dard writers, a careful discrimination between what is merely sensual and suggestive (from which, perhaps, equity might withhold its protection) and that which is grossly obscene and filthy, the circulation of which the law might follow with punishment.' 40. There is another character of publications which the law will not consider as innocent, namely, those which in their pretensions, titles, or advertisements, deceive, or are calculated to deceive, the public. In such cases the publisher of the matter will be held to obtain, or as seeking to obtain money under false pretenses, not only in the publication of the work, but every time a single copy is sold. And he cannot, therefore, have any copyright in the publication nor any standing in court to ask protection in the possession of what he has no right to possess.* 2 This rule was laid down in Wright v. Tallis, by Tindal, C. J., and as carrying the principle, perhaps, to its limit, it may be well to examine that case somewhat in detail. The declaration alleged that before and at the time of committing the grievances, &c., there was a subsisting copyright in a certain book entitled, "Evening Devotions; or the worship of God in spirit and in truth, for every day in the year," from the German, by C. C. Sturm, author of the "Morning Devotions"; and that the plaintiff was the proprietor of such copy 1 Thus the paintings of "Leda and the Swan," and "Io and Jupiter," in the Royal Museum at Berlin, and the innumerable Danaes, and other renderings of classical fictions, while assuredly not modest in their tone, could scarcely be called obscene. The selection of paintings from the "chamber of the nymphs," in Pompeii, and the bronzes and statuary from that city, preserved in the secret chamber of the Royal Museum at Naples, however, are unquestionably obscene, and seem to illustrate the distinction endeavored to be indicated above. * Wright v. Tallis, 1 C. B. Rep. 893. right, and had printed divers, to wit, twenty thousand copies of the said book, to his own great profit and advantage. The defendant, however, was enabled to establish in defense, that the book in question was procured by the complainant to be written by one Robert Huish, and was not a translation from the German of C. C. Sturm, whose works were well known and highly valued. And, on demurrer, it was held that the work, being a palpable attempt to deceive the public, no copyright could exist therein, and the plaintiff could not maintain his action for piracy. The learned chief justice, however, was careful to discriminate between this case and the others examined in this chapter, saying: "The cases in which a copyright has been held not to subject where the work is subversive of good order, morality, or religion, do not, indeed, bear directly on the case before us; but they have this analogy with the present inquiry, that they prove that the rule which denies the existence of copyright in those cases, is a rule established for the benefit and protection of the public, and we think the best protection that the law can afford to the public against such a fraud as that laid open by this plea, is to make the practice of it unprofitable to its author." The case of Lord Byron v. Johnston' is a peculiar one. In that case an injunction was continued by Lord Eldon, restraining the defendant from publishing a poem as the work of Lord Byron, who was then abroad, on an affidavit of Lord Byron's agents of circumstances rendering it highly probable that it was not his work, and the defendant declining to swear that he believed it was. 41. There may be, and are, however, innumerable 1 2 Meriv. 29. (See this case, and Harte v. De Witt, treated post, in the chapter on Piracy.) cases of misrepresentation in the authorship of literary productions, which are entirely innocent, harmless, and permissible, as not only deceiving nobody, but adding-as a sort of coup d'eclat-to the interest or the success of the work. Notable instances of the like are frequent in literature, and should be carefully discriminated from the rule just laid down. As where the author of a fiction, for instance, pretends to be the editor of a manuscript that he has discovered in a hidden spot-in an old garret or chest of drawers, or in a cave or the trunk of a tree. Or where the fiction holds itself out to be a translation, as did Walpole's Castle of Otranto; or where the form of letters, passing between imaginary correspondents, or of statements or affidavits made by them is chosen; or where the author's name is concealed under a fanciful or invented nom de plume. There is no serious design, in any one of these cases, to deceive the purchaser, or to make gain or profit from him on the false representation. The purchaser probably would not have been deterred from purchasing at the same price, had he known or been informed, by the bookseller, that the name of the author was assumed, and not genuine ; or had known that the work was original, and not translated.' 1 If Chatterton had invoked the protection of a 1 Wright v. Tallis, 1 C. B. Rep. 893. There is no more common device of authors than this-certainly none more harmless, or, we may add, delightful. (See the interesting treatise of M. Delepierre: "Supercheries Litteraires, Pastiches, Suppositions d'auteur, dans les Lettres et dans les Arts. Londres: N. Trubner et cie. 1872;" and also, " Questions de Litterature Legale,”-Ch. Nodier; "Pastiches et Imitations, Libres du style de quelques Ecrevains de 17me et du 18m Siecles,"-L. Chatelaine; "Reflexions sur le Style Original," Marquis de Roure; and "Supercheries Litteraires," by Querard. me court of equity for a copyright in his published works, who could doubt that it would have been extended him, since the antique and the literary charm of the work was his, to whomsoever among imaginary beings he chose to assign it. Imagine a purchaser, of that day, bringing back a volume of the "Rowlie Poems to his bookseller, and asking a return of his money, on the ground that it was not a transcription from old manuscripts of the monk, Thomas Rowlie, but the original work of a boy-one Thomas Chatterton; or the "Tales of a Grandfather," because they were written by Walter Scott, and not by Jedediah Cleishbotham; or "Knickerbocker's History of New York," because there was no such man as Deidrich Knickerbocker, but that the whole was a burlesque and absurdity, proceeding from the brain of one Washington Irving! 42. By the common law, there is still another class of works not innocent. It was laid down by Lord Ellenborough, in the trial of Jean Peltier for a libel upon Napoleon Bonaparte, first consul of the French republic, in 1803,' that any publication which tends to degrade, revile, and defame persons in considerable situations of power and dignity in foreign countries, may be taken to be and treated as a seditious libel, particularly where it has a tendency to interrupt pacific relations between the two countries. If the publication contains a plain and manifest incitement and persuasion, addressed to others, to assassinate and destroy the persons of such magistrates, as its tendency is to interrupt the public peace, the libel becomes subversive of government, and assumes 1 2 Rex v. Peltier, 28 Howell's St. Tr., 617; and London, M Peltier, 1803. The same appears to be the law in Scotland-vid. Borthwick's Law of Libel, pp. 74, 75. a still more criminal complexion. It is difficult to conceive of such a case occurring in the United States. It would certainly be an interesting spectacle, if a foreign power should complain of a libel through the press of a government which permits herself, her own rulers, statesmen, and machinery of state, to be criticised, characterized, caricatured, and maligned, without limit and without protest. Still, it has not been thought inappropriate, in this connection, to examine the few instances in which this kind of publication has been condemned. The information, in 1808, against Jean Peltier, was for publishing matter defamatory of the first consul of France-a country with whom England was then at peace--and containing passages inciting to his assas sination.' 1 Two of these passages were as follows: César, au bord du Rubicon, "Il est proclamé chef et consul pour la vie! Sur le pavois porté qu'on l'elise Empereur! Enfin, et Romulus nous rappelle la chose, Je fais vœu―dés demain qu'il ait l'apothéose. Amen.” "Oh! eternal disgrace of France! Cæsar, on the banks of the Rubicon, has against him, in his quarrel, the Senate, Pompey, and Cato; and in the plains of Pharsalia, if fortune. is unequal-if you must yield to the destinies, Rome, in this sad reverse--at least there remains to avenge you a poniard among the last Romans.” "He is proclaimed chief and |