LITERARY PROPERTY. 



Italian Deninn rivals him in brillinncy of manner, 

 without eqimllint; him in thoroughness and originality 

 of views or in judgment. It began to be more and 

 more clearly felt, that literary history, though an 

 independent branch of history, would remain a mere 

 li-n of names, titles, and dates, if it were not treated 

 with constant reference to the state of religion, poli- 

 tic-, morals, and the arts. Attempts have been 

 made to treat it as a part of the general history of 

 civilisation by Iselin, Ferguson, Home, and particu- 

 larly by Herder. In recent times, the Germans have 

 taken the lead in this science, both in extent of know- 

 ledge and comprehensiveness of views. J. G. Eich- 

 horn's, and L. Wachler's work is of high value, as 

 are also those of S G. Wald, J. G. Meusel, and Fr. 

 Schlegel. It would exceed our limits were we to 

 mention here the different productions upon the liter- 

 ary history of single nations and particular periods. 

 A work on an extensive plan, though not of a general 

 nature, is the great enterprise of the literary society 

 of Gottingen History of Arts and Sciences in Europe, 

 since the Restoration of the same, until the End of 

 tile Eighteenth Century. 



Literary history is naturally divided into ancient, 

 middle and modern. The ancient terminates with the 

 retirement of science into the convents, in the sixth 

 century; the middle begins with the downfall of the 

 great Roman empire (about 500 A. D.) and the com- 

 mencement of literary civilization in the various Eu- 

 ropean nations, without the support of ancient classi- 

 cal civilization (see Berrington's Literary History of 

 the Middle Ages] ; and the last begins about 1450, 

 when the study of the classics was renewed, and know- 

 ledge revived in Europe. 



LITERARY PROPERTY. In the whole compass 

 and variety of the products of human labour, no one 

 thing is more exclusively such than intellectual works. 

 In the fabrication and production of almost all other 

 subjects of value and property, the materials are sup- 

 plied, directly or indirectly, by the earth or the water; 

 and man only co-operates with nature in furnishing 

 the article. But a piece of music, a painting, a poem, 

 an oration, a history, or a treatise ot any description, 

 is the offspring of the unaided labour of the mind. It 

 is supplied from abroad, only with the canvass, paper, 

 parchment, or whatever other substance is used for 

 recording the work, and affording the evidence of its 

 accomplishment, but which is no more a part of the 

 thing produced, than a deed conveying an estate, is a 

 part of the thing conveyed. But, though the right to 

 the products of intellectual labour is thus peculiarly 

 positive and absolute, it is among the latest rights of 

 property recognised in a community, since the subject 

 of it, the product itself, is only the result of an advan- 

 ced state of civilization. Another reason of its not at- 

 tracting a more early attention, is its abstract, incor- 

 poreal nature, and also, in some cases, the difficulty of 

 denning and identifying it, and deciding what is an 

 infringement of this rigiit of property; and again, in 

 some countries, speaking the same language as those 

 bordering upon them, the great difficulty of protect- 

 ing this kind of property trom infringement, though 

 no doubt arises as to the identification of the thing 

 claimed, or in determining what shall be considered 

 to be an infringement. 



The question whether an author has, of common 

 right, and independently of any special statute 

 in his favour, a property in the products of the 

 labour of his mind, as unquestionable and absolute as 

 any other producer has in those of the labour of the 

 hands, was very elaborately discussed in the court of 

 king's bench, and in the house of lords, in the time 

 of lord Mansfield, in the celebrated cases of Millar 

 against Taylor, reported in the fourth volume 

 of Barrow's Reports, in relation to the copyright of 



Thomson's Seasons ; and Donaldson against "Rocket, 

 reported in the same volume. The fir>t of these 

 cases came UTore the court in 17<>9. In 1709, the 

 statute of 8 Anne, chapter 19, had been passed, 

 giving to authors an exclusive copyright " for the 

 term of fourteen years, and no longer," Notwith- 

 standing the limitation of the right to that term, by 

 the statute, it had been held, in divers cases, subse- 

 quently decided, that the exclusive property of the 

 author, or his representatives or assigns, continued 

 after the expiration of the fourteen years; and, 

 accordingly, in 1739, lord chancellor Hurdwicke 

 granted an injunction against a person, other than 

 the proprietors, printing Milton's Paradise Lost, the 

 title to the copyright of which was derived to the 

 proprietor, under an assignment by Milton, seventy- 

 two years before. In the case relating to the copy- 

 right of Thomson's Seasons, three of the judges, 

 namely, lord Mansfield, and justices Aston and 

 Willes, were of opinion, that the exclusive right of 

 property continued after the expiration of fourteen 

 years from the first publication, as limited by the 

 statute of Anne, and such was the decision of the 

 court. Mr Justice Yates dissented from that opinion. 

 Five years afterwards, in 1774, the other case came 

 before the house of lords, and, as is usual with that tri- 

 bunal, the opinion of the judges of the king's bench, 

 common pleas, and exchequer, was taken. Lord 

 Mansfield, being a member of the house, did not 

 give an opinion in answer to the questions propounded 

 by the house, with the other judges, but acted and 

 voted as a member of the body. Of the eleven 

 judges who gave opinions, eight were of opinion that 

 an author had of common right that is, as by the 

 common law, or without any statute to this effect 

 the exclusive privilege of publishing his own works; 

 and three were of a contrary opinion. Seven, agaiiwt 

 four to the contrary, were of opinion, that, by pub- 

 lishing his works and vending copies, he did not 

 abandon his exclusive property to the public, or, in 

 other words, that, by making and selling one copy, 

 he did not authorize all other persons to make, and 

 use or sell as many copies as they might choose. 

 This seems to be so plain a point, that, if four re- 

 spectable judges had not been of a contrary opinion, 

 one would be ready to say it admitted of no doubt. 



A case very analogous, but much stronger in 

 favour of the author's right of property, is stated in 

 the public journals (1831), as having recently been 

 decided in France. An artist had sold a statue or 

 picture, the production of his own chisel or pencil, 

 and the question was made whether the purchaser 

 had a right to publish engravings of this original. 

 It was decided, that the artist alone, and not the pur- 

 chaser, had, in such case, the exclusive right to make 

 and publish engraved copies. But, on the other 

 question, proposed by the house of lords, viz. whether 

 the statute of Anne took away the author's exclusive 

 right to his own property, after the expiration of 

 fourteen years, six of the judges were of opinion in 

 the affirmative, so that the whole twelve judges 

 were equally divided upon this question, lord Mans- 

 field being, upon this and the two other questions, in 

 in favour of the author's right. But the house ol 

 lords decided that the author had no exclusive right 

 after the expiration of the period limited in the statute, 

 though the reasons given on that side, by the judges 

 who supported it, are very unsatisfactory; and it is 

 not easy to divine the grounds of the decision. Thus, 

 while the poverty of authors and scholars the great 

 leaders and champions of civilization and intellectual 

 advancement has been proverbial all the world over, 

 the government has interposed, or is construed to have 

 interposed, with its mighty arm, not for their protec- 

 tion and reward, but to despoil them of their pro- 



