13. In the examination of this right to literary property as affected or controlled by this public policy of limitation, it appears convenient to inquire first, in what and in whom the ownership of literary matter may exist at all, and, having settled that, to proceed to observe the simple division of the subject into— I. Property in literary composition before publication; and

II. Property in literary composition after publication.

With the single exception which obtains in the case of literary productions whose sole value would seem to arise from the power of their author to prevent their appearance in print,-(as, for instance, lectures, plays, songs, &c.),-it will be found that the right to such property before and up to publication, mainly exists by common law; and that, upon and after publication there arises by virtue of statute, a new earliest manuscripts upon the ground that his own opinions and tastes had changed since preparing it. And see Mr. Hotten's fourth letter to Earl Stanhope, "Lord Macauley and the Pirates," in which he concludes: "Lord Eldon, for example, in the case of Gee v. Pritchard, 'repudiated, and that most distinctly, any notion of interference by the court of chancery with a publication, simply because it might wound feelings,' and as Mr. Phillips says (Law of Copyright, p. 36): 'It seems abundantly clear that except upon the ground of property or of breach of contract or trust, an English court of law or equity will not give relief in the case of an unauthorized publication.' The reason of this, of course, is, that private feelings, however commendable in individuals, ought not to be permitted to interfere with public rights. With so many motives for suppression and modification of by-gone speeches, as every active statesman must experience in later years, it is indeed intelligible enough why so few of such publications are issued. It might even be argued that the author of such speeches is himself the worst person to be allowed to revise them, for the reason that the motives for tampering with their historical truth and accuracy are presumptively stronger in him than in any other person."

form of right, which, while neither extinguishing nor impairing the right in rem of the author in the unpublished book or manuscript, operates, when invoked, to protect his title in the sentiments, ideas, and expressions which they contain, in their circulation beyond his manual reach, after they have been given to the world.

The right by statute is called COPYRIGHT.

14. Statutes of copyright do not grant monopolies; they are only protectory legislation against trespass on the rights of authors. Not that," as a layman' has well said, "writers are a more important body than many others, but because it gives the state more trouble to keep thieves off their productions than off those of other skilled laborers; and also because it

1 It was held, formerly, in Millar v. Taylor (in R. B. Pasch, 1759), that an exclusive and permanent copyright, in authors, existed by the common law; but afterwards, in Donaldson v. Becket (before the House of Lords, 22d Feb., 1774), it was held to exist only by statute and during the statutory period. (1 Bl. Com. 405, vid. Jeffreys v. Boosey, 44 L. Cas. 815; 3 C. L. R. 625; 1 Jur. N. S. 615; 24 L. J. Exch. 81). The right and property of an author or a composer of any work, whether of literature, art, or science, in such work, unpublished or kept for his private use or pleasure, entitle him to withhold the same altogether, or so far as he may please, from the knowledge of others, and the court of chancery will interfere to prevent the invasion of this right by the publication of a catalogue containing a description of such work (Prince Albert v. Strange, 1 Mac. & I. 25; 1 H. & S. 1; 13 Jur. 109; 18 L. J. Chanc. 120; vid. also, Broom. Leg. Max. 326).

The property of an author in an unpublished work exists independently of the statute (Southey v. Sherwood, 2 Mer. 435; S. P. Tonson v. Collins, 1 W. Bl. 301; Palmer v. De Witt, 7 Amer. 480; 47 N. Y. 532).

The right to own his (an author's) property is from common law; the right to multiply copies is conferred by statThe right of property in literary matter has never been and never can be impaired by the passage of copyright laws (Palmer v. DeWitt, 9 Amer. 480; 47 N. Y. 532).

ute.

needs a superior intelligence to see that ideas and woven words can be made property, and that they must be, or else their authors outlawed, degraded, and starved, and the community suffer in the end.""

1 Mr. Charles Reade-"The Eighth Commandment," p. 7.

BOOK I.

IN WHAT AND IN WHOM PROPERTY IN LITERARY COMPOSITION MAY EXIST.

CHAPTER I.

OF INNOCENCE.

15. THE great exception which arises to this right of property which we have been considering, is that it will not be protected by law, in things not innocent in their nature.

1

It is a cardinal principle of the common law that nihil quod est inconveniens est licitum, or, as Lord Truro stated it, "No subject can lawfully do that which has a tendency to be injurious to the public good, which may be termed, as it sometimes has been, 'the policy of the law," and therefore the law, ever solicitous for the moral as well as the physical safety of its subjects, will refuse its protection to a vicious, immoral, or otherwise harmful publication.

2

16. It seems particularly fitting that the author

1 Co. Lit. 66 a; 97, 178 a; 258, 6; Broom Leg. Max. 328. This doctrine certainly needs some qualification, and a qualification, perhaps, receives from that learned writer (Coke) when he says: "Quod est inconveniens non permissum est in lege. An argument ab inconvenienti is forcible in law. Argumentum ab inconvenienti est validum in lege, quia lex non permittet aliquod inconveniens.” Id.; and see Ram's Science of Legal Judgment, Am. ed., p. 114, ante, p. 11, note 2.

'Egerton v. Brownlow (4 H. L. Cas. 196).

should regard with careful circumspection this policy and doctrine of the law. On its part that law has given him the power of speaking to an audience bounded only by the limits of the language itself; and, at the same time, of retaining his hold upon the words and thoughts which have floated so far beyond him. It asks on his part, in return, that he use not this vast power and influence to the injury and harm of his fellow-citizens.

By common law, then, there can be no literary property in compositions which are not innocent in their nature, and the first test, to be applied to the literary or scientific matter in inquiring whether or not it can be the subject of ownership is, is it innocent?

17. The discrimination between lawful and unlawful publications in respect to innocence, has never been made a statutory one. None of the English or American copyright statutes expressly enact anything of the sort, or make any allusion whatever to the moral character of the subject-matter of a book. But over and above them the doctrine of public policy and of common law prevails; and the courts of the land have power over works injurious or dangerous to the public good, after their copyright, as well as before; over the registered and copyrighted volume, as well as over the written manuscript. And this is one case, at least, in which statutes have not interfered with the conditions of literary ownership at common law.1

1 The element of innocence is peculiar to common-law countries. Its consideration does not enter into the copy-right jurisprudence of France. All works in that country are equal before the law, without reference to their character (Renouard Droits des Auteurs, tom. 2, p. 94). And yet, in no country is the censorship of the press so watchful and exacting, and nowhere does the punishment for seditious or quasi seditious utterance in print meet such swift and rigorous. punishment as in France.