J TONSON ย. COLLINS. the matter it conveys. Characters are but the signs of words, and words are the vehicle of sentiments. The sentiment therefore is the thing of value, from which the profit must arise. Consider writing, 1st, As an assistant to the memory; 2dly, As [ *324 ] a means of conveying sentiment to distant times and places. In = neither of these lights does the writer relinquish his title of making profit by his works; except that, when he has once written and published, he gives up the exclusive privilege of reciting to the ear; since, by parting with his manuscript, he has constituted a substitute in his stead, which speaks perpetually to the eyes of every reader. But, though he has given out one or a hundred copies, has constituted one or a hundred substitutes to speak for him, yet no man has a right to multiply those copies, to make a thousand substitutes instead of one; especially, if any gain is to arise from such multiplication. The Roman law of Accession, Inst. 2, 1, 33 (hinted at in the former argument), was founded on very absurd principles. If one wrote a poem on another man's paper, the poem belonged to the owner of the paper, and not to the poet. Surely, a satisfaction for the paper was all that the owner was entitled to. The same law, in the same breath, gives testimony to its own unreasonableness. If a picture be painted upon my tablet, it belongs to the painter. For it is ridiculous (says the emperor) that the painting of an Apelles or a Parrhasius should follow the property of a worthless board. Certainly, there is as little reason, that the works of a Bacon or a Milton should become the property of the stationer, upon whose paper they might casually be written. But, absurd as this law is, it is not absurd enough to say, that the owner of the paper acquired any more than a right to that identical copy. It never supposed, that he acquired a right to the sentiment, so as to multiply copies. For, this being the usual way of rewarding the labour of an author, it would be unjust to make him a sharer in the reward, who has been no sharer in the labour. It is the only species of property whereof authors are usually possessed; and it would be doubly hard, to take from them their only means of subsistence. Printing is no other than an art of speedily transcribing. What therefore holds with respect to manuscripts is equally true of printing. If an author has an exclusive property in his own composition, while it lies in the [ *325 ] mind,-when clothed in words, when reduced to writing;he still retains the sole right of multiplying the copies, when it is committed to the press. The purchaser of each individual volume has a right over that which he has purchased; but no right to make new books, and gain perhaps 500l. at the original expence of only five shillings. This answers Mr. Thurlow's question concerning the extent of the present remedy. "Does "it lie against the keepers of circulating libraries, who buy "one book, and lend it to a hundred to read?" Certainly not. The purchaser of a single book may make any use he pleases of it; but no man, without leave from the author, has the right of making new books, by multiplying copies of the old. If a VOL. I. S [ TONSON v. COLLINS. man has an opera ticket, he may lend it to as many friends as he pleases; but he may not counterfeit the impression, and forge others. The owner of a single guinea may barter it, or lend it, as he pleases; but he may not copy the die, and coin another. It is necessary to sift this right to the bottom, and to argue on principles, as it probably will be a leading precedent; and it is more satisfactory, first to convince by reason, than merely to silence by authority; when we consider this right, in the next place, II. As supported by law. It will previously be necessary to obviate Mr. Thurlow's objection, that, because no action was ever brought in a Court of law for the invasion of this right, therefore none will ever lie. The observation (if true) rather shews, that no man ever had the hardiness before to invade this right, than that this Court is unable to give a remedy. There is no right without a legal remedy to protect it from invasion. The comprehensive remedy of an action on the case, founded on equitable principles, is every day applied in peculiar cases of fraud and wrong, none of which (in circumstances 326] exactly similar) * perhaps ever existed before. The wise provision of the statute of West. 2, c. 24, for the writ in casu consimili is founded upon the same principles, and is a full answer to this objection, at the same time that it is one of the glories of the English law. But the short and plain answer is this; that the parties aggrieved have usually pursued their remedy in a Court of equity, which occasions the scarcity of precedents in this Court. But unless equity be contradictory, instead of supplemental, to law, there is no doubt, but that every violation of property, which is a ground for an injunction, is a ground also for an action on the case; because the injunction presupposes, and proceeds upon, a legal property in the plaintiff. In all the cases cited by Mr. Thurlow there had neither been legal action nor suit in equity. Under this head of argument, I shall, 1st, shew, that this species of property exists by the common law, and has been recognized, not only by the Crown, but also by several acts of Parliament. The Jury have found, "that, before the reign of "Queen Anne, it was usual to purchase from authors perpe"tual copy-rights, to assign them, and to make them the sub"ject of family settlements." And they find two orders of the Stationers' Company, 1681, and 1690, which state the same to have been then the antient usage. And when the existence of a custom is found by a Jury, and that custom is neither unreasonable nor inconvenient; that custom I take to be part of the common law. To go still higher than the verdict: Tottell's Patent for Law Books, 20 Jan. 1 Eliz. (not printed in Ames, but among Mr. Bagford's manuscripts in the British Museum), "No person shall imprint any books, out of any 66 written copy, which he the said Richard Tottell or his as"signs had, or should attain unto, or buy at any other man's "hand." This shews the antiquity of purchasing copy-rights. 66 A. D. 1583, several printers had assigned to the Company (m) See ante, 119, n. (o). (a) Cited ante, 113 & 305, n. (1). (0) Cited also 2 Show. 260, 10 Mod. 106; S. C. 5 Bac. Ab.. 595. TONSON v. COLLINS. 327 ] 328 ] TONSON v. COLLINS. 66 of debt. Therefore, it was a cumulative remedy. If the judgment in Common Pleas was right, that went on a copyright in the executors; if the judgment in the Lords' House was law, that went (like the case of Rolle's Abridgment) upon a prior copy-right in the Crown.-Stationers' Company and Seymour, for printing almanacks, Trin. 29 Car. 2, Common Pleas, 1 Mod. 257, 3 Keb. 792, Serjeant Pemberton argued it, on the footing of a general copy-right in the Crown. Nothing absurd in this supposition. The regulation of time has been always a matter of state. Roman Fasti were under the care of the Pontifical College. Romulus, Numa, and Julius Cæsar, successively regulated the Roman calendar. The Court gave judgment for the plaintiffs-1. Because almanacks have no certain author, and therefore the property (as in things derelict) devolves to the Crown. 2. Because they are substantially only part of the Liturgy; and they said, that "Adding prognosti"cations to the calendar does not alter the case; any more "than if a man should claim a property in another man's copy, by reason of some inconsiderable additions of his own (p).Earl of Yarmouth and Darrel, P. 1 Jac. 2, King's Bench, 3 [ *329 ] Mod. 75, for printing blank bonds, in opposition to the *plaintiff's patent; argued merely as a copy-right in the Crown, as being things without a legal owner. The Court inclined, the patent was not good; but it seems to have been admitted, that a copy-right might subsist in a proper subject, though this was not so. Stationers' Company and Partridge, M. 11 Ann. King's Bench, 10 Mod. 105, Serjeant Hussey's MSS. S. C. (q) Issue out of Chancery, on the validity of a patent for almanacks. Argued on the footing of a copy-right. No opinion: but the Court said, "Monopolies were odious; therefore this case must be distinguished, by deriving to the Crown some "special interest in almanacks." Hence I may infer, that the Court thought, that a special interest might subsist in the copy of any given book.-Baskett and the University of Cambridge, M. 32 Geo. 2, King's Bench (r); Case out of Chancery, for printing an abridgment of statutes: certificate for the defendants: it is our misfortune, that the reasons are not given, upon which the Judges certify. But it is fresh in every one's memory, that the very learned argument delivered on the part of the defendants, was entirely built upon a supposed copy-right of the Crown in acts of Parliament. 66 [Lord Mansfield." The Court considered it as a prerogative copy-right. The Crown has no right over books in general; therefore the patents could have no effect, unless "by a special right derived from the King's prerogative."] 66 3dly, Consider the cases out of Chancery; in which I shall confine myself to those that stand clear of the statute of Queen Anne. All compared with the register.-Knaplock and Curl, (p) But see Stationers' Company v. Carnan, post, 1004. (q) Cited at length in 4 Burr. 2402. (r) Ante, 105, 2 Burr. 661, S. C.; cited also 4 Burr. 2404. TONSON V. COLLINS. 9th November, 1722, coram Macclesfield, Chancellor; Viner (tit. Books, 3): for printing Prideaux's Directions to Churchwardens: books ordered to be damasked, and a perpetual injunction awarded. Hence it appears, that Lord Macclesfield (who sate in Parliament 8 Ann.) did not look upon the right to depend merely on the statute of Queen Anne; *for he then would have ordered a temporary, not a perpetual [ *330 ] injunction. [Foster, J.-" This was a legal right, clearly within the act of Parliament."] I mention it only, because here the injunction was perpetual. [Lord Mansfield." Is there any instance of a temporary "injunction upon a decree?" "It was plainly upon the act "of Parliament; for the books were ordered to be damasked. "The Court could not have ordered this, unless under the "statute. It was going pretty far, for a Court of equity to "proceed upon the penalty. They have never done it since."] Tonson and Clifton, 11 December, 1722, coram Macclesfield, Chancellor, for printing The Conscious Lovers: injunction granted, and acquiesced under. The book not stated to have been registered at Stationers' Hall; which is requisite by the statute of Queen Anne. It must therefore have proceeded on the general common law right. 66 [Lord Mansfield." No: it was always held, that the entry in Stationers' Hall was only necessary, to enable the party to bring his action for the penalty. But the property "is given absolutely to the author, at least during the term. "Whether the act implies any larger property, is another question. But the most judicious way in Chancery is, not to "insist upon the penalty, nor of course on the entry, but to pray an injunction to protect the general property."] 66 Webb and Rose, 24th May, 1732, coram Jekyll, Master of the Rolls (s), for printing the Draughts of Webb the Father's Conveyances. Decree, that the Draughts should be delivered up, and the injunction continued. This could not be within the act; it was never published; and the term given by the act commences from publication. It therefore turned on *the original and natural right which every man has in his [ *331 ] own compositions. Eyre and Walker, 9 June, 1735, coram Jekyll, Master of the Rolls (t), for printing The whole Duty of Man. This was first published A. D. 1657, therefore clearly not within the statute; injunction acquiesced in. Motte and Falkner, 28th November, 1735, coram Talbot, Chancellor (v), for printing Swift's and Pope's Miscellanies. Some of these pieces published in 1701, others in 1702 and 1708. The term of the statute clearly expired as to them. Yet an injunction granted for the whole, and acquiesced in. [Lord Mansfield." It was argued on that objection; par"ticularly as to the predictions in 1708."] (s) Cited 4 Burr. 2330. (t) Cited 4 Burr. 2325, 2353. (v) Cited ibid. |