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clusive right tends to promote the cause of learning; or whether ancient or modern authors have the greater in centives to excel. Authors are influenced either by a love of fame, or a desire of gain, and sometimes by both. As either of these passions predominate, the composition is more or less excellent. The ancients were smitten with a love of glory. If they had a desire of gain, it was a subordinate passion, not owing to a sordid disposition, but to the low estate, in which fortune had placed them. The prizes, proposed by the Grecian states, excited the noblest emulation. The poets exerted the power of their genius, either to preserve the reputation, which they had acquired, or to tear the laurel from the brows of their competitors. To this may be attributed the excellency of the Grecian poets.
Graiis ingenium, Graiis dedit ore rotunda
Musa loqui, præter laudem nullius avaris. The Romans took a different course.
Their excellent writers, by the liberality of their patrons, were placed in a state of affluence; so that they had leisure to polish and refine their compositions. There was a mutual exchange of benefits between the author and his patron. The patron conferred riches on the author, which was requited with fame and immortality. Unhappily this project of encouragement succeeded not so well, Gratitude and the ambition of transmitting our naine to posterity are feeble excitements to the exertion of our faculties, when compared with the noble rivalry, that subsisted between the Grecian bards. Poets are an idle race of men. They are no sooner at their ease, than they are fatigued with the labor of composing, Horace, who at first subsisted by writing, has the impudence frequently to complain of his laziness, when, by the munificence of Moecenas, he enjoyed an ample revenue.
This is perhaps the reason why the Grecians excelled the Romans in compositions. In England the revival of letters was coeval with the introduction of printing. Our authors had but little encouragement either by public, or private liberali, ty. A custom then first arose, by which they claimed the sole right of multiplying impressions of their books. Au. thors, by their little attention to their affairs, were generally in distressed circumstances. They could not wait the slow returns of profit, arising from the sale of their works ; but were obliged to sell them to the booksellers for a gross sum, which might relieve their present necessity. From that instant the author became a slave to his bookseller, who, estimating wit and learning by the bulk, imposed the severest tasks. How could any thing great or noble be expected from writers, whose genius was depressed, and spirits broken by this oppression.
Notwithstanding this we may boast of Shakespeare, Oto way, and Dryden, who, though they subsisted by their pen, might vie in genius with the greatest poets of antiquity. Unhappy indeed, that they had not leisure to polish and refine their works, that their poverty obliged them to humor, instead of correcting the taste of the people. To this imaginary right we may attribute the want of elegance and correctness in our English authors, who have subsisted by write ing ; to this may be attributed their servitude to booksellers, which of all others to a liberal mind is the most intole, rable,
This perpetual, exclusive right could never be executed, till the art of printing was introduced. The great labor of transcribing so much enhanced the price of each book, that the purchasers were few, and the gains of the author small. This I apprehend to be the foundation of the right. When printing was introduced into England, it became a part of the prerogative ; in virtue of which all books were licensed, and this license was construed to extend to the author alone and his assigns. When the prerogative was limited, and the liberty of the press established, this right must of necessity vanish. But the right of printing bibles, books of common prayer, and law books, is still vested in the king, and has been granted by him at different times. This right is puredy founded on maxims of policy, because these books are of public importance, matters of public concern ; and things, that relate to government, were never left to any man's liber ty to print, that would. This cannot be made a precedent in favor of the right, claimed in other copies, which stand ors a different foundation.
This therefore is a new right, arisen within the time of memory; but no original, incorporeal right, which is not founded on agreement of the parties, can at this day be created. What numerous inconveniences would arise, if every man could at his pleasure create a new species of property, to the support of which he might demand the aid of the law, however repugnant to its principles.
As if the wild imaginations of men were to control the law, and not the law to curb their extravagances.
The courts have been ever jeala ous of new inventions, even of those, which are founded on its most unquestionable principles, till experience and length of time have given them a sanction. The perpetual, exclusive right, of which we now treat, hath as yet received no countenance from the courts, and it has been demonstrated to be incompatible with every legal principle. It is observable, that it may as well be extended to many other things, which were never as yet imagined to be susceptible of property. For instance an author composes a tragedy, of this he makes. two profits; the copy is sold to the bookseller, the right of representation to the manager of the theatre. These rights are in every respect perfectly alike. The common law has favored neither the one, nor the other ; yet is it contended, that the purchaser of the copy shall recover in damages against those, who multiply impressions of his book; whereas the manager, who purchased the right of representation, can have no remedy against his brother manager, who gains an undue profit by representing the piece, for which the former paid a valuable consideration. Compare the pretensions of the advocate to his reward with those of the author. In the copy the property is uncertain ; the utility problematical. But the opinion, which the advocate gives, or the cause, which he pleads, is important, and very easy to be ascertain ed. Whatever advantages the client may derive from the industry, the learning, and abilities of his advocate, he cannot be compelled to make him a suitable recompense.
If one were to take into consideration all the inconveniences, resulting to authors themselves from the establishment of this property, they would be found very numerous. The profession of an author is of all others the least profitable. By the study of ancient poets and philosophers they easily contract a contempt for riches. Hence ensue a neglect of domestic concerns and distressed circumstances. If their works were to become a property, they might be taken in execution for debt. Creditors would rayish from dramatic writers their half formed tragedies, from clergymen their pious discourses, the spiritual food of their respective flocks ; a moral essay might go in discharge of a debt, contracted in a bagnio ; philosophy, poetry, metaphysics, history, and divinity would be taken in satisfaction for staytape, buckram, and canvass, or legs of mutton, calves' heads, and other articles, which usually compose a taylor's and a butcher's bill. If an author had been willing to have taken the benefit of the insolvent act, he would have been guilty of perjury, if he had not discovered his manuscripts. His creditors might insist on publishing his familiar letters ; for that species of composition is as much a property, as any other. If the insolvent were an ingenious man, his letters might have been sold for a good price. If literary property consist in the ideas, the creditors would have an interest in all the ideas of their debtors. Ideas are in their nature equally susceptible of property, whether they exist only in the brain of the author, or are by him transmitted to paper ; or whether they be written, or printed. The parliament of Paris seems to have considered this in a proper view. When the creditors of Crebillon would have attached in the hands of the actors a sum of money, arising from a representation of a tragedy, it was decreed, that the fruits of learning and genius, though actually converted into money, was not liable to the demands of creditors. Though the old Roman law delivered the insolvent debtor into the hands of his merciless creditor, that by his bodily labor he might make some satisfaction for the debt ; yet no one ever imagined, that the mind itself could be taken in execution, and be stripped of its ideas; which absurdity necessarily results from the supposition of ideas being capable of property.
The greatest grievance; of which the learned complain, cannot be remedied by the common law. This grievance arises from the disingenuity of some, who vindicate to themselves the discoveries, which have been made by the labor and abilities of other men. As if the mistaken praise, due to another's merit, could afford a homefelt satisfaction. It was owing to the modesty and diffidence of Sir Isaac News ton, that he communicated some of his discoveries to his friends, before he published them. Unfortunately they came into the hands of a foreigner, who contested the invention. In what court of justice could Sir Isaac have instituted suit for the reparation of this injury ? I will venture to affirm, that he could have had no redress in any court, either ancient or modern, where it was to have been determined on the principles of other property. He might prosecute his suit with some effect in a literary court of judicature. It was the wisdom of the French to erect the court of Marse challes, the object of whose jurisdiction was the point d'hon
Let it be ours to terminate the disputes of authors in a literary court of judicature, where may be inflicted paing and penalties, suitable to the nature of the offence ; for imaginary rights should always have imaginary remediese