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för all, these rights interfere not one with another." Very true; but, fuppofe there be not fufficient for all ? If Authors and Booksellers could all find immediate customers for as many editions as they could print, the right contended for would not be worth difputing. But the sale of a book is, in a great measure*, confined to a certain number; and if that number be sold by one person, no other person can sell any: the profits, therefore, of an Author or Proprietor may hence be evidently diminished, and his right invaded. Our Lawyer will probably object, that this is not properly and absolutely a disleisin; it may amount, however, in many cases, to much the same thing, and in some to much worse; as when the proprietor of a book prints an edition of it, and is forestalled, in the publication, by some other Bookseller ; in which case he is not only prevented from reaping the profits he expected from the fale of his impression, but is frequently obliged to sit down with a great loss. Setting this latter confideration, however, afide, it must surely be thought a strange kind of law that does not allow a possessor a property in a thing because he cannot be totally divested of it, or stripped of it at once. If a man be not turned out of his house, it may be said, he is not put out of poffeffion; but, if twenty or thirty people are allowed to enter it, and take up free quarters with his family, he might almost as well, and sometimes better, be fairly kicked out of doors.
With respect to what the Author of the Enquiry hath advanced, concerning the right of property in Ideas, the prefent Writer does not think it neceffary to give his arguments a serious refutation, “ as the principles themselves from whence they are deduced, appear indefenfible.” He might have rallied him, however, very successfully on a point which the latter seems to make of such mighty importance; and, particularly, on the following strokes of metaphysical cafuistry. “ Simple ideas, being obvious to all, cannot be ex
* We say, in a great measure. It is a maxim, indeed, in some commercial countries, that Traders generate Trade, and that the conlumption of a commodity depends on the number of Venders. Thus it may be said, if an Author has an exclusive right to his works, he will print no more copies than he can dispose of through his own channel, and by his own industry: whereas, if the right of printing were laid open, more people wou'd print and be interested in pushing off copies : which circumstance would le advantageous to trade. This, however, is a political consideration, that does not affect the prefent point.
clusively possessed by any. Perhaps it may be said, that the Author claims a property in the knowlege, sentiment, and doctrine contained in his book. All these are composed of simple ideas, and arise from our perception of their agreement or disagreement. Perception is a power or quality of the mind. To possess this power exclusively, is to restrain all men from exercising their faculties on their own ideas. Perception is an accident, the mind is the substance. Perception is an accessory, the mind is the principal. It is absurd to claim a property in the accessory or accident, when the fubitance or principal is incapable of it. Therefore we cannot pretend to limit mankind in their faculties, till we have proved ourselves intitled to a special property in their minds.” Is it not surprizing that so subtle a Reasoner fhould not see the paralogism he is guilty of, in confounding an exclufive right to make a certain use of particular sentiments, and an exclufive right of forming those sentiments in the mind? Again, he says, “ if a fentiment, thought, or doc. trine is capable of property, it is necessary that the proprietor should signify to all men bis intention of converting it to his own use.” Now it is not to the intellectual or private use of such sentiments, that a right is pretended; but to a corporeal and public use of them ; i. e. to the publishing for profit, or the vending written or printed copies of such sentiments. The Author also, in vending such copies, for a stipulated price, gives a sufficient indication, as the present Writer justly observes, of his intention to appropriate such publication io himself.
The Author of the Enquiry affects to think it a strange phenomenon, that an incorporeal right should partake of the nature and qualities of a corporeal property. For our parts, we must own, we do not see the great propriety of making use of this technical distinction in the present case; and still less that of the Enquirer’s reasoning on it. In settling the natural foundations of property, he talks as if the first of all natural rights were corporeal, and obtained by occupancy. two persons, in a state of nature, says he, should have been willing to pofsess themselves of the fame fruit or animal, the dispute must have been decided by the strength and courage of the parties. To prevent hatred, animosity, and bloodfhed, mankind tacitly agreed, that what could not be enjoyed by all, should become the property of the first-taker. This is the origin of property.”. Now, so far from thinking this the true origin of property, we conceive the first natural
right to be incorporeal. The first, and most indisputable, right of every man that comes into the world, is a right of existence. Self-preservation is Nature's first law; in luch a state, therefore, every man had an equal right to the means of subsistence, even before he knew in what those means consisted. He had a right to provide for himself, and his property in such provision commenced the moment he had made it. Each man having this right it became unjust in every other, either to deprive him of those means of fubfiftence which he had been at the trouble of providing, or to prevent his making such provision. In cases, therefore, where the means of subsistence were so far possessed in quality, or accumulated in quantity by fome, as to prevent others from making the equally neceffary provision for themselves, the possessors had evidently infringed the right, if they had not invaded the actual property, of the rest. It becaine requisite, therefore, that the first-taker should desist from making such ample provifion for himself. Mankind cannot be fupposed ever to have tacitly agreed to any thing inconsistent with their own subsistence and preservation. Every man who fits down at Nature's table, has a right to elbow-room.
Hence, also, we may see, that such a right of occupancy, as belongs to him who first takes poffeffion, and sets up his land-mark, is neither fo valid, nor lo well founded, as that of him who first beltows his labour on the cultivation of the soil. In a state of nature, the right of a first possessor is conditional, and his pofleflion usufructuary. A time might come when he, who had before a just claim to a certain portion of land, or the fruits of the earth, may lose that right by the increase of his species : but no time could ever happen, in a state of nature, when one man could deprive another of his right of existence, or lay a just claim to the produce of his ingenuity or industry. That natural, incorporeal right, therefore, which an Author has to his works, as the inventor of the scheme invented, or the maker of the thing made, is more indisputable than any corporeal right which may be claimed by occupancy to the things of nature.
But, supposing an Author's property in his copy to be no better founded than that arising from occupancy, in the Enquirer's sense of the word; yet, surely a Writer's having made a discovery of an intellectual spot, or cultivating one that has been hitherto barren and fruitless, is sufficient to give him a right to it, or at least to the produce of his labour !
As to the other part of the property which depends on the form and composition of the book, the Author of the Enquiry advances nothing better than that “it is an accident which never can be the subject of property, of which the substance is incapable.” This, however, is just such a logical quibble as we have above instanced; a mere playing with the words, substance and accident: It might as well be maintained, that the form and composition of the most laboured complicated machine, is no otherwise susceptible of property than on account of the worthless materials of which it may be composed. Nay, we see little difference between this and the well-known. absurdity which the same Writer instances and explodes. “ If Titius composes a poem, a history, or oration, on your paper, you are still the proprietor, and not Titius, for the writing is but accessory.”
The Author of the pamphlet before us, considers the Proprietor's right to a literary copy in another point of view, and thews, that it has all the qualities of property, and is easily governed by the known and established rules of law : but what he advances on this head, will be, with more propriety, taken notice of under our third division, Before we dismiss the first, however, we must go on to take notice of a distinction or two, which the Lawyers have admitted as essential to property.
The Author of a Letter to a Member of Parliament, on this subject, nad observed, that things susceptible of property must have these two effential conditions; that they be useful to mankind; and that they be capable of having their possesfion ałcertained. For without the first, adds he very judiciousiy, fociety will not be obliged to take the right under its protection; and without the second, it will never venture on the tiouble. Now, it is affirmed, a literary copy, has both these conditions. The Enquirer maintains the contrary. An Author's property in a book, he says, cannot be ascertained, because it such property exist at all, it exists in the sentiment anú dodrine contained in it, and not in the form and compofition. He obferves, that " whoever reflects on the number of excellent books that have been written on every subcet, and compares with them the productions of modern Authors, will find very few of the latter whose sentiments are new or original. Authors who seek redress for invasion of their property, must prove the originality of their sentiments.
Sie Review for Jul; lait, page 73.
This, as a fact, must be submitted to the discretion of a Jury. It may, perhaps, be difficult to determine, whether an Author would be more embarassed in proving his case, or the Jury in giving their verdict, especially if the subject of the composition be an abstract science. If an improvement is made on the discoveries of another, may a suit be instituted for a literary trespass ? Admitting, in favour of learning, that a reasonable improvement might intitle us to a property in the ideas of another, how shall the just degrees be ascertained ? By the law of England, the Judges can alone determine what is reasonable, and what unreasonable. Learned as they are, they must be unequal to such a task, which requires universal reading and knowlege. The Courts of Westninster would be filled with suits hitherto unheard of. Poet would commence his action against Poet, Historian against Historian, complaining of literary trespasses. Juries would be puzzled, what damage to give for the pilfering an anecdote, or purloining the fable of a play. What ftrange changes would necessarily ensue !---In order to ascertain the true measure of damages, it must first be discovered wherein the property lies.” Doubtless it must; and we cannot help thinking, that some of the advocates for literary property have made a blunder, in granting that " the doctrines contained in a book constitute its true and peculiar property.” For notwithstanding all the Enquirer has advanced about the substantiality of ideas, we cannot help thinking, such property conlists chiefly in the form and composition: at least, this being all that can be in any good degree ascertained, it is all the property capable of being legally secured. We may expose a Plagiary; but we are afraid, that even in such a court of literary judicature as the Enquirer would establish, it would be very difficult to profecute him as a thief. A book which is not effentially diftinguished by its form and composition, hath hardly any title to the name of a book, or literary copy, at all. 'It is esteemed a venial plagiarism, to rob a Dictionary ; so that in such works the proprietors poflefs in fact no exclufive right to the publication of any thing but the title-page.
It is very justly observed by the present Writer, that he who obtaineth the copy of a book, may appropriate the stock of ideas contained therein, and, by opposing such sentiments, may give birth to a new doctrine; or, says he, speaking in the person of an Author, “ he may coincide with my notions, and, by employing different illustrations, may place my doctrine in another point of view: and in either case he acquir