The Case Of Authors Stated, Including The History Of Literary Property

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Title:     The Case Of Authors Stated, Including The History Of Literary Property
Author: Isaac Disraeli [More Titles by Disraeli]

JOHNSON has dignified the booksellers as "the patrons of literature," which was generous in that great author, who had written well and lived but ill all his life on that patronage. Eminent booksellers, in their constant intercourse with the most enlightened class of the community, that is, with the best authors and the best readers, partake of the intelligence around them; their great capitals, too, are productive of good and evil in literature; useful when they carry on great works, and pernicious when they sanction indifferent ones. Yet are they but commercial men. A trader can never be deemed a patron, for it would be romantic to purchase what is not saleable; and where no favour is conferred, there is no patronage.

Authors continue poor, and booksellers become opulent; an extraordinary result! Booksellers are not agents for authors, but proprietors of their works; so that the perpetual revenues of literature are solely in the possession of the trade.

Is it then wonderful that even successful authors are indigent? They are heirs to fortunes, but by a strange singularity they are disinherited at their birth; for, on the publication of their works, these cease to be their own property. Let that natural property be secured, and a good book would be an inheritance, a leasehold or a freehold, as you choose it; it might at least last out a generation, and descend to the author's blood, were they permitted to live on their father's glory, as in all other property they do on his industry.[1] Something of this nature has been instituted in France, where the descendants of Corneille and Molière retain a claim on the theatres whenever the dramas of their great ancestors are performed. In that country, literature has ever received peculiar honours--it was there decreed, in the affair of Crebillon, that literary productions are not seizable by creditors.[2]

The history of literary property in this country might form as ludicrous a narrative as Lucian's "true history." It was a long while doubtful whether any such thing existed, at the very time when booksellers were assigning over the perpetual copyrights of books, and making them the subject of family settlements for the provision of their wives and children! When Tonson, in 1739, obtained an injunction to restrain another bookseller from printing Milton's "Paradise Lost," he brought into court as a proof of his title an assignment of the original copyright, made over by the sublime poet in 1667, which was read. Milton received for this assignment the sum which we all know--Tonson and all his family and assignees rode in their carriages with the profits of the five-pound epic.[3]

The verbal and tasteless lawyers, not many years past, with legal metaphysics, wrangled like the schoolmen, inquiring of each other, "whether the style and ideas of an author were tangible things; or if these were a property, how is possession to be taken, or any act of occupancy made on mere intellectual ideas." Nothing, said they, can be an object of property but which has a corporeal substance; the air and the light, to which they compared an author's ideas, are common to all; ideas in the MS. state were compared to birds in a cage; while the author confines them in his own dominion, none but he has a right to let them fly; but the moment he allows the bird to escape from his hand, it is no violation of property in any one to make it his own. And to prove that there existed no property after publication, they found an analogy in the gathering of acorns, or in seizing on a vacant piece of ground; and thus degrading that most refined piece of art formed in the highest state of society, a literary production, they brought us back to a state of nature; and seem to have concluded that literary property was purely ideal; a phantom which, as its author could neither grasp nor confine to himself, he must entirely depend on the public benevolence for his reward.[4]

The Ideas, that is, the work of an author, are "tangible things." "There are works," to quote the words of a near and dear relative, "which require great learning, great industry, great labour, and great capital, in their preparation. They assume a palpable form. You may fill warehouses with them, and freight ships; and the tenure by which they are held is superior to that of all other property, for it is original. It is tenure which does not exist in a doubtful title; which does not spring from any adventitious circumstances; it is not found--it is not purchased--it is not prescriptive--it is original; so it is the most natural of all titles, because it is the most simple and least artificial. It is paramount and sovereign, because it is a tenure by creation."[5]

There were indeed some more generous spirits and better philosophers fortunately found on the same bench; and the identity of a literary composition was resolved into its sentiments and language, besides what was more obviously valuable to some persons, the print and paper. On this slight principle was issued the profound award which accorded a certain term of years to any work, however immortal. They could not diminish the immortality of a book, but only its reward. In all the litigations respecting literary property, authors were little considered--except some honourable testimonies due to genius, from the sense of WILLES, and the eloquence of MANSFIELD. Literary property was still disputed, like the rights of a parish common. An honest printer, who could not always write grammar, had the shrewdness to make a bold effort in this scramble, and perceiving that even by this last favourable award all literary property would necessarily centre with the booksellers, now stood forward for his own body--the printers. This rough advocate observed that "a few persons who call themselves booksellers, about the number of twenty-five, have kept the monopoly of books and copies in their hands, to the entire exclusion of all others, but more especially the printers, whom they have always held it a rule never to let become purchasers in copy." Not a word for the authors! As for them, they were doomed by both parties as the fat oblation: they indeed sent forth some meek bleatings; but what were AUTHORS, between judges, booksellers, and printers? the sacrificed among the sacrificers!

All this was reasoning in a circle. LITERARY PROPERTY in our nation arose from a new state of society. These lawyers could never develope its nature by wild analogies, nor discover it in any common-law right; for our common law, composed of immemorial customs, could never have had in its contemplation an object which could not have existed in barbarous periods. Literature, in its enlarged spirit, certainly never entered into the thoughts or attention of our rude ancestors. All their views were bounded by the necessaries of life; and as yet they had no conception of the impalpable, invisible, yet sovereign dominion of the human mind--enough for our rough heroes was that of the seas! Before the reign of Henry VIII. great authors composed occasionally a book in Latin, which none but other great authors cared for, and which the people could not read. In the reign of Elizabeth, ROGER ASCHAM appeared--one of those men of genius born to create a new era in the history of their nation. The first English author who may be regarded as the founder of our prose style was Roger Ascham, the venerable parent of our native literature. At a time when our scholars affected to contemn the vernacular idiom, and in their Latin works were losing their better fame, that of being understood by all their countrymen, Ascham boldly avowed the design of setting an example, in his own words, TO SPEAK AS THE COMMON PEOPLE, TO THINK AS WISE MEN. His pristine English is still forcible without pedantry, and still beautiful without ornament.[6] The illustrious BACON condescended to follow this new example in the most popular of his works. This change in our literature was like a revelation; these men taught us our language in books. We became a reading people; and then the demand for books naturally produced a new order of authors, who traded in literature. It was then, so early as in the Elizabethan age, that literary property may be said to derive its obscure origin in this nation. It was protected in an indirect manner by the licensers of the press; for although that was a mere political institution, only designed to prevent seditious and irreligious publications, yet, as no book could be printed without a licence, there was honour enough in the licensers not to allow other publishers to infringe on the privilege granted to the first claimant. In Queen Anne's time, when the office of licensers was extinguished, a more liberal genius was rising in the nation, and literary property received a more definite and a more powerful protection. A limited term was granted to every author to reap the fruits of his labours; and Lord Hardwicke pronounced this statute "a universal patent for authors." Yet, subsequently, the subject of literary property involved discussion; even at so late a period as in 1769 it was still to be litigated. It was then granted that originally an author had at common law a property in his work, but that the act of Anne took away all copyright after the expiration of the terms it permitted.

As the matter now stands, let us address an arithmetical age--but my pen hesitates to bring down my subject to an argument fitted to "these coster-monger times."[7] On the present principle of literary property, it results that an author disposes of a leasehold property of twenty-eight years, often for less than the price of one year's purchase! How many living authors are the sad witnesses of this fact, who, like so many Esaus, have sold their inheritance for a meal! I leave the whole school of Adam Smith to calm their calculating emotions concerning "that unprosperous race of men" (sometimes this master-seer calls them "unproductive") "commonly called men of letters," who are pretty much in the situation which lawyers and physicians would be in, were these, as he tells us, in that state when "a scholar and a beggar seem to have been very nearly synonymous terms"--and this melancholy fact that man of genius discovered, without the feather of his pen brushing away a tear from his lid--without one spontaneous and indignant groan!

Authors may exclaim, "we ask for justice, not charity." They would not need to require any favour, nor claim any other than that protection which an enlightened government, in its wisdom and its justice, must bestow. They would leave to the public disposition the sole appreciation of their works; their book must make its own fortune; a bad work may be cried up, and a good work may be cried down; but Faction will soon lose its voice, and Truth acquire one. The cause we are pleading is not the calamities of indifferent writers, but of those whose utility or whose genius long survives that limited term which has been so hardly wrenched from the penurious hand of verbal lawyers. Every lover of literature, and every votary of humanity has long felt indignant at that sordid state and all those secret sorrows to which men of the finest genius, or of sublime industry, are reduced and degraded in society. Johnson himself, who rejected that perpetuity of literary property which some enthusiasts seemed to claim at the time the subject was undergoing the discussion of the judges, is, however, for extending the copyright to a century. Could authors secure this, their natural right, literature would acquire a permanent and a nobler reward; for great authors would then be distinguished by the very profits they would receive from that obscure multitude whose common disgraces they frequently participate, notwithstanding the superiority of their own genius. Johnson himself will serve as a proof of the incompetent remuneration of literary property. He undertook and he performed an Herculean labour, which employed him so many years that the price he obtained was exhausted before the work was concluded--the wages did not even last as long as the labour! Where, then, is the author to look forward, when such works are undertaken, for a provision for his family, or for his future existence? It would naturally arise from the work itself, were authors not the most ill-treated and oppressed class of the community. The daughter of MILTON need not have craved the alms of the admirers of her father, if the right of authors had been better protected; his own "Paradise Lost" had then been her better portion and her most honourable inheritance. The children of BURNS would have required no subscriptions; that annual tribute which the public pay to the genius of their parent was their due, and would have been their fortune.

Authors now submit to have a shorter life than their own celebrity. While the book markets of Europe are supplied with the writings of English authors, and they have a wider diffusion in America than at home, it seems a national ingratitude to limit the existence of works for their authors to a short number of years, and then to seize on their possession for ever.

FOOTNOTES:

[1] The following facts will show the value of literary property; immense profits and cheap purchases! The manuscript of "Robinson Crusoe" ran through the whole trade, and no one would print it; the bookseller who did purchase it, who, it is said, was not remarkable for his discernment, but for a speculative turn, got a thousand guineas by it. How many have the booksellers since accumulated? Burn's "Justice" was disposed of by its author for a trifle, as well as Buchan's "Domestic Medicine;" these works yield annual incomes. Goldsmith's "Vicar of Wakefield" was sold in the hour of distress, with little distinction from any other work in that class of composition; and "Evelina" produced five guineas from the niggardly trader. Dr. Johnson fixed the price of his "Biography of the Poets" at two hundred guineas; and Mr. Malone observes, the booksellers in the course of twenty-five years have probably got five thousand. I could add a great number of facts of this nature which relate to living writers; the profits of their own works for two or three years would rescue them from the horrors and humiliation of pauperism. It is, perhaps, useful to record, that, while the compositions of genius are but slightly remunerated, though sometimes as productive as "the household stuff" of literature, the latter is rewarded with princely magnificence. At the sale of the Robinsons, the copyright of "Vyse's Spelling-book" was sold at the enormous price of 2200l., with an annuity of fifty guineas to the author!

[2] The circumstance, with the poet's dignified petition, and the King's honourable decree, are preserved in "Curiosities of Literature," vol. i. p. 406.

[3] The elder Tonson's portrait represents him in his gown and cap, holding in his right hand a volume lettered "Paradise Lost"--such a favourite object was Milton and copyright! Jacob Tonson was the founder of a race who long honoured literature. His rise in life is curious. He was at first unable to pay twenty pounds for a play by Dryden, and joined with another bookseller to advance that sum; the play sold, and Tonson was afterwards enabled to purchase the succeeding ones. He and his nephew died worth two hundred thousand pounds.--Much old Tonson owed to his own industry; but he was a mere trader. He and Dryden had frequent bickerings; he insisted on receiving 10,000 verses for two hundred and sixty-eight pounds, and poor Dryden threw in the finest Ode in the language towards the number. He would pay in the base coin which was then current; which was a loss to the poet. Tonson once complained to Dryden, that he had only received 1446 lines of his translation of Ovid for his Miscellany for fifty guineas, when he had calculated at the rate of 1518 lines for forty guineas; he gives the poet a piece of critical reasoning, that he considered he had a better bargain with "Juvenal," which is reckoned "not so easy to translate as Ovid." In these times such a mere trader in literature has disappeared.

[4] Sir James Burrows' Reports on the question concerning Literary Property, 4to. London, 1773.

[5] Mirror of Parliament, 3529.

[6] See "Amenities of Literature" for an account of this author.

[7] A coster-monger, or Costard-monger, is a dealer in apples, which are so called because they are shaped like a costard, i.e. a man's head. Steevens.--Johnson explains the phrase eloquently: "In these times when the prevalence of trade has produced that meanness, that rates the merit of everything by money."

[The end]
Isaac Disraeli's essay: Case Of Authors Stated, Including The History Of Literary Property

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