Mr. DUNNING obferves to the fame purpose, that it is moft extraordinary to admit an author hath a property originally in his compofition, and that the first moment he exercises his dominion over that property, and endeavours to raise profit from it, he lofes it.'

With refpect to mechanical inventions, Mr. Baron Eyre confiders a book as precifely upon the fame footing with them, both being the means of conveying ideas; and yet, fays he, every mechanical invention is common, while a book is contended to be the object of exclufive property: fo that Mr. Harrison, after conftructing a time-piece, at the expence of fifty years labour, hath no method of fecuring an exclufive property in that invention, unless by a grant from the ftate; but if he was in a few hours to write a pamphlet, defcribing the properties, the utility, and conftruction of his time-piece, in fuch pamphlet he would have a right fecured by common law, though the pamphlet contained exactly the fame ideas in paper that the time-piece did in clock work machinery.'.

In reply to this objection Mr. WEDDERBURN observes, The cafe alluded to is not in point. The first sheet of an impreffion in a manner fubjects an author to the expences of a whole edition; whereas the maker of an orrery is at no farther trouble and charge than are required in making one orrery, and when he has fold that one he is paid for his labour, and reaps the profit of his invention; whereas the author cannot be repaid, much less benefited, till many copies are fold.' Lord Chief Baron SMYTHE remarks, that when a perfon makes a machine, from another, it is in a degree an original work, and belongs to himself; but in multiplying an author's copy, his name, as well as his ideas are stolen, and it is passed upon the world as the work of the original author.",

The laft queftion, concerning the EXPEDIENCY of granting a legal perpetuity to literary property, has given occalion to much declamation, and many affertions. Sir JOHN DALRYMPLE fays, it would encourage a fpirit of writing for money, which is a difgrace to the writer and to this very age. Why fhould not honour and reputation be powerful inducements enough for authors, without that mean one of reward.' He alfo urges that a right to publifh includes a right to fupprefs: and Lord CAMDEN, to the fame purpose, fays,

Glory is the reward of fcience, and those who deferve it, fcorn all meaner views. It was not for gain that Bacon, Newton, Milton, Locke, inftructed and delighted the world: it would be unworthy fuch men to traffic with a dirty bookfeller for fo much a fheet of letter-prefs. Some authors are as carelefs about profit, as others are rapacious of it: and what a fituation would the public be in, with regard to literature, if there were no means of compelling a fecond impreffion of a useful work, till a wife or children are to be provided for by. the fale. All our learning would be locked up in the hands of the Tenfons and Lintots of the age, who would fet what price upon it their avarice chose to demand.'

To the former argument Lord LYTTELTON has well replied, that authors are not to be denied a free participation of the com

mon

mon rights of mankind: and their property is furely as facred, and as deferving of protection, as that of any other fubjects.'

The hazard of authors fuppreffing their works is fmall, while the Public has fo good an hold upon them, as their own defire of gain, and that of their bookfellers: and the fame principle will always operate to prevent them from putting fuch exorbitant prices upon their works as to difcourage the fale of them.

Much more might be offered on these heads; but we shall have occafion to refume the arguments drawn from expediency in fome future Articles; and fhall therefore, for the prefent, only remark, in general, with respect to the publication now before us, that thofe who judge of the ftate of modern eloquence by thefe fpecimens, will, we apprehend, entertain no very exalted idea of it; and that, for our part, we cannot obferve, without a mixture of furprife and regret, fo little clearnefs of reafoning and precifion of language, in the arguments of the Counsel, the opinions of the Judges, and the fpeeches of the Lords, on the important question of Literary Property. If publishers who claim perpetuity deferve fevere animadverfion, certainly blundering editors, who give the Public fuch unfavourable and unjust ideas of the prefent ftate of British eloquence, deserve it much more.

• See the Cafes, &c. page 42.

N° 5.

ART. IX. An Argument in Defence of Literary Property. By Francis Hargrave, Efq. 8vo. 1 s. 6 d. Otridge. 1774

W

RITERS who either are not capable, or do not choofe to give themselves the trouble of thinking clofely, are apt to complain that fubjects are exhaufted, and to blame their ftars that they did not live at an earlier period, when they should not have been obliged to have trodden a beaten track, and repeat what others have faid again and again before them. But the complaint is nothing better than the refuge of indolence or dulnefs. A writer of true genius, who will give full fcope to his own abilities, and think as well as read, will always be able to ftrike out fomething new on every fubject which he takes in hand.

Of this we have fome inftances in the publications concerning literary property, which have appeared fince the repeated difcuffion of the fubject, in the Court of King's Bench, before the Lords of Seffion, and in the British Houfe of Peers. Mr. Hargrave's ingenious argument, in particular, is not only written with great clearneís of thought and expreffion, but enters into a full investigation of feveral parts of the fubject, and fuggets fome new and important ideas, which merit attention. Concerning

Concerning the practicability of ascertaining the right of li terary property, he says:

I might urge that facts are conceded fufficient to render the difcuffion of this point wholly unneceffary; that it has been the prac tice to appropriate the right of printing books in all countries, ever fince the invention of printing; that it fubfifts in fome form in every part of Europe; that in foreign countries it is enjoyed under grants of privileges from the fovereign; that in our own country it is admitted to be legally exercised in perpetuity by the crown and its grantees over particular books; and that even the legislature has protected fuch a right over books in general for a term of years, and has repeatedly called it a property, and thofe in whom it is vested, proprietors. Thefe facts, however inconfiftent they may feem, and really are, with the argument against the practicability of afferting the claim of literary property, cannot be denied; but this is not the proper place for urging them, I fhall therefore for the prefent wave the authority of examples, and shall reafon wholly from the nature of the subject in which the property is claimed.

The fubject of the property is a written compofition; and that one written compofition may be distinguished from another is a truth too evident to be much argued upon. Every man has a mode of combining and expreffing his ideas peculiar to himself. The fame doctrines, the fame opinions, never come from two perfons, or even from the fame perfon at different times, cloathed wholly in the fame language. A ftrong resemblance of ftyle, of sentiment, of plan and difpofition, will be frequently found; but there is fuch an infinite variety in the modes of thinking and writing, as well in the extent and connection of ideas, as in the ufe and arrangement of words, that a literary work really original, like the human face, will always have fome fingularities, fome lines, fome features, to characterize it, and to fix and establish its identity; and to affert the contrary with respect to either, would be justly deemed equally oppofite to reafon and univerfal experience. Befides, though it thould be allowable to fuppofe that there may be cafes, in which, on a comparison of two literary productions, no fuch diftinction could be made between them, as in a competition for originality to decide whether both were really original, or which was the original and which the copy; ftill the obfervation of the poffibility of distinguishing would hold in all other inftances, and the argument in its application to them would ftill have the fame force.

But it is objected, that only corporeal things can be the objects of property; and that every fpecies of incorporeal property has refpect to, and must have, a corporeal fubftance for its fupport. To which the plain anfwer is, That whatever is fufceptible of an exclufive enjoyment, may be property; and that rights may arise, which, though quite unconnected with any thing corporeal, may be .confined in the exercise to certain perfons, and be as capable of a feparate enjoyment, and of modes of alienation and tranfmiffion, as any fpecies of corporeal fubftance. Even the right in queftion, if it fhould be admitted to be fo deftitute of any corporeal fubftance for its foundation as has been reprefented, will of itself be a fufficient

proof

proof of the fallacy of making corporeal things, or rights in them, the fole objects of property, and may be fairly propofed as an inftance to the contrary; at least until the practicability of appropriating the printing of a book can be difproved, which I conceive to be impoffible. How the exclufive right of printing any particular book may originate; what may give a proper title to the fole exercife of fuch a right, whether authorship, or any other caufe, is not here of the leaft importance; because if fpringing from any fource, the right may be well appropriated, the argument of impracticabi lity will fall to the ground, and confequently the objection derived from the fuppofed want of fomething corporeal to uphold and fuftain the right.'

On the question whether publication destroys an author's exclusive property in his work, Mr. Hargrave fays

It is afked, how an author, after publishing his work, can con fine it to himself, and exclude the world from participating of the fentiments it contains? This objection depends on the fuppofition, that the exclufive right claimed for an author is to the ideas and knowledge communicated in a literary compofition. An attempt to appropriate to the author and his affigns, the perpetual ufe of the ideas contained in a written compofition, might well be deemed fo abfurd and impracticable, as to deserve to be treated in a court of juftice with equal contempt and indignation; and it would be a dif grace to argue in favour of fuch a claim. But the claim of literary property is not of this ridiculous and unreasonable kind; and to reprefent it as fuch, however it may ferve the purposes of declamation, or of wit and humour, is a fallacy too grofs to be fuccefsfully dif guiled. What the author claims, is merely to have the fole right of printing his own works. As to the ideas conveyed, every author, when he publishes neceffarily gives the full ufe of them to the world at large. To communicate and fel knowledge to the Public, and at the fame moment to ftipulate that none but the author or his bookfeller fhall make use of it, is an idea, which Avarice herself has not yet fuggefted. But imputing this abfurdity to the claim of literary property, is mere imagination; and fo must be deemed, until it can be demonftrated that the printing a book cannot be appropriated, without at the fame time appropriating the ufe of the knowledge contained in it; or in other words, that the ufe of the ideas communi. cated by an author cannot be common to all, unless the right of printing his works is common alfo. If the impoffibility of proving fuch a propofition is not felf-evident, I am fare, that there is not any argument I am furnished with, which would avail to evince the contrary.'

Concerning the expediency of confining the right of printing particular books to certain perfons, he fays;

It is apprehended by many, that if there was not any fuch thing as property in the printing of books, the art of printing would be more beneficial to the Public in general, as well as to thofe who practise the art, or are connected with it, in particular. But the truth is, that the opinion, however popular it may be, is without the leaft foundation. How would making the right of printing every

book

book common be advantageous to thofe concerned in printing or manufacturing books, or in bookfelling? Every impreffion of a work is attended with fuch great expences, that nothing less than fecuring the fale of a large number of copies within a certain time, can bring back the money expended, with a reasonable allowance for intereft and profit. But is this to be effected, if immediately after the impreffion of a book by one man, all others are to be left at liberty to make and vend impreffions of the fame work? A fecond, by printing with an inferior type, on an inferior paper, is enabled to underfell the printer of the first impreffion, and defeats him of the benefit of it, either by preventing the fale of it within due time, or perhaps by totally stopping it. The fecond printer is expofed to the fame kind of hostility; and a third perfon, by printing in a manner fill worfe, ftill more inferior, ruins the fecond; a fourth the third; and fo on it would be in progreffion, till experience of the disadvantages of a rival hip fo general would convince all concerned, mediately or immediately, in the trade of printing, that it must be ruinous to carry it on, without an appropriation of copies to fecure a reasonable profit on the fale of each impreffion.'

Having thus explained the difadvantages, which would accrue to those concerned in printing, if copies were common, I will now afk, how the making them fo could produce the leat benefit to the Public in general? Would leffening, or rather annihilating, the profits of printing, tend to encourage perfons to be adventurers in the trade of printing? Would it make books cheaper? So long indeed as the leaft legal idea of property in copies remains, molt perfons will probably hold it both dishonourable and unfafe to pirate editions; and fo long only can the few, who now diftinguish themselves by trafficking in that way, afford to underfell the real proprietors. Such perfons at prefent enjoy all the fruits of a concurrent property without paying any price for it and therefore it is not to be wondered at, that they should underfell thofe who have paid a full and valuable confideration for the purchafe of their copies. But if the right of printing books fhould once be declared common by a judicial opinion; the advantage, which enables particular perfons to underfell thofe who claim the property, would ceafe; pirating would then become general; and perhaps thofe, who now practife it, would themfelves be facrifices to their own fuccefs in the cause they support. Whilft the queftion of literary property is in a fufpended ftate, they have the harvest to themselves; but if they fhould gain their caufe, like other Samfons, they would be crushed by the fall of the building they are pulling down."

On the objection arifing from the fuppofed refemblance between the cafe of an inventor of a machine, and that of the author of a book, he says;

In my opinion, the principal diftinction is, that in one cafe the claim really is to an appropriation of ideas; but in the other, the claim leaves the ufe of the ideas common to the whole world.'

This remark alone is abundantly fufficient to obviate every objection that has been urged from this quarter. The granting to an inventor the exclufive privilege of making a machine would