Blackwood's Edinburgh Magazine, Volume 62, Number 385. November, 1847.

The observations made by Mr Jukes on the mental effect of the southern climates of Asia, are striking, but they are the same which have been made for thousands of years. The European is not made for those climates. Carrying with him, in his first adventure, his original energy of mind and frame, he is astonished to see the land tenanted by human beings who are content with mere existence. The bold climber of the hills, – the daring mariner, – the intelligent and delighted inquirer into all the wonders of earth and ocean, sees himself surrounded by men lying on sofas, living only to eat, and careless of the whole brilliant profusion which tissues the ground, or fills the forest, or variegates the shore.

But the second generation inevitably feels the influence, and the son of the sinewy and susceptible European becomes the languid, self-satisfied, and voluptuous Oriental.

In fact, the two races are totally different. The Asiatic has some noble qualities. The Creator has not altogether effaced his own image in any region of human habitancy. He has fancy, keenness of conception, desperate but unwilling bravery, scientific faculties, and a quiet delight in the richness of his own lovely islands and pyramidal mountains.

But, to the European alone is allotted the master quality of energy; and by that gift he drives the world before him. This resistless quality he perhaps owes chiefly to his sullen skies and rugged soils. Even in the East, the man of the desert, the son of the storm and the snow, has always been the conqueror of India. The Osmanli sultans were forced to raise the boldest of their battalions among the Christians of the north of Greece. And we shall yet see the Australian sweeping before him the indolence of the Birman and the Javanese. This he will owe to the sterility of his fields and the half European blasts of his more salubrious and stringent atmosphere. The maxim of Montesquieu, that "poverty always conquers wealth," solves but half the problem. The true solution is, that the poverty of the soil compels the exertion of a vigour, which severity of climate alone can generate among a people. For three hundred years the population of Jutland and Denmark almost annually swept the southern shores of Europe itself. The Norman was invincible on land. Even the great barbarian invasions which broke down the Roman empire, were the work of nerves hardened in the forest and in the desert. The same causes have made the storm-beaten Englishman lord of India. But India will never be a British colony. It will never be, like America, a land of Englishmen. The second generation will be Indians, while Australia will be the southern England. This is evidently the law of a Will above man.

We must congratulate Mr Jukes on the value of his publication. Scientific without being abstruse, and picturesque without being extravagant, he has made his volumes a striking and graceful addition to our knowledge of countries, highly interesting in themselves, and, assuming hourly importance in the eyes of the people of England.

AMERICAN COPYRIGHT

New York, August, 1847.

My Dear Godfrey, – I am sorry to begin my letter with an apology, but I feel that one is due for the very unsatisfactory manner in which, on a former occasion, I answered your grave inquiries about the pirates who thrive on the plunder of Maga. The jocular vein which I incontinently struck and perseveringly followed up, led me very wide of your mark, and I was obliged to leave you quite unsatisfied on another point, about which, for one who is not an author, you seem to be singularly excited. To waive my astonishment at the Benthamism of the phrase, pray what is "International Copyright" to Godfrey, that he should weep for such a Hecuba? I should have been as little surprised, had you asked me to inquire the opinion of the Indians as to the best regimen for infants. A veritable author, suffering by wholesale American rapine, would have commanded my sympathies, and I should have replied instinctively, in that tone of consideration which is always due to dignified misfortune; but when you, with your rod and gun, soberly popped me a query in which I could not see that either widgeon or gudgeon were particularly concerned, I confess I feared you were quizzing me, and was fairly off my guard. Forgive me that I was so slow to appreciate the true state of the case. It has only very lately occurred to me that both you and I are somewhat changed since we placed the summum bonum in Waltonian idleness, and that you have very possibly renounced fly-fishing, and settled down into a literary incubation, likely to bless the world with a brood of booklings. With this consideration, I now again address you, intending to preserve that propriety of thought and speech, which on the subject of literary property, I feel due to the future Great Unknown of Southern Britain. You observe that I take it for granted, you will affect the anonymous; and I would venture to add my counsel to your choice of a course so judicious. You have no idea how great an inconvenience you would suffer, should Godfrey Hall be turned prematurely into another Abbotsford – an event which is certain, should you allow the secret of your new character to transpire. Your comparative nearness to the metropolis would greatly facilitate the irruption of bores; especially as there would probably be a branch railway chartered forthwith, for the express purpose of setting down company at the nearest possible point of access to your venerable gateway. Besides, even you have too much regard to the land of Kit North, to entertain any desire to see its most attractive shrine of pilgrimage too suddenly eclipsed; and why should you court such an exposure of popular fickleness, when about to become yourself "the comet of a season," and to go through that brilliant perihelion, in which, reversing the feat of Horace with his lofty head, you will sweep away all other stars with a swinge of your luminous caudality? Yes, Godfrey – spare your own feelings, and treat us to another Great Unknown! I am sure such will be your determination, and so I will simply subjoin the hope that nothing will interfere with the speedy completion of your maiden effort – "Napper Tandy; or, 'Tis Fifty Years Since." Don't startle at my naming your hero, and suggesting your plot; for though I will venture to say that I have hit the nail on the head, I assure you it is only a happy surmise. You must know that nothing could be so interesting as a recurrence to the exciting epoch of Ninety-eight; and why should not the sister kingdom have its romance, as well as the land of the Scots? I have always thought that Stuart rising very much overrated – a mere scratch to what happened in Ireland. Kilmarnock was a poor-spirited fellow compared with Emmet; and though there were many better men than Balmerino among the United Irishmen, it would be hard to find a worse one than Lord Lovat. I suspect, therefore, that besides your design, I have actually discovered your title page; though it is barely possible that the melancholy fate of Wolfe Tone, with the indistinct tone of ferocity that is perceptible in his name, may have suggested the compellation of that unfortunate gentleman, as more significant of the wolfish atrocities with which your tale will necessarily abound. Whatever be the name, make haste with the book, and do not wait ten years in order to have another "Sixty Years Since." You must see that congruity requires the semi-centenary, and that Sir Walter was a full decennium behind-hand. The demise of O'Connell at this interesting juncture, must be regarded as a coincidence every way satisfactory, whether we consider the fulness of his fame, the conclusion of an era, or the interests of your forthcoming work. It has prepared public sympathy, and tuned the strings upon which you call successfully play for the next quarter of an age; and I hazard little in arguing that your literary nativity will be accomplished under the ascendant of the most favourable planet.

Regarding you, then, as what you will speedily become – a successful adventurer, with a whole navy of American corsairs in chase of your literary cargo – the question takes this shape: – How does the American law of copyright affect you as a British author, and what can be done to save "Napper Tandy"? To answer you properly, let me first expound the law itself, which, for your special benefit, I have taken pains to examine.

You are doubtless aware that the constitution of this republic is one which answers the great test proposed by Tom Paine, who imagined it to be of the essence of a free constitution that it should be capable of being put into the pocket! That splendid capability was never more fully realised by the laws of a sixpenny club, than by the great charter of American liberties. It is a thing written on paper, and may be thrust into the breeches, or hung up on the wall, as best suits the notions of its worshipper, and his manner of exhibiting respect. Now the law of copyright is not here, as you suppose, a mere matter of statute; nor is the doctrine that an author has no perpetual property in what his intellect creates, a simple decision of courts. It is a part of the constitution, which empowers the national Congress "to promote the progress of science and useful arts, by securing for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries." An American writer has remarked, that its equivalent would have been the concession of a power to promote the fisheries, by allowing to fishermen a limited number of the cod-fish and herrings which they take on a Newfoundland fog-bank. Here then, you will say, is a fundamental obstruction to literary justice in America! But your hasty conclusion will show that you have thought but little on written constitutions. I agree with the Count de Maistre, that such instruments are of all things the most slippery. What is easier than for Congress to evade its restriction, and make the limited time exactly the years of Methusaleh! Such a limit would be about as good as "to one's heirs for ever." But there is yet another facility in written constitutions: "a breath unmakes them, as a breath has made." In America, a constitution is as easily overhauled, new-ribbed, and launched again, as ever a sloop-of-war was dry-docked and new-coppered. Here, for instance, is the great "Empire State" of New York, with a constitution hardly a year old! The stripling who has just attained his majority, has actually survived the whole life of its predecessor; and he who lives half as long again, will see the new one superannuated and going the way of all written constitutions. The late constitution of this State was in many respects a noble one; but its successor plays the mischief with every thing; and I have heard an old freeholder complain that he hardly knows whether he has a house, a wife, or a head on his shoulders; so radically has the revolution affected whatever is social and civil. This will show you that there is, after all, no necessary perpetuity in the present condition of things; and so I come to the statute, which is the only just cause of complaint.

The English origin of the law is very apparent. It retains some features of the old statute of Queen Anne, with others of 54 Geo. III., which has lately been made so familiar in parliamentary reports. It secures authors in their property for a term of twenty-eight years, and provides for renewing this security for half that period, upon a renewal of entry. One copy of every work thus protected, must be deposited with the Clerk of the United States' Court for the District where it is entered; and by a late enactment, the author must contribute another copy to the library of "the Smithsonian Institute," – that unmeaning benevolence of an unfortunate scion of the Northumberland family, which is already beginning to be regarded as a folly, and which one would think might have been made to subserve the interests of authors, rather than furnish another occasion for the exercise of legislative ingenuity, in adding to their many annoyances. The other important features of the Act are the penalty for piracy, and the restriction of protection to citizens and residents; in other words, the punishment of piracy in certain cases, and its license in others. Thus the same Act is dainty of rights, if the craft swim in rivers and bays, but hands over to the black flag whatever is found on the highway of nations. Persons pirating a copyright work are liable to a forfeiture of every copy in their keeping, whether of their own manufacture or otherwise; and besides this, to a fine of one dollar a sheet upon the same, of which one moiety goes to the author, and the residue to the government. Why should it be culpable to steal from a resident, and laudable to do the same thing with a stranger? If a foreign mechanic exports his goods, they are as safe in New York, as the wealth of John Jacob Astor; but no kind of mercy is shown to the product of a foreigner's brain – than which one would think nothing but his soul should be more sacred among all Christian men. On the contrary – not content with leaving him unprotected, there is in the tariff an express provision for the encouragement of plunder. No one pretends that the revenue of the United States requires the tax of ten per cent. ad valorem, upon all importations of "books printed, magazines, pamphlets, and illustrated newspapers, bound or unbound;" yet, such are the terms of the tariff of 1846, and it was designed expressly to prevent importations, and encourage the piratical, manufacture of such things at home. I say so, because it is notorious, and has been exposed by American writers themselves.

Now, let us see how "Napper Tandy" is likely to fare under regulations like these! Can it be possible, you will say, that the Model Republic cherishes designs so predatory; and is there no other explanation of a law which seems so outrageous? There are laws, I am aware, which are by no means what they seem, and British law is the last to dispense with a concession so important. I have, therefore, put this American statute into every light that seemed likely to show it to better advantage, and I confess there is one view of the subject, which, as being myself a resident, it gives me pleasure to suggest. Is it not conceivable, after all, that the original purpose of the statute was merely to extend, to exactly such worthies as the author of "Napper Tandy," a polite invitation to a literary sojourn in America? You know how many British authors, with no such inducements, have preferred Italy to their native land; and why should not this country, at least in the partial eyes of its own legislators, be worthy of a share of their company? The suggestion is equally complimentary to the law-givers, and to those whose society is thus held at a premium. It is true, that, excepting Will Cobbett, few English writers of eminence have taken the hospitable hint; but who could have foreseen this result, when so many of the literary race are perpetually sighing for lodges in the wilderness, and dwellings in the desert! Monsieur Dumas might indeed be reluctant to accept the flattering overtures of a country which is known to cherish such antipathies to his great ancestor Ham, and all that interesting family; and is quite, excusable for preferring the persecutions of French courts of justice, to the patronage which American law would more fully accord to his books than to his person; but why should not you, my dear Godfrey, become as original in your manner of life, as I am sure you will be in the productions of your genius? Why should you not court a "boundless contiguity of shade," and issue your immortal works from the depths of a Pennsylvanian forest, as gracefully as Lord Byron sent forth his from the more vulgarised retirement of Tuscany? Residing here, you could hold the sons of rapine at bay, enjoying at once your American harvests, and the golden remittances of your publishers in England. But the crowning consideration is this, that should you undertake the protection of your darling Maga, an arrangement with Mr Blackwood, and the publication of "Napper Tandy" in his incomparable pages, would seal the fate of the counterfeit, and forcibly recall to the mind of Reprint & Co. the sigh of Othello over his lost occupation. You stare – but it follows, by demonstration —

"For the intent and purpose of the law,

Hath full relation to the penalty."

You enter "Napper Tandy" in the "Clerk's Office of the Southern District of New York." The next number of Blackwood comes out with your first chapter, which Reprint unguardedly produces in his fac simile. Don't you see, my dear fellow, that if you ever hooked a gudgeon, you have as certainly caught the republisher? You seize ten thousand copies in his warehouse, just as they are about to be distributed over the land. On each copy, he must pay, in addition to his forfeiture, one dollar a sheet; that is to say, ten thousand dollars for your first chapter; of which, after the government has gone snacks, one thousand guineas are your guarantee for the interest which the Republic takes in her invited guests; and (to the dismay of piracy,)

"The law allows it, and the court awards."

Mr Blackwood will doubtless take care that your work shall not be completed too fast: and as long as the interminable "Napper Tandy" continues, the press of the fac-simile must stand still. Meanwhile, you commence a legitimate reprint, under the genuine Ebony arms, and reign as a kind of lord-lieutenant, under his ambrosial majesty, Christopher the Great. The stereotype plates of Maga reach you every month, and the American public discern the difference between a true fac-simile and a cunning counterfeit. Instead of the sham tête-de-Buchanan, they see the very "trick of Cœur-de-lion's face;" and finding themselves as little taxed for the original, as ever they were for the humbug, vote you a public benefactor, and send a round-robin to Congress demanding the instantaneous enactment of a universal copyright law, if not the grant of a gold medal to the beneficent Godfrey. I anticipate, however, your reply. Ten thousand copyrights would not tempt you to pass more than three months in the year away from your Kentish comforts and cousins! Very well – then perish dreams of lord-lieutenancy; and learn the inevitable fate of your neglected literary offspring. The same day that Import and Profits advertise their London copies of "Napper Tandy," at five dollars a volume, any number of shirtless little vagabonds will be crying it in a pamphlet edition from Astor House to Wall Street, and through all the thoroughfares, for a currency shilling. I wish you might see your own degradation, as I shall be forced to behold that of my friend. Think of an illustrated edition coming out, under the auspices of Napper Tandy M'Dermot, Esq., in which that namesake of your hero undertakes to give your biography, and describes you as the occupant of a garret, in the receipt of wages from government, for manufacturing false representations of characters inestimably dear to patriots, and odious to tyrants only! Think of that person actually taking out a copyright for his edition of your own book, on the grounds of his thus doing for your character the very thing which he reprobates as your detestable trade; and so enjoying for no very "limited time," the enormous profits of the "standard American edition" of your outcast work. Permit me to add, significantly —

"The fault, dear Godfrey, is not in the laws,

But in yourself, if you are pirated!"

However, if you seriously ask me whether there is no chance of an alteration in the laws, even should you persist in refusing the invitation to America, I will candidly answer, that the progress of civilisation is probably independent even of you, and may very likely win the honours which would be yours, had you the boldness which fortune delights to favour. If you think me too sanguine, you can possibly obtain an interview with Mr Dickens, and qualify my representations by the discouraging views he will give you. They say here, that he came out to America on purpose to dun brother Jonathan, and it is still spoken of with surprise, that though shrewdly invited to dinner, he was not deterred from presenting his bill at the table. The slight misunderstanding to which such a manœuvre very naturally gave rise, may have seemed to justify his doubts, as they did to check the good intentions of his entertainers, with regard to the speedy adjustment of grievances; yet I think I am not mistaken in believing that popular sentiment in this country is just now setting strongly in favour of a community of copyright between America and Great Britain.

As a mere question of ethics, it can hardly be expected that while doctors disagree, the popular conscience should be much disturbed by the flagrancy of the present laws; yet it is only justice to the tone of moral feeling which characterises what may fairly be called society in America, to say that it is correct, if not even generous. The leading periodicals, which may be taken as an index of the opinions of educated men in general, have always been true to principle in the discussion of this matter. The New York Review, which, during a brief but honourable career was regarded as speaking the high-toned sentiments of American churchmen, contained an elaborate article, as early as in 1839, in which the conduct of Congress, reference to the famous "British Authors' petition," was severely rebuked, and criticised as scandalously unprincipled and disgraceful. About the same time, under cover of its provincial blue and yellow, the North American, or, as Mr Cooper calls it, the East American came out in defence of justice as toweringly as even Maga herself. The "British Authors' petition" had been fiercely opposed by a "Boston booksellers' memorial," which, among other things addressed to the lowest passions of the mob, argued against a copyright law, that it would prevent them from altering and interpolating English books, to accommodate republican tastes! Hear then how the Boston reviewers – who in spite of that snobbish sectarian air of perkiness and pretension which is usually ascribed to them, can now and then do things very handsomely – pounce upon their townsmen's morality. "We cannot help expressing our surprise," say they,2 "that the strange and dishonourable ground assumed in that memorial, has not been more pointedly reprobated. We can only account for the adoption of such a document at all, by a body of respectable men, on the supposition that its piratical doctrine, respecting literary property, escaped the notice of the convention; … for in our view, the doctrine to which those respectable gentlemen seemed to give their public support, was one to be mentioned, not in the company of honest men, but only in the society of footpads, housebreakers, and pickpockets." In an earlier number of the same work3 – which was lashed by the New York Review for its astounding ignorance of the most celebrated letters of Junius, and for quoting a judicial opinion of Lord Kaimes's as a speech in the House of Lords – the reviewer, whose blundering intrepidity is only saved from the ridiculous by the honesty of his attempt, comes down on a nobler quarry, and thwacks the memory of Lord Camden as if he had been another Thersites. Sir Joseph Yates gets a sound drubbing from the same sturdy avenger of literary property, for his share in the celebrated case of Millar versus Taylor, as given in Burrow's Reports.4 I have been pleased too with the succinct decision of a writer5 who has produced an elaborate work on political ethics, in which he lays it down that "the right of property in a book seems to be clearer and more easily to be deduced from absolute principle than any other." Except among the most ultra and radical of theorists, I have met with nothing in American society, but a most hearty subscription to such views as these: but, alas! – said one in conversation upon this subject, – it is nothing that we think right, nor would it be much to bring the people to agree with us, unless something shall force it upon our demagogues.

Public opinion is not always sovereign in America, as the remark of my friend implies. It is curious to see how often a written constitution deprives a people of the very privileges it was intended to perpetuate and secure; and how the practical working of the American constitution is frequently the very reverse of its design. By the constitutional provisions, it would seem apparent, for instance, that the president of this confederacy must always be the choice of a majority of the nation's wisest men, themselves the free choice of the majority of the people. Yet here I have lived under three successive presidents, General Harrison, Mr Tyler, and Mr Polk, not one of them succeeding by the free choice of any one, and Mr Tyler against the suffrages of all. The undefiled patriotism which is the hypothesis of the constitution, does not exist; party, which it seems hardly to anticipate, carries every thing; and parties are ruled by cabals. Thus the greatest national measures, instead of originating with the people, and taking shape in the hands of their servants, are begotten in closets and conclaves, dictated to time-servers and adventurers, and forced on the people, they cannot tell how – but in the name of democracy and freedom. Yet, after all, public opinion is important, because when even demagogues are inclined to do right, it is fatal to their action if public opinion be wrong. For this reason, it may be well for you to understand how far public opinion has advanced with regard to our question. Its progress has been slow, but I believe always in the right direction. Things promised well, when the Oregon dispute became the occasion of an unnatural animosity against Great Britain, and every measure which she was supposed to approve. In the hurly-burly of wind and dust that was blown up under that passing cloud, it is not to be wondered that Dickens and copyright were as completely forgotten as orthography, etymology, syntax and prosody, and whatever else goes to the art of using language correctly. A strip of land that would not purchase the copyright of an almanac, became the subject of the fiercest congressional interest; and the rights of authors, and with them the noblest relations of the republic to the other estates of the world, for the time were wholly lost sight of. "Copyright" then passed into a watchword with some of those underlings of literature, who thought to ride into favour as Cobden has been carried into fortune, by taking the tide at its ebb and ("like little wanton boys that swim on bladders") invoking the flood, as if their yelping and outcries would bring the turn any sooner. A copyright club was got up, it is said by a mere clique in this city, to which, from the mere justice of its proposed ends, large numbers of respectable men, throughout the country, gave in their nominal adhesion. I am not aware that it has accomplished any other result than to favour some ambitious young gentlemen in acquiring the autographs of eminent persons abroad, with whom they opened an officious correspondence; for it has been very generally voted a humbug, and has served to disgust many with the very sound of "copyright," which has thus been degraded into harmony with the scream of "Repeal" and "Free Trade." For awhile, none joined the vociferation, according to my informant, but persons whose stake in literary property was about as deep as the grievances of others in England under the income-tax, or the impost on wheel-carriages, hair-powder, and coats-of-arms.