placed under conditions, he was like the owner of a private road; none but himself or those he permitted could use it; but when he made the work public, he resembled that owner after he had abandoned it, who could not directly prohibit passengers, or exact from them a consideration for the use of it. It seems a further argument against the right, that property in one person essentially implies absolute exclusion of all others. A property which by possibility, however remote, may belong just as entirely to one as to another, stands, it must be admitted, in a most anomalous position. The case has sometimes been put of two persons falling upon the very same words. In a translation this is not so improbable; and we must remember both that translation falls within the rule as well as original composition, and also that any writing, however short, stands in the same position with the longest. Now it is very possible indeed * that two persons should translate a few lines in the selfsame words. Here there is an instance where the selfsame thing would belong exclusively to each, which is absurd. * 966 I Some have relied on the case of inventions, but, as appears to me, without due reflection, when used upon that side of the argument; for this reference seems an exceedingly strong argument against the supposed right, and an argument from which its advocates cannot escape, as some of them have attempted, by urging that the two cases stand on different grounds. hold that they stand in one material respect on the same ground. Whatever can be urged for property in a composition must be applicable to property in an invention or discovery. It is the subject matter of the composition, not the mere writing, the mere collection of words, that constitutes the work. It may describe an invention, as well as contain a narrative or a poem, and the right to the exclusive property in the invention, the title to prevent any one from describing it to others, or using it himself (before it is reduced to writing) without the inventor's leave, is precisely the same with the right of the author to exclude all men from the multiplication of his work. But in what manner has this ever been done or attempted to be done by inventors? Never by asserting a property at common law in the inventor, but by obtaining a grant from the Crown. The King had illegally assumed the right of granting such monopolies in many things, until the abuse was corrected by the 21 James 1, c. 3, which, as Lord Coke says [ 737 ] VOL. IV. 47 (3 Institutes, 181), is a judgment in Parliament, that such grants were against the ancient and fundamental laws, and he considers them (2 Institutes, 47-63) to be against Magna Charta. The statute, however, by its well-known proviso, section 6, allowed *967 such exclusive privileges to be granted for a limited * time to inventors, and it is only under the Crown grants permitted by this proviso that they have ever had the privilege. Monopolies had been given to authors and publishers of books while the abuse continued, both in the reign of Elizabeth, and of her immediate predecessors; but no saving clause for these was introduced in the statute of James. On the contrary, the 10th section provides that these as well as some other grants shall not be affected either by the prohibition or by the proviso. It is said that literary and scientific men are left without protection, and that the invaluable produce of their labours is unduly estimated by the common law, if the right in question be not recognised. But the negation of that right only implies that we refuse to acknowledge a property in things by their nature incapable of being held in severalty, and that we recoil from adopting a position which involves contradiction. The contradiction is, that one can retain that which he parts with, and can dedicate to the public, or at least do an act which necessarily involves such dedication, and yet keep exclusive possession of the thing dedicated, and retain all the rights he had before the dedication. But although the inability to hold these contradictory positions precludes, to a great degree, the common-law encouragement of letters and science, their cultivators are not without resource; for while the nature of the thing and the incidents of its production prevent it from being the subject of property at common law, the lawgiver can make it a quasi property, or give the author the same kind of right and the same remedies which he would have if the produce of his labour could have been regarded as property, and so it is in other cases. A remarkable instance at once presents itself where the interposition of the positive law is as much *968 to be lamented and condemned as in the case of letters and science it is to be gratefully extolled. By all rules, by the nature of the subject, by the principles of morality, by the sanction of religion, there can be no property in human beings; the common law rejects, condemns, and abhors it. But such a power has been established by human laws, if we may so call those acts of legislative violence which outrage humanity, and usurp, while they profane, the sacred name of law. That which was before incapable of being dealt with as property by the common law, became clothed by the lawgiver's acts with the qualities of property; and thus the same authority of the lawgiver, but exercised righteously and wisely for a legitimate and beneficent purpose, gave to the produce of literary labour that protection which the common law refused it, ignorant of its existence; and this protection is, therefore, in my opinion, the mere creature of legislative enactment. That the weight of authority is in favour of this position I hold to be clear. The very able argument of Mr. Justice Yates, in Millar v. Taylor,1 may fairly be set against that of the two Judges, Mr. Justice Willes and Mr. Justice Aston, who agreed in the opposite opinion; and I entirely concur with the objection taken by the Lord Chief Baron in the present case to the argument of Mr. Justice Willes. Lord Mansfield gives, no doubt, an unhesitating opinion, with the grounds of it; but he rather relies on the argument of the two Puisue Judges, who differed from Mr. Justice Yates, than enters very fully into the discussion himself. * In 1798 we have a very decided opinion, to this effect, of Lord Kenyon in Beckford v. Hood,2 who also says that the doctrine "finally prevailed" against that maintained by some of the Judges in Donaldson v. Beckett, that authors and their as-969 signs had a right independent of statute. Mr. Justice Ashhurst, who had been one of those Judges, does not in that case (Beckford v. Hood) reaffirm his former opinion. In a case which I argued in 1812, in the Court of King's Bench, Lord Ellenborough's opinion leant to the same side, although he did not consider it necessary to express it decidedly, the case not requiring it. I refer to the case of the Cambridge University v. Bryer 3 But I also consider the statute of Anne itself as plainly indicating the opinion of the Legislature that there was no copyright at common law. This appears throughout its whole provisions, and manifestly from this, that its purpose being as stated in the preamble" to encourage learned men to compose and write useful books," it vests in the authors and their assignees the exclusive 14 Burr. 2354. 16 East, 317. right of printing for twenty-one years, and no longer, from the 10th of the following April, in certain cases, and in others fourteen years from the date of the publication. Surely if authors and their assigns had possessed the unrestricted right at common law, this restraint upon it could hardly have been deemed an encouragement, even coupled with the not very ample or stringent statutory remedies provided. It being, therefore, in my judgment, unquestionable that the statutes alone confer the exclusive right, can it be contended that the Legislature had in contemplation to vest the right in any but its subjects, and those claiming through them? These statutes, or rather the Statute of 8 Anne, c. 19 (for the 54 Geo. 3, c. 156, does not alter it, except by extending the period of the monopoly) in no way affects the class of persons to enjoy it, as my noble and learned friend has justly observed. We are, *970* therefore, required to rely solely upon the statute. The encouragement of learning, by encouraging learned men to write useful books, is declared to be the object of the statute, and that object it pursues by giving the author and his assigns a monopoly for a limited period. The Legislature gives this encouragement at the expense of its own subjects, to whom the monopoly raises the price of books. Generally, we must assume that the Legislature confines its enactments to its own subjects, over whom it has authority, and to whom it owes a duty in return for their obedience. Nothing is more clear than that it may also extend its provisions to foreigners in certain cases, and may, without express words, make it appear that such is the intendment of those provisions. But the presumption is rather against the extension, and the proof of it is rather upon those who would maintain such to be the meaning of the enactments. It can hardly be contended that, a century and a half ago, the Parliament was minded to encourage learning at home, by encour aging foreigners to write books at the expense of the British purchaser; that a monopoly in our market was to be established for the sake of foreign writers, who might thus be induced to write, and thereby benefit our people. We cannot say that foreign authors were wholly out of the contemplation of the Act, that their case was casus omissus. There is express provision made for the importation of books in Greek, Latin, or any foreign language, notwithstanding the prohibitory enactments. It was therefore assumed that foreigners would publish abroad, and that their works might be brought over. That the price of all works in the British market was a subject of care to the framers of the Act is manifest, because provision is made for preventing an undue price of books by the power given in the 4th section to * certain authorities to fix their price; which absurd pro- * 971 vision, as is well known, was repealed thirty years afterwards, by 12 Geo. 2, c. 36. This provision was taken from an Act of the 25 Henry 8, c. 15, § 4, repealing the permission given by 1 Richard 3, c. 9, § 12, to import printed books, and repealing it in order to protect the printers and binders, who had, during the half century that intervened since the Act of Richard 3 become a considerable craft. While giving native industry this protection, it pleased the Legislature to impose the restriction upon the prico of books by conferring upon certain high functionaries the power of fixing it. And two centuries and more had not found the Legislature more rational, for the statute of Aune adopted a similar provision. But absurd as we all must now admit that provision to have been, it at least showed the strong disposition of the Legislature, not only in Henry the Eighth's time, but in Queen Anne's time, to protect the British purchasers against high prices. Yet the contention that learning and learned men are to be encouraged by giving foreign authors a monopoly at the expense of British purchasers, proceeds upon the assumption that there was no care for their interests. And if it be said that the consideration of cheapness was to be sacrificed to the wish for the encouraging of foreign writers, whereby the British purchaser might gain more than he lost in the price, the answer is, that the very same consideration would have prevented the attempt at keeping down the price of books published under the Act, because their authors, being thus encouraged to write, the purchaser gained, in so far, though he lost in the cheapness of the books. But in truth no one can read the provision touching prices without drawing a further inference from it, that very crude and narrow principles then prevailed on these subjects; and we could hardly expect that the same Legislature which * 972 appointed an authority with stringent liberal powers to keep down prices would entertain such large and enlightened views as it must have had, if it encouraged foreigners, at the temporary and immediate cost, at all events, of its own subjects, for |