Res Judicatæ: Papers and Essays

If it be asked how came it about that authors and booksellers allowed themselves to be deprived of valuable and well-assured rights – to be in fact disinherited, without so much as an expostulatory ode or a single epigram – it must be answered, strange as it may sound, it happened accidentally and through tampering with the Common Law.

Authors are indeed a luckless race. To be deprived of your property by Act of Parliament is a familiar process, calling for no remarks save of an objurgatory character; but to petition Parliament to take away your property – to get up an agitation against yourself, to promote the passage through both Houses of the Act of spoliation, is unusual; so unusual indeed that I make bold to say that none but authors would do such things. That they did these very things is certain. It is also certain that they did not mean to do them. They did not understand the effect of their own Act of Parliament. In exchange for a term of either fourteen or twenty-one years, they gave up not only for themselves, but for all before and after them, the whole of time. Oh! miserable men! No enemy did this; no hungry mob clamoured for cheap books; no owner of copyrights so much as weltered in his gore. The rights were unquestioned: no one found fault with them. The authors accomplished their own ruin. Never, surely, since the well-nigh incredible folly of our first parents lost us Eden and put us to the necessity of earning our living, was so fine a property – perpetual copyright – bartered away for so paltry an equivalent.

This is how it happened. Before the Revolution of 1688 printing operations were looked after, first by the Court of Star Chamber, which was not always engaged, as the perusal of constitutional history might lead one to believe, in torturing the unlucky, and afterwards by the Stationers' Company. Both these jurisdictions revelled in what is called summary process, which lawyers sometimes describe as brevi manu, and suitors as 'short shrift.' They hailed before them the Mr. Thomas Teggs of the period, and fined them heavily and confiscated their stolen editions. Authors and their assignees liked this. But then came Dutch William and the glorious Revolution. The press was left free; and authors and their assignees were reduced to the dull level of unlettered persons; that is to say, if their rights were interfered with, they were compelled to bring an action, of the kind called 'trespass on the case,' and to employ astute counsel to draw pleadings with a pitfall in each paragraph, and also to incur costs; and in most cases, even when they triumphed over their enemy, it was only to find him a pauper from whom it was impossible to recover a penny. Nor had the law power to fine the offender or to confiscate the pirated edition; or if it had this last power, it was not accustomed to exercise it, deeming it unfamiliar and savouring of the Inquisition. Grub Street grew excited. A noise went up 'most musical, most melancholy,

‘As of cats that wail in chorus.’

It was the Augustan age of literature. Authors were listened to. They petitioned Parliament, and their prayer was heard. In the eighth year of good Queen Anne the first copyright statute was passed which, 'for the encouragement of learned men to compose and write useful books,' provided that the authors of books already printed who had not transferred their rights, and the booksellers or other persons who had purchased the copy of any books in order to print or reprint the same, should have the sole right of printing them for a term of twenty-one years from the tenth of April, 1710, and no longer; and that authors of books not then printed, should have the sole right of printing for fourteen years, and no longer. Then followed, what the authors really wanted the Act for, special penalties for infringement. And there was peace in Grub Street for the space of twenty-one years. But at the expiration of this period the fateful question was stirred – what had happened to the old Common Law right in perpetuity? Did it survive this peddling Act, or had it died, ingloriously smothered by a statute? That fine old book – once on every settle —The Whole Duty of Man, first raised the point. Its date of publication was 1657, so it had had its term of twenty-one years. That term having expired, what then? The proceedings throw no light upon the vexed question of the book's authorship. Sir Joseph Jekyll was content with the evidence before him that, in 1735 at all events, The Whole Duty of Man was, or would have been but for the statute, the property of one Mr. Eyre. He granted an injunction, thus in effect deciding that the old Common Law had survived the statute. Nor did the defendant appeal, but sat down under the affront, and left The Whole Duty of Man alone for the future.

Four years later there came into Lord Hardwicke's court 'silver-tongued Murray,' afterwards Lord Mansfield, then Solicitor-General, and on behalf of Mr. Jacob Tonson moved for an injunction to restrain the publication of an edition of Paradise Lost. Tonson's case was, that Paradise Lost belonged to him, just as the celebrated ewer by Benvenuto Cellini once belonged to the late Mr. Beresford Hope. He proved his title by divers mesne assignments and other acts in the law, from Mrs. Milton – the poet's third wife, who exhibited such skill in the art of widowhood, surviving her husband as she did for fifty-three years. Lord Hardwicke granted the injunction. It looked well for the Common Law. Thomson's Seasons next took up the wondrous tale. This delightful author, now perhaps better remembered by his charming habit of eating peaches off the wall with both hands in his pockets, than by his great work, had sold the book to Andrew Millar, the bookseller whom Johnson respected because, said he, 'he has raised the price of literature.' If so, it must have been but low before, for he only gave Thomson a hundred guineas for 'Summer,' 'Autumn,' and 'Winter,' and some other pieces. The 'Spring' he bought separately, along with the ill-fated tragedy, Sophonisba, for one hundred and thirty-seven pounds ten shillings. A knave called Robert Taylor pirated Millar's Thomson's Seasons; and on the morrow of All Souls in Michaelmas, in the seventh year of King George the Third, Andrew Millar brought his plea of trespass on the case against Robert Taylor, and gave pledges of prosecution, to wit, John Doe and Richard Roe. The case was recognised to be of great importance, and was argued at becoming length in the King's Bench. Lord Mansfield and Justices Willes and Aston upheld the Common Law. It was, they declared, unaffected by the statute. Mr. Justice Yates dissented, and in the course of a judgment occupying nearly three hours, gave some of his reasons. It was the first time the court had ever finally differed since Mansfield presided over it. Men felt the matter could not rest there. Nor did it. Millar died, and went to his own place. His executors put up Thomson's Poems for sale by public auction, and one Beckett bought them for five hundred and five pounds. When we remember that Millar only gave two hundred and forty-two pounds ten shillings for them in 1729, and had therefore enjoyed more than forty years' exclusive monopoly, we realise not only that Millar had made a good thing out of his brother Scot, but what great interests were at stake. Thomson's Seasons, erst Millar's, now became Beckett's; and when one Donaldson of Edinburgh brought out an edition of the poems, it became the duty of Beckett to take proceedings, which he did by filing a bill in the Court of Chancery.8

These proceedings found their way, as all decent proceedings do, to the House of Lords – farther than which you cannot go, though ever so minded. It was now high time to settle this question, and their lordships accordingly, as was their proud practice in great cases, summoned the judges of the land before their bar, and put to them five carefully-worded questions, all going to the points – what was the old Common Law right, and has it survived the statute? Eleven judges attended, heard the questions, bowed and retired to consider their answers. On the fifteenth of February, 1774, they reappeared, and it being announced that they differed, instead of being locked up without meat, drink, or firing until they agreed, they were requested to deliver their opinions with their reasons, which they straightway proceeded to do. The result may be stated with tolerable accuracy thus: by ten to one they were of opinion that the old Common Law recognised perpetual copyright. By six to five they were of opinion that the statute of Queen Anne had destroyed this right. The House of Lords adopted the opinion of the majority, reversed the decree of the Court below, and thus Thomson's Seasons became your Seasons, my Seasons, anybody's Seasons. But by how slender a majority! To make it even more exciting, it was notorious that the most eminent judge on the Bench (Lord Mansfield) agreed with the minority; but owing to the combined circumstances of his having already, in a case practically between the same parties and relating to the same matter, expressed his opinion, and of his being not merely a judge but a peer, he was prevented (by etiquette) from taking any part, either as a judge or as a peer, in the proceedings. Had he not been prevented (by etiquette), who can say what the result might have been?

Here ends the story of how authors and their assignees were disinherited by mistake, and forced to content themselves with such beggarly terms of enjoyment as a hostile legislature doles out to them.

As the law now stands, they may enjoy their own during the period of the author's life, plus seven years, or the period of forty-two years, whichever may chance to prove the longer.

So strangely and so quickly does the law colour men's notions of what is inherently decent, that even authors have forgotten how fearfully they have been abused and how cruelly robbed. Their thoughts are turned in quite other directions. I do not suppose they will care for these old-world memories. Their great minds are tossing on the ocean which pants dumbly-passionate with dreams of royalties. If they could only shame the English-reading population of the United States to pay for their literature, all would be well. Whether they ever will, depends upon themselves. If English authors will publish their books cheap, Brother Sam may, and probably will, pay them a penny a copy, or some such sum. If they will not, he will go on stealing. It is wrong, but he will do it. 'He says,' observes an American writer, 'that he was born of poor but honest parents, I say, "Bah!"'9

NATIONALITY

Nothing can well be more offensive than the abrupt asking of questions, unless indeed it be the glib assurance which professes to be able to answer them without a moment's doubt or consideration. It is hard to forgive Sir Robert Peel for having once asked, 'What is a pound?' Cobden's celebrated question, 'What next? And next?' was perhaps less objectionable, being vast and vague, and to employ Sir Thomas Browne's well-known phrase, capable of a wide solution.

But in these disagreeable days we must be content to be disagreeable. We must even accept being so as our province. It seems now recognised that he is the best Parliamentary debater who is most disagreeable. It is not so easy as some people imagine to be disagreeable. The gift requires cultivation. It is easier, no doubt, for some than for others.

What is a nation – socially and politically, and as a unit to be dealt with by practical politicians? It is not a great many things. It is not blood, it is not birth, it is not breeding. A man may have been born at Surat and educated at Lausanne, one of his four great-grandfathers may have been a Dutchman, one of his four great-grandmothers a French refugee, and yet he himself may remain from his cradle in Surat to his grave at Singapore, a true-born Englishman, with all an Englishman's fine contempt for mixed races and struggling nationalities.

Where the English came from is still a matter of controversy, but where they have gone to is writ large over the earth's surface. Yet their nationality has suffered no eclipse. Caviare is not so good in London as in Moscow, but it is caviare all the same. No foreigner needs to ask the nationality of the man who treads on his corns, smiles at his religion, and does not want to know anything about his aspirations.

England has all the notes of a nation. She has a National Church, based upon a view of history peculiarly her own. She has a National Oath, which, without any undue pride, may be pronounced adequate for ordinary occasions. She has a Constitution, the admiration of the world, and of which a fresh account has to be written every twenty years. She has a History, glorious in individual feats, and splendid in accomplished facts; she has a Literature which makes the poorest of her children, if only he has been taught to read, rich beyond the dreams of avarice. As for the national character, it may be said of an Englishman, what has been truly said of the great English poet Wordsworth – take him at his best and he need own no superior. He cannot always be at his best; and when he is at his worst the world shudders.

But what about Scotland and Ireland? Are they nations? If they are not, it is not because their separate characteristics have been absorbed by John Bullism. Scotland and Ireland are no more England than Holland or Belgium. It may be doubted whether, if the three countries had never been politically united, their existing unlikeness would have been any greater than it is. It is a most accentuated unlikeness. Scotland has her own prevailing religion. Mr. Arnold recognised this when he observed, in that manner of his which did not always give pleasure, that Dr. Chalmers reminded him of a Scotch thistle valorously trying to look as much like the rose of Sharon as possible. This distorted view of Mr. Arnold's at all events recognises a fact. Then there is Scotch law. If there is one legal proposition which John Bull – poor attorney-ridden John Bull – has grasped for himself, it is that a promise made without a monetary or otherwise valuable consideration, is in its legal aspect a thing of nought, which may be safely disregarded. Bull's views about the necessity of writing and sixpenny stamps are vague, but he is quite sound and certain about promises going for nothing unless something passed between the parties. Thus, if an Englishman, moved, let us say, by the death of his father, says hastily to a maiden aunt who has made the last days of his progenitor easy, 'I will give you fifty pounds a year,' and then repents him of his promise, he is under no legal obligation to make it good. If he is a gentleman he will send her a ten-pound note at Christmas and a fat goose at Michaelmas, and the matter drops as being but the babble of the sick-room. But in Scotland the maiden aunt, provided she can prove her promise, can secure her annuity and live merrily in Peebles for the rest of a voluptuous life. Here is a difference indeed!

Then, Scotland has a history of her own. The late Dr. Hill Burton wrote it in nine comfortable volumes. She has a thousand traditions, foreign connections, feelings to which the English breast must always remain an absolute stranger. Scottish fields are different from English fields; her farms, roads, walls, buildings, flowers, are different; her schools, universities, churches, household ways, songs, foods, drinks, are all as different as may be. Boswell's Johnson, Lockhart's Scott! What a host of dissimilarities, what an Iliad of unlikenesses, do the two names of Johnson and Scott call up from the vasty deep of national differences!

One great note of a nation is possessed to the full by Scotland. I mean the power of blending into one state of national feeling all those who call what is contained within her geographical boundaries by the sacred name of 'Home.' The Lowlander from Dumfries is more at home at Inverness than in York. Why is this? Because Scotland is a nation. The great Smollett, who challenges Dickens for the foremost place amongst British comic writers, had no Celtic blood in his veins. He was neither a Papist nor a Jacobite, yet how did his Scottish blood boil whilst listening in London to the cowardly exultations of the cockneys over the brutalities that followed the English victory at Colloden! and how bitterly – almost savagely – did he contrast that cowardly exultation with the depression and alarm that had prevailed in London when but a little while before the Scotch had reached Derby.

What patriotic feeling breathes through Smollett's noble lines, The Tears of Caledonia, and with what delightful enthusiasm, with what affectionate admiration, does Sir Walter Scott tell us how the last stanza came to be written! 'He (Smollett) accordingly read them the first sketch of the Tears of Scotland consisting only of six stanzas, and on their remarking that the termination of the poem, being too strongly expressed, might give offence to persons whose political opinions were different, he sat down without reply, and with an air of great indignation, subjoined the concluding stanza:

‘“While the warm blood bedews my veins,And unimpaired remembrance reigns,Resentment of my country's fateWithin my filial breast shall beat.Yes, spite of thine insulting foe,My sympathising verse shall flow,Mourn, hopeless Caledonia, mourn,Thy banished peace, thy laurels torn.”’

In the same sense is the story told by Mr. R. L. Stevenson, how, when the famous Celtic regiment, the Black Watch, which then drew its recruits from the now unpeopled glens of Ross-shire and Sutherland, returned to Scotland after years of foreign service, veterans leaped out of the boats and kissed the shore of Galloway.

The notes of Irish nationality have been, by conquest and ill-usage, driven deeper in. Her laws were taken from her, and her religion brutally proscribed. In the great matter of national education she has not been allowed her natural and proper development. Her children have been driven abroad to foreign seminaries to get the religious education Protestant England denied them at home. Her nationality has thus been checked and mutilated, but that it exists in spirit and in fact can hardly be questioned by any impartial traveller. Englishmen have many gifts, but one gift they have not – that of making Scotsmen and Irishmen forget their native land.

The attitude of some Englishmen towards Scotch and Irish national feelings requires correction. The Scotsman's feelings are laughed at. The Irishman's insulted. So far as the laughter is concerned, it must be admitted that it is good-humoured. Burns, Scott, and Carlyle, Scotch moors and Scotch whisky, the royal game of golf, all have mollified and beautified English feelings. In candour, too, it must be admitted that Scotsmen are not conciliatory. They do not meet people half-way. I do not think the laughter does much harm. Insults are different…

Mr. Arnold, in a now scarce pamphlet published in 1859, on the Italian Question, with the motto prefixed, 'Sed nondum est finis,' makes the following interesting observations: —

'Let an Englishman or a Frenchman, who respectively represent the two greatest nationalities of modern Europe, sincerely ask himself what it is that makes him take pride in his nationality, what it is which would make it intolerable to his feelings to pass, or to see any part of his country pass, under foreign dominion. He will find that it is the sense of self-esteem generated by knowing the figure which his nation makes in history; by considering the achievements of his nation in war, government, arts, literature, or industry. It is the sense that his people, which have done such great things, merits to exist in freedom and dignity, and to enjoy the luxury of self-respect.'

This is admirable, but not, nor does it pretend to be, exhaustive. The love of country is something a little more than mere amour propre. You may love your mother, and wish to make a home for her, even though she never dwelt in kings' palaces, and is clad in rags. The children of misery and misfortune are not all illegitimate. Sometimes you may discern amongst them high hope and pious endeavour. There may be, indeed, there is, a Niobe amongst the nations, but tears are not always of despair.

'The luxury of self-respect.' It is a wise phrase. To make Ireland and Irishmen self-respectful is the task of statesmen.

THE REFORMATION

Long ago an eminent Professor of International Law, at the University of Cambridge, lecturing his class, spoke somewhat disparagingly of the Reformation as compared with the Renaissance, and regretted there was no adequate history of the glorious events called by the latter name. So keenly indeed did the Professor feel this gap in his library, that he proceeded to say that inconvenient as it had been to him to lecture at Cambridge that afternoon, still if what he had said should induce any member of the class to write a history of the Renaissance worthy to be mentioned with the masterpiece of Gibbon, he (the Professor) would never again think it right to refer to the inconvenience he had personally been put to in the matter.

It must be twenty years since these words were uttered. The class to whom they were addressed is scattered far and wide, even as the household referred to in the touching poem of Mrs. Hemans. No one of them has written a history of the Renaissance. It is now well-nigh certain no one of them ever will. Looking back over those twenty years it seems a pity it was never attempted. As Owen Meredith sweetly sings —

‘And it all seems now in the waste of lifeSuch a very little thing.’

But it has remained undone. Regrets are vain.

For my part, I will make bold to say that the Professor was all wrong. Professors do not stand where they did. They have been blown upon. The ugliest gap in an Englishman's library is in the shelf which ought to contain, but does not, a history of the Reformation of Religion in his own country. It is a subject made for an Englishman's hand. At present it is but (to employ some old-fashioned words) a hotch-potch, a gallimaufry, a confused mingle-mangle of divers things jumbled or put together. Puritan and Papist, Anglican and Erastian, pull out what they choose, and drop whatever they do not like with a grimace of humorous disgust. What faces the early Tractarians used to pull over Bishop Jewel! How Dr. Maitland delighted in exhibiting the boundless vulgarity of the Puritan party! Lord Macaulay had only a paragraph or two to spare for the Reformation; but as we note amongst the contents of his first chapter the following heads: 'The Reformation and its Effects,' 'Origin of the Church of England,' 'Her Peculiar Character,' we do not need to be further reminded of the views of that arch-Erastian.

It is time someone put a stop to this 'help yourself' procedure. What is needed to do this is a long, luminous, leisurely history, written by somebody who, though wholly engrossed by his subject, is yet absolutely indifferent to it.

The great want at present is of common knowledge; common, that is, to all parties. The Catholic tells his story, which is much the most interesting one, sure of his audience. The Protestant falls back upon his Fox, and relights the fires of Smithfield with entire self-satisfaction. The Erastian flourishes his Acts of Parliament in the face of the Anglican, who burrows like a cony in the rolls of Convocation. Each is familiar with one set of facts, and shrinks nervously from the honour of an introduction to a totally new set. We are not going to change our old 'mumpsimus' for anybody's new 'sumpsimus.' But we must some day, and we shall when this new history gets itself written.

The subject cannot be said to lack charm. Border lands, marshes, passes are always romantic. No bagman can cross the Tweed without emotion. The wanderer on the Malvern Hills soon learns to turn his eyes from the dull eastward plain to where they can be feasted on the dim outlines of wild Wales. Border periods of history have something of the same charm. How the old thing ceased to be? How the new thing became what it is? How the old colours faded, and the old learning disappeared, and the Church of Edward the Confessor, and St. Thomas of Canterbury, and William of Wykeham, became the Church of George the Third, Archbishop Tait, and Dean Stanley? There is surely a tale to be told. Something must have happened at the Reformation. Somebody was dispossessed. The common people no longer heard 'the blessed mutter of the mass,' nor saw 'God made and eaten all day long.' Ancient services ceased, old customs were disregarded, familiar words began to go out of fashion. The Reformation meant something. On these points the Catholics entertain no kind of doubt. That they suffered ejectment they tearfully admit. Nor, to do them justice, have they ever acquiesced in the wrong they allege was then done them, or exhibited the faintest admiration for the intruder.