428 THE LAW OF COPYRIGHT. 



written by the one without any reference to the other's work. Dr. 

 Nicholas thus states the case : " Some months before the appearance of 

 my book, another, and smaller work, by Mr. L. 0. Pike, had been 

 published on a like theme. It is admitted on both sides that the sub- 

 jects had been suggested to us by an announcement made by a public 

 society. Both works were written simultaneously, but mine was the 

 last published." So far, Dr. Nicholas states what undoubtedly consti- 

 tutes an important element in the dispute. The question, however, on 

 which the plaintiff's plea rests, as between him and the defendant — 

 apart from any claims advanced by others to priority of publication, — is 

 this : Did Dr. Nicholas avail himself to any extent of Mr. Pike's essay 

 in the final preparation of his own for issue in the form in which it 

 appears, as published under the title of " The Pedigree of the English 

 People?" To this question the Vice-Chancellor directed his special 

 attention in the original judgment; and the reader possesses, in the 

 extracts now furnished from the final award of Lord Hatherley and 

 Lord Justice Giffard, some means of determining how far they designed 

 entirely to set aside the previous verdict. 



In an appeal to the literary tribunal of the press, after an impartial 

 recognition of all that requires to be allowed in reference to acces- 

 sible sources of fact and opinion, undoubtedly turned to account by 

 both writers, the rule must still be held good which gives to priority of 

 publication, even in the work of compilation, certain rights of author- 

 ship which cannot be contravened. Some, at least, of the claims of 

 Mr. Pike to originality, and his charges of plagiarism in specific pas- 

 sages, have not been sustained; but this fact still remains indisputable, 

 as between plaintiff and defendant, that his " English and their Origin" 

 was published in 1866, whereas his rival's " Pedigree of the English 

 People" did not issue from the press till 1868. 



As, however, we have quoted the comments of one distinguished 

 British anthropologist, we shall add the more matured judgment of 

 another, regarded as one of the most learned, as he has been one of the 

 most laborious, amongst living British ethnologists. In thus complet- 

 ing our review of the questions in dispute, with every desire for an 

 impartial award, we produce the following opinion of Dr. R. G. Latham, 

 alike with a view to its bearings on Dr. Nicholas's claims of indepen- 

 dent authorship, and in its more comprehensive relations to the law of 

 copyright, in which every author has a personal interest : 



