Billeder på siden
[ocr errors]

extension of spheres of influence. No arbitration involving the native question in any important degree is likely to arise again in America, so far as Great Britain is concerned. In Africa the case may be different, and if so, and if there is any possibility of an American judge being chosen as an arbitrator, British statesmen will have to take care in the wording of any treaty affecting native subjects and Imperial rights through natives, since the voice of the dead judge still speaks through the land and imbues the American legal mind with a natural bias. The American lawyer has not had such experience as the sons of the Mother Country in varieties of Imperial interest and acquisition of rights by every method known to international law. Samoa and the Philippines may lead to other possibilities.

The Anglo-Venezuelan Arbitration will stand out as a monument of industry. Criticism of its length, of the proceedings of the Tribunal, the speeches of counsel, and the delays between the hearings is easy. It was unfortunate that the Conference at the Hague should claim the services of M. de Martens when they had already been given to another purpose. Two nations were kept waiting, the developement of a colony gravely hindered by a period of suspense at a critical time, and judges from the Supreme Courts of two great countries detained from their work. The presentment of the case for Great Britain might have been very seriously bampered by hindrance of the hearing. But whatever temporary disadvantages or avoidable errors may have been present, the arbitration as a whole is an interesting and instructive lesson, and the first great arbitration, unless the Bebring's Sea arbitration can claim similar praise, in which neither side has shown signs of resentment at the award, and neither side impugned the reasons of the decision.

ART. VII.—1. Lois Françaises et Étrangères sur la Propriété

Littéraire et Artistique. Recueillies par Ch. LYON-CAEN

et PAUL DELALAIN. 3 tomes. Paris : 1889-1896. 2. A Bill to consolidate and amend the Law relating to Copy

right (House of Lords), ordered to be printed March 4, 1898. THE He helplessness of authors to secure and maintain what

seem to many of them to be their just claims to the exclusive possession of the products of their wearied brains has often excited remark. Being themselves men of strife and contention, of words and windy warfare, they have espoused a hundred causes, not their own, and performed prodigies of valour on many a stricken field, but never on one that left them in possession of any of the spoils of victory. Their only reward is that every now and again the question of copyright crops up, excites discussion, and then usually modestly retires in favour of some better-supported interest.

None the less Property is a word still held in high respect among us. Landlords are still permitted to placard the Queen's highway with the positive statement, bad law though it be, that • Trespassers will be prosecuted'; to enjoy your own, to provide for your family, are not these maxim's of prudence and of piety ? and yet they have never been beld to apply to Shakspeare's Plays or Macaulay's history, What, we cannot but ask, is the weak point in the author's armour ? Why are we all socialists where he is concerned ? The answer is easy. It lies in the fact of Publication ; for what is publication but an invitation to enter and enjoy ? The central idea of property in all but perishable goods is . Hands off.' 'Leave me alone,' cries the proprietor, “to enjoy my own, or if you must have a bit of it, . it shall be on my terms, and not yours. But the author does not want to be left alone to read his own manuscript-he craves for recognition, be wishes the world to participate in his joy, and he would soouer be read for nothing than not read at all. Ay, there's the rub! The great world is never slow to perceive a weakness, or to take advantage of one. If you wrote this for me, says the world with that cunning air that sits so well upon it, 'I will take it on my own terms.'

Just as the fact of publication is the initial weakness of the author's position, so the ease with which copies of a book are multiplied well nigh consummated his ruin. Property which has to be published and can be reprinted is indeed no

[ocr errors]

property at all, and never has been so regarded. Alas! poor author! he may search the compilations of Justinian from title-page to colophon without finding a trace of any law, rescript, or edict, of Consul, Emperor, or Prætor, prohibiting the multiplication of copies of books, pamphlets, or poems, Nor will he derive anything but a melancholy pleasure as he reads his Martial or bis Juvenal and learns from them how the men of esprit in their time sold their wares and bargained with their booksellers. How many of the sweet songsters of to-day must be in a position to appreciate Martial's humorous disgust with the friend who expected to have presentation copies of the famous epigrams and refused to go and buy them at Tryphon's shop!

Exigis, ut donem nostros tibi, Quinte, libellos.

Non habeo ; sed habet bibliopola Tryphon.
Æs dabo pro nugis ? et emam tua carmina sanus ?
Non, inquis, faciam tam fatue. Nec ego.

(L. iv. cp. 72.) Copyright, that is, the exclusive right of multiplying copies of a published book, was, it may be safely said, quite unknown to that vast body of our predecessors on the face of the globe whom we compendiously style but by no means describe as the Ancients.

The invention of printing came just at the time, as indeed such things usually do, when the contrivance it superseded had attained to a high pitch of perfection. The trade of the scribe or copyist was well organised and widely spread. Quite as large a fraction of the population had well-selected libraries of their own in the last days of the manuscript age as in these days of cheap printing. But no doubt the movable types did make the multiplication of copies even easier than it was before. It did more than this. The printing press created something like a panic in royal breasts. Princes, potentates, and powers began to tremble for their own. Nor was our Holy Mother Church free from fear, for it so happened that the invention of printing synchronised with the spread of the New Learning and with that restlessness of mind and lawlessness of disposition that at once produced and was fostered by the New Learning. A third feature of the times must not be forgotten, namely, the activity and mutual jealousies of the guilds or trade unions, each of which strove strove its uttermost to preserve its own particular craft exclusively for the use of its own members. Among these guilds, that of the stationers or booksellers or publishers or printers had a leading place in all civilised countries. From the Crown sprang patronage, from the Church censorship, and from the trade monopoly. It is from the clash of these contending interests that copyright had its origin. The King protected, the Church revised, the trade circulated. Property, strietly so called, there has never been either in published manuscripts or printed books.

This statement, accurate though we are sure it is, flatly eontradicts, so far as England is concerned, the well-considered opinions of Lord Mansfield and Sir William Blackstone and of some half-dozen other judges of the last century, who all resolutely held that at Common Law and apart from the first Copyright Statute of Queen Anne, the author of any book or literary composition and his assigns had, for all time, the sole right of printing and publishing the same, and could therefore prevent the reprinting and sale of any such book or composition by any person against the will of such author or his assigns. This view was, indeed, the judgemade law of England from 1769 to 1774, not obviously to the enrichment of authors, though much to the satisfaction of the Stationers' Company. Lord Camden, however, who was a furious anti-bookseller' man (as also was Mr. Fox), dealt this high doctrine a blow in the House of Lords in the great case of Donaldson v. Becket, decided in February, 1774. Lord Mansfield, it was noticed, did not take any part in this case (which did not come to the Lords from the King's Bench, but from the Chancery) and somewhat tamely allowed Lord Camden to mount his high horse and scamper unchallenged over the whole field. There was a timidity about this great Lord Mansfield; perhaps he was not quite certain he was right. Certainly, the better-informed opinion of to-day is that he was wrong.

A careful study of the history and methods of the Stationers' Company can hardly fail to satisfy the impartial student that perpetual copyright was a thing faked up, not for the benefit of the Miltons and Bunyans, the Spensers and Shakespeares, and the very few authors whose ipsissima verba are worth reprinting a hundred years after their deaths; but for the benefit of the smug citizens who were members of the Stationers' Company, and who did business in • copies,' after the fashion so amusingly described in John Dunton's Life and Errors.'

The author properly so called, the fellow who produced the book or literary composition, had no access, in his own right, to the Register kept at the Stationers' Hall. No names but those of menibers could be there inscribed as the proprietors of the books or copies' entered up against those names. What, then, was a Milton, or, for that matter, a Flatman, to do when he had composed his poem and sought to publish it? All he could do was to seek out a member of the Company and drive the best bargain he could with him for the right to the manuscript. The bargain struck, off went the publisher to his company, and registered himself as the proprietor of 'Paradise Lost' or 'Poems and Songs.' Once this was done, there sprang up, in the opinion of the Worshipful Company of Stationers, a perpetual and exclusive right in the publisher, being a member of the Company, and his assigns (being also members) to multiply copies of the book so registered, and did any publisher or bookseller disregard this right, he was a pirate, or, as we now call such a thing, a blackleg. You may search the records of the Stationers' Company in Mr. Arber's splendid volumes all a summer's day without finding a trace of the rights of authors. It is proprietors, proprietors, proprietors, from beginning to end. When a member of the Company died, or retired from trade, it was the custom to put his stock up for sale by public auction, but it was considered very bad taste for any outside broker' to attend. On these occasions the retiring publisher's 'copies' were exposed for sale. Titles were never examined ; the original assignment from the author was rarely produced. We may read in the evidence submitted to a Committee of the House of Commons in 1774 how in 1748 a Mr. Johnston, being minded to start business as a London bookseller, became a member of the Stationers' Company and the purchaser, for the sum of 2,0001., of the goodwill and stock of a Mr. Clarke. By virtue of this transaction, Mr. Johnston claimed to be the owner for ever of the Pilgrim's Progress,' writ by one Bunyan. Mr. Johnston admitted frankly enough that he had never looked into the title to the • Pilgrim,' and that he had no autograph of the glorious dreamer in his collection. But for all that he had stopped the sale of a pirated' edition. The language of Thurlow seldom left anything to be desired on the score of strength, but he did not, in our opinion, abuse his position when on one public occasion he described the booksellers as a set of impudent and nonopolising men

who had combined together in order to file bills in Chancery against any person who should endeavour to get a livelihood as well as themselves, and, although they had pur'chased “copies” from Homer down to Hawkesworth's

« ForrigeFortsæt »