108 Literary Property and International Copyright. 



sented. Eight maintained that at common law the author's exclusive 

 rights were not prejudiced by publication, while three were of opinion 

 that publication was an abandonment of the common-law property. 

 Seven maintained that the ownership <>f literary property was per- 

 petual by the common law. Five were of opinion that the statute of 

 Anne did not destroy, abridge, or in any way prejudice the common- 

 law property in a published work, and did not deprive the author of 

 his common-law remedies. Six made answer that the common-law 

 right after publication was taken away by the statute, to which alone 

 the author must look for protection. Lord Mansfield, being a peer, 

 from motives of delicacy, refrained from giving an opinion ; but it 

 was well known that he adhered to the opinion which he so ably 

 maintained, while sitting as chief justice of the King's Bench. The 

 twelve judges were, in fact, evenly divided upon the important ques- 

 tion, whether the statute of Anne had abridged the author's common- 

 law right or left it perpetual like other proprietary natural rights. 



Thereupon, Lord Camden, moving the judgment of the house, 

 made a most extraordinary harangue against the doctrine of literary 

 property. His attack was vigorous, almost ferocious, and specious, 

 but — it must be said — marvelously sophistical. And, strange phe- 

 nomenon, chief among his supporters, with speech and vote, was Lord 

 Macaulay. The decision of the court below was reversed, and the 

 doctrine established that the common-law right of the author after 

 publication was taken away by the statute. So the law remains, in 

 England, to this day. 



It has been suggested, as an explanation of Lord Camden's course 

 on this occasion, that he was influenced by a rivalry between himself 

 and Lord Mansfield; and color of truth is given to this explanation, 

 by the language of Lord Campbell in his " Lives of the Chancellors." 

 It is represented by him, that for a long time "these great men had 

 contended for the supremacy as law lords in the upper house;" a"* 1 

 that in one scene, which occurred about four years before the discus- 

 sion of the question of literary property, they had a personal contro- 

 versy of a very disagreeable character, in which Lord Camden seems 

 to have triumphed by the exhibition of more nerve than belonged 

 to the "silver-tongued Murray." 



Mr. Justice Yates, while at the bar, had been engaged in the first 

 controversy that arose under the statute of Anne, and contended that 

 copyright was a monopoly. It is just possible that this circumstance 

 may have influenced, to some extent, his judicial opinion; it does not 

 always happen that the prejudices of the barrister are put aside with 

 his gown when he dons the ermine. 



