104 Literary Property and International Copyright. 



no trespass can reach them ; no tort affect them ; no fraud or violence 

 diminish or damage them. Yet these are the phantoms which the 

 author would grasp and confine to himself; and these are what the 

 defendant is charged with having robbed the plaintiff of." 



Lord Mansfield, and Justices Aston and Willes maintained the right 

 with a strength of argumentation, and wealth of learning, rarely 

 equaled in forensic discussion ; and the judgment of the court was 

 in accordance with their views. 



The opinion alone of Lord Mansfield, unsupported by his cogent 

 reasoning, is entitled to great consideration. He was, in the language 

 of Lord Thurlow, ''a surprising man; ninety-nine times out of a 

 hundred he was right in his decisions and opinions; and, when once 

 in a hundred times he was wrong, ninety-nine men out of a hundred 

 would not discover it." 



Mr. Justice Thompson, of the Supreme Court of the United States, 

 speaking from the bench of Justice Yates' view, said that it " would 

 hardly deserve a serious notice, had it not been taken by a distin- 

 guished judge." 



It seems hardly credible that a distinguished judge should have 

 taken the ground in a solemn judicial utterance, that corporeity is 

 essential to property. The merest tyro in law knows that there is a 

 kind of property, quite extensive in range, which is wholly incorporeal 

 in its nature ; and yet it is distinctly recognized, well defined, and 

 fully protected as property in every enlightened system of jurispru- 

 dence in the world. 



Subjects of this class of property are denominated " choses in action," 

 and sometimes "rights in action;" and they are defined by approved 

 law-writers as {< personal property of an incorporeal nature." 



Speaking of this kind of property, Chancellor Kent says: "By 

 far the greatest part of the questions arising in the intercourse of 

 social life, or which are litigated in the courts of justice, are to be 

 referred to this head of personal rights in action." 



Literary property, it should be remembered, consists in the intel- 

 lectual creation; it may be embodied in characters which express and 

 convey to others the authors thought, and "imprisoned upon the 

 printed page;" but this embodiment is not the essence of the author's 

 property, but only the vehicle which conveys it. 



This incorporeal property may exist as perfectly when expressed in 

 spoken, as when communicated in written or printed language. A 

 poem recited, a lecture delivered memonter, a song vocalized, an acted 

 drama, may have the attributes of property, without a written or 

 printed word. Says Mr. Drone: "That greatest creation of ancient 



