110 Literary Property and International Copyright. 



his heir shall apply for payment to posterity, he will be referred back 

 to antiquity. 



" That as a man's hairs belong to his head, so his head should belong 

 to his heirs ; whereas, on the contrary, your petitioner hath ascertained 

 by a nice calculation, that one of his principal copyrights will expire 

 on the same day that his only son should come of age. The very law 

 of nature protests against an unnatural law which compels an author 

 to write for anybody's posterity except his own." 



The judicial history of literary property in the United States may 

 be given in few words. 



Prior to the adoption of the Federal Constitution, which was framed 

 in 1787, copyright laws were passed in several of the States ; and most, 

 if not all, of these laws recognized the common-law right. 



In order to secure adequate and uniform protection throughout the 

 United States to literary property, inventions and discoveries, a pro- 

 vision was inserted in the Federal Constitution empowering Congress 

 "to promote the progress of science and useful arts, by securing for 

 limited times to authors and inventors the exclusive right to their 

 respective writings and discoveries." 



Under this power, Congress has, from time to time, enacted copy- 

 right laws. The first, passed in 1790, was substantially a copy of the 

 then existing English statute — the one used by the House of Lords 

 as an instrument for the destruction of common-law copyright. 



In 1834, this act came before the Supreme Court of the United 

 States for construction, in the case of Wheaton v. Peters, reported in 

 8 Pet. 591, which presented substantially the same questions adjudi- 

 cated in Donaldson v. Becket, and our court, in its judgment, fol- 

 lowed the English precedent. The judges, however, were divided in 

 opinion ; Mr. Justice McLean delivered the opinion of the court, 

 three of his associates agreeing, two dissenting, and one being absent. 

 The dissenting opinions of Justices Thompson and Baldwin are re- 

 garded as masterly expositions of the true principles underlying aud 

 governing literary property. 



If the views now indicated are sound, it follows inevitably that the 

 common-law right of property m brain-work has been unjustly stricken 

 down by judicial construction. 



The will and caprice of the Legislature is substituted for a God- 

 given right. Under the adjudications in England and the United 

 States, if the Legislature, not sympathizing with "them literary 

 fellers," should refuse all protection, property in literary productions 

 would cease with publication in print. Even under the most liberal 

 copyright statutes, the author's right is abridged; for if it be a com- 



