THE

EDINBURGH REVIEW.

MAY, 1823.

No. LXXVI.

ART. I. Reports of Cases argued and decided in the High Court of Chancery. By F. VESEY, Junior. Vol. VII.-Dr WOLCOT's Case, 1802.-Mr SoUTHEY'S Case, 1817.-Lord ByRON'S Cain, Feb. 1822.-Mr LAWRENCE'S Lectures on Phy siology, March 1822.

'OU UR system of remedial law resembles an old Gothic cas'tle erected in the days of chivalry, but fitted up for a 'modern inhabitant-the moated ramparts, the embattled towers, ' and the trophied halls, are magnificent and venerable, but use'less, and therefore neglected: the inferior apartments accom'modated to daily use, are cheerful and commodious, though 'their approaches may be winding and difficult.' Such is the striking illustration with which Blackstone takes leave of the most laborious part of his celebrated undertaking, Civil injuries and their remedies.' And it is perhaps true, that most suitors in our courts of justice, through passages more or less winding, and with different degrees of difficulty, do manage, by keeping fast hold of the hand of some learned counsel, to arrive at last in one or other of these inferior apartments. But unfortunately, there is one class, whose interest in the laying out of these rooms seems to have been by common consent abandoned-we mean authors. A library was no part of this legal chateau in its feudal state. Our worthy ancestors had as much idea of a boudoir or a billiard-room; and it was not till the art of printing enabled literature to take hold of the public mind, that an exclusive property in it could become, in any legal sense, an object of value. Before, however, this alteration in an author's condition could have produced any visible

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effect, Government seized upon him as a prisoner of state. Printing was altogether prohibited, except under the sanction of a license; and, with whatever evils this system was fraught, it had at least the good effect that the licensers permitted no one to print another man's copy: and consequently, as long as it endured, an author was effectually sheltered from the inferior beasts of prey who now prowl about the press for a thievish and miserable subsistence.

Soon after the revival of our civil liberties at the epoch of the Revolution, the licensing act expired; and the value of public opinion, as propagated through the medium of the press, became too well understood and too highly prized, to suffer a Bastile of human thought to be again erected in this country. However, in the common ignorance of the precautions requisite to protect literary property, and in the common joy of emancipation, nothing seems to have been thought of beyond the getting rid of regulations politically obnoxious; and the new race of authors found themselves in the situation of slaves, whom the same moment had freed and turned out of doors. An action upon the case had been speculated upon, as an experiment for their relief, but not proceeded in. From having been so long habituated to the intimidating security of penalties, they looked upon them as the most obvious source of protection. In an evil hour they applied to Parliament, were cursed with a granted prayer,' and received the fatal present of a statute, exhibiting perhaps the most successful effort of legislative cross-purposes that is to be found in our written law.

This celebrated statute has for its title, An act for the Encouragement of Learning'-for its preamble (which Lord Coke terms the key of a statute), the assertion, that Authors and their families have been ruined by persons of late taking the liberty to print books without the consent of the proprietors and for its recital, that it means to prevent such mischief, and encourage learned men to compose useful books. Now, this laudable purpose it proceeds to accomplish, by cutting down to fourteen years the property in his printed works, in which an author previously had (according to the opinions of eight out of the twelve judges, including Lord Mansfield) a perpetuity at common law. And the only security afforded to the author during these fourteen years, is by arming him against pirates with an expensive form of action, wherein the penalty of a penny a sheet is to go, half to the Crown and half to the informer; and the party injured is entitled only to have the specific books handed over to him, which he is

compelled, by the express words of the statute, to turn into waste paper-for which inestimable benefit he is taxed with nine presentation copies to the public libraries. The statutory confiscation was real, the protection illusory; and the truth so often stated by the present Chancellor (as applying equally to the action for damages at common law) was soon discoveredthat the only real protection was to be found in his court, in the form of an injunction. Now, we cannot sufficiently regret, that being so fully aware of this circumstance, Lord Eldon should, upon a new principle, be the first to deny to authors a temporary refuge against common robbers, in that very sanctuary which had been prepared for them by the equitable architects who preceded him. This novel doctrine is so entirely, as it were, novus homo in the Court of Chancery, that its pedigree can be traced no higher up than twenty years. As Lord Eldon is its parent, so he is its sole authority,-and it will be found, we suspect, to rest upon the possibility of a doubt. It is contained in the four judgments whose titles are prefixed to the present article, and is nearly in his Lordship's own words, as follows. • Where the law does not afford a 'complete remedy, the Court of Chancery will lend its assistance; at law, where the separate publications could never be ⚫ hunted down one after another, the remedy for the invasion of literary property is worse than the disease. It is therefore the imperfection of that remedy which gives a court of equity its jurisdiction to stop at once, by injunction, the piracy of a work. But if the case be one which it is not clear will sus'tain an action at law, then this court will not give the plaintiff the relief he seeks. Now, Eyre, C. J., has laid it down, that

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a person cannot recover in damages for a work calculated to 'do injury to the public. The question of intent' (or tendency, for the intent is an inference from the tendency) I have no right to try; because it has been settled, after great difference of opinion among the learned, that it is for a jury to determine it. The only question for me is, whether it is so 'clear that the plaintiff possesses a civil right in the publication before me, as to leave no reasonable doubt upon my mind, 'that it would support an action in a court of law. It is im'possible for me to say, looking at its general tenor, and also at particular passages unconnected with its general tenor, that "I have no doubt; I hope it is a reasonable one,' &c.

Now, this doctrine, it will be observed, is founded altogether upon a Nisi Prius dictum of C. J. Eyre, not acted upon there, even at Nisi Prius; though it has been said by nearly every Judge in the Courts of Common Law, that they wished the decisions of

Judges at Nisi Prius, from the small deliberation which could be bestowed in making them, were never cited in argument. This authority, nevertheless, is the only one which Lord Eldon ever has alluded to as the groundwork of his decisions; and if we turn to the circumstances which accompanied it, we shall find some difficulty in accounting for the partiality with which it has been referred to and received. On the occasion of those memorable riots, by what we may call the Orange Mob at Birmingham, when the loyal showed their respect to law and government, by plunder and devastation, Dr Priestley brought an action against the hundred for the injury which his property had sustained. Several booksellers deposed to the sum which they would have given for certain manuscripts which had been destroyed. The counsel for the hundred said, in defence, that Dr Priestley was in the habit of publishing books prejudicial to the Established Religion and Government of the country; but called no evidence to prove it. On which C. J. Eyre is reported to have gone out of his way, in a case of such grievous outrage upon the plaintiff, to observe, that if such evidence had been produced, he should have received it, on the ground that no man can have a property in such writings; and therefore, to disprove a property in these manuscripts, on the value of which direct evidence had been given, the tendency of anterior publications was all that was required. The polemics of the sectarian were to taint the discoveries of the chemist; and we should have a heresie personelle, like that which Pascal describes the Jesuits to have attributed to M. Arnauld.

But, assuming the observation of C. J. Eyre as positive law, the doctrine affirms, that authors must be left to a remedy worse than the disease, whenever the Lord Chancellor may happen to entertain a doubt, which he hopes may be reasonable, whether a work is calculated to do injury to the public! The Chancellor often alludes to his natural infirmity of a-doubting mind: Yet here a doubt is to be ground firm enough, whence, like Archimedes, he can move and remove the world of letters at his pleasure.

Literature is generally spoken of as an exotic, every where of slow growth, and requiring special favour: but in this instance, it seems treated as if it were a weed to be trodden down in the public path. Indeed, the liberality of our national character does not appear to most advantage in the sort of reluctant naturalization which it had previously obtained. It is a curious fact, that in a country like England, the great question of literary property should have been fairly fought out for the

first and last time, at so recent a period as within the last fifty years. When men of letters sought upon that occasion to preserve their property according to their uniform practical enjoyment of it, and to maintain those rights which the issue of the discussion proved to have been originally and naturally theirs, they were met by objections of a nature that even those most accustomed to courts of justice, would scarcely have anticipated on such a subject. Authors claimed the protection of a law, which boasts that it consists not of particular instances, but of general principles. They were called upon, however, to produce cases in point, from an age that had never seen a printed book. The Registrum Brevium was referred to, and the author was desired to produce from thence precedents of writs, which could only have existed there in anticipation of the wants and intelligence of a future age. Authors appealed to an undisputed possession, ever since the origin of literature, which had been respected even by the despotism of the Tudors and the Stuarts: but they were taunted by allusions to the common slavery of a period, in the degradation of which they had only shared alike with their fellow-citizens, whilst the glory of having most suffered and best avenged its persecutions, was preeminently their own. They insisted at last, on larger and higher grounds, on the sacredness of property-but the notion was derided; and, in spite of the practical experience of three centuries, and of statutory provisions which the Court had for some years administered without any difficulty, they were told very gravely and very learnedly, that there was a metaphysical impossibility, which would not allow of a property in ideas!

Literature, however, was carried triumphantly by its friends through these and similar objections; but the statute of Anne, which had been passed either with a pomp of fraud and hypocrisy altogether unprecedented, or in utter ignorance of the subject, presented a barrier, which was not to be got over. Thus disinherited, as it were by accident, authors ought to obtain, for the brief term which is left them out of their patrimony, or rather their creation, all the security that law can give; but they are singularly placed. Put into a bag the general profit and loss of authors, and, on the average of the whole, no species of labour is so ill paid, or undertaken with so many hazards. Under the most improved state of the law of libel, they must still sit down to their task, as Damocles to his feast, with a sword suspended over them by a single thread. All the results, and use, and application of their writings, become at once the property of the public. From its nature, too, literary property must always be ex