Burr. 2403; and it was held that the statute of Anne had entirely taken away the common law copyright.

The statute 5 and 6 Vic. c. 45, now regulates copyright and limits its duration to the period of forty-two years from the first publication, or the period of the life of the author, and the seven years next following his death, whichever is the longest. The copyright of articles contributed to an encyclopedia, review, or other periodical work, is, in certain cases, to belong to the projector, publisher or proprietor of such work, subject to the right of any contributor under any contract, express or implied, to publish his own contributions separately. A copy of every book is directed to be delivered at the British Museum within a month of the time of publication, and, after demand, copies are to be delivered to the Stationers' Company for the use of the Bodleian, Cambridge, Advocates, and Trinity College, Dublin, libraries.

The Universities of Cambridge and Oxford, and the Colleges of Eton, Westminster, and Winchester, enjoy a perpetual, unalienable copyright in such works as have been or may be given or bequeathed to them by the author or his representatives, such books not having been previously published or assigned. Statute 10 Geo. III, c. 53.

The statute 1 and 2 Vic. c. 59, (the International Copyright Act) authorizes the queen, by order in council, to grant a copyright in any book published abroad, to the author and his representatives and assignees. As to the copyright in books composed and published abroad, independently of this act, see 2 Sim. 237; 5 id. 395; 10 id. 329; 1 You. and C. 288; 4 id. 485; 2 B. and Cr. 861; 9 Law J., N. S. Ch. 227.

The copyright of an unprinted and unpublished work may subsist for any length of time in the proprietor for the time being of the original manuscript. Ambl. 694; 2 Eden, 329; 2 Meriv. 435; 4 Burr. 2330; 1 Chit. 26; 2 Ves. and B. 23. It seems that the receiver of a letter, though he may keep the original, has no right to publish copies, unless for the purpose of vindicating his character, &c. 2 Atk. 342; Ambl. 737; 2 Ves. and B. 19; 2 Swanst. 402.

Upon the principle that no rights can originate in an act which is illegal or against public pol icy, it has been decided, with more of legal soundness than of good policy, that there is no copyright in a work which the court may consider to be detrimental to good morals or religion; so that assistance is refused even to the author himself wishing to suppress a work of this nature. 2 Meriv. 437; 2 Camp. 30; 5 B. and Cr. 173; Jac. 471.]

As to copyright in dramatic pieces, see statute 3 and 4 William IV, c. 15; 1 Ad. and El. 580; 5 Scott, 242; 8 C. and P. 68, 78; in musical compositions, see statute 5 and 6 Vic. c. 45; in lectures, see statute 5 and 6 William IV, c. 65; in designs for sculpture and articles of manufacture, see statute 38 Geo. III, c. 71; 54 Geo. III, c. 56; 5 and 6 Vic. c. 100; 6 and 7 Vic. c. 65.

A foreigner is entitled to the copyright of a work composed by him, which is first published in England. Boosey v. Davidson, 13 Q. B. 257; Boosey v. Jeffery, 6 Exch. 580; Low v. Routledge, Law Rep. 1 Ch. Ap. Cas. 42.

But whatever inherent copyright might have been supposed to subsist by the common law, the statute 8 Ann. c. 19, (amended by statute 15 Geo. III, c. 53,) hath now declared that the author and his assigns shall have the sole liberty of printing and reprinting his works for the term of fourteen years, and no longer; (i) and hath also protected that property by additional penalties and forfeitures: directing farther, that if, at the end of that term, the author himself be living, the right shall then return to him for another term of the same duration; and a similar privilege is extended to the inventors of prints and engravings, for the term of eight-and-twenty years, by the statute 8 Geo. II, c. 13, and 7 Geo. III, c. 38, besides an action for damages, with double costs, by statute 17 Geo. III, c. 57. All which parliamentary protections appear to have been suggested by the exception in the statute of monopolies. 21 Jac. I, c. 3, which allows a royal patent of privilege to be granted for fourteen years to any inventor of a new manufacture, for the sole working or making of the same; by virtue whereof it is held, that a temporary property therein becomes vested in the king's patentee. (k) (11)

(i) By statute 15 Geo. III, c. 53, some additional privileges in this respect are granted to the universities, and certain other learned societies. (k) 1 Vern. 62.

On the general subject of copyright, see Williams Pers. Prop. 224; 2 Kent, 373; Curtis on Copyright, and the leading American case of Wheaton v. Peters, 8 Pet. 591. The act of congress of Feb. 4, 1831. (4 Stat. 436), secures to the authors of books, maps, charts, and musical compositions, and to the inventors and designors of prints, cuts and engravings, being citizens of the United States or residents therein, the exclusive right of printing, publishing and vending them for the term of twenty-eight years from the time of recording the title thereof, with a renewal of the right at the end of the term to themselves, if living, or to their widows and children, for a further term of fourteen years, on complying with the conditions of the act. The act of Feb. 5, 1859 (11 Stat. 380), extends the privilege of copyright to photographs and the negatives thereof, and makes some changes in the requisites to perfect the right.

That the writer of a letter has such a property in it. as will enable him to enjoin its publication without his consent, see Woolsey v. Judd, 4 Duer, 379, and Brandreth v. Lance, 8 Paige, 24.

(11) [When the crown, on behalf of the public, grants letters patent, the grantee thereby enters into a contract with the crown, in the benefit of which contract the public are participators; under certain restrictions, affording a reasonable recompense to the grantee, the use of his invention, improvement, and employment of capital, is communicated to the public. If any infringement of a patent be attempted, after there has been an undisputed enjoyment by the patentee under the grant for a considerable time, courts of equity will deem it a less inconvenience to issue an injunction until the right can be determined at law, then to refuse such preventive interference, merely because it is possible the grant of the crown may, upon investigation, prove to be invalid. Such a question is not to be considered as it affects the parties on the record alone; for, unless the injunction issues, any person might violate the patent, and the consequence would be, that the patentee must be ruined by litigation. Harmer . Playne, 14 Ves. 132: Universities of Oxford and Cambridge v. Richardson, 6 id. 707; Williams v. Williams, 3 Meriv. 160. But, if the patent be a very recent one, and its validity is disputed, an injunction will not be granted before the patentee has established his legal right. Hill v. Thompson, 3 id. 624.

The grant of a patent, as already stated, is in the nature of a purchase for the public, to whom the patentee is bound to communicate a free participation in the benefit of his invention, at the expiration of the time limited; Williams v. Williams, 3 Meriv. 160: if, therefore, the specification of a patent be not so clear as to enable all the world to use the invention, and all persons of reasonable skill in such matters to copy it, as soon as the term for which it has been granted is at an end, this is a fraud upon the public, and the patent cannot be sustained. Newbury v. James, 2 Meriv. 451; Ex Parte Fox, 1 Ves. and Bea. 67; Turner v. Winter, 1 T. R. 605; Harmer v. Playne, 11 East, 107. If a patentee seek, by his specification, more than he is strictly entitled to, his patent thereby rendered ineffectual, even to the extent to which he would otherwise be entitled. Hill v. Thompson, 3 Meriv. 629; Harmer v. Playne, 14 Ves. 135.

When a person has invented certain improvements upon an engine, or other subject, for which a patent has been granted, and those improvements cannot be used without the original engine; at the expiration of the patent for such original engine, a patent may be taken out for the improvements; but, before that time, there can be no right to make use of the substratum protected by the first patent. Ex Parte Fox, 1 Ves. and Bea. 67. And, where industry and ingenuity have been exerted in annexing to the subject of a patent, improvements of such a nature that their value gives an additional value to the old machine; though a patent may be obtained for such improvements; yet, if the public choose to use the original machine 601

VOL. I.-76

CHAPTER XXVII.

OF TITLE BY PREROGATIVE AND FORFEITURE.

A SECOND method of acquiring property in personal chattels is by the king's prerogative; whereby a right may accrue either to the crown itself, or to such as claim under the title of the crown, as by the king's grant, or by prescription, which supposes an ancient grant.

Such, in the first place, are all tributes, taxes, and customs, whether constitutionally inherent in the crown, as flowers of the prerogative and branches of the census regalis or ancient royal revenue, or whether they be occasionally created by authority of parliament; of both which species of revenue we treated largely in the former book. In these the king acquires and the subject loses a property, the instant they become due; if paid, they are a chose in possession; if unpaid, a chose in action. Hither also may be referred all forfeitures, fines, and amercements due to the king, which accrue by virtue of his ancient prerogative, or by particular modern statutes: which revenues created by statute do always assimilate, or take the same nature, with the ancient revenues; and may therefore be looked upon as arising from a kind of artificial or secondary prerogative. And, in either case, the owner of the thing forfeited, and the person fined or amerced, lose and part with the property of the forfeiture, fine, or amercement, the instant the king or his grantee acquires it.

*In these several methods of acquiring property by prerogative there [*409] is also this peculiar quality, that the king cannot have a joint property with any person in one entire chattel, or such a one as is not capable of division or separation; but where the titles of the king and a subject concur, the king shall have the whole: in like manner as the king cannot, either by grant or contract, become a joint-tenant of a chattel real with another person; (a) but by such grant or contract shall become entitled to the whole in severalty. Thus, if a horse be given to the king and a private person, the king shall have the sole property: if a bond be made to the king and a subject, the king shall have the whole penalty; the debt or duty being one single chattel; (b) and so, if two persons have the property of a horse between them, or have a joint debt owing

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without the improvements, they may do so without restriction, at the expiration of the original grant; if the public will abstain from the use of the first invention, in consideration of the superior advantages of the improved instrument, it is well; but the choice must be left open. Harmer v. Playne, 14 Ves. 134.

The Patent Amendment Act, 15 and 16 Vic. c. 83, now regulates the terms upon which letters patent may be granted. By this statute the fees which it was formerly necessary to pay, upon obtaining a patent, have been greatly reduced, and the payment of them is spread over the space of several years; so that, if an invention be not found lucrative, the patent may be discontinued and the fees saved. Letters patent granted under this act contain a condition that the same shall be void at the end of three years, unless a fee of 401. with 107. stamp duty, be then paid; and again at the end of seven years from the grant, unless a fee of 801. and 201. stamp duty de paid.

The statute 5 and 6 Wm. IV, c. 83, authorized a prolongation of the original term, not exceeding seven years, to be given on the recommendation of the judicial committee of the privy council; and by statute 7 and 8 Vic. c. 69, a further term, not exceeding fourteen years, may be granted, if it be shown that the inventor has not been renumerated during the former period for the expense and labor incurred in perfecting his invention.]

Letters patent granted by the United States are now granted for seventeen years, and are not allowed to be afterwards extended. Act of Congress of March 2, 1861, 12 Stat. 246. Any citizen or any alien who has resided one year in the United States, and taken an oath of intention to become a citizen, may patent any new and original design or manufacture, either for three and a half, seven, or fourteen years, on payment of a fee of ten dollars for the first term, fifteen for the second, and thirty for the third period, and of this there may be an extension for seven years. The fees payable to obtain patents are, on filing the original application, fifteen dollars, and on issuing the patent twenty dollars. There is also a fee of ten dollars on filing a caveat. On the subject in general, see the elaborate treatise on patents by Curtis.

them on bond, and one of them assigns his part to the king, or is attainted, whereby his moiety is forfeited to the crown; the king shall have the entire horse, and entire debt. (c) For, as it is not consistent with the dignity of the crown to be partner with a subject, so neither does the king ever lose his right in any instance; but where they interfere, his is always preferred to that of another person; (d) from which two principles it is a necessary consequence, that the innocent though unfortunate partner must lose his share in both the debt and the horse, or in any other chattel in the same circumstances. (1)

This doctrine has no opportunity to take place in certain other instances of title by prerogative that remain to be mentioned; as the chattels thereby vested are originally and solely vested in the crown without any transfer or derivative assignment either by deed or law from any former proprietor. Such is the acquisition of property in wreck, in treasure-trove, in waifs, in estrays, in royal fish, in swans, and the *like; which are not transferred to the sovereign from any former owner, but are originally inherent in him by the rules [*410] of law, and are derived to particular subjects, as royal franchises, by his bounty. These are ascribed to him, partly upon the particular reasons mentioned in the eighth chapter of the former book; and partly upon the general principle of their being bona vacantia, and therefore vested in the king, as well to preserve the peace of the public, as in trust to employ them for the safety and ornament of the commonwealth.

There is also a kind of prerogative copyright subsisting in certain books, which is held to be vested in the crown upon different reasons. Thus, 1. The king, as the executive magistrate, has the right of promulgating to the people all acts of state and government. This gives him the exclusive privilege of printing, at his own press, or that of his grantees, all acts of parliament proclamations and orders of council. 2. As supreme head of the church, he hath a right to the publication of all liturgies and books of divine service. 3. He is also said to have a right by purchase to the copies of such law-books, grammars, and other compositions, as were compiled or translated at the expense of the crown. And upon these two last principles, combined, the exclusive right of printing the translation of the Bible is founded. (2)

There still remains another species of prerogative property, founded upon a very different principle from any that have been mentioned before; the property of such animals feræ naturæ, as are known by the denomination of game, with the right of pursuing, taking, and destroying them: which is vested in the king alone, and from him derived to such of his subjects as have received the grants of a chase, a park, a free warren, or free fishery. This may lead us into an inquiry concerning the original of these franchises, or royalties, on which we touched a little in a former chapter: (f) the right itself being an incorporeal hereditament, though the fruits and profits of it are of a [*411] personal nature.

In the first place, then, we have already shown, and indeed it cannot be denied, that by the law of nature every man, from the prince to the peasant, has an equal right of pursuing, and taking to his own use, all such creatures as are feræ naturæ, and therefore the property of nobody, but liable to be seized by the first occupant. And so it was held by the imperial law, even so late as Justinian's time:"Fero igiturbestia, et volucres, et omnia animalia quæ mari, (c) Cro. Eliz. 263. Plowd. 323. Finch, Law, 178. 10 Mod. 245. (d) Co. Litt. 30. (f) Pages 38, 39.

(1) [If a joint tenant in any chattel interest commits suicide, the right to the whole chattel becomes vested in the king. Plowd 262, Eng. ed. But in favor of commercial interests, it has been holden, that on an extent, or extent in aid, against one of several parties, only the beneficial interest in that one can be taken. 1 Wightw. 50; Chitty Prerog. Cr. 287.]

(2) [However, it seems to be agreed now that both the Bible and statutes may be printed by others than those deriving the right from the grant of the crown, provided such edition comprises bona fide notes; but with this exception the sole right to print these works is now vested in the Universities of Oxford and Cambridge, and the patentees of the crown. Baskett v. Cambridge University, 2 Burr. 661.]

cælo, et terra nascuntur, simul atque ab aliquo capta fuerint, jure gentium statim illius esse incipiunt. Quod enim nullius est, id naturali ratione occupanti conceditur." (g) But it follows from the very end and constitution of society, that this natural right as well as many others belonging to a man as an individual, may be restrained by positive laws enacted for reasons of state, or for the supposed benefit of the community. This restriction may be either with respect to the place in which this right may or may not be exercised; with respect to the animals that are the subject to this right; or with respect to the persons allowed or forbidden to exercise it. And, in consequence of this authority, we find that the municipal laws of many nations have exerted such power of restraint; have in general forbidden the entering on another man's grounds, for any cause, without the owner's leave; have extended their protection to such particular animals as are usually the objects of pursuit; and have invested the prerogative of hunting and taking such animals in the sovereign of the state only, and such as he shall authorize. (h) Many reasons have concurred for making these constitutions: as, 1. For the encouragement of agriculture and improvement of lands, by giving every man an exclusive dominion over his own soil. 2. For preservation of the several species of these animals, which would soon be extirpated by general liberty. 3. For prevention of idleness and dissipation in husbandman, artificers, and others of lower rank; which [*412] would be the unavoidable consequence of universal license. 4. For prevention of popular insurrections and resistance to the government, by disarming the bulk of the people; (i) which last, is a reason oftener meant than avowed by the makers of forest or game laws. (3) Nor, certainly, in these prohibitions is there any natural injustice, as some have weakly enough supposed; since, as Puffendorff observes, the law does not hereby take from any man his present property, or what was already his own, but barely abridges him of one means of acquiring a future property, that of occupancy; which indeed the law of nature would allow him, but of which the laws of society have in most instances very justly and reasonably deprived him.

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Yet, however defensible these provisions in general may be, on the footing of reason, or justice, or civil policy, we must, notwithstanding, acknowledge that, in their present shape, they owe their immediate original to slavery. It is not till after the irruption of the northern nations into the Roman empire, that we read of any other prohibitions, than that natural one of not sporting on any private grounds without the owner's leave; and another of a more spiritual nature, which was rather a rule of ecclesiastical discipline, than a branch of municipal law. The Roman or civil law, though it knew no restriction as to persons or animals, so far regarded the article of place, that it allowed no man to hunt or sport upon another's ground, but by consent of the owner of the soil. Qui alienum fundum ingreditur venandi aut aucupandi gratia, potest a domino prohiberi ne ingrediatur." (k) For if there can by the law of nature, be any inchoate imperfect property supposed in wild animals before they are taken, it seems most reasonable to fix it in him upon whose lands they are found. And as to the other restriction, which relates to persons and not to place, the pontifical or canon law (7) interdicts, "venationes, et sylvaticas vagationes cum canibus et accipitribus," to all clergymen without distinction; grounded on *a saying of St. Jerome, (m) that it is never recorded that these diver[*413] sions were used by the saints, or primitive fathers. And the canons of our Saxon church, published in the reign of King Edgar, (n) concur in the (g) Inst. 2, 1, § 12. (h) Puff. L. N. l. 4. c. 6, § 5. (i) Warburton's Alliance, 324. (k) Inst. 2, 1, § 12. (1) Decretal. l. 5, tit. 24, c. 2. (m) Decret. part 1, dist. 34, b. 1. (n) Cap. 64.

(3) [I am inclined to think that this reason did not operate upon the minds of those who framed the game laws of this country; for in several ancient statutes the avowed object is to encourage the use of the long bow, the most effective armour then in use; and even since the modern practice of killing game with a gun has prevailed, every one is at liberty to keep or carry a gun, if he does not use it for the destruction of game. CHRISTIAN.]

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