“PIRATE” PUBLISHINGTHE BATTLE ovER PERPETUAL CoPyRIGHT

IN EIGHTEENTH-CENTURy BRITAIN

“PIRATE” PUBLISHINGTHE BATTLE ovER PERPETUAL CoPyRIGHT

IN EIGHTEENTH-CENTURy BRITAIN

Yamada ShōjiTranslated by Lynne E. Riggs

International Research Center for Japanese StudiesKyoto

NICHIBUNKEN MoNoGRAPH SERIES No. 13

First English edition published in December 2012

By the International Research Center for Japanese Studies

3-2 Oeyama-cho, Goryo, Nishikyo-ku, Kyoto 610-1192, Japan

Tel. 075-335-2222　Fax. 075-335-2091

Website address: http://www.nichibun.ac.jp/

Layout by Shishikura Masashi

ISBN 978-4-901558-57-0 ISSN 1344-4972

“Pirate” Publishing: The Battle over Perpetual Copyright in Eighteenth-Century Britain by Yamada Shōji (translated by Lynne E. Riggs and published by the International Research Center for Japanese Studies) is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Unported License.

Originally published as “Kaizokuban” no shisō: Jūhasseiki Eikoku no eikyū kopīraito tōsō 「海賊版」の思想: 18世紀英国の永久コピーライト闘争 by Misuzu Shobō.© 2007 Yamada Shōji

Yamada Shōji is a professor at the International Research Center for Japanese Studies (Nichibunken). His specialties are the informatics and the history of cultural exchange. After acquiring a B.A. and a M. Med. Sci. at Tsukuba University, he earned a Ph.D. from Kyoto University. Yamada worked for four years at IBM-Japan, then took a position as research assistant at Tsukuba College of Technology. He was appointed as an associate professor at Nichibunken in 1996. Yamada is the author of fourteen books, the most recent of which are Nihon no chosakuken wa naze konna ni kibishii no ka (Why Japanese Copyright Is So Severe: Jinbun Shoin, 2011); Komonzu to bunka: Bunka wa dare no mono ka (Commons and Culture: Who Owns Culture?: Tōkyōdō Shuppan, 2010); Shots in the Dark: Japan, Zen, and the West (The University of Chicago Press and Nichibunken, 2009).

Lynne E. Riggs is a professional translator and editor based in Tokyo. With Takechi Manabu, she translates mainly nonfiction works through their company, the Center for Intercultural Communication. She served as managing editor of Monumenta Nipponica 1997 to 2009 and coordinating editor of the Society for Writers, Editors, and Translators SWET Newsletter from 2004 to 2012. She has taught Japanese-to-English translation at International Christian University since 2000.

© 2012 by the International Research Center for Japanese Studies

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CoNTENTS

Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Chapter 1 Monopoly and “Piracy” of Books . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Chapter 2 Rivals for the Treasures of Copyright . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Chapter 3 Nineteen Days in Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51

Chapter 4 Scotland’s Network of “Diabolical Knowledge” . . . . . . . . . . . . . . . . . . . 89

Chapter 5 The Donaldsons’ Legacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119

Epilogue. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129

References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133

Appendices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141

Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149

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This book was first published in Japanese under the title “Kaizokuban” no shisō: Jūhasseiki Eikoku no eikyū kopīraito tōsō (Misuzu Shobō, 2007). The English edition is its translation, incorporating original text from the works cited as well as some revisions to reflect sources newly obtained after publication of the Japanese edition and correction of some errors.

The book treats the courtroom battles over copyright in eighteenth-century Britain from the viewpoint of the law, but also elucidates the process by which the practice of limited copyright became established by taking into account the social, cultural, and literary history of the times and looking at the interpersonal relations among lawyers and other personalities involved. The reader may well wonder why a book like this, written by a Japanese author on the eastern edge of Asia and three centuries later, is needed?

I became intrigued by the subject of copyright after listening to my son, in fourth grade at the time, tell about what happened to him at school. Children from the fourth grade up in Japan are taught about copyright to the effect as follows: “Writings or pictures/images created by others may not be freely copied or imitated. The content of published CDs may not be copied without permission. All works are under what is known as ‘copyright,’ so it is wrong to imitate or copy them without obtaining permis-sion from their creators.”

So the children in my son’s class took the instructions to heart, but one day, he told me, a student in a creative arts class was stuck for an idea to fulfill the assignment on a class project and appealed to the teacher for help. As is often the case, the teacher advised: “Why don’t you have a look at what your classmates are doing, and see if you can get an idea from them?” So the student went to look at the projects of his classmates who are good at creative arts, only to be told: “You know, if you copy what I’m doing, you’ll be infringing on my copyright! ”

That was not long after Prime Minister Koizumi Jun’ichirō proposed in 2002 that Japan should strengthen the foundations of its knowledge resources in order to become an intellectual property-based nation (chizai rikkoku) like the United States. Since that time, elementary school students have regularly been taught about copyright in this vein, through a public education campaign orchestrated by the Ministry of Education, Culture, Sports, Science and Technology and the Agency for Cultural Affairs. This is an ideal educational policy, at least as far as the advocates of copyright are concerned, but what troubled me was how such rules could adversely affect the school curriculum.

Copyright is a very self-serving right, a right artificially created in order to protect

PREfACE

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the interests of specific people. But is this something that we should be teaching young children to boldly assert? Shouldn’t we be teaching children about the importance of reaching out a helping hand to classmates in need of support, the value of mutual influ-ence and cooperation, and how good creative work and good interpersonal relations can come about through helping and working with each other? This is the question that has concerned me in the past few years and that motivated me to write about “pirate” publishing, tracing it back to eighteenth-century England.

In terms of historical origins, Japanese copyright law derives from traditions of German civil law and is distinct from copyright as found in Anglo-American law. Still, both Anglo-American and Japanese copyright law basically set forth rights designed to support the “contents industry.”

Let me introduce some examples of what I believe would be considered illegal under copyright in Japan.

• Copying all the pages of a book borrowed from a library.• Copying selected pieces from various music CDs to make a private collection

CD for distribution to “a number of” people.• Making an original manga story using a favorite manga character [created by

another artist], and putting it on sale at the Comic Market. • Using an animation-film character or music from a mass-market CD on one’s

personal website.• Streaming a program or commercial recorded from television on the Internet.• Translating the text of a recently published novel or the dialogue of a recently

released film produced overseas and posting it on the Internet.

Can one say without qualification that all of these actions are bad? Are we sure? How long does the copyright to works apply? In Japan today, for works published

under an individual’s real name the period is fifty years from the death of the author; for those published by an organization, fifty years from date of publication; and for films, seventy years from their first release. These terms are quite long by comparison with patents, which are protected for only twenty years.

Author’s rights were not always protected for so long under Japanese copyright. Un-der the old copyright law of 1899, author’s rights were protected for thirty years following the death of the author and for photographs, for ten years after publication. Under the current law, which was enacted in 1971, protection for author’s rights was extended to fifty years. The term of protection for films and photographs was also extended, but for fifty years after release/publication, which was rather shorter than the period extending from the death of their “author.” Photographers’ organizations then called for the exten-sion of copyright for photographs, and in response, under the copyright law that was

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revised again in 1996, it was extended to fifty years after the death of the photographer. The copyright to films, too, was extended from fifty years to seventy years in 2004. Behind the demand for the extension was, of course, the interests of the film industry.

The extension of film copyright occurred in response to those wanting Japanese copyright laws to conform to “international standards.” The film industry was able to conveniently claim that, while United States law protects films for ninety-five years after their release, Japan was “behind the times” in setting the term as only fifty years. Supporting the movement were people who stood to lose if the term were set at fifty years and the copyrights to many works of Japan’s “golden age” of cinema began to expire, one after another.

The copyright to the classic film directed by Ozu Yasujirō (1903–1963), Tokyo Story (1953) expired in 2003 in Japan, but since the term of protection for films was extended in 2004, the copyrights to works like Kurosawa Akira’s (1910–1998) Seven Samurai (1954) and Honda Ishirō’s (1911–1993) Godzilla (1954) are now protected until 2024.

The strongest advocate of the extension of Japanese film copyright protection was the United States government, and the greatest beneficiaries of the extension were, it is known, the Hollywood film studios. For Disney films as well, the copyrights for classics like Cinderella (1950), Alice in Wonderland (1951), and Peter Pan (1953) had expired by 2003 under Japanese law, and if no change had been made, the same would soon be true for popular works like The Lady and the Tramp (1955), Sleeping Beauty (1959), and One Hundred and One Dalmatians (1961).

What kinds of things happen when copyright expires? First, there is no longer any restriction on reproduction of such works; anyone can copy and distribute them for their own profit. For the film companies, this is a problem because they are still profiting from the sale of such works. How about from the viewpoint of the consumer? From around 2000, we began to see copyright-expired movies becoming available on cheap DVDs on sale for about 500 yen. The older Disney movies are now being sold cheaply by non-Disney companies as works currently in the “public domain.” Thanks to these versions, many films people had had few chances to see became easily available. For industry as well, new markets are opening up for inexpensive DVDs of out-of-copyright movies. Since they are cheap, they are more easily accessible for young people. Once available in inexpensive DVD versions, Roman Holiday (1953) and Shane (1953) gained a new set of fans. Scenes from Roman Holiday turn up in commercials on Japanese television and more people learned about the admirable career of its leading lady, Audrey Hepburn.

In the United States, copyright protection has been extended over and over. Under the first American copyright law of 1790, protection was only for twenty-eight years from the date of registration. In 1831 it was extended to forty-two years and in 1909 to fifty-six years. Mickey Mouse first appeared in the 1928 animation Plane Crazy. Since the copyright law protected film for at most fifty-six years under that new law, the copyright

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to the Mickey Mouse film was to have expired in 1984. However, in 1976, the law was revised, making the copyright hold for individually authored works fifty years after the death of the author and works by corporate authors for seventy-five years after their public release. Now the copyright to the Mickey Mouse film would hold until 2003. In 1998, under the Copyright Term Extension Act (also called the “Sonny Bono Copyright Term Extension Act”), protection was even further extended for general works to seventy years after the death of the author and for corporate authors for ninety-five years after first public release. As a result, the copyright to Plane Crazy was extended to 2023. Since the protection of copyright has been extended whenever it looked as if the copyright to the first Mickey Mouse film might expire, America’s copyright law is called the “Mickey Mouse Protection Act.” Indeed, for the Walt Disney Company, copyright is a serious matter. It would not be at all surprising if rumors of considerable lobbying efforts by Disney in the U.S. Congress to seek revision of the act were true.

Once the copyright protection period has passed, of course, a work can be copied freely. There will always be people who will make use of such copies in their contribu-tions to culture. In Japan, the Aozora Bunko (“Open-air Library”) website makes avail-able classics of literature for which the copyright has expired. Forming a digital archive of Japanese literature, it is an important and valuable site. The English site “Project Gutenberg” is likewise well known. Using these sites, we now have a vast amount of literature at our fingertips, available to read free of charge. Services like this are ones that one would think should be supported by public funds, but both Aozora Bunko and Project Gutenberg are sustained by volunteers. Projects like this could only have gotten off the ground through the efforts of volunteers and the rule that copyright will eventually expire.

The value of out-of-copyright works notwithstanding, the voices on the side of copyright holders arguing for the extension of Japan’s copyright protection period are unbudging. The arguments advanced by the advocates of extension are as follows:

• The longer a work is held in high esteem, the stronger will be the motivation for creation of original works. The ideas and inspiration an author invests in a work deserve eternal protection.

• Fifty years after the death of an author, his spouse or children may be still living, and the expiration of the copyright taking away the revenue provided by the works could threaten their livelihood.

• The length of protection is shorter in Japan than in other advanced nations; Japan should bring itself into line with the international community.

The rebuttals of opponents of copyright extension, on the other hand, are as follows:

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• Will further extending the protection of copyright for more than fifty years after the death of the author really inspire the creation of original works? On the contrary, the extension of copyright will obstruct the broad distribution of a work.

• Fifty years after the death of an author, do members of the author’s/creator’s family really need the income from royalties?

• In international comparison, Japan’s copyright protection period is by no means short. Extension of copyright is not a general world trend, and by international law there is no need to extend it.

These are not the only views, but those favoring extension tend to appeal to the emotions based on a romantic notion of “author.” Being rather of the sentimental type, I tend to be moved by such ideas, and yet, when you consider it objectively, that is a very strange argument. The arguments of the advocates of extension say nothing about the people who hold the keys to the copyright business. The holder of the keys is the contents distribution industry.

Those who benefit most from the extension of copyright are not the authors but copyright holders and the companies that profit from the distribution of copyrighted works. The contents distribution industry simply exploits the idea of authorship to appeal to the emotions on the issue. Ironically, it is the authors whose work is being exploited, and nonetheless they are being used by the contents distribution industry to protect the industry’s profit-making structure. Incentive to do original work is more likely to come from increasing royalties than from extending copyright. The fact that none among the authors who are seeking copyright extension dare to assert this idea is proof that they have been reduced to mere defenders of the contents distribution industry.

The debate on extension of copyright was carried out quite openly and extensively in Japan between 2006 and 2009, involving rights holders, scholars, lawyers, government officials, and users of copyrighted material. The conclusion of an Agency for Cultural Affairs advisory commission was that more public discussion was needed before exten-sion of copyright should be acted upon. Until then, Japanese copyright law had been gradually strengthened through lobbying pretty much exactly as the rights-holders side wanted. The fact that the doubts about extension on the user side finally put a stop to that trend was epoch-making in the history of Japanese copyright. Naturally, attempts by rights holders aiming to secure extensions of the copyright protection period are bound to return, so it is difficult to know how the issue will be settled in the long run.

One of the reasons that interest in copyright arose and the question of copyright extension became a widespread topic of discussion was because such Japanese pop culture as manga and anime gained increasing popularity overseas. Those who became

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excited about the prospects for generating national wealth through Japanese manga and anime—not only in the industry but even in the prime minister’s official residence at one point—became concerned about having a firm grip on the rights involved, and that led to the emergence of measures of all sorts related to protection of so called intellectual property rights.

The immediate problem in international contents distribution is pirate publishing of Japan-made contents in Asia. Pirate editions of television dramas and anime programs and films circulate widely in Asia, apparently to the detriment of Japanese industry. Still, can it really be said that such pirate editions are as damaging as the government and industry say they are? What copyright tries to do is to prohibit copying in order to make the contents hard to obtain, using the rarity of the merchandise as the source of its value. However, in the age of the Internet, which has created revolutionary changes in content distribution, there must be other, quite different ways to generate value. My idea is that new sources of value will be found not by making content hard to obtain but by dispersing it very widely.

The case of Japanese manga and anime is a good one illustrating how broad dispersal achieved value. One can get a vivid image of just how many artists and supporters the dispersal of contents has generated by attending the eye-opening, massive event that is the “Comic Market” (Comiket) in Tokyo. Each of the biannually held Comiket events provides a venue for more than 30,000 sellers (circles) to sell self-published works, draw-ing more than half a million visitors over the three days it is held. There are probably few such heavily attended indoor events held anywhere the world. Most of the self-published works on sale at Comiket, moreover, are parodies of already published manga and anime, or adaptations of them. At Comiket, characters and images are dispersed to the point of virtual chaos. Some condemn the comic market as a corruption of public morals, but it nevertheless attracts many people, and the figure of half a million is evidence that it does generate new cultural value.

The process by which Japanese animation and manga spread to Europe and the United States, too, testifies to the way dispersion generates value. It is safe to say that the current popularity of Japanese-made anime in the West would not have happened if it had not been for the many copies made without permission by fans in each country, the illegal showings, and various other infringements of copyright.

Let us look at a specific example. The “pirate” editions of anime—what are known as “fan subbed” films—are often subtitled by fans conversant in the language of animated films, and, since they are done by people who love what they do, they are often of quite high quality in terms of translation. As soon as an animated work is aired on television in Japan, a video-recorded file is sent overseas, and fans set to work adding subtitles in their language. Often only one day passes before an anime is uploaded to a fan’s website, complete with these “fan subs.” Fan-subbed anime have been around since the spread

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of household video-recording devices in the 1980s. Such handmade versions were, of course, bold infringements of copyright, but it was through such countless acts of piracy that the popularity of Japanese anime in the West came about.

“Pirate” publishing, in fact, has been the driving force in spreading Japan’s pop culture overseas, not just in Asia, Europe, and the United States, but elsewhere, and represents an important distribution infrastructure in the world. But what makes “pi-rate publishing” piracy is copyright. When people and information cross borders, and the quantity grows, culture, too, seeps out, spilling over the borders of nations. The longer the term of rights protection is extended, the more likely it is to cause content to be “piratized.”

The impact of pirate publishing is three-fold: first, it creates a market; second, because prices are low it increases the ranks of younger fans; and third, it encourages original work among those fans. It is easy to criticize pirate publishing, but to simply dismiss it as illegal or unethical blinds us to the complex and fascinating dynamics of culture.

Clearly there are many people even today who want to secure their rights “in perpe-tuity.” The extension of copyright appears to be set upon a vector aimed at protection in perpetuity. The theme of this book is that there seems to be much to be learned from the history of the idea of perpetual copyright.

What my research for this book has confirmed for me is that the “expiration date” on what we know of as “copyright” was not something endowed by heaven or the gods, but was the prize that was won in an epochal struggle between “pirates” and the monopolists of culture they dared to challenge. We can no longer believe in the simple dichotomy of one side being good and the other side bad. Both sides were ultimately bent on the pursuit of profit, those on one side citing the rights of the author and those on the other appealing for the rights of the reader. I also want to present a view of history that shows how the confrontation between the two sides was influenced by the complexities of the interpersonal relations among members of the legal profession involved in the cases. To the scholar of law, for whom priority would no doubt be focused upon the detailed analysis of the logical structure of the trial proceedings, this approach may seem misguided. I am convinced, however, that the forces that move the currents of history cannot be found simply by tracing the arguments presented in the trials.

Many books have been published about copyright, but I do not think there are any others, including those in English, that portray Alexander Donaldson and his “pirate” publishing business in Edinburgh and discuss the complexities of the interpersonal rela-tionships among the people around him in a broad social and historical context. Lacking much understanding of why there are limitations on the term of copyright and what led to the establishment of such limitations, it is easy for the arguments in favor of copyright extension, defending the prerogatives only of rights holders to hold sway. The history

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of copyright in Japan has been little more than the successive adoption of systems from overseas. The uncritical acceptance of international rules and practices may be attributed to the nature of Japanese culture, but part of the reason I wanted to write this book was because I cannot help thinking that both practitioners and researchers have failed to consider sufficiently what is really at the root of the debate.

* * *

This English edition has come about over several years, and I would like to explain a few points of consideration in its making. I first wrote, rather briefly, about Donaldson in my 2002 book Nihon bunka no mohō to sōzō [Imitation and Creation in Japanese Culture] (Kadokawa Shoten). I was aware that the Edinburgh bookseller was a key figure in considering the matter of copyright, but at the time I had not been able to thoroughly peruse the documents of his case, and I wanted to write something focused on him after I had done adequate research. Soon after publishing Nihon bunka no mohō to sōzō I was given the opportunity to spend nine months doing research in England at Cambridge University. The Japanese edition of “Pirate” Publishing took shape based on the sources I read in the library at Cambridge.

The work of reading documents written in eighteenth-century English, especially the complex language of the legal profession at that time was quite tortuous for me. I am, moreover, not a specialist in the history of Britain. Indeed, in the process of translating this book into English, we discovered a number of slight errors in the Japanese edition, which have been corrected here. I have also referred to a few works that I had not been aware of at the time of writing the Japanese edition. Among them, perhaps the most important is Ronan Deazley’s On the Origin of the Right to Copy: Charting the Move-ment of Copyright Law in Eighteenth-Century Britain (2004). I found out about Deazley’s book while I was re-checking recent publications to prepare the English translation. His discussion coincidentally overlapped with mine.

Apparently when writing about Britain’s parliament in the eighteenth century, it is usual to frame the discussion in terms of confrontation between the Tories and the Whigs. I have not attempted to follow that line of argument. From what I could see, neither of the parties was monolithic, and if I tried to introduce the matter of political parties, my discussion would become even more complex, making it difficult to give readers a clear bird’s-eye view of the subject.

In writing, I tried to follow the primary documents I had read as closely as possible, but of course I have also relied heavily on previous research. Indeed, I probably would not have developed my interest in this subject if it had not been for such previous studies. I was particularly stimulated by reading Shirata Hideaki’s Kopīraito no shiteki tenkai [The

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Historical Development of Copyright] (Shinzansha, 1998); probably there are few stud-ies tracing the history of Anglo-American copyright as meticulously as Shirata’s anywhere in the world.

My own book is written for a general readership, so while striving to observe rig-orous scholarly practice throughout, I have omitted major segments of the arguments presented in the Donaldson v. Becket trial. If I had included it all, the book would have been several times its current length and the story would have become so detailed that readers would have lost interest before getting to the end. I refer readers interested in the finer points to Deazley’s work and the other titles listed in the bibliography.

My research for this book greatly benefited from the assistance of the librarians at the International Research Center for Japanese Studies (Nichibunken) where I am employed, who kindly helped me obtain numerous resources. Nichibunken selected this translation project as one volume of the Nichibunken Monograph Series, edited by Patricia Fister, and provided the funding. It was translated by Lynne E. Riggs of the Center for Inter-cultural Communication. I also benefited greatly from the contents of the 1911 edition of the Encyclopedia Britannica, which has many entries with detailed information about historical figures not famous enough to have been retained in more recent editions. The added bonus of the 1911 edition is that, thanks to its copyright having expired, it is available via the Wikipedia (English) website, where I could access it even from home. This has well confirmed for me the benefits of expired copyright. I am glad that this book will also be published in digital format under a Creative Commons License. Those who wish to access this book online may find it using an Internet search engine.

I would like to thank Okaya Junko, Ogawa Naoko, Iwai Shigeki, Tsuneda Ritsuko, Okada Aya, Wu Yongmei, and Chavelin Svetanant. The pleasant unpretentious conversa-tion of these people has been a great solace and encouragement to me in my studies. I dedicate this book to my family, my wife Kazue and my boys Nariaki and Akiharu. Kazue in particular provided candid comments on the dull and dry style of my drafts, offering valuable hints for improvement. If the reader has been able to maintain an interest to the end of this book, it is surely thanks to her intercession. I am not the type to talk much about my work to my family. I am content if they will someday read this and learn what it was that I was toiling over with such anguish in the Cambridge Library.

Yamada Shōji September 2012

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Of life impatient, into madness swells;Or in dead silence wastes the weeping hours.These, and a thousand mixed emotions more,From ever-changing views of good and illFormed infinitely various, vex the mindWith endless storm; whence, deeply rankling, growsThe partial thought, a listless unconcern,Cold, and averting from our neighbor’s good;Then dark disgust, and hatred, winding wiles,Coward deceit, and ruffian violence:At last, extinct each social feeling, fellAnd joyless inhumanity pervadesAnd petrifies the heart. (from James Thomson’s “Spring” in The Seasons)

Copyright is not perpetual—that was the historic decision handed down in the case of Donaldson v. Becket on 22 February 1774 in the House of Lords in what is today the Westminster Palace in London. Massive wooden beams soared over the ladies and gentlemen wearing colorful hats and fine clothing in the vast medieval hall. The galleries were filled with prominent authors and cultural figures. Tension and anticipation hung in the air. On one side was Alexander Donaldson (?–1794) and his son James Donaldson (1751–1830) of Edinburgh—the so-called pirate publishers. On the other was Thomas Becket (d.u.) and fourteen other London booksellers determined to protect the monopo-lies they believed they held on the books they sold.

The case focused on the copyright of The Seasons, a book by Scotland-born poet James Thomson (1700–1748). Donaldson asserted that The Seasons was “out of copyright,” and that therefore anyone was free to publish it. Becket and his side declared that they possessed the copyright “in perpetuity.”

Eighteenth-century England had the world’s first copyright law, enacted in 1710 and known officially as “An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of Such Copies, During the Times Therein

INTRodUCTIoN

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IntroductIon

Mentioned.” Adopted during the reign of Queen Anne (1665–1714; r. 1702–1714), it was more commonly known as the “Statute of Anne.”

The Donaldson publishing house had built up a fair business by printing popularly read books in Edinburgh, where costs were low, and selling them cheaply in London. The books they printed were those for which the period of protection of copyright stipulated in the Statute of Anne had expired. Some of these books, however, were titles that printers and booksellers of London believed were their exclusive right to sell. The London printers and booksellers had long kept the prices of books high through their membership in the venerable guild called the Stationers’ Company and by respecting each others’ “copyrights.” They denounced Donaldson’s moderately priced books as “pirate editions.”

The Donaldson v. Becket case established the rule that copyright is not perpetual but of limited duration. As this rule is now practiced throughout the world, the case is significant to our concerns about copyright and fair use today. In 1774, the House of Lords decided in favor of the “pirate publishers”; it declared that books for which the copyright had expired could be freely copied/printed by others. The right of anyone to print and sell such books, without concern for the rights of the original printer or publisher of the book, had been recognized. The House of Lords was the highest court of Great Britain until 2009. By rejecting “perpetual copyright,” did the judiciary recognize the unjust act of “piracy”?

So what, we might ask, is “piracy” in publishing? In the true sense of the term an “act of piracy” would be the publication, without permission by someone other than the publisher holding the copyright, of a work that was protected by law. Rights holders, however, have often been inclined to cast the stigma of “pirate” over anyone who threatens their vested interests. They may not seriously consider whether the other has truly committed an illegal act or not. The claim of “piracy” has often been used as a political slogan to protect vested interests.

The London booksellers argued that books represented the efforts of high-minded authors, and recognition of such authors’ perpetual publishing rights was equivalent to protection of their human rights. The Donaldsons, for their part, declared that to monopolize the fruits of an author’s god-given talent is, on the contrary, a violation of his/her human rights. The London booksellers’ assertions, of course, had their own artful logic. Even today there are many who would say that copyright protection is protection of human rights. Almost two hundred forty years after the Donaldson v. Becket case, people still seek to defend their own interests by citing the rights of the author. But the question of whether any sort of perpetual monopoly on the publishing of books is really for the betterment of society is one that should be addressed.

The Donaldsons’ rebuttal hit on some very important points. It observed that culture is born anew through the development of the culture of the past. To claim that someone

3

holds exclusive possession of works that have spread and become thoroughly familiar in society over many years is unnatural. Works that have circulated over a certain number of years should be free for anyone to access—like the air we breathe. If there is no common and shared culture, how can creative endeavors freely develop and unfold?

Imagine that in the case of Donaldson v. Becket, the London booksellers had won the day and copyright had been pronounced “perpetual.” How would our culture today be different? Likely the contents of only a few books that could be sold profitably would circulate and their prices would probably be quite high. Works for which the copyright owner was unknown or older works for which sales were not promising would probably be neglected and not again see the light of day. Collections of art, because of the high costs of handling rights, would doubtless cost several times what they do today. There would be no performances of classical drama. Countries where there is no tradition of citizen support for the arts, as in Japan, would not be able to sustain orchestras specializing in classical music. There would be no cheaply available DVDs of the old masterpieces of film. And there would be no ventures, like “Project Gutenberg,” that are making available online the classics of literature in digital files.

The decision made by the English House of Lords in the eighteenth century carries great significance. It denied perpetual monopoly over works and recognized the rule—so distasteful to those concerned with their vested interests—that after a certain number of years had passed following the death of an author, anyone could copy his or her works and sell them.

Was the decision not to recognize perpetual copyright damaging to the human rights of authors? It is my belief that the decision worked, quite to the contrary, to their benefit. The linkage of the term of publishing rights to the life of the author has the effect of stressing the identification of the author with the work. The rule that copyright would eventually expire helped to defend the vital link between the life and rights of the author and his/her work, and it was the role of publishing that had been castigated as “piracy” that ironically led to the adoption of that rule.

Why did Donaldson have to defend his case in court? What made this bookseller based in Scotland—then a place quite remote from London—decide he had to take a stand? What was going on in publishing in eighteenth-century Scotland? What can we today learn from the Donaldson v. Becket case? Research about what lay behind the scenes of the struggle over “perpetual copyright” reveals a complex and intertwined human drama. Through the events leading up to the case, we see the conflicts arising from the merging of the kingdoms of England and Scotland, the raw realities of the exploitation of culture, the struggles between early versus late starters in the publishing industry, rivalries for influence among members of the nobility, and the pride and envy that reigned among lawyers.

Today the idea that copyright eventually expires—that works of literature and the

4

IntroductIon

arts can become the common property of all—is gradually being eroded. Rights holders have acted repeatedly to secure extensions of the term of copyright. Moves to strengthen intellectual property rights as a means of invigorating industry have gotten underway largely without criticism. How should we understand such realities? This book explores the keys to answering this question.

5

The Edinburgh bookseller Alexander Donaldson operated a bookshop in London from around 1763 through 1788, in the first ten years with his brother John (1730?–1780?)as partner and later on, by himself. In the Dictionary of the Printers and Booksellers Who Were at Work in England, Scotland and Ireland from 1726 to 1775 (hereafter, Booksellers Dictionary) his name was associated with “cheap reprints of books which were in his opinion out of copyright, disregarding the courtesy copyright observed between members of the trade.” His prices, he boasted, were 30 to 50 percent less than the longer-established London booksellers.1

Today the book industry displays considerable division of labor, with production, printing, distribution, and retail sales taken care of by separate enterprises. In the eighteenth century, “booksellers” did everything, from working with authors in the planning of books, to their typesetting and printing, as well as their distribution and sales. Booksellers were, therefore, much more than the bookshops of today; they were the general producers of publishing culture.

There is no record of Alexander Donaldson’s childhood. His father James (1694?–1754) was a linen manufacturer who the record says became a citizen of Edinburgh on 25 March 1724 and who served as treasurer for the city 1726–1727. That is about all that is known about James, the elder. Alexander became a citizen of Edinburgh in 1750, the year he became a bookseller. He married a woman named Anna Marshal (?–1792) in 1751, with whom he had three sons. The younger two sons, Marshal and Andrew, both died of smallpox at age four.2 His eldest son, who was named James after his grandfather, was born that same year. James later accompanied his father in the court battle over perpetual copyright and succeeded to the business after his father’s retirement.

The Donaldson bookshop in Edinburgh stood on the south side of the high street linking Edinburgh Castle and the Palace of Holyroodhouse. Nearby was the St. Giles’ Cathedral, which was the headquarters of the Scotland Presbyterian church. The Donaldson printing workshop was located in a place called West Bow, down the hill to the south of Edinburgh Castle. Alexander printed a newspaper called the Edinburgh Advertiser in West Bow, and that is also where his son James was born. Even today the

1 Booksellers Dictionary, pp. 77–78.2 Skinner 1928, pp. 3–8.

Chapter 1

MoNoPoLy ANd “PIRACy” of BooKS

6

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area is called Donaldson’s Close after these enterprising residents. Further down the hill from where the printing workshop stood is the Grassmarket Square, where in those days there was an execution ground. The Donaldsons worked, therefore, not far from the screams of the condemned and the bustle of the marketplace. Known to this day as a place where ghosts and specters appear, West Bow was the home of infamous Thomas Weir (1599–1670). Weir was a former army officer convicted of witchcraft and other nefarious acts who was condemned to be strangled and burned at the stake. An officer who moved into the former Weir house in the 1770s is said to have been so frightened by phantoms of Weir riding Satan’s carriage that he moved out after one night.3 The place the Donaldsons called home and the center of their enterprise was this rather spooky corner of Edinburgh.

Virtually no record survives that might shed light on Alexander Donaldson’s char-acter or disposition. Based on the way he entered the legal fray against the London booksellers, he seems at least to have been a man of determination. He had a chivalrous side as well: he was unwilling to give in to the London booksellers, with their convenient interpretations of the law and their duplicity, boasting of defending the rights of authors while in actuality exploiting those rights for their own profit.

Donaldson appeared to be driven by the simple purpose of making useful books widely available at reasonable prices. Above all a businessman, he was serious about the court case precisely because there was profit to be had. His temperament reminds us of the well-known merchants of the Ōmi area (near Kyoto) famous in Japan’s mercantile history. The Ōmi merchants were guided by the principles of “good in three directions” (sanpō yoshi), meaning “good for the seller” by affording a fair profit, “good for the buyer” with products that make customers happy, and “good for the world” by business that contributes to culture and society. By making the books in Edinburgh, where they could be produced cheaply, Donaldson could increase the profit margin, which was “good for the seller.” The merits of his approach were further that books could be sold cheaply, which was “good for the buyer,” and that, by allowing knowledge to spread widely, it was “good for the world” as well.

In Edinburgh, Donaldson could sell books for which the London booksellers held the copyright with impunity. The laws of England and Scotland were separate and the “Statute of Anne,” which represented English copyright law, was not in effect in Scotland. The books that the Donaldsons sold in London were all those for which the periods of statutory protection had expired. They were not, in other words, breaking the law. Even at that time, Donaldson’s books could not accurately have been called “pirate editions.”

From 1751 to 1758, Donaldson had a tie-up with a well-known Edinburgh book-seller named Alexander Kincaid (1711–1777) and together they published mainly books

3 Buchan 2003, p. 344.

7

Monopoly and “piracy” of Books

of philosophy and medicine by Scottish authors. Donaldson is listed as the publisher for important works of philosopher David Hume (1711–1776) that came out between 1753 and 1784. In 1763 Donaldson opened a shop in London between Norfolk and Arundel Street in the bustling business district of the Strand. The shop and printing house in Edinburgh continued to operate even in the absence of the owner.

In London, while the business was at the Arundel Street address, Alexander re-lied on his brother John for help with printing. The record shows, however, that their partnership was suddenly dissolved on 24 June 1773. Alexander moved to 48 St. Paul’s Churchyard, and John did not accompany him. The breakup of the partnership took place the year before the Donaldson v. Becket case in the House of Lords. We read the cryptic account that, on 24th December that year “John advertises the fact that he never intended to remove, nor had he ‘any concern in any other shop.’”4 The real intention of this Christmas Eve advertisement is not known. But considering that Alexander chose to move to a location in the very midst of the London booksellers and boldly proceeded to sell books that had been branded with the term “pirate edition,” John, by declaring no “concern in any other shop,” was perhaps making clear that he had nothing to do with Alexander’s reckless challenge to the establishment. But there is practically no record about the brothers’ relationship and little more is known.

Donaldson’s CatalogsThe National Library of Scotland in Edinburgh preserves copies of the catalogs of Don-aldson’s Edinburgh shop. These copies for 1758, 1760, 1762, and 1765 are valuable records of the books sold in Edinburgh around the time Donaldson left for London. The catalog indicates that his shop sold some 1,500 titles. In the year just prior to the

4 Skinner 1928, pp. 3–4.

2500

2000

1500

1000

Num

ber

of B

ooks

duodecimooctavoquartofolio

500

1758 1760 1762 17650

Figure 1. Breakdown of books in Donaldson shop catalog by size. Compiled by the author.

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opening of the London shop, however, the number rose to more than 2,000 titles. That year (1762), the number of small-sized, cheap editions (octavos and duodecimo editions) was large, raising the total number of titles (Figure 1).

Figure 2 shows the proportion of books sold in Donaldson’s Edinburgh shop by the location of their first editions. This chart shows how the number of titles first printed in London increased between 1758 and 1762. Looking at the proportion of reprints of books first printed in London and Edinburgh, we can see that the bulk of Donaldson’s business was reprints of London first editions. The titles included under “Other,” I might note, were those first printed in Glasgow, Cambridge, Amsterdam, and Paris. The four catalogs were headed with the note: “The books are in good condition, all complete, many of them new; and being priced very low, will be sold only for ready money.” But there was no way that Donaldson could purchase books from the London booksellers, ship them to Edinburgh, and then sell them cheaply there. Presumably, the London first editions listed in Donaldson’s Edinburgh shop catalog were almost all “pirate editions.”

The crucial issue, however, is the titles of the books. Looking at the titles in the catalog related to this study, we come across such titles as John Milton’s (1608–1674) Paradise Lost (1667), works by John Locke (1632–1704) and David Hume, a collection of poetry by Allan Ramsay (1686?–1758), Samuel Johnson’s (1709–1784) Dictionary of the English Language (1755), and the newspaper, The Spectator. The 1762 catalog advertises 24 new books, among them the following:

Fingal, From the Gaulic of OssianThe Death of Abel, from the GermanA New Treatise of Agriculture

2500

2000

1500

1000

Num

ber

of B

ooks

Edinburgh rsteditions

Other

London rsteditions

500

1758 1760 1762 17650

Figure 2. Breakdown of books in Donaldson shop catalog by place of publication. Compiled by the auther.

9

Monopoly and “piracy” of Books

The Practical Husbandman, Being a Collection of Miscellaneous Papers on Husbandry, by Robert Maxwell of Arkland, EsqBuchanan’s History of Scotland, a New EditonLivy’s Roman History, from the Foundation of RomeD. Hume’s History of England, from Julius Caesar to Henry VIIDean Swift’s Whole Works, a New and Complete EditionRamsay’s Ever-green, Being a Collection of Scottish Poems, Wrote by the Ingenious before the Year 1600, with a Glossary, or Dictionary of Scots WordsDr. Whitby’s Paraphrase and Commentary on the New Testament, a New and Neat EditionDr. Doddridge’s Rise and Progress of Religion, a New EditionDr. Doddridge’s Sermons to Young PeopleGoguet’s Origin of Laws, Arts, and SciencesInstructions for a Young LadyThomson’s Seasons, a Neat EditionRamsay’s Tea-table Miscellany: a Collection of Choice Songs, Scots and EnglishM. D’Arnay’s Private Life of the Romans

A title like Instructions for a Young Lady is rather intriguing, but most are rather dry books dealing with classics or religion. Significantly, we find in the list Thomson’s The Seasons, the work regarding which the Donaldson v. Becket case was argued. Donaldson’s The Seasons edition may already be found in his 1760 catalog. As we shall see below, considering that the Millar v. Taylor case over the copyright to The Seasons was in full swing at that time, we can surmise that Donaldson had hatched his plan to challenge the booksellers of London long before the case came to court.

The 1765 catalog contents, with its advertisement below, attest to the fact that booksellers also sold such scientific equipment as globes and telescopes:

ALSO, at said SHOP of A. DONALDSON, May be had GLOBES, of Nine and Twelve Inches Diameter, made by Benjamin Martin, Author of the Dictionary of Arts and Sciences; with TELESCOPES made by the same Hand, from Seven Shillings to Five Guineas Price, and of all Sizes.

In Scotland during the Enlightenment, the humanities and sciences were not as clearly separated as they are today; booksellers sold various kinds of goods for people in search of knowledge, and these things give us a good idea of the role played by booksell-ers in those days. The Edinburgh shop also sold tickets to university lectures. University students were supposed to pay for classes on the first day, but they could also pay for separate lectures with tickets that could be procured at booksellers. University lecturers made their living by the number of students who gathered at their lectures and there

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were arrangements for the booksellers to gather this tuition and pass it on to the lectur-ers. These arrangements, too, give a sense of the diverse roles played by bookstores in eighteenth-century Edinburgh.

On 3 January 1764, not long after setting up shop in London, Donaldson launched the Edinburgh Advertiser newspaper. It was published semiweekly on Tuesdays and Fridays in London and Edinburgh. Until 31 December 1773, just before the hearing of the case against Becket began in the House of Lords, Alexander edited the newspaper himself. After that his son James took over, and it continued to come out until James retired in 1820.

Overland transport in the British Isles was quite good by the eighteenth century. As Adam Smith (1723–1790) wrote in 1776, “A broad-wheeled waggon, attended by two men, and drawn by eight horses, in about six weeks time, carries and brings back between London and Edinburgh near four ton weight of goods.”5 A network of turnpikes (toll roads) was built over fifty years starting in 1720 that lowered the travel time between London and Edinburgh from 256 hours in 1700 to 150 hours in 1750 and 60 hours in 1800.6 Heavy things like books were generally transported by ship. Two hundred tons of goods could be shipped by sea from the port of Leith near Edinburgh to London in about three weeks.7 In other words, books printed in Edinburgh could be put on sale in London shops within one month. Donaldson’s shop in London sold books printed in Edinburgh, most of them cheap reprints of books that had been first printed in London. These were what the London booksellers decried as “pirate editions.”

Now, let us consider this term “pirate edition” a little more carefully. Scotland had been united with England in 1707. There was one king, one parliament, and their for-eign affairs were handled together. The laws of England and Scotland, however, remained separate, and in Scotland at that time, there was no concept of copyright. Under the laws of Scotland it was not a crime to reprint books that had been published in London and then sell them in Scotland. The Edinburgh editions of London-made books were therefore not “pirate editions” per se. The London booksellers did not really make much of a fuss over these publications because Edinburgh was far away and the market there was in any case quite small compared to London.

When Donaldson and others began to bring cheaply made Edinburgh editions and sell them in London right under the noses of the London booksellers, however, the flap was considerable. The books were 30 to 50 percent lower in price. Among Donaldson’s reprints there were books that would have been quite literally pirate editions if sold in London. Noting that the London booksellers sued Donaldson only for the out-of-copyright title The Seasons, we may surmise that he was scrupulous not to stock reprints for which the copyright had yet to expire in his London shop.

5 Smith 2009 (1776), pp. 14–15.6 Porter 1991 (1982), p. 192.7 Smith 2009 (1776), p. 15.

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Monopoly and “piracy” of Books

Printing technology in Edinburgh was as good as that in London, and Donaldson was able to sell books for lower prices for two main reasons. One was that prices were lower in Edinburgh, keeping his printing costs down. The other was that the regulations imposed by the Stationers’ Company, the venerable guild of printers and booksellers in London, kept the price of books unnaturally high there. According to Donaldson, London book prices were two to three times higher than they should have been because of the Stationers’ Company grip on the industry. Donaldson’s own prices, meanwhile, were 30 to 50 percent lower than the usual London prices. What this means is that Donaldson was selling books for prices higher than what he himself thought they should be. He was clearly a shrewd businessman.

The Reputation of the Monopolist Publisher MillarTo understand what was under contention in the House of Lords in 1774, let us look at the background.8 The plaintiffs in the case were Alexander Donaldson and his son James and the defendants were fifteen London booksellers led by Thomas Becket. As explained in the introduction above, the case between Donaldson and Becket et al. was over the copyright to Scotland-born poet Thomson’s The Seasons. The volume was made up of previously published anthologies by Thomson, Winter (1726), Summer (1727), Spring (1728), and Autumn (1730), as well as the previously unpublished “Hymn to Nature.” A leading collection of English poetry in the eighteenth century, The Seasons is a work widely read and recognized even today. Thomson was born in the country town of Ednam near the Scotland-England border. He studied at the University of Edinburgh and, at the age of 25, went to London, where he worked as a tutor while writing poetry.

I would call your attention to the fact that Thomson was a Scotsman. The feeling of people in Scotland was no doubt that Thomson’s work was part of “our literature.” On 16 January 1729, Thomson sold the publishing rights to Spring and his play Sophonisba to Andrew Millar (1707–1768). Millar paid Thomson 137 pounds 10 shillings (1 pound = 20 shillings) for the rights.9 Thomas Becket worked for Millar. After Millar’s death, Becket obtained the rights to The Seasons by auction.

Millar was known for his publication of a number of major works of eighteenth-century literature and he is a very important figure in following the legal battles fought over perpetual copyright, so I would like to introduce him here in detail.10 Millar was a kingpin in the aforementioned Stationers’ Company that had long established control of the rights to copy books in England. Some researchers see Donaldson as having

8 Cases of the Appellants; Parliamentary History of England, vol. 17; English Reports, vol. 1, pp. 837–49. 9 The fact that this was a time when a young man of good family could live in London with a 200-pound

annual allowance from his parents gives us an idea of the value of 137 pounds. Picard 2001 (2000), p. 298.10 Booksellers Dictionary, pp. 171–73.

12

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realized that bookselling could be a fresh and profitable business and deliberately chal-lenged the monopolistic organization of the London booksellers.11 But when we probe a little deeper into Millar’s background, we cannot help but find such descriptions inadequate. For one thing, Millar also turns out to have been born in Scotland. This fact, which studies of publishing and copyright history thus far seem to have neglected to note, suggests that there is more to the eighteenth-century struggles over copyright than simply a clash between Edinburgh and London. It looks, rather, like a struggle between Scotsmen who got into the bookselling business in London at an early stage and their own countrymen, like Donaldson, who came along later in the game—the clash of those who had staked their claims early and newcomers aiming to get in on the action.

In his youth, Millar had been apprenticed to the bookseller James McEuen (d.u.) of Edinburgh. The compilers of the Booksellers Dictionary conjecture that Millar was acquainted with Thomson in Edinburgh. Thomson left the University of Edinburgh in 1725, and so his student days would just about coincide with the time Millar was a booksellers’ apprentice. In those days, Edinburgh was a compact city centered on the mile-long High Street stretching east and west between the castle and the Holyroodhouse Palace. It would not be surprising if the student and the bookstore clerk, seven years apart in age, had known each other.

Millar went to London at the age of 21 in 1728 and opened a shop on the Strand. The Strand at that time was a shopping district lined with shops selling goods in the latest fashions; and of course there were many bookstores. It was the year after opening the shop that Millar purchased the publishing rights to Spring and Sophonisba from his compatriot Thomson. It was that purchase that transformed Millar into one of the monopolistic booksellers. In the same 1729–1730 period when Thomson sold the rights to Spring to Millar, he also sold the copyright to Summer, Autumn, Winter, and “Hymn to Nature” to another London bookseller, John Millan (1704–1784), for 105 pounds. Later, on 16 June 1738, Millar purchased those copyrights from Millan. The price was the same 105 pounds that Millan had paid to Thomson. Millar then held the rights to the series of works and began to sell a volume including all of them entitled The Seasons.

One source for learning more about Millar is Boswell’s The Life of Samuel Johnson (1791). This biography by the Edinburgh-born lawyer and diarist James Boswell (1740–1795) portrays not only Johnson’s personality but a lively account of the society of his times. We know that from the time Boswell was in his twenties he was a regular customer at Donaldson’s Edinburgh bookstore.12 The shop was a kind of salon where young men could fully satisfy their intellectual appetites with cheaply priced “pirate editions.”

11 Rose 1993, p. 92.12 Skinner 1928, pp. 30–36; Rose 1993, p. 93.

13

Monopoly and “piracy” of Books

Millar was the one who undertook to publish the Johnson’s famous Dictionary of the English Language, which went on to become the standard dictionary of the English language for more than 100 years thereafter. Boswell’s biography incorporates various passages of what is essentially gossip, but providing various pieces of information about Millar. We learn, for example, how Johnson’s repeated delays sorely tried the bookseller’s patience, who had to constantly goad the lexicographer to hand over parts of his manu-script, the work for which he had been paid in advance, and that

It is remarkable that those with whom Johnson chiefly contracted for his literary labours were Scotchmen, Mr. Millar and Mr. Strahan. Millar, though himself no great judge of literature, had good sense enough to have for his friends very able men to give him their opinion and advice in the purchase of copy-right; the consequence of which was his acquiring a very large fortune, with great liberality. Johnson said of him, ‘I respect Millar, Sir; he has raised the price of literature.’13

This passage tells us a great deal about the relationship between authors and book-sellers in those days. Even before a book was completely written, the bookseller paid the author for it in installments. It also demonstrates the bookseller’s attitude of being “done with” an author once the manuscript is in hand. In other words, a bookseller appears to have viewed a piece of writing, once bought, as his own property, to do with as he wished, and no matter how much money the bookseller might make from that manuscript, there was apparently no promise of any further recompense going to the author.

The London booksellers invested generously in books they thought would sell, including dictionaries and encyclopedias. The copyright to Johnson’s Dictionary did not belong to its author, but to Millar and other booksellers, among them Thomas Longman (1699–1755), founder of the well-known Longman company. Johnson’s remark that Millar “has raised the price of literature” reflects the way Miller was involved in raising the price of books by monopolistic business practices. In fact, Millar made massive profit from the Dictionary. The profit accrued by Longman, too, established the basis of the company that is still a mainstay of the dictionary industry today. Johnson, meanwhile, was not adequately paid, as we can gather from the following passage:

In 1756 Johnson found that the great fame of his Dictionary had not set him above the necessity of ‘making provision for the day that was passing over him.’ … He had spent, during the progress of the work, the money for which he had contracted to write his Dictionary. We have seen that the reward of his labour was only fifteen hundred and seventy-five pounds; and when the expence [sic] of amanuenses and

13 Boswell 1998 (1791), pp. 205–206.

14

Chapter 1

paper, and other articles are deducted, his clear profit was very inconsiderable. I once said to him, ‘I am sorry, Sir, you did not get more for your Dictionary.’ His answer was, ‘I am sorry, too. But it was very well. The booksellers are generous, liberal-minded men.’ He, upon all occasions, did ample justice to their character in this respect. He considered them as the patrons of literature; and, indeed, although they have eventually been considerable gainers by his Dictionary, it is to them that we owe its having been undertaken and carried through at the risk of great expence, for they were not absolutely sure of being indemnified.14

What a generous soul was Johnson. If Millar had not assumed the burden of risk

should the book not sell, it might never have been published. So, even if his reward was not sufficient, he had the satisfaction of the work he had done. He is a classic example of the man of literature. So what was the value of “fifteen hundred and seventy-five pounds” at the time? We know, for example, that the annual salary of the First Com-missioner to the Admiralty was about 3,000 pounds, so the payment Johnson received for the manuscript was about half of the annual salary of a high-ranking official in the government.15 It might be fairly high for the annual income of an ordinary citizen then, but considering the several years he spent compiling the dictionary, he must have been somewhat dissatisfied.

Millar seems to have been fairly unscrupulous in his business dealings, and Johnson was not his only prey. One example is the story of The History of Great Britain.

Edinburgh booksellers not only made “pirate editions” of books sold in London but sought to sell the outstanding books of Scotland’s authors in London. For example, Gavin Hamilton (d.u.), his son-in-law apprentice John Balfour (?–1795), and Patric Neill (d.u.), three Scotsmen who had themselves published David Hume’s The History of Great Britain, sought to put it in the London market. They asked their fellow Scotsman Millar to sell it in 1754. Millar, however, made no effort to publicize or market the book, waiting to see whether Hamilton and his cohorts would give up in their venture. Volume one of The History sold barely 45 copies in the first year in London, and this setback put Hamilton’s and his cohorts’ business in the red. The following year they were forced to sell the copyright to The History of Great Britain to Millar and withdraw from the London market.16 Devastated by the lack of interest in his work, Hume considered changing his name and spending the rest of his life in France (only the outbreak of the Seven Years’ War, 1756–1763, made him change his mind).17

The Millar edition of The History of Great Britain, completed in 3 volumes in 1761,

14 Boswell 1998 (1791), pp. 216–17.15 Picard 2001 (2000), p. 298.16 Shirata 1998, pp. 173–74.17 Knight 1865, p. 220.

15

Monopoly and “piracy” of Books

however, sold extremely well. Hume did fine in the end, writing in later years, “the copy-money given me by the booksellers much exceeded anything formerly known in England. I was become not only independent but opulent.”18 Millar’s approach ended up very much to the profit of Hume as the author. Hamilton and other booksellers from Scotland, meanwhile, suffered many hardships as Millar deftly defended his territory against these latecomers from his native Scotland who might seek to carve out a share of the London book-market pie.

Even when authors tried to hang on to their rights to a work, the London booksellers had various methods for obtaining them. Bookseller James Lackington’s (1746–1815) memoirs observe as follows:

. . . in general where authors keep their own copy-right they do not succeed, and many books have been consigned to oblivion, through the inattention and mismanagement of publishers, as most of them are envious of the success of such works as do not turn to their own account; very many just complaints are made on this head, so that I am fully of opinion that for authors to succeed well they should sell their copy-rights, or be previously well acquainted with the characters of their publishers.19

Thus, it was apparently quite common for booksellers to conveniently neglect the titles for which authors would not hand over the copyright, waiting until the author became so discouraged about sales that he would sell the copyright; then, knowing the sales would “turn to their own account,” they would begin to actively market the book and rake in the resulting profits. This seems to have been a consistent pattern among the London booksellers.

The Eighteenth-Century English Judicial SystemNow we have some idea of the background of the Donaldsons and of Becket’s boss Mil-lar, who had bought the rights to The Seasons. Here, to better understand the Donaldson v. Becket case, let us consider the legal system of the time. The following provides a basic background for understanding the judicial system of eighteenth-century England.

Common law, an essential part of England’s judicial system, is uncodified rules. While not part of written or statute law, such rules are nevertheless binding. Laws that are fixed in the form of text are known as statute law. Common law existed from long before statute law came into being. Practices that “have always been decided that way”

18 Knight 1865, p. 220.19 Lackington 1762, p. 358.

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are common law, although no one knows when they were so decided in the beginning. Very similar to common law is “natural law.” This is universal law that governs hu-mankind, transcending time and national boundaries. Rights that are based on natural law are called natural rights—rights that human beings possess inherently by birth. The ideas of “natural law” and “natural right” were developed by English thinkers such as Thomas Hobbes (1588–1679) and John Locke and had become quite widely understood in England by the eighteenth century. The source of “human rights” is this principle of “natural right.” In France, Germany, and Japan, it is often argued that because a work of art or literature is an expression of the personality of the author, the protection of copyright is equivalent to the protection of human rights. This reflects the concept of natural rights. In the series of court disputes discussed in this book, one of the important points in debate was whether copyright could be interpreted as a “natural right.”

Disputes sometimes occur even though no one has broken the law. Settlement of the dispute by examining the assertions of both sides and weighing the principles of fairness and justice is called “equities.” Equities have the role of supplementing common law and statute law. In England, the Court of King’s Bench would weigh complaints in light of common law and make decisions. Common law cases were also handled by the Court of Common Pleas, which was responsible for hearing civil suits, and the Court of the Exchequer, which exercised judicial power regarding royal revenues.

The Court of Chancery, meanwhile, dealt with complaints from the viewpoint of equities. The head of the Court of Chancery was the lord chancellor, a most honorable post and the most eminent of all England’s lawyers. The lord chancellor, moreover, was the speaker of the House of Lords. In other words, the head of the judiciary also presided over the House of Lords, which was Britain’s highest court. In the mid-eighteenth cen-tury, examination of appeals and decisions on private cases of divorce, property, etc. were entrusted to the House of Lords. The business of the House of Lords was thus largely concerned with judicial affairs, and when it was in session the chief justice of the Court of King’s Bench and other judges were always present there and barristers were frequently summoned to appear.20 Another important post was attorney general. The attorney general was the adviser to the king and prime minister on matters of law, and he was assisted by the solicitor general. Those with the highest aspirations in the field of law sought to establish their credentials as barristers and win the post of solicitor general and then the post of attorney general; their next target was the post of chief justice either on the Court of the King’s Bench or the Court of Common Pleas. In the meantime they would be made members of the aristocracy and obtain a seat in the House of Lords, and within that body could maneuver to gain the post of lord chancellor.21

20 Matsusono 1999, pp. 85–86.21 Matsusono 1999, pp. 102–103.

17

Monopoly and “piracy” of Books

In the eighteenth century, the Court of King’s Bench, the Court of Common Pleas, and the Court of Chancery were convened in Westminster Hall, the edifice known today for the Tower of Big Ben and Parliament. Most of what is now Westminster Palace was built after a fire in 1834, but this hall is preserved exactly as it was in the middle ages. A print from 1745 shows three courtrooms of around 25 square feet enclosed by screens (Figure 3). The Court of Chancery met in the southwest corner (the right side at the far end), the Court of King’s Bench in the southeast corner (the left side at the far end) and the Court of Common Pleas in a narrow space along the west (right) wall. Along the side-walls were stalls selling books and other merchandise. On the floor of the hall are depicted lawyers handing over cash to witnesses whose statements they have procured. Intended perhaps as a satire on the customs of the times, it presents quite a surprisingly different image from the rigidly formal features of the courts we are familiar with today.

Figure 3. Westminster Hall in 1745. (Phillips 1964: 20)

18

Chapter 1

Both Sides Present Their CaseLet us consider the cases presented by both sides in Donaldson v. Becket, starting with Donaldson’s assertions (for the original wording of the case presented, see Appendix A: Donaldson’s Assertions).

Donaldson began by explaining how he and his company had compiled the “Poems, called The Seasons, and the said Hymn on the Succession of the Seasons, each Copy being bound up in a single Volume, and entitled, The Seasons, by James Thomson” and published it in Edinburgh. Complaints were then lodged, he alleges, by Becket and his cohorts, “who claimed to themselves the whole Profit arising from the Publication and Sale of the same.”

It is true, he admits, that he had published The Seasons, but argues that twenty-eight years have elapsed since the first publication, so that, under the Statute of Anne, the period during which any party can exercise monopoly on its copyright has passed. Can those who only purchased some 100–500 copies from the author fairly assert that they have the right to possession of the work? This is the question Donaldson asks the court to consider.

Donaldson then considers the tangible and intangible qualities of books—“the material Part, namely, the Paper, Print, and Binding, which is a Manufacture; and the immaterial Part, namely, the Doctrine contained in it, which is the Facture of the Mind”—and argues that books in their material aspect may be debated and dealt with under the law but that the immaterial aspect belongs to the author. As reasons for this, he presents five assertions for the consideration of the court, which may be explained in plain language as follows:

I. “The object” that Becket et al. claim to be theirs is too elusive to be defined, and yet it is called “property” or, more precisely, “literary property.” The word “property” has various meanings. Philosophically, the qualities inherent in a subject or thing are called proper-ties. In the ordinary, everyday sense, property is corporeal or incorporeal. Corporeal property is the possession of some substance, and is accompanied by the power to enjoy and dispose of it. The matter in contention, however, is not corporeal property.

Incorporeal property is of two kinds. The first is the “Right relating to some Substance,” such as the right to the profits of land, without having possession or title to that land. The second is the right to exercise some “Faculty” or do something in order to obtain profit. The word property is thus equivocal: it is sometimes used to mean the right relating to a substance and at other times the profit resulting from that right. Such use is equivalent to speaking of both “land” and of the “right to the land” as “property.”

If “the object” that Becket et al. claimed is incorporeal right, it is merely the right to do some particular thing for profit, namely “multiplying of Copies of Books.”

19

Monopoly and “piracy” of Books

To claim the sole right to multiply copies is to claim the sole right to exercise a natural faculty, which would obviously be a most extraordinary privilege. Becket et al. claim that this privilege and sole right are their “property” according to the tenets of common law. But such a privilege and sole right did not, and cannot exist, we submit, in common law.

II. Rights in common law must be founded on the principles of conscience and natural justice. Conscience and natural justice are not limited to England. Natural justice is the same in Athens or Rome, in France, Spain, or Italy. Books have been copied in all ages and have multiplied, but the exclusive privilege, or the sole right of anyone to multiply copies, was never dictated by natural justice in any age or country. Giving the sole right to distribute copies to one party cannot exist in “com-mon Right, which gives an equal Benefit to all.”

III. The attempt to monopolize the exercise of a natural faculty infringes human rights. A natural faculty is different from the performance of “an office.” In the work of “an office,” one does not encroach upon the domain of others but simply performs a task. But if that which should be free to all is to be confined to any one person or group of persons, then the natural liberty of the rest of society is constrained. Constraint on the liberty of many for the sake of one person was never established as justice based on conscience and reason.

IV. In common law, public utility is regarded as the mother of justice and equity. Diffusion of the products of the mind as widely as possible best serves the public utility, so common law could not possibly limit the production of copies. When common law emerged in England, literature stood at the same stage as that of ancient Greece and Rome, when copying could only be done by writing by hand. Every individual held the right to transcribe or copy out a book. There was no other way to propagate knowledge. So common law never placed any checks on the natural freedom to transcribe books.

V. Common law has been in use since time immemorial. If there was a time when the privilege and monopoly asserted by Becket et al. existed, it was not according to common law. The time no privilege or monopoly existed by common law extends from the beginning of our history down to the era of printing, and printing (which is only a more efficient method of copying) could not change the principle of right and wrong.22

22 Cases of the Appellants, pp. 4–6.

20

Chapter 1

The assertions presented by Becket et al., on the other hand, began by declaring how Donaldson had ignored the fact that they had purchased the copyright to Thom-son’s poem anthology and gone ahead in compiling the poems “called Spring, Summer, Autumn, and Winter, and the said Hymn on the Succession of the Seasons, in a Volume entitled, The Seasons, by James Thomson; Edinburgh, printed by A. Donaldson, 1768,” and printing, publishing, and selling several thousand copies to great profit, causing them (Becket et al.) “great Loss and Prejudice.”23

The complaint goes on to say that, although they tried to get Donaldson to stop sell-ing the anthology and hymns and to get him to pay them for the number of copies sold, Donaldson had not stopped the sales nor handed over any of the money they considered due, so on 21 January 1771, they had filed suit with a “Bill in Chancery,” recording their claims, demanding payment, and requesting an “Injunction of the Court [restraining him] from publishing the said Poems and Hymn,” etc.24

On 16 November 1772, the case was heard before the lord chancellor, who decreed that the injunction supporting the claims of Becket et al. should be upheld and that Donaldson should pay what was due to the booksellers. The court allowed that the case could be appealed, and Donaldson did petition the court for reconsideration, asking that the decision be reversed. Becket et al. in turn claimed that the 1772 decree of the lord chancellor was “just and equitable” and ought to be affirmed. Becket’s side presented the reasons their case should be supported.25

It is only reasonable and natural, said Becket, that authors should wish to claim the sole and exclusive rights to printing and publishing their own works. It is just and equitable that those who are devoted to the advancement of knowledge, and who communicate their ideas in written form intended for public consumption should be compensated. In order to maintain a suitable livelihood, authors, upon publishing their works, have the right to print copies of their own work. Considering the nature of printing, “there is an implied Agreement, on the Sale of each particular Copy, that the Purchaser shall not invade the beneficial Right of multiplying Copies intended to be reserved by the Author.”

Becket et al. went on to argue that since the “Introduction of the Art of Printing into England, this peculiar Species of Property has been known by the expressive Name of Copy-right” and copyrights have always been protected by means of sale, gifts, and inheritance.

Becket calls attention to the fact that the right to copy proclamations and other documents of a public nature is held by the king “on Account of his peculiar Interest . . . in all Publications and Acts of State flowing from himself, or Parliament,” showing

23 Cases of the Appellants, p. 15.24 Cases of the Appellants, p. 16.25 Cases of the Appellants, p. 17.

21

Monopoly and “piracy” of Books

how “an Interest or Property similar to that claimed by Authors, may subsist at Common Law,” etc.

The Statute of Anne, declare Becket et al., in no way infringes on the author’s interest in his works or right to them as property. Its purpose was to keep Literary Property safe from “Piracy and Invasion” by imposing penalties. Since the Statute of Anne, the Court of Chancery has granted many injunctions to restrain copyright invasion “notwithstanding the Expiration of the Term during which only the Statute gives a Protection by Penalties.”

Believing in the protections that have been provided to literary property independently of the Statute of Anne, great sums of money have been invested in the purchase of copies, so if such protection should be withdrawn, many families would lose their estates and come to ruin.26

There is no evidence that Donaldson and Becket directly confronted each other in the courtroom, but there remains a record of questions anticipated with the answers to be given that was prepared by the Donaldson side before the hearing.27 Naturally, this hypothetical debate is weighted in favor of the Donaldson side. If the two had argued according to this scenario, no doubt the exchange would have been something like this, here abridged from the original record:

Objection [Becket]. It is said on the Part of the Respondents, that the Name “Copy of a Book,” has been a Term for Ages, to signify the sole Right of printing, publishing, and selling, and that this Species of Property has existed in Usage as long as the Name.

Answer [Donaldson]. It is admitted on the Part of the Respondents, that there is no Bye-Law or Ordinance relative to Copies till after the Year 1640. The Usage, whatever it be, is therefore not immemorial.

Objection. From the Erection of the Stationers Company, Copies were entered as Property, and Pirating was punished.

Answer. The Common Law, according to this, begins with the Stationers Company.Objection. The Stationers Company was empowered to make Bye-Laws.Answer. They were; and those Bye-Laws might create a relative Right among

the Members of the Company. In 1681, a Bye-Law declares, that where a Book was entered to any Member, such Person, by the antient Usage of the Company, was reputed and taken to be the Proprietor. By antient Usage of the Realm had been more conductive to the Point. But it was not competent to the Stationers Company to make Laws for the rest of the Kingdom; and, if it had, it would not be Common Law.

Objection. The Decrees of a Star Chamber have been cited as strong Authorities in Support of the Bye-Laws and Customs of the Stationers Company.

26 Cases of the Appellants, pp. 15–18.27 Cases of the Appellants, pp. 7–14.

22

Chapter 1

Answer. The Star Chamber was a criminal Court, and had not constitutional Authority to determine civil Rights. The Court has been long since abolished, without Regret, and it is the Happiness of the Subject, that the Common Law has flowed through purer Channels.

Objection. It has been said, that in those Times Copies were protected by a much speedier and more effectual Remedy than Actions at Law, or Bills in Equity.

Answer. One successful Action at Law would have been a better Proof of the Right, than a thousand Instances of arbitrary Power.

Objection. The Licensing Act has been called in Aid by the Respondents, and they observe, that the printing of any Book without Consent of the Owner is forbid by that Act.

Answer. The Ownership was created be Patent, Order, Bye-Laws of the Stationers, &c. and if that Act recognized a Right so created, it was an Act of the Legislature; but the Act, with all the other Encroachment upon Liberty, has long since gone to Rest, to revive no more. The Statute of Queen Anne was not declaratory of the Common Law, but introductive of a new Law, to give learned Men a Property which they had not before.

Objection. It has been contended on the Part of Respondents, that the Act of Queen Anne is an accumulative Statute, declaring the Common Law, and giving additional Penalties.

Answer. If the Right was antecedent to the Act, How did the Legislature vest the Property in Authors?

If the Legislature had the faintest Idea of a pre-existing Property, why was the sole Right of reprinting Books, which had been previously published, restrained to twenty-one Years, and no more? A strange Way of encouraging Learning, by abridging ancient Rights!

If the Act of Queen Anne intended merely to give additional Penalties, by Way of new Fences to a common Law Right, Why give those Penalties for fourteen Years only? If the Property is perpetual, Why should not the Remedy be coextensive?

If the “Copy” be understood a perpetual Property, the Author who sold his Copy under the Idea of a Transfer for fourteen Years only, may be told by an artful Bookseller, that more was meant than meets the Ear, and that a Sale of his Copy imports a Sale for ever. The Consequence will be, that, instead of encouraging Learning, a Snare has been unwittingly spread for Men of Genius and Industry, and the Clause of the Statute, which gives a Reversion to the Author at the End of fourteen Years, if he live so long, will be eluded by the Craft, and, as Milton phrases it, by the Sophisms of Merchandize.

If the Book, at the End of fourteen Years, reverts to the Author, his Interest is served: If it does not, the Legislature, by such a Construction, has extended no Benefit to learned Men.

23

Monopoly and “piracy” of Books

The Notion of “a perpetual Privilege and Monopoly,” hath been within these few Years, hatched among the Booksellers; who now come with glossing Colours, and, under a Pretence of serving the Cause of Literature, but mean really and only to get the Fruits of Genius into their own Hands, for ever. The Consequences of this new Doctrine (were it established) would be fatal to the Interest of Letters, and the Fame of every valuable Author.

Books may be held up at too high a Price. Notes and Illustrations may be wanted, and generally are, in thirty or forty Years; not only the Manners, but even Science itself changes in the Progress of Time. Moral Philosophy, and Mathematics should keep pace with the Vicissitudes of the World. Useful Commentaries upon valuable Works cannot be made without the Licence of the Bookseller, who has purchased the Copy: His Avarice, his Tumidity, or his Want of Sense may tell even the original Author, that he shall not re-print his own Book with further Improvements. If the Author should happily be permitted to do it, it must be upon the Bookseller’s Terms; but more probably the Frugality of the Bookseller will grudge an additional Expence, and taking upon him to pronounce upon Wit, he may say, that he likes the Book as it is.

In the Case of a perpetual Privilege and Monopoly, the Bookseller becomes the Author’s Leave-giver: Many a Jaunt may be made that his new Insertions may be viewed, and at length he may sit down with the Melancholy and Vexation of leaving his Book worse than he could make it.

Should the Work, pursuant to the Statute of Queen Anne, revert to the Author in fourteen Years, he will become the Guardian of his own Fame; and, in Consequence, learned and industrious Men will be enabled to reap not only the Fame, but the Profits of their Labours, to the Honour and Advantage of themselves and their Families.

Objection. It has been colourably said, that for a perpetual Property Authors may raise in their Demand, and gain a much larger Sum for the Copy; or they may publish upon their own Account, and feel the Pulse of the Public before they dispose of the Copy.

Answer. Except one or two very modern Instances, a competent Price has not been given. If Booksellers have hitherto been dealing under an Idea of a perpetual Monopoly, they have not paid an adequate Compensation for it, and the same Phlegm will govern their future Transactions. It is a melancholy Consideration, that even a Writer or Mr. Thompson’s Merit does not appear to have received one Hundred Pounds for Poems of the Seasons.

A Period of fourteen Years is a sure Test of every Book. If, after that Time, it be worth reprinting, the Authors accuratest Thoughts may be interwoven, and the Fame and Profit will accrue to the Man of Labour and Invention.

24

Chapter 1

But if a perpetual Privilege and Monopoly are to interrupt his Hopes, the Purchasers of the Copy will be enriched.

While it is unfair to present such a “story” only for one side of the case, unfortunately the Becket side left no such scenario. Since it was Donaldson who ultimately won the day, it is quite likely that the line of reasoning the House of Lords accepted was something like the above.

Now, having read through the assertions of both sides, we may summarize the points at issue briefly as follows:

First, what is “literary property”? Becket claims that there are rights to literary prop-erty, while Donaldson says that such is not the case.

Second, is “copyright” determined by common law? According to the Becket side, copyright is a perpetual right based on common law that has existed since before the Statute of Anne came into being. The Donaldson side, meanwhile, argues that the notion of “copyright” began with the appearance of printing technology and was developed through the Statute of Anne, which established a period after which it expires.

Third, what is the source of copyright? According to the Becket side, the source of copyright is the first owner of the literary work, namely the author. When booksellers purchase the rights to that ownership from the authors, those rights are thereafter in their sole ownership. Donaldson counters that even if there is such a thing as “literary property,” how is it possible to determine that the bookseller has purchased it from the author? Donaldson asserts that it is an infringement on human rights to monopolize the fruits of the author’s talent.

Donaldson and Becket were not the only ones engaged in this battle over the ques-tion of perpetual copyright. Many booksellers and lawyers and judges were involved. The following chapter will look into the personalities connected with the case and how they were related.

25

Donaldson’s suit against the London booksellers took place against the backdrop of the spread of moveable-type printing across the British Isles and the subsequent develop-ment of the book publishing industry. Adding to the drama of the times was the increase in the literacy rate and the literary ferment of the Scotland Renaissance. The stage was set also by the chartering, in 1557, of the Stationers’ Company, which served both to control freedom of speech and resolve disputes among members of the book publishing industry, and in response to calls from the Company, promulgation of the Statute of Anne in 1710.28 In the 1730s, after the fourteen or twenty-eight-year term of protection provided for under the Statute of Anne came to an end, the Stationers’ Company was active in demanding further protections for their business, and this led eventually to the battle among booksellers over the question of “perpetual copyright.”

Up to that time, as Adam Smith later wrote in The Wealth of Nations, the main occupation of writers had been teaching or other ways of “communicating to other people the curious and useful knowledge” they had acquired.29 Major changes took place for their profession after the emergence of printing technology. Smith observed that “[b]efore the invention of the art of printing, a scholar and a beggar seem to have been terms very nearly synonymous. The different governors of the universities, before that time, appear to have often granted licenses to their scholars to beg.”30

Apparently it was thought that printing technology had to be controlled so that writers and scholars would not be reduced to beggars, and that meant restricting the copying of works by printing technology and preventing them from circulating too freely. Restriction of the flow of information and the commercialization of knowledge, meanwhile, qualitatively changed the work of writers engaged in making useful knowl-edge widely available to others. They began to provide information not just to anyone who might seek it, but only to those who would and could buy their books.

The first printing press was built at Westminster in 1476 by William Caxton (1422–1491), a translator from French. Printing technology was free and unrestricted for about fifty years until, in due course, it became technology made available by the king

28 Here I refer primarily to Ransom 1956; Patterson 1968; Rose 1993; Shirata 1998; and Deazley 2004 which provide detailed studies of the Statute of Anne.

29 Smith 2009 (1776), p. 100. 30 Smith 2009 (1776), p. 101.

Chapter 2

RIvALS foR THE TREASURES of CoPyRIGHT

26

Chapter 2

and certain others such as the governors of the universities, only to people privileged to use it.

The reason the ruling class restricted freedom of printing technology was quite simple. If people are to be controlled, the media through which information is circulated must be kept under restraint. Meanwhile, the need among those in the publishing in-dustry themselves for a means of suppressing the activities of “pirate” publishers brought them into a symbiotic relationship with the rulers of the country.

Associations of merchants or craftsmen in medieval Europe were called guilds. England had its guild of stationers even before printing technology arrived from the continent. At the time printing began in England, those who were doing the printing were not members of the stationers’ guild. Most of them were foreign artisans living in outlying areas.31

In 1533, during the reign of Henry VIII (1491–1547, r. 1509–1547), the “Act for Printers and Binders of Books” was issued and these printers were gathered together in London. As the printers were absorbed into the stationers’ guild, printers in other parts of the country were suppressed and gradually disappeared. At the time, however, England and Scotland were different countries, so the printers of Edinburgh were not controlled under this Act.

In 1557, during the reign of Mary I (1516–1558; r. 1553–1558), the stationers’ guild was incorporated as the Stationers’ Company by royal charter under which it was endowed with a monopoly on printing and the authority to police against “pirate” publishing.

Why was the guild accorded legal status and given strong powers during this period? The booksellers had ample economic motives for seeking such powers. Another factor was Mary I’s faith.32 Her father, Henry VIII, had rejected the Catholic faith and created the Church of England, motivated largely by his desire to remarry. Married at a young age to Catherine of Aragon (daughter of the king of Spain and mother of Mary I; 1485–1536), he had made up his mind to separate from her and wed Anne Boleyn (1507?–1536). The Catholic Church under which his marriage had taken place, however, prohibited divorce. So Henry, not one to allow such a rule to stand in his way, set about to separate the Church of England from the Roman Catholic Church, and to make England a Protestant nation. He was assisted in this endeavor, known as the English Reformation, by Thomas Cranmer (1489–1556; Archbishop of Canterbury), who also engineered Henry VIII’s legal separation from Catherine.

After Henry VIII’s death, the throne fell to his first daughter, Mary I. A fervent Catholic, Mary burned with resentment over the way her father had abandoned her mother, and she is remembered as “Bloody Mary” for her vengeful imprisonment and

31 Feather 2006, pp. 17–18.32 Shirata 1998, pp. 229–35.

27

Rivals foR the tReasuRes of CopyRight

execution of countless religious reformers. Cranmer was among those she had arrested and burned at the stake. By granting a charter to the Stationers’ Company Mary I ac-corded it tremendous power. Control of publishing was just part of her campaign to suppress Protestantism.

And thus, fueled by economic motives and Mary I’s support, the major booksellers of London came to monopolize publishing. Medium and small booksellers continued to challenge the monopoly with their own editions. The Stationers’ Company then sought even greater powers against what they called pirate editions, and the government, which wanted to control publishing, responded in 1586 with a Star Chamber decree stating that printing presses could not be set up without reporting to the authorities. Printing shops could only be established in London and in the two university towns of Oxford and Cambridge. The prerogatives of the Stationers’ Company increased, allowing it to confiscate printing presses and printed books it deemed illegal. It also limited the number of apprentices who were taught the printing trade in order to keep the number of printers under control.

This rigid control by the Stationers’ Company continued into the early seventeenth century. A second Star Chamber decree was issued in 1637, during the tyrannical rule of Charles I (1600–1649; r. 1625–1649). Its purpose was to control freedom of speech, prohibiting the printing, sale, or import of books opposing the king’s rule. Concerning the monopoly on printing, the decree included a prohibition against the printing or import of books whose titles were registered with the Stationers’ Company.

Following the English Civil War (1642–1648) in which the Parliamentarians led by the Cavaliers and Oliver Cromwell (1599–1658) fought the forces of Charles I, the king was tried for high treason and executed. Control of publishing had been based on royal prerogative, so for a time, the powers of the Stationers’ Company were without a legal basis. Cromwell, himself, however, was quick to issue a law to control publishing, and at this time even accorded the Company the power of search and seizure. After Cromwell died, Charles II (1630–1685; r. 1660–1685) restored the authority of the throne (1660).

The next landmark law for the publishing industry, issued in 1662, was the Licens-ing Act. In large part an extension of the 1637 Star Chamber decree, this law provided for the appointment of a new post of licenser to supervise publishing, thereby somewhat weakening the censorship powers of the Stationers’ Company. The law did separate censorship and the book publishing monopoly but continued to support the Stationers’ Company interests.

Becket and the other London booksellers, in their argument claiming the prerogative to “perpetual copyright,” invoked John Locke’s theory of property as a natural right. Locke himself did not think his theory of natural right applied to their monopoly and was deeply opposed to the Licensing Act, as we can see in a letter dated 2 January 1692[–3] he addressed to House of Lords member Edward Clarke (1649[51]–1710):

28

Chapter 2

I wish you would have some care of book-buyers as well as all of booksellers and the company of stationers, who having got a patent for all or most of the ancient Latin authors (by what right or pretence I know not) claim the text to be theirs, and so will not suffer fairer or more correct editions than any they print here, or with new comments to be imported without compounding with them, whereby these most useful books are excessively dear to scholars, and a monopoly is put into the hands of ignorant and lazy stationers.33

Locke expresses his ire at the grip the booksellers have placed on the content of books. People have a natural right to property, he declared. Citing his ideas for their own case, the booksellers asserted their “natural right” to the literary property they had purchased from the authors. Apparently, however, Locke himself did not see author’s rights as a “natural right,” but as property rights provided for by law,34 so he must have been dismayed to see his own theory being used to validate something that he opposed. Locke appealed to Clarke over and over, and no doubt partly as a result of their efforts, in 1695, the Licensing Act went out of force, formally separating the book monopoly from censorship under the law.

As the seventeenth century drew to a close, the powers the Stationers’ Company had been accorded to monopolize the printing of books and as agent of government censorship were taken away, forcing it to find a different cause with which to justify its monopoly. That cause, the Company now asserted, was “encouragement of learning.” To encourage learning, it held, authors must be allowed to profit from books. Rampant book piracy would undermine the share due those with legal rights to profit from books, and authors’ incentive to write would be lost. Therefore, their argument now went, the property rights to content of books had to be defended. This reasoning, which continues to be used today, first emerged in the late seventeenth century.

As recorded in Boswell’s Life of Johnson, however, “encouragement of learning” was a pretext, indeed merely a device, to preserve the monopoly of the Stationers’ Company.35 In practice, the bookseller would purchase from the author the manuscript together with the rights to its use, and then, no matter how the bookseller might profit from the sale of the work, there was no guarantee what share of the profits, if any, would return to the author.

Nevertheless, the Stationers’ Company petitioned Parliament to create a law on “literary property.” Its efforts resulted in the passage in 1710 of what has come to be known as the world’s first law on copyright, the Statute of Anne.

33 Rand 1975 (1927), p. 366.34 Shirata 1998, p. 123.35 Boswell 1998 (1791), pp. 205–206.

29

Rivals foR the tReasuRes of CopyRight

The Content of the “Statute of Anne”Now let us look at the main items of interest among the eleven articles of the law.36

Article 1 The author of a book as well as the “Assigns” the author has permitted to publish the book hold “sole Liberty of Printing and Reprinting” the book. That right to copy was to be protected for twenty-one years from 10 April 1710 for books already published and fourteen years from the time of publication for books henceforth to be published.Article 2Those who sought protection under the act had to register a book prior to its publication with the Stationers’ Company.Article 5Nine copies of all books published from the time this law came into force were to be donated to designated libraries.Article 6Any party to “incur the Penalties contained in this Act” in Scotland, their justice would be examined in Scotland’s Court of Session.Article 9“Provided, That nothing in this Act contained shall extend, or be construed to extend, either to Prejudice or Confirm any Right that the said Universities, or any of them, or any Person or Persons have, or claim to have, to the Printing or Re-printing any Book or Copy already Printed, or hereafter to be Printed.”37 Article 11If, upon the expiration of the fourteen-year period of protection of the right to print copies, an author was still living, the sole printing rights would return to the author, and another term of fourteen years (in total twenty-eight years).

In addition to the maximum limit of twenty-eight years for protection of copyright, a number of other stipulations were notable in this law. Article 2 required that books be registered with the Stationers’ Company in order for their copyright to be protected. In other words, only those who were associated with the Stationers’ Company could expect protection for their books.

In most cases, the publishing rights to a book were given over to the bookseller at the time of publication. As determined in Article 11, after fourteen years had passed, however, those rights would return to the author. At that time, it was up to the author whether to change publishers or revise or update the book. Also, thanks to Article 5,

36 For the entire Statute of Anne, see Appendix B.37 Original text quoted from Appendix B.

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copies of all books published from the eighteenth century onward are preserved in the British Library and in Britain’s old university libraries, a tremendous boon to scholars of later ages.

Three years before the Statute of Anne was enacted, in 1707, England and Scotland had become one country, but their legal systems had yet to be unified. Article 6 reflects the situation that prevailed for a few years after the union of the two countries. Scotland, however, did not have the history of struggle over publishing that occurred in England and there was nothing resembling copyright. In other words, a dispute over copyright might be brought into Scotland, but there was no tradition of debate on the subject. As we shall see later, Donaldson made adroit use of this article to swing things to his advantage in his suit against the London booksellers.

Article 9 is rather dangerously worded. It appears to have been designed to protect certain vested interests, but depending on how it was interpreted, could have taken the teeth out of the statute altogether. In fact, interpretation of this passage of the law did become an issue in the Donaldson v. Becket case.

The Statute of Anne was a law of England, and did not apply in Scotland or Ireland. No matter how many “pirate” editions might be printed in Scotland, they could not be seized and destroyed under the Statute of Anne. Donaldson entered the book trade from Scotland, a region not covered by the statute’s net.

It should be pointed out that the Statute of Anne does not use the word “copyright.” According to the Oxford English Dictionary, “copyright” was first used on 6 May 1735 in a record of the proceedings of the House of Lords. In that sense, it may be difficult to speak of the Statute of Anne, as is so often done, as the world’s first law on copyright.

What the Statute of Anne was actually protecting was the rights to the printing of books. But printing is not something that has form; the feature of moveable type was that the blocks of type formed to print a book could be taken apart and the type reused. Thus, when using moveable type, the blocks of type for a particular book were not preserved in exact form, as they would be in woodblock printing. The difficulty of resolving the issue being argued was that it dealt with rights to something that did not have durable physical form. The monopolistic booksellers held that with the purchase of a manuscript from the author came the right to print it. They claimed the right to go on printing it, in perpetuity.

It was one thing if the printer/bookseller was working from an original manuscript purchased from a living author, but in many cases they were printing classical works for which there was no “original manuscript.” Many booksellers were thus selling books for which they had not, in the strict sense, purchased anything in the way of printing rights. Why should certain booksellers be able to monopolize the printing rights to such classi-cal works? It was difficult to present a convincing argument because of the lack—when it came to moveable type printing—of an enduring physical form of the type that had

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been set. From 1731, when the twenty-one-year term of protection under the Statute of Anne expired, this problem came to the surface.

From 1710 to 1731, England’s publishing world was comparatively quiet, with the big booksellers of London supported by the Statute of Anne dominating the market. But in the 1730s, that situation began to change dramatically. There were two reasons. One was that protection of the Statute of Anne ended for many books, and the other was that, as Scotland and Ireland began to gain strength economically, their publishing industries advanced and books printed there began to flow into the London book market.

The London booksellers could not stand idly by as cheaper books from outside began to flow into their market. Claiming the great damages they were incurring because of “pirate” publishing, they called for the extension of period of protection under the Statute of Anne, petitioning Parliament over and over. The House of Lords, however, turned down all the booksellers’ demands. Documents setting forth their reasons have not been found, but in any case the booksellers’ zeal appeared to have received only the cold shoulder from the gentlemen of the House of Lords.

The booksellers’ next recourse was to argue that “the right to copy” was a perpetual right confirmed under common law. Such copyright was the “author’s right,” they said, and it was a right accorded to all people as a universal rule; the perpetual right to their work was the inherent right of authors. This line of reasoning led to the conflating of two qualitatively different things—the natural right of authors to their works and “copyright” as the right of the booksellers to monopolize the industry.38 The Donaldson v. Becket case was to demonstrate the error of such conflation, but as Locke’s theory of natural right became established, the misunderstanding that “author’s rights” and “copyright” were the same thing spread, and continues to be widespread even today.

Now let us look at the overall plot of the booksellers’ battles over perpetual copyright.

The Battles of the Booksellers The Midwinter case. The battles began in 1743. A group of London booksellers includ-ing Daniel Midwinter (d.u.) appealed to the Court of Session in Scotland that Scottish booksellers were putting out “pirate editions” of Cyclopaedia (1728) by Ephraim Cham-bers (1680?–1740) among other works. The protection of the right to print Cyclopaedia had expired in 1742, but Midwinter and his side declared that the term of protection set by the Statute of Anne was merely the period under which violation of the copyright could be fined and insisted that their right to print had not expired. Ultimately, the Court of Session dismissed the complaint on the grounds that the Cyclopaedia had not been entered in the Stationers’ Company registry. As noted above, the Statute of Anne

38 Shirata 1998, p. 156.

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stipulated that protection was to be afforded to only those who had previously registered a work with the Company.39

The Chambers Cyclopaedia, needless to say, was the mother of all encyclopedias and influential in the creation of the famous L’Encyclopédie of France. After the protection expired, countless reprints were made—what the monopolistic booksellers called “pirate editions”—and it was widely sold throughout England by the end of the eighteenth century. What this suggests is that “pirate editions” were contributing to the education and enlightenment of the masses. Looking at just this one case demonstrates that “pirate editions” played an important role in the formation of modern society.

The Millar v. Kincaid case. The first book-publishing case to be brought to the House of Lords was the Millar v. Kincaid case of 1750.40 Millar and sixteen other London book-sellers sued twenty Edinburgh-based and four Glasgow-based booksellers for publishing “pirate editions.” All of the titles for which Millar et al. sued for damages resulting from “pirate publishing,” however, were those for which protection under the Statute of Anne had already expired and which had not been registered with the Stationers’ Company. In other words, Millar et al. sought in this suit to monopolize the printing even of books that did not fulfill the requirements for protection under the Statute of Anne.

Millar et al.’s first appeal to the Court of Session in Scotland over this issue took place in the same year as the Midwinter case, 1743, making these the first court cases dealing with copyright in Scotland. The decision, as in the Midwinter case, was ultimately that for books not registered with the Stationers’ Company the London booksellers’ monopoly could not be protected. Millar et al., unwilling to accept the Court of Session decision, in 1750 appealed their case to the higher court of the House of Lords. The House of Lords, however, would not recognize the Millar et al. charges of damages from the “pirate editions.” Still determined, the booksellers sought to have the case reviewed, but the Lords would not be swayed, and the attempt to reassert the London monopoly was ultimately defeated.

Curiously enough, in 1748, even though this case remained unsettled, Millar appears to have been the London agent of the Kincaid bookstore. It is possible that, after the defeat of the suit in Scotland and during the period before the appeal was presented in the House of Lords, Millar and Kincaid sought to privately settle the matter between them.

It was in the same year the House of Lords decision was handed down, that Donaldson and Alexander Kincaid joined forces in opening a bookstore in Edinburgh, a store that presumably sold so-called pirate editions. Learning of the judgment in the Millar v. Kincaid case, Donaldson was confident that the business would be profitable.

39 Feather 1994, p. 81.40 English Reports, vol. 98, pp. 210–13.

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The Scheme to Wipe Out Pirate PublishingThe monopolist booksellers of London, after their failed attempts to press their cause against “pirate” publishing in the courts, undertook their own campaign aimed at forcing the outsider publishers out of business. In his exposé on this state of affairs published in 1764, Some Thoughts on the State of Literary Property (hereafter Thoughts), Alexander Donaldson printed three letters sent to booksellers in England, and condemned the conspiracy of the London booksellers.

The first letter was sent 23 April 1759 by London bookseller John Whiston (1711–1780) to John Merrill (1731?–1801), a Cambridge bookseller who sold books printed in Scotland. The letter begins as follows,

We have a scheme now entered into, for totally preventing the sale of Scotch and Irish books, which were first printed in England; and near two thousand pounds is already subscribed for carrying it into immediate execution. And every person in England, selling such books, will be proceeded against in Chancery, with the utmost severity: and after May 1, agents will be sent out to all parts of England, to detect such as have them in their shops, except classics, (Greek and Latin books.)41

What the London booksellers had determined to do was to either buy, at cost, books printed in Scotland and Ireland being sold in England or replace them, at their own cost, with the same books printed in England. A most generous scheme it was. Whiston requested that Merrill send all the books printed in Scotland and Ireland in his store to a specified address, providing a list of twenty-four books and newspapers in particular, including The Spectator, Shakespeare, Swift’s works, Thomson’s The Seasons, Milton’s poetical works, Hudibras, and others—and, he pressed in closing—“I beg you would not fail sending the Scotch and Irish books this week.”42

Whiston sent the same letter to booksellers all over England selling “pirated” books. The booksellers’ campaign was aimed at halting the circulation of any editions produced in Scotland or Ireland of the same titles they were publishing in London, and they were prepared to pay substantially to achieve their aim. Regarding that first letter, Donaldson observed as follows:

We shall be glad to know what exclusive right the London booksellers have to these articles, some of them printed above one hundred years ago. ——Milton indeed sold his Paradise Lost to a London bookseller for fifteen pounds, from which purchase they draw an inference of perpetual monopoly to the trade in London: and it matters

41 Donaldson 1764, p. 11.42 Donaldson 1764, p. 12.

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not whether there are now any descendents from that bookseller who paid Milton fifteen pounds; he that possessed that shop, or the nearest bookseller to the spot of ground where the shop stood, is now the proprietor of Milton’s works, and he retails this illustrious author amongst his brethren at many hundreds of pounds; the public must purchase such editions only as they chuse to give, and pay whatever price is put upon them, and this to the end of time.43

As Donaldson states, the protection of the right to print afforded under the Statute of Anne had long ago expired for such works as those by Shakespeare and Milton. Don-aldson argued the injustice of any attempt by particular booksellers to monopolize the publication of classical works.

The second letter was also penned by Whiston. Dated six days after the first letter, on 26 April, and without a specified addressee, it began as follows:

Yesterday was a general meeting of all the considerable booksellers, and indeed almost the whole trade. The scheme was read and approved of, and an agreement was entered into, and signed by all present but one, (Worral in Bellyard). Wren signed, and Pottinger, and both subscribed 25 pound. Only a fifth of the money will be called for. The substance of the article agreed to, and signed by above sixty, near seventy booksellers present, are.44

The letter reconfirmed that the plan to suppress sales of books from Scotland and Ireland would be carried out beginning 1 May 1759. It also called on booksellers and printers learning of persons engaged in bringing “pirated editions” into England to promptly report such to the “committee.” Those who infringed on the monopoly would be prosecuted and the costs of the litigation would be charged to the fund collected.

Notice of this agreement was circulated among booksellers throughout England. Those who did not sign the agreement and provide some donation would be barred from selling books. They would be expelled from the Stationers’ Company. Those who went along with the plan were prohibited from doing business with violators. Violators would be fined five pounds and be banned from the book trade. The worth of “five pounds” may be understood when we are told that six pounds in those days was worth the “cost of a night out including supper, a bath and a fashionable courtesan; a ‘full dressed’ suit.”45 The letter thus threatened the termination of dealings from London with both “pirate” booksellers and those dealing with them.

One wonders what kind of person was Worral, the bookseller who apparently did

43 Donaldson 1764, p. 18.44 Donaldson 1764, p. 13.45 Picard 2001 (2000), p. 297.

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not buy into this scheme. John Worral (d.u.) ran a bookstore specializing in books on law in Bellyard from 1736–1763. In 1763 Worral published Introduction to the Laws of England.46 Although his reason for opposing the plan is not known, perhaps, as a publisher of books on law, he thought there was nothing to be gained from it. It is also possible that, because of his familiarity with law deriving from his business, he was able to see how shaky was the legal basis for the monopolists’ plan and that, therefore, his conscience did not allow him to accept it. Whatever the reason, Worral was excluded from all book dealings because of his decision.47 How that might be related to his going out of business in 1763 is also unknown.

A committee had been formed to administer the scheme consisting of Richard Tonson (d.u.), Andrew Millar, John Rivington (d.u.), William Johnston (d.u.), and three others. These were all persons who figured on the side of the rights holders in the litigation over copyright that unfolded between 1760 and 1774. To fund the scheme to wipe out the pirate publishers, a total of 3,150 pounds was collected, with Tonson con-tributing 500 pounds and Millar 300 pounds. Regarding the second letter, Donaldson observed as follows:

Here this generous and disinterested scheme is brought to maturity, the agreement is now signed by near seventy of the brethren, and a sum of L. 3150 Sterling is subscribed, to oppress all the booksellers out of London; no Scotch or Irish books must be sold after the first of May 1759; every opposer of this scheme will be prosecuted out of the common fund, and penalties are also prepared for such as will not comply with them in this their unlawful combination. . . . So that here the reader will see the most tyrannical and barefaced combination that ever was set on foot in any country; and because they think themselves strong enough, they fully resolve to overturn all who stand in their way, in open defiance both of law and justice. If this be allowed in a free country, we will soon see many other branches of trade run away with, and monopolized by the wealthy, and all smaller dealers must fall a sacrifice to them.48

Whiston, the author of the first and second letters, was a famous bookseller special-izing in works on theology. According to the Booksellers Dictionary, in 1759, the year he wrote these letters, someone had played “a practical joke” on him that apparently caused him enough psychological anguish that he was forced to withdraw from the bookselling business.49 The record does not make clear from what sort of prank he suffered, but it may have been fallout from the London booksellers’ scheme.

46 Booksellers Dictionary, p. 272.47 Walters 1974, p. 292.48 Donaldson 1764, p. 19.49 Booksellers Dictionary, p. 260.

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The third letter was written by London bookseller John Wilkie (?–1785) by order of the committee and also sent to all the booksellers in England. It was dated about half a year after the second letter, on 2 November 1759, and reconfirmed the plan that had been put in motion six months earlier. It reiterated the call to hand over “pirate” editions to the committee, stating that they would be replaced by English editions of equivalent worth. It also stated that in accordance with the plan previously announced, a legal complaint was lodged against a number of bookstores. Donaldson’s assessment of this letter was: “The style is a masterpiece of low cunning, interspersed with flatteries and threats. It had the desired effect upon many unwary country-dealers; — however, some there were who still stood out, and refused to comply with these unjust demands.”50

The tie-up of Donaldson and Kincaid had been dissolved the year prior to these letters, in 1758. It is rather startling to find that, at the same time all this was going on in 1759, Millar, and his former apprentice Thomas Cadell (1742–1802) had again established a link with Kincaid for the publication first of Adam Smith’s The Theory of Moral Sentiments (1759), and continuing with the printing of other titles by authors of books of enlightened thought such as Adam Ferguson (1723–1816) and David Hume. Some of these were printed by Millar’s ally William Strahan (1715–1785). Millar seems to have put his suit of nine years earlier against Kincaid behind him, deciding that yesterday’s foe was today’s friend. In the late 1750s then, it appears that Millar and his ilk, while carrying out their scheme to suppress the booksellers selling “pirate” books, were at the same time building cooperative relationships with provincial booksellers willing to follow their lead. Seen in a certain perspective, these kinds of activities represented Millar’s moves to gather provincial booksellers under his own umbrella. The provincial booksellers, for their part, could not ignore the strengths and the market advantages enjoyed by the big booksellers of London, so it was only natural that they would keep as close to them as possible.

Tonson v. Collins First TrialIn their attempt to get perpetual copyright accepted as a common-law right, the mo-nopolistic booksellers of London—in addition to the scheme revealed by Donaldson—adopted the surprising method of staging what turned out to be a trumped-up case against pirate publishing, the Tonson v. Collins case for which trials were held in 1760 and 1761.51 Tonson had been publishing reprints of articles from the popular newspaper The Spectator launched in 1711–1712, and Donaldson had been selling “pirate editions” of The Spectator from Scotland.52 But it was not Donaldson, but Benjamin Collins

50 Donaldson 1764, p. 20.51 English Reports, vol. 96, pp. 169–74, 180–92.52 Walters 1974, p. 293.

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(1717–1785), a bookseller of Salisbury, about eighty miles southwest of London, whom Tonson sued, saying Collins had been selling copies of Spectator reprints from Scotland.

The case was brought to the Court of King’s Bench, which, as the reader will recall, was the court that reviewed cases in view of common law (see Chapter 1). Tonson’s strategy was to have the court recognize the sole right under common law to publish books even when the period of protection provided under the Statute of Anne had expired.

As it later came out, however, the whole case had been set up by Tonson, who had even agreed to pay Collins’ court fees to induce him to cooperate in the plan. The truth came out toward the end of the trial, and ultimately no decision was handed down.

The main point under dispute in the Tonson v. Collins case was whether the “author’s right” to a work was a common-law right or not. The monopolists sought to defend their prerogative to print books by declaring that the “author’s right” to a work was a common-law right (i.e., not limited by the terms of the Statute of Anne). The “pirate” printers argued that “author’s right” was not a common-law right but had been established only with the Statute. The details of debate in the case have been studied closely by Shirata Hideaki in his Kopīraito no shiteki tenkai [The Historical Development of Copyright]53 and by Ronan Deazley in On the Origin of the Right to Copy.54 What I would like to examine here is the interpersonal relations between various men in Britain’s legal profession. Key figures in the later Donaldson v. Becket case made their appearance in the Tonson v. Collins proceedings.

Standing for Tonson for the first trial in the case was Alexander Wedderburn (1733–1805), a Scotland-born lawyer. Collins’ attorney was Edward Thurlow (1731–1806), born in Norfolk in the eastern part of England. So, the monopolist bookseller of London was being represented by a Scotland-born attorney and the Scottish marketer of so-called pirate editions was represented by an England-born attorney. Studying the history of eighteenth-century litigation over copyright, we come across many such ironies.

What kind of person was Wedderburn? Born into a family of lawyers of East Lothian, a town about seventeen miles east of Edinburgh, he had entered the University of Edinburgh at the age of fourteen. Later he polished his rhetorical skills by preaching in a local church by day and matching wits by night with members of the Scotland Renaissance in social gatherings in the city. By 1754, at the age of twenty-one, he appears to have been a lawyer with an independent practice.

In 1755, Wedderburn was involved in the founding of the Edinburgh Review.55 His career in law in Edinburgh came to a sudden end in 1757, however, after he was

53 Shirata 1998, pp. 161–72.54 Deazley 2004, pp. 149–63.55 This journal ceased publication after only two issues, but the same title, revived in 1802 continued until

1929 as one of England’s leading journals of literary criticism.

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subjected to groundless insults he could not tolerate from others in the legal profession and decided to leave Edinburgh for London. The Tonson v. Collins case came along three years later, as Wedderburn was seeking to reestablish his career in London.

How did Wedderburn feel when he departed from Edinburgh? He was no doubt a great patriot as far as Scotland was concerned. The cultivation he received from his interchange with other enlightened men of his time was doubtless an asset that nourished him throughout his life. It would be understandable, however, if the resentment he felt toward the parochialism of Scotland that would not recognize his talents overwhelmed the value of what he had enjoyed there. Such mixed sentiments were probably related in some way to his reason for standing for the London booksellers’ side in the litigation over copyright.

Soon after Wedderburn arrived in London, he resolved to get rid of his Scottish accent, realizing that he could not expect success in London if he did not acquire the smooth tones of accepted English speech. In this endeavor he studied under an Irish born actor and speech instructor named Thomas Sheridan (1719–1788) and others. In Life of Johnson, Boswell writes about this at some length:

Mr. Macklin, indeed, shared with Mr. Sheridan the honour of instructing Mr. Wedderburn; and though it was too late in life for a Caledonian to acquire the genuine English cadence, yet so successful were Mr. Wedderburn’s instructors, and his own unabating endeavours, that he got rid of the coarse part of his Scotch accent, retaining only as much of the ‘native wood-note wild,’ as to mark his country; which, if any Scotchman should affect to forget, I should heartily despise him. Notwithstanding the difficulties which are to be encountered by those who have not had the advantage of an English education, he by degrees formed a mode of speaking to which Englishmen do not deny the praise of elegance. Hence his distinguished oratory, which he exerted in his own country as an advocate in the Court of Session, and a ruling elder of the Kirk, has had its fame and ample reward, in much higher spheres. When I look back on this noble person at Edinburgh, in situations so unworthy of his brilliant powers, and behold Lord Loughborough [Wedderburn] at London, the change seems almost like one of the metamorphoses in Ovid; and as his two preceptors, by refining his utterance, gave currency to his talents, we may say in the words of that poet, ‘Nam vos mutastis.’56

After moving to London and while casting about in his attempt to make a living there, the man upon whom Wedderburn depended was William Strahan, another Scots-man from Edinburgh who had established himself in London by setting up a printing

56 Boswell 1998 (1791), pp. 273–74. Pages later in Life of Johnson, we read of the elderly Sheridan’s complaints that after Wedderburn had established himself in London society, he neglected the benefactors who taught him how to speak, p. 718.

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company. Wedderburn went to his countryman requesting to be allowed to be put in charge of a lawsuit. Once again, Life of Johnson sheds light on the situation at the time.

When we had talked of the great consequence which a man acquired by being employed in his profession, I suggested a doubt of the justice of the general opinion, that it is improper in a lawyer to solicit employment; for why, I urged, should it not be equally allowable to solicit that as the means of consequence, as it is to solicit votes to be elected a member of Parliament? Mr. Strahan had told me that a countryman of his and mine, who had risen to eminence in the law, had, when first making his way, solicited him to get employed in city causes. Johnson. ‘Sir, it is wrong to stir up law-suits; but when once it is certain that a law-suit is to go on, there is nothing wrong in a lawyer’s endeavouring that he shall have the benefit, rather than another.’ Boswell. ‘You would not solicit employment, Sir, if you were a lawyer.’ Johnson. ‘No, Sir, but not because I should think it wrong, but because I should disdain it.’ This was a good distinction, which will be felt by men of just pride. He proceeded: ‘However, I would not have a lawyer to be wanting to himself in using fair means. I would have him to inject a little hint now and then, to prevent his being overlooked.’57

The reference to “a countryman . . . who had risen to eminence in the law” is to Wedderburn. Strahan had helped the younger man find work when he had left Edin-burgh without having a firm position in London to go to, and this Strahan was a friend of Millar’s. By this path of horizontal connections among contemporaries, it seems certain, Wedderburn ended up becoming attorney for the monopolist booksellers in Tonson v. Collins.

Samuel Johnson’s estimation of Wedderburn does not seem to have been very favor-able, as we can observe in Boswell’s account quoted above. The Edinburgh Review, in the editing of which Wedderburn had been involved, had published a review critical of Johnson’s Dictionary by Adam Smith. That may have had something to do with Johnson’s irritation. He seems to have had more affinity for Thurlow, who had taken up Collins’ defense, than for Wedderburn, as the following account in Life of Johnson testifies.

‘It is wonderful, Sir, with how little real superiority of mind men can make an eminent figure in publick life.’ He expressed himself to the same purpose concerning another law-Lord, who, it seems, once took a fancy to associate with the wits of London; but with so little success, that Foote said, ‘What can he mean by coming among us? He is not only dull himself, but the cause of dullness in others.’ Trying

57 Boswell 1998 (1791), p. 683.

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him by the test of his colloquial powers, Johnson had found him very defective. He once said to Sir Joshua Reynolds, ‘This man now has been ten years about town, and has made nothing of it;’ meaning as a companion. He said to me, ‘I never heard any thing from him in company that was at all striking; and depend upon it, Sir, it is when you come close to a man in conversation, that you discover what his real abilities are; to make a speech in a publick assembly is a knock. Now I honour Thurlow, Sir; Thurlow is a fine fellow; he fairly puts his mind to yours.’58

“Another law-Lord” would be Wedderburn, and Johnson was not the only person to have remarked on the Scotsman’s lack of refinement. Alexander Carlyle (1722–1805), too, described Wedderburn’s conversation as “stiff and pompous.”59

Wedderburn went on to be elected to the House of Commons from Yorkshire. Figures like him, who became members of Parliament from parts of the country to which they were not native, sharply increased from 1754 onward, until there were nearly sixty of them by 1790.60 We do not know if all of them had made a point of removing their native accents or not, but it is likely that there were many Englishmen who took umbrage at the large number of people from Scotland serving in Parliament.

And what about Edward Thurlow? He attended Cambridge University, but left in 1751 and became a barrister in 1754. In 1762 he became a member of the King’s Council, and in 1765 a member of the House of Commons. One might think, as a defender for the “pirate publishers,” he would have been a liberalist, but in fact, he was quite the opposite. A conservative lawyer who supported George III (1738–1820; r. 1760–1820), Thurlow is known for having been a defender of the slave trade and Britain’s control of the American colonies.

Physically, Thurlow was rather dark-complexioned with handsome, if not particularly refined, features. A man of great dignity, he had thick eyebrows and a piercing gaze. He was known more for his eloquence than for his knowledge of law, and his intellect was sharp enough to cause even Samuel Johnson to observe, “I would prepare myself for no man in England but Lord Thurlow. When I am to meet with him I should wish to know a day before.”61 So able and sharp could Thurlow be, that everyone around him had to be on guard.

Wedderburn and Thurlow seem to have competed for the same posts throughout their careers and to have been lifelong rivals. As it happened, Thurlow ended up as-suming the posts of solicitor general, attorney general, and lord chancellor first, with Wedderburn invariably taking them up later.

58 Boswell 1998 (1791), pp. 1204–1205.59 Oxford Dictionary of National Biography.60 Colley 2008, p. 126.61 Boswell 1998 (1791), p. 1317.

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Another key player in the Tonson v. Collins case who also figured large in the Donaldson v. Becket case was Lord Mansfield (William Murray, 1705–1793). Scotland born, he reigned supreme in England’s judiciary as chief justice of the Court of King’s Bench for more than three decades between 1756 and 1788. Highly admired even to-day as the leader of Britain’s eighteenth-century legal profession, he invariably assumed a central role in the series of court cases involving the question of copyright. Lord Mansfield was described as a man with a “silver tongue,” not only eloquent but full of passion, as so vividly portrayed by Johnson and Boswell: “So many bellows have blown the fire . . . And such bellows too. Lord Mansfield with his cheeks like to burst.”62

Lord Mansfield was born in Scone, Scotland.63 Scotland in the early eighteenth cen-tury was the scene of anti-England activism led by the Jacobites. Coming from a family of Jacobites, he was involved in the movement from a young age. Despite the glories of his later career, these beginnings were later to bring disaster. Apparently, after he became successful in London, Lord Mansfield was rarely in touch with his family in Scone. He seems not even to have bothered to inform his brothers of the various posts he assumed. He may have decided to give up ties to his family in order to distance himself from the connection with the Jacobite cause. Although born in Scotland, he was educated from high school at Westminster School and Oxford University, and the accents and cultivation of England he acquired from an early stage of his youth stood him in good stead. The elite of Scotland were all at great pains to erase or dilute their strong accents.64

In the course of his long career as chief justice of the Court of King’s Bench, Lord Mansfield established countless precedents relating to promissory notes, contracts, bills of exchange, and other matters relating to mercantile affairs. He is famous in the history of law as having established the foundations of commercial law in England. He also had a liberal side, and was well known for his success in 1772 in preventing a slave from being detained in England for sale overseas in a judgment that is said to have contributed to the abolition of the slavery system.

Lord Mansfield is said to have been requested to serve as lord chancellor several times, but to have refused each time. He was apparently content to keep the relatively more stable position on the Court of King’s Bench than take the loftier job of lord chancellor, from which he might be easily removed at the will of higher authorities.65 Indeed, during the time he served on the King’s Bench, the post of lord chancellor changed hands five times.

62 Boswell 1998 (1791), p. 520.63 For the life of Lord Mansfield, see Foss 1864; Fifoot 1936; Heward 1979; Oldham 1992; and Oldham

2004.64 A remark—made in 1772—by Oxford University professor Robert Vansittart (1728–1789) about Mans-

field set down by Boswell highlights the disdain the gentlemen of England felt toward men from Scotland: He would not allow Scotland to derive any credit from Lord Mansfield; for he was educated in England. ‘Much (said he,) may be made of a Scotchman, if he be caught young.’ Boswell 1998 (1791), p. 494.

65 Heward 1979, p. 89.

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Tonson v. Collins Second TrialChief Justice Mansfield was known as a man who believed in the principle of common-law copyright.66 And yet he did not hand down a clear decision in the first trial of the Tonson v. Collins case. The deliberation on this suit of dubious origins was resumed in 1761 when the second trial took up where the previous trial left off.

In this trial, Wedderburn was replaced as attorney for Tonson by the London-born barrister William Blackstone (1723–1780). Immediately afterwards Blackstone pub-lished his monumental work Commentaries on the Laws of England,67 which was to have a major influence on the profession of law in Britain and the United States. Blackstone’s Commentaries includes a discussion of copyright, and among works on law it is this book that uses the term “copyright” for the first time.68 Blackstone is one of the leaders in popularizing the concept.

As Shirata points out, Blackstone distinguished clearly between “author’s right” and “copyright.” Author’s right, in Blackstone’s view, was the property rights to an entity produced by an author through the exertion of his rational powers. This assertion was based not on common law but on Locke’s theory of natural right, while “copyright,” which was grounded in common law, was a property right concerning publishing.

Collins’ attorney, too, changed from Thurlow to Joseph Yates (1722–1770). While Yates was willing to accept Blackstone’s idea of “author’s right,” he objected to the notion of “copyright.” Stating that to publish a work was to make it the common possession of the world, Yates argued that it was impossible to assert property rights, by way of “copyright,” to something that by its nature could not be monopolized.

Chief Justice Mansfield did not hand down a judgment in this 1761 trial either, but passed it on to the Court of Exchequer for further debate. It was there that suspicions of collusion were revealed and the matter was shelved. The revelation that the case was contrived must have dealt quite a serious blow to the reputation of the leading booksell-ers of London.

Donaldson Goes to LondonDonaldson went to London and opened a store on the Strand in 1763, about two years after the Tonson v. Collins case. His premises were only about 440 yards away from Mil-lar’s store. To have a publisher from Edinburgh set up shop and start selling discount copies of books in their very midst was intolerable to the London booksellers. No sooner had he opened his doors than he became the target of the local booksellers’ enmity. But Donaldson was not to be cowed. He sat down and wrote a book exposing the various

66 Deazley 2004, p. 130.67 Blackstone 1765–1769.68 Shirata 1998, p. 108.

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ploys of the monopolist members of the trade. He prefaces Some Thoughts on the State of Literary Property with the following advertisement:

As the booksellers of London have endeavoured of late to monopolize books of all kinds, to the hurt of all the other booksellers in England, Scotland, and Ireland in particular, and, in general, to the prejudice of all his Majesty’s subjects in the three kingdoms, as well as in the British colonies; the following short state of literary property is made public, that the world may see how unjust their pretensions to an exclusive right are, and how oppressive, in these lands of liberty their monopolising schemes have been.

It is therefore expected, that as this is an affair of public concern, persons of all ranks, into whose hands this short memorial falls, will take the trouble to read it over, and then judge for themselves, ——Brevity has been designedly studied, that the reader’s patience might not be incroached [sic] on.69

The London booksellers asserted that because they had purchased the rights from the authors, they held a monopoly on the printing and publication of such books in perpetuity. But Donaldson believed that their assertions violated the spirit of the Statute of Anne. He was well informed of the many cases in which it was dubious as to whether the bookseller had in fact purchased rights from authors. Reading the preface above, one might conclude that his actions were inspired by righteous indignation. But Donaldson was basically a newcomer seeking to make a profit in the London book trade, so altruistic passions were surely not his only motive. Without the opportunity he saw for pecuniary gain represented by as large a market as London offered, would he really have committed himself so seriously to challenging the monopoly of the big booksellers?

Thoughts set forth two major questions. The first was: What is the law or logic upon which an author’s ownership of printed and published books is based? The second was: How long does that exclusive and absolute right of possession remain with the author, his heir, or his assigns?

Donaldson recognized that authors needed to be encouraged, but he believed there was no legal basis for the notion that an author’s ownership of a book, once published, lasted forever. An author was no different from the creator of a work of art or the discov-erer of a secret of nature. Such a “discovery” was his own possession as long as he kept it to himself, but once the work or discovery was made public, unless some measure were instituted in the law, it was something from which all people should be able to freely seek profit.

In the case of a discovery or an invention, the law provided for patents giving protec-

69 Donaldson 1764, p. 2.

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tion for a certain period of time. That implied a popular recognition that monopolistic rights were rightfully of limited term. Without that inventor or discoverer, someone else would eventually discover or invent more or less the same thing. It is also most likely that someone would produce something new using an older invention or discovery. In the same way, Donaldson claimed, it did not make sense for an author to cling perpetually to ownership of the content of a book once it was published.

One might think that, because a book is a direct reflection of the character or identity of its author, it is intrinsically different from an invention or a discovery. But that is quite a modern idea. In England in the latter half of the eighteenth century, the novel was a literary genre just in the process of being born. In that time at the dawn of modernity, it seems unlikely that there was anything like the modern view of literature as writing as the expression of identity. Moreover, “literary property” would consist not only of so-called “literary works,” but would also encompass classical works of history and philosophy as well as books of a pragmatic nature. Donaldson argued that perpetual rights should not be allowed for the knowledge that is needed by society.

As Donaldson saw it, the Statute of Anne had been intended to prevent the monopoly on printing and publishing of books by booksellers from being extended without limit. During the time a book was protected, the Statute said that an author could demand penalties for “pirate” editions. But once that period of protection was over, it was evident that anyone should be free to reprint that book.

The London booksellers appealed repeatedly to the Court of Chancery to prevent other booksellers from reprinting books for which their rights had expired under the Statute of Anne. Until the collusion among booksellers demonstrated by the Tonson v. Collins case was exposed, the successive justices in the post of lord chancellor had been sympathetic to the pleas of the booksellers and issued injunctions to stop the publishing of the “pirates.” Donaldson and the other booksellers of Scotland were deeply dissatisfied with such decisions.

In an appendix to Thoughts, Donaldson quoted the critic William Warburton (1698–1779) to support his ideas, as follows:70

This author, after an inquiry into different kinds of property, puts a question, Whether at common law an author and his assignees have a perpetual and exclusive right of selling and vending his own works? This question he discusses with a great deal of precision; and finds, that copies are no more susceptible of property after publication than the elements of air and water, a refreshing breeze, or a beautiful prospect, which are for the common benefit of mankind. . . . After taking a view of the Greek and Roman authors, some of whom wrote for honour, and others for gain,

70 Parks 1974a.

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he [Warburton] says, “It is evident that neither the authors of Greece and Rome ever claimed an exclusive right in their copies after publication.71

Donaldson holds that it was unthought of in Greek and Roman times for authors to monopolize the copying of knowledge that had been made public. Since Greek and Roman times came long before the invention of printing in the West, he probably meant “publication” in the sense of the hand-copying of books.

Donaldson quotes the following section of Warburton’s book:

The property of an inventor in his machine, is in every respect similar to the exclusive right claimed by the author, in his copy. It is admitted, that, at common law, the inventor hath no property in the form of his machine; can the author claim any in his copy?72

Some explanation may be in order here. In the discourse leading up to the establish-ment of the Statute of Anne, the booksellers argued that literary property and patents for invention were similar. At a time when patents for inventions were recognized, they declared, it was irregular that authors’ rights should not be. But what they overlooked was that an inventor’s right to a patent on his invention was not one arising from common law, but a right accorded artificially under established law. Thus, patents had stipulated limits of term. After that limit expired, anyone was free to use the invention as he pleased. The “right to copy” that was established under the Statute of Anne, too, did not derive from common law but was an artificial right established under statute law. This is also the reason why the period of copyright protection was limited to fourteen years from the time of publication.

If the right to literary property were guaranteed in perpetuity, the benefits would overwhelmingly accrue only to the person holding the rights when it is published. A business attempting to profit from the reprinting of books that had already become clas-sics, as was Donaldson’s, would not be viable. Herein lies Donaldson’s real motive. Just because a bookseller has made a copy of a book, does not mean that the original book has disappeared. As distinct from, for example, the possession of land, exclusive ownership of copying is difficult to establish. What Donaldson wanted to establish was that, even if one had a right to copy, it would be an artificial right, not an eternal right deriving from common law or natural rights. His Thoughts ends with a challenge:

71 Donaldson 1764, pp. 21–22.72 Donaldson 1764, p. 23.

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To the PUBLIC.This is to give notice, that Alex Donaldson, from Edinburgh, has now opened a shop for cheap books, two doors east from Norfolk-street, in the Strand, where they are sold from thirty to fifty per cent, under the usual London prices. —The London booksellers, by the aforementioned combination, having prevented their brethren from dealing with him, have forced him, in self-defence, to establish this shop. —Good allowance is made to merchants who buy for exportation, and to country booksellers.

Catalogues, with the prices annexed to each article, may be had gratis at said sho[p].73

Now we know Donaldson’s reason for establishing his shop in London. As observed in the three letters introduced above, the London booksellers had launched a scheme in 1759 calling on all members of the trade in England to boycott books published in Scotland. They sought to prevent the collapse of the mechanism that supported their monopoly on printing of specific titles by certain bookstores, thereby keeping the price of books high. Finding his efforts to export books from Edinburgh to London thwarted by the English boycott, Donaldson was unable to sell his books. So he decided that in order to defend his business he would go to London himself and there try to sell books cheaply that he had printed in Edinburgh.

Donaldson’s challenge was driven by the fighting spirit of a latecomer’s last-stand effort to protect his enterprise. He was not at all some sort of shining knight fighting bravely against the monopolization of knowledge.

Victory for the Perpetual Copyright CampThe London booksellers did not let Donaldson’s challenge go unanswered. In 1765, they launched two suits in the Court of Chancery against him, one led by Millar and the other by Thomas Osborne (?–1767).

The Millar v. Donaldson and Osborne v. Donaldson cases. The Booksellers Dictionary describes Osborne as both “coarse, dull, and uneducated” and as “a very respectable man.”74 Perhaps he was the kind of man who had as many friends as he did foes.75 In any case, any designs these vengeful booksellers may have had to put Donaldson in his place were thwarted. Then Lord Chancellor, the Earl of Northington (Robert Henley:

73 Donaldson 1764, p. 24.74 Booksellers Dictionary, pp. 185–86.75 At least Samuel Johnson was probably not among his friends, as suggested by Boswell’s account included

in Life of Johnson: “It has been confidently related, with many embellishments, that Johnson one day knocked Osborne down in his shop, with a folio, and put his foot upon his neck. The simple truth I had from Johnson himself. ‘Sir, he was impertinent to me, and I beat him. But it was not in his shop: it was in my own chamber.’” (Boswell 1998 [1791], p. 112)

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1708?–1772), rejected the suit brought by Millar and his cohorts to force Donaldson to cease publishing and to recognize their perpetual ownership rights to the titles they were publishing. The Lord Chancellor went so far as to say that “it might be dangerous to determine that the author has a perpetual property in his books, for such a property would give him not only a right to publish, but to suppress too.”76 Until that time, the Court of Chancery had been generally favorable to the position of the London booksell-ers and had frequently issued injunctions against the “pirate publishers,” so clearly the prevailing trend of the times had changed. Perhaps the collusion revealed in the Tonson v. Collins case had started to cast its shadow over the booksellers’ credibility.

The Lord Chancellor went further to propose that the case be taken to the highest court in the land—the House of Lords.77 When the monopolist booksellers had sought to have the term of protection given in the Statute of Anne extended, the House of Lords had firmly turned down their plea; it had also rejected the assertions of the monopolists when the Millar v. Kincaid case was appealed there in 1750 as well. Taking that record of decisions into account, an appeal to the House of Lords was likely to have worked to the advantage of Donaldson. The monopolist booksellers, however, probably wanted to avoid that option. They were then forced to shift strategies in order to find a way to achieve their aim without directly targeting Donaldson, keeping their battle out of the Court of Chancery and getting a favorable decision at the Court of King’s Bench, pre-sided over by Lord Mansfield, who supported the principle of common law copyright.

The Millar v. Taylor case. The monopolist booksellers chose as their next target Robert Taylor (d.u.), suing him at the Court of King’s Bench in 1766 for publication and sale of the book The Seasons.78 The Seasons author James Thomson had sold his poetry to Millar and Millan in 1729, and since the longest their rights to the title under the Statute of Anne would be protected would have been twenty-eight years, that meant that at least by 1758, their copyright to The Seasons would have expired. Taylor published The Seasons because he believed the copyright had expired. It is interesting that Millar did not sue Taylor regarding the printing of The Seasons, only publication and sale. One theory goes that the edition of The Seasons that Taylor was selling was printed by none other than Alexander Donaldson.79 If that was a fact, then it would bring into view intriguing rela-tions among the three persons.

In the first trial of the Millar v. Taylor case, the lawyer representing Millar was John Dunning (1731–1783), a native of Devon in the southeastern part of England. Dunning was to be a key figure in the Donaldson v. Becket case, serving as Becket’s attorney.

76 English Reports, vol. 28, p. 924.77 Rose 1993, p. 94.78 English Reports, vol. 98, pp. 201–57.79 Rose 1993, p. 94.

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Dunning spoke with a Devonshire accent, which, with its rolled rs, was said by some to have a soothing effect. Dunning’s name appears in Life of Johnson when the subject of the accents of people from Scotland comes up. Johnson, who prided himself on his ability to identify even subtle differences of accent, said that he could tell from Dunning’s accent that he came from Devon,80 suggesting that it was not a very heavy accent. And thus we can form an image of this gentleman who had established himself in the high society of London but could not completely conceal his country origins. Robert Gore-Browne describes him as a man whose wit “relieved the weary, calmed the resentful and animated the drowsy.” His oratory was remarkably elegant, known for its fine sense of rhythm and unexpected climaxes. Unfortunately, he was not very good looking and his voice was husky, so he may not have cut a particularly striking figure in the courtroom.81

Meanwhile the attorney for Taylor in the first trial was the above-described Thurlow. In as much as Thurlow was to be Donaldson’s attorney later on, we can see that the face-off between Dunning, standing for the monopolist side (Millar, Becket, etc.), and Thurlow, standing for the “pirate” side (Taylor, Donaldson, etc.), already began with this Millar v. Taylor case. At the same time, we find that while they might cross swords in the court room, Thurlow and Dunning were in fact close friends going back to their days together in the Inner Temple Law School.82 These elements of interpersonal relations afford some insight on history that does not emerge by simply looking at court records.

The first trial was held 30 June 1767, but no decision was made. The second trial was held on 7 June of the following year, with Blackstone taking over as attorney for Millar and an Irish writer-cum-barrister named Arthur Murphy (1727–1805) representing the Taylor side. The morning after the second trial, however, Millar suddenly died; the cause of his death is not known. Millar’s wife Jane, son William, the bookseller Longman II (1731–1797), and his former apprentice Thomas Cadell, along with Becket, became the executors of Millar’s estate.

Cadell was a bookseller who had been trained as an apprentice with Millar and became his business partner in 1765. Millar had retired from the business in 1767 and handed over his shop to Cadell as his successor. Cadell joined forces with Strahan and went on to put out numerous best-selling works including Edward Gibbon’s (1737–1794) The History of the Decline and Fall of the Roman Empire (published 1767–1789). Cadell also put out works by Blackstone, leading Scotland poet Robert Burns (1759–1796), Hume, Johnson, Adam Smith, and so on. Noting that he published books for Blackstone, who had served as attorney for monopolist Tonson in the 1761 Tonson v. Collins case, we can detect the behind-the-scenes connections linking Millar, Cadell, and Blackstone.

On 13 June 1768 the executors of Millar’s estate put the copyright to The Seasons up for sale in London. Donaldson tried to submit a bid but was prevented from participating

80 Boswell 1998 (1791), p. 469. 81 Gore-Browne 1953, p. 13.82 Gore-Browne 1953, p. 11.

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in the sale. As a result of the sale, a group of fifteen people including Becket, Longman, and Cadell pooled their funds and purchased the copyright to The Seasons.

After Millar’s death, Becket and others took over his role in the Millar v. Taylor case. The debate in the court focused on the issue of whether copyright was a matter of com-mon law or not—in other words whether “copyright as author’s right” was something that had existed from before the Statute of Anne, and whether that right continued after publication. The Millar side argued that their rights originated prior to the Statute while the Taylor side asserted that no such thing existed.

Records of the case show that of the three justices in charge of the case, two of them—Edward Willes (?–1787) and Richard Aston (?–1778) gave opinions supporting the Millar side both in terms of the historical aspect and the theory of ownership rights. The third justice, Joseph Yates, supported Taylor on the point that knowledge once made public is not something that can be monopolized (as the reader will recall, Yates had served as attorney for the defendants in the Tonson v. Collins case introduced above). Justice Yates held forth with eloquence for three hours, but ultimately, since the other two justices supported Millar, it appears that his arguments were not persuasive. It is said that in the thirty-two years during which Lord Mansfield served as chief justice on the Court of King’s Bench, in fewer than twenty cases did the justices differ in this way over the decision.83

Without pursuing the tremendous detail of the points debated, let us look at the conclusion. The judgment was handed down 20 April 1769. The chief justice was, as in the case of the Tonson v. Collins case, Lord Mansfield. According to the judgment, it was clear in terms of the principles of justice and fairness that the manuscript before publication was protected under common law. If such protection should cease after pub-lication and “pirate” editions appeared, the author would lose any profits to be gained from his work and be unable to correct any mistakes in “pirate” editions. The author, moreover, would not be able to prevent having his name affixed to the work; therefore, said Mansfield, copyright needed to be protected after publication as well as before.84 And he stated:

The accurate and elaborate investigation of the matter, in this cause, and in the former case of Tonson and Collins, has confirmed me in what I always inclined to think, “that the Court of Chancery did right, in giving relief upon the foundation of a legal property in authors; independent of the entry, the term for years, and all the other provisions annexed to the security given by the Act.”

Therefore my opinion is——“that judgment be for the plaintiff.”85

83 Fifoot 1977, pp. 46–47.84 English Reports, vol. 98, pp. 252–53.85 English Reports, vol. 98, p. 257.

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While he had not clearly committed himself in the Tonson v. Collins case, Lord Mansfield placed himself clearly on the side with the monopolist booksellers in stating that authors held legal ownership of their works, which was separate from term of protec-tion and other provisions of the Statute of Anne. Mansfield handed down a decision supporting the view that copyright existed in common law and that authors held the rights to their manuscripts in perpetuity.

51

In April 1769, the Court of King’s Bench had recognized the plaintiffs’ claim to their perpetual copyright in the Millar v. Taylor case. Alexander Donaldson must have felt that Millar and his cohorts had gotten the head start on him by taking Taylor as their target.86 As long as Lord Mansfield’s judgment held, Donaldson knew his business would be hobbled. The only way to reverse this situation was to bring the House of Lords, which had long resisted the demands of the monopolistic booksellers, into the fray, and fight out his case at Westminster.

There was probably only one scenario for realizing this scheme: to provoke Thomas Becket and the other monopolist booksellers who carried on Millar’s cause in such a way that they would demand that Donaldson be penalized. Should Becket and his cohorts appeal to the Court of Chancery, the court, inasmuch as Lord Mansfield’s earlier decision in favor of perpetual copyright prevailed, would no doubt place the blame on Donald-son and hand him a penalty. The case would then be moved from England to Scotland because the Statute of Anne stated that persons in Scotland charged with violating the Act should be brought before the Court of Session there, and Donaldson was a citizen of Edinburgh. Although England and Scotland were one kingdom at the time, their social, including legal, systems were completely different. There were no precedents in Scotland recognizing copyright, a situation that well revealed the contrast in social conditions of the two parts of the kingdom less than a century after Scotland and England had been united.

Donaldson could be assured of winning if the trial were held in Scotland, and once having won in the local court, he could appeal against the Court of Chancery judgment to the House of Lords. Such was the long and difficult scenario that Donaldson must have envisioned. So, in order to provoke Becket and his cohorts, he carried on with the publishing of The Seasons even after the April 1769 decision in the Millar v. Taylor case.

The monopolist booksellers promptly responded to the provocation. They appar-ently underestimated him, concluding that suppressing Donaldson would be easily done since perpetual copyright had been recognized. They appealed to the Court of Chancery on 21 January 1771 demanding that Donaldson cease publication of The Seasons and hand over to them the profits accrued from its sale. The then Lord Chancellor Lord

86 A pamphlet taking issue with the decision of the Court of King’s Bench and explaining the essence of the Statute of Anne was published anonymously in Edinburgh on 8 May 1769. Deazley attributes the pamphlet to Alexander Donaldson. (Deazley 2004, p. 163)

Chapter 3

NINETEEN dAyS IN CoURT

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Apsley (Henry Bathurst; 1714–1794) called Donaldson for hearings that year from 16 to 20 July, and it was the autumn of the following year, 16 November 1772, that the Lord Chancellor decided, as in the case of Millar v. Taylor, that literary property was protected in perpetuity, and that Donaldson must reimburse Becket et al. Based on Lord Mansfield’s earlier decision, the judgment fully supported the claims of the plaintiffs. Donaldson then, citing Article 6 of the Statute of Anne, wasted no time in appealing the case in the Court of Session of Scotland.

It was only a little later, in 1773, incidentally, that another of the London mo-nopolist booksellers, John Hinton (?–1781) was suing Donaldson in the Scottish Court of Session.87 Hinton declared that the copyright to A New History of the Holy Bible by Thomas Stackhouse (1677–1752), belonged to him and sought to stop Donaldson from publishing the “pirated” edition. Hinton, who had married the widow of the bookseller who had published Stackhouse’s book, had obtained the copyright. Donaldson’s attorney in this Hinton v. Donaldson case was Boswell, author of Life of Johnson. The result of the trial held in Edinburgh was eleven of the twelve judges in favor of Donaldson. It was an overwhelming victory for the “pirate” side.

The suit with Becket et al. proceeded in the same direction. The conclusion of the deliberations of Scotland’s Court of Session on 27 July 1773 was, as Donaldson had calculated, that in Scotland authors did not hold exclusive property rights to their work. That victory in hand, Donaldson immediately appealed to the House of Lords: was copyright indeed an eternal right? And was not the decision of the Court of Chancery ordering him to be penalized a decision made in error?

Just at about that time, Donaldson moved his shop from the Strand to London’s exclusive bookstore district, St. Paul’s Churchyard, only 160 feet away from the office of the Stationers’ Company. It was a location that suggests something of Donaldson’s alacrity for the showdown before him.

Taking the Battle to the House of LordsWithout adequate knowledge of the history of the West and the history of law, under-standing the courts of eighteenth-century England is like trying to grasp hold of a cloud. In her book Dr. Johnson’s London, Liza Picard quotes sources of the time to give a vivid image of the court of the House of Lords. She introduces a case that dealt with a member of the House of Lords who had ended up killing a man in a duel. The Lords were forced to pass judgment on one of their own. The court convened not in the hall of the House of Lords but in Westminster Hall. To accommodate an audience, tiered seats as well as boxes covered with crimson provided for members of the royal family and foreign envoys

87 Tompson 1992.

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were installed in the hall. For the ladies in the audience, it was apparently something of a fashion show, as they were “decked in the finest manner with brocades, diamonds and lace, [and] had no other headdress but a riband tied to their hair over which they wore a flat hat adorned with a variety of ornaments.” The gaily dressed audience having been settled, the 250 members of the House of Lords entered the court, “walking two by two, in their long, red ermine-trimmed robes and ‘hats of all shapes and sizes’, which two by two they took off to salute the throne with the appropriate bow, disclosing an equal variety of hairstyles and wigs.”88

The Donaldson v. Becket case was conducted in Westminster Hall as well, and the same colorful atmosphere created by the presence of gaily dressed women presumably characterized the proceedings. There is no officially accurate record of the number of the audience, but inasmuch as the case was of deep concern to writers and authors, we can be fairly sure that the audience included many eminent cultural figures. We know, for example, that political theorist Edmund Burke (1729–1797) and author Oliver Goldsmith (1730–1774) were there.89

Lord Mansfield, whose decision had recognized perpetual copyright and who was chief of the Court of King’s Bench, was present. Those attending the sessions were well aware that although the case concerned publishing, it was also one that would indirectly examine whether Lord Mansfield’s decision concerning perpetual copyright should stand or be reversed.

The presence of one other man in the audience was notable, and that was Lord Mansfield’s greatest rival, Lord Camden (Charles Pratt, 1714–1794), who had served as lord chancellor until four years previously. The product of a family of men who served at the bar, Lord Camden’s father had been chief justice of the Court of King’s Bench. Lord Camden was also a close friend of William Pitt (the Elder Pitt, 1708–1778), who was a schoolmate at Eton and would later become acting prime minister. They continued to support each other even after Pitt entered politics.

Seemingly born rivals, Lord Mansfield and Lord Camden had sparred in many different court cases. Since their relationship is well illustrated by the 1763 Wilkes case, which dealt with freedom to publish, let me introduce it briefly here. An article was published in the newspaper The North Briton, number 45, in 1763 criticizing George III for his favoritism towards members of the Scottish nobility. Progressive politician John Wilkes (1725–1797) was suspected to be the publisher of The North Briton and the author of the piece itself.

This was the era in England of the infamous general warrants, often used to suppress freedom of speech, under which a person could be taken into custody without specifying

88 As quoted in Picard 2001 (2000), pp. 284–85.89 Skinner 1928, p. 6.

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the name of the person to be arrested. Wilkes was arrested under the general warrant and put on trial for seditious libel. It was later confirmed that Wilkes had indeed written the offending article, but the suspicion was not clarified before his arrest. Support for Wilkes spread widely among London citizens, sparking a popular movement demanding not just freedom to publish but greater political freedom. George III was the scion of the Scottish royal house of Stewart, and during his reign the nobility of Scotland was indeed ascendant. The Earl of Bute (John Stuart, 1713–1792), who served as British prime minister in 1762–1763, was also a Scotland-born politician.

Wilkes launched political attacks on the policies of George III and Prime Minister Bute in the pages of The North Briton. His criticism of Scotland-born Lord Mansfield also fanned the embers of anti-Scotland sentiment smoldering among the citizens of London. Wilkes gained a wide popular following under the cry of “Wilkes and Liberty!”

In the 1763 Wilkes case, it was Charles Pratt—the later Lord Camden—who, as chief justice of the Court of Common Pleas, ordered Wilkes’s release, declaring the general warrant illegal and citing his privilege of immunity as a member of Parliament. Pratt had the stalwart support of the masses, but Lord Mansfield, deeply displeased with the decision, is said to have told George III that “[n]o man ever behaved so shamefully as Lord Chief Justice Pratt.”90

Wilkes fled to France for a time, but consistently enjoyed popular support as people rallied to the call “Pratt, Wilkes and Liberty!” Immediately after Wilkes fled to France, he was expelled from the House of Commons in his absence and Lord Mansfield announced that he had been pronounced guilty in the Court of King’s Bench. When Wilkes returned to England in 1768, Lord Mansfield ordered him placed in the Court of King’s Bench jail, where he remained for a year and ten months. In the meantime Wilkes was reelected to Parliament from Middlesex; later he was again expelled, and again elected. He was elected to the House of Commons a total of four times. The masses applauded Wilkes’s dauntless courage, and these events contributed to the tradition of popular rights as holding greater power than parliamentary decisions in the history of the British Isles.

Lord Camden, thus, was a populist, also known for a speech he gave in the House of Lords opposing the 1765 “Stamp Act.” This law, requiring that the publication of legal documents, newspapers, and pamphlets in the North American colonies carry a stamp and be printed on paper issued by the Crown, was the first to be passed unilaterally in the British Parliament without the consent of the American colonies themselves; the protests against it under the slogan “no taxation without representation” led not long after to the American Revolution. Even after he became lord chancellor in 1766, Lord Camden consistently opposed unreasonable taxation of the colonies, although it led to his dismissal from the post of lord chancellor in 1770.

90 Cash 2006, p. 119.

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Lord Mansfield was a royalist and, as we saw in the Wilkes case, was concerned mainly with limiting the powers of publishing. Lord Camden, by contrast, was a populist and a liberal on the matter of publishing. From the viewpoint of Londonites, both Lord Mansfield and King George III were upstarts from the Scottish aristocracy. Lord Cam-den would have had mixed feelings about the way rule of England was passing into the hands of the nobility of Scotland. In particular, he must have harbored the impulse, if the opportunity presented itself, to deal a telling blow to his political rival Lord Mansfield. In the end, it was this personal rivalry between Lord Mansfield and Lord Camden that appears to have determined the direction of the Donaldson v. Becket case.

Court ConvenesLord Camden attended the proceedings of the Donaldson v. Becket case from a strong position as a prominent member of the House of Lords. He, at age fifty-nine, and Lord Mansfield at age sixty-eight, were both men of great maturity and experience as they faced each other quietly in the hall. With the trial closely related to Lord Mansfield, Lord Camden could not possibly remain disinterested. Those present in the galleries would have recalled their rivalry in the Wilkes case of 1763, and there must have been great interest to see how and when these two senior members of the House of Lords would take a stand on the case.

Speaking for Donaldson were three barristers, Edward Thurlow, who by then had been promoted to attorney general; John Dalrymple (1726–1810), from Scotland; and Arthur Murphy, who had stood for Taylor in the second trial of the Millar v. Taylor case. Facing them, for the Becket side, were Alexander Wedderburn, John Dunning, and Francis Hergrave (d.u.). Most of these names were familiar ones from earlier trials dealing with copyright issues.

The case in the House of Lords was brought directly to determine whether the decision made by Lord Chancellor Apsley in 1772 demanding that Donaldson cease publication and that he pay compensation to the monopolist booksellers was appropriate. Lord Apsley, a Westminster-born member of the nobility, did not leave a particularly distinguished record as lord chancellor and seems to have had a reputation as second-rate among high officials of the government. He apparently had not expected to be appointed lord chancellor and was in fact not someone suited to the position.91 Perhaps precisely because of that, Donaldson calculated that he could win his case.

The proceedings began on 4 February 1774 and continued until 22 February in-cluding some days of recess. They are recorded in a number of documents, including The Cases of the Appellants and Respondents in the Cause of Literary Property, Before the House

91 Oxford Dictionary of National Biography.

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of Lords (1774); The Parliamentary History of England, from the Earliest Period to the Year 1803 (1806–1820); and The English Reports (1900–1932), but, as with many old sources, there are discrepancies among them, and the views of scholars about them differ on some points.92 For the layperson today, moreover, there will be much that remains puzzling. Nevertheless, after having compared all these different sources, I would like to try to reconstruct how the case unfolded. The record of the actual statements made is extremely lengthy, so I will quote only sections that will give highlights of the debate as a whole. The reader should be aware that this is by no means a complete account.

4 February 1774 (Friday): The parties to the appellant and the respondent, along with the members of the House of Lords gathered in the hall. The audience filling the galler-ies was extraordinarily large. Lord Chancellor Apsley began by reading out in sonorous tones the outlines of the case.

The first to take the stand for Donaldson was Attorney General Thurlow. “I shall endeavour,” he began, “to shew that the Decree of the Court of Chancery, pronounced on the 16th Day of November, 1772, in Favour of the Respondents, to be highly injurious to the Appellants, my Clients.” He sought to show that literary property was not secured under common law. Property of any kind is “begun by Occupancy, and continued by Possession.” Is literary property corporeal or incorporeal? “If corporeal, it is descendible, like any other Chattel; if incorporeal, how is its Incorporeality to be ascertained?” (Cases of the Appellants: 19)

Then, in blistering words, Thurlow proceeded to lay bare the hypocrisy of the booksellers: “The Booksellers, my Lords, have not, till lately, ever concerned themselves about Authors.” They had generally turned to the legislature for the security of their own property, he continued, and would probably not have included authors as parties in their claims to the common-law exclusive copyright had they not “found that necessary to give a colorful Face to their Monopoly.” The Statute of Anne was not merely an “accumulative Act” giving additional penalties, but “a new Law to give learned Men a Property which they had not before.”

The idea of an exclusive copyright, he said, did not prevail prior to or for a long time after the invention of printing. Authors complained only when their works were inaccurately printed, not because of violation of their property rights. Literary property exists only in the imagination, he declared, and it never entered into the heads of booksellers to claim it until they found it advantageous. “Authors never conceived the Notion of any Property vesting in them, but what was given by Statute, by Patent, the licencing Acts[,] the royal Privilege, or in Virtue of the Institution of the Stationers Company.”

92 There are also other records of the Donaldson v. Becket case, the differences among which Deazley ana-lyzes in detail. Deazley 2004, pp. 191–210.

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So-called literary property, Thurlow argued, led to a “scandalous monopoly” im-posed by “ignorant booksellers.” Feeding on other people’s “ingenuity,” they grew fat by exploiting the fruits of authors’ labors. Thurlow concluded by saying, “As the Lords of Session have freed Scotland from such a Monopoly, I sincerely hope your Lordships, following so praise-worthy an Example, will emancipate this Kingdom from such an odious Oppression.”93

Mincing no words, he wasted no time exposing the true motive behind the London booksellers’ claim to rights, and declared that while they might claim to be defending the rights of authors they are in fact only using authors to protect their own monopoly.

When we think that it was Donaldson who won his case, we must conclude that this first statement by Thurlow, its caustic tone notwithstanding, must have won the agree-ment of those assembled. When Thurlow’s remarks were concluded, the court adjourned for the weekend, to reconvene on Monday.

7 February 1774 (Monday): The second to speak for Donaldson was Dalrymple, also from Scotland. Dalrymple had studied at the University of Edinburgh as well as Cam-bridge and practiced law in Scotland. He himself had had the experience of putting out a book with Millar’s bookstore, one titled The Essay towards a General History of Feudal Property in Great Britain (1757). From this we may assume that he had some firsthand familiarity with the ways Millar and the other London booksellers sought to monopolize culture through control of copyright.

Historical sources reveal very little about Dalrymple’s character or personality, but we get some hint from Boswell, who mentions the barrister’s writing style in Life of Samuel Johnson, referring to a passage in Dalrymple’s Memories of Great-Britain and Ireland (1771) about the secret deal between Charles II and Louis XIV (1638–1715;

93 Original: The Booksellers, my Lords, have not, till lately, ever concerned themselves about Authors, but have generally confined the Substance of their Prayers to the Legislature, for the Security of their own Property; nor would they probably have, of late Years, introduced the Authors as Parties in their Claims to the Common Law Right of exclusively multiplying Copies, had they not found that necessary to give a colorable Face to their Monopoly. . . . The Statute of Queen Anne is not merely an accumulative Act, declaratory of the Common Law, and giving additional Penalties, but a new Law to give learned Men a Property which they had not before . . .

No such Idea, my Lords, as that of an exclusive Right to multiply Copies prevailed previous to, or indeed long after, the Invention of Printing. This is instanced in several Cases, adduced for that Purpose, by the Appellants, in their said printed Case, where on Writer complains of another for printing his Works, not on account of any Violation of Property, but merely because the Party complained of had printed them inaccurately. Literary Property consists only in the Imagination; it never, till it was found advantageous, entered into the Head, of Booksellers themselves; Authors never conceived the Notion of any Property vesting in them, but what was given by Statute, by Patent, the licencing Acts[,] the royal Priviledge, or in Virtue of the Institution of the Stationers Company. What is called Literary Property gave rise to a scandalous Monopoly of ignorant booksellers, who, fattened at the Expence of other Mens Ingenuity, grew opulent by Oppression. As the Lords of Session have freed Scotland from such a Monopoly, I sincerely hope your Lordships, following so praise-worthy an Example, will emancipate this Kingdom from such an odious Oppression. (Cases of the Appellants, pp. 20–21)

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r. 1643–1715) at the time of the third Anglo-Dutch war. Boswell writes that, “Johnson [said] ‘. . . This Dalrymple seems to be an honest fellow; for he tells equally what makes against both sides. But nothing can be poorer than his mode of writing: it is the mere bouncing of a school-boy. Great He! but greater She! and such stuff.’ I could not agree with him in this criticism; for though ‘Sir John Dalrymple’s style is not regularly formed in any respect, and one cannot help smiling sometimes at his affected grandiloquence, there is in his writing a pointed vivacity, and much of a gentlemanly spirit.’”94

Calling attention to history, Dalrymple declared that there is no such thing as common law copyright. While maintaining the gentlemanly demeanor of a well-bred aristocrat of Scotland, his remarks now-and-then carried the sting of sarcasm.

It should be considered, my Lords, that this pretended Property, which is supposed to have a Foundation in Common Law, cannot in the Records of the Common Law Courts any where be found: If you speak of the Subject before the Act of Queen Anne, you hear of nothing but licencing Acts, and the Company of Stationers . . .

My Lords, the History of the Act of Queen Anne deserves your Lordships Attention: What was the View of the Booksellers? Absurdity on the very Face of it. They applied for an Act, vesting in them a Property for fourteen Years which they pretend to have derived from the Common Law, for Futurity. Can it be supposed that Men who were any Ways clear in their perpetual Right, would apply for a fresh Right for fourteen Years only? It could not be. They knew their own Situation: they knew the Rottenness of their pretended Right, and wanted a new real one, instead of the old imaginary one . . .

But, my Lords, this Act of Queen Anne, which was ushered in under the Idea of encouraging Literature, was every far from having such a Tendency. It was to encourage Booksellers, but not Authors; however, supposing both interests the same, —— What did they gain? Why, a Perpetuity was changed to a Term of fourteen years only. A Price was fixed, and a Clause inserted to force them to send Copies to public Libraries —— What Encouragements are these? —— They, on the contrary, were Disencouragements. —— All which is sufficient to shew that the Booksellers never dreamed of a serious Property at Common Law for Perpetuity; had they such a Notion they would have petitioned against the Act.

Observe, My Lords, the Title of the Act: To vest the Copy-rights: that is, my Lords, to give them a Right they had not before; a marked Expression which could not be mistaken . . .

What could be more absurd, my Lords, that an Act to vest a perpetual Right to a set of Persons for a limited Term, and inflicting Penalties? (Cases of the Appellants : 21–22)

94 Boswell 1998 (1791), p. 508.

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And here Dalrymple gives a small performance to draw the interest of the judges and the audience. Referring to the official title of the Statute of Anne (An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned), he concocts a parody: “An Act for the Encouragement of Planting, by Vesting the Shoots of Hedges and Branches of Trees, in the Planters, during the Times therein mentioned” and presents its provisions. Those who plant trees and hedges shall be given the right to the plants for fourteen years and a fine be placed on anyone who might cut them down. By plant-ing trees, the landscape is beautified. Publishing books, like planting trees and hedges, has a public service quality—so, he asks, is it acceptable to make something that by nature belongs to the public domain, the province of specified persons in perpetuity?95 Dalrymple goes on:

My Lords, this perpetual Right which they want would, instead of being beneficial to the Interests of Literature, be pernicious to it. It would encourage the Spirit of writing for Money; which is a Disgrace to the Writer, and to his very Age. My Lords, why should not Honour and Reputation be powerful Inducements enough for Authors, without that mean one of Profit? Foreigners know no such exorbitant pecuniary Rewards as have disgraced this Country. The Germans get nothing by writing. The Italian States are so small that no Literary Property can exist, as the Booksellers of one State would immediately print upon those of another. ——In France the Sums given to Authors are too small to have this Effect. My Lords, Mr. Hume, has told me that Rousseau assured him he had but fourscore Lewis d’ors for the Copy of his Emile. Such Sums as we hear of in England, are merely an Encouragement to the mercenary Spirit of Writing, not to the Merits of it. (Cases of the Appellants: 24–25)

Dalrymple also said that “twelve or thirteen booksellers were hovering, like eagles over a carcass, about the remains of poor Thomson.”96 He made two points: one, that copyright was not proven to exist in common law, and two, that the Statute of Anne had given authors rights that they had not previously been entitled to. For two and half hours, Dalrymple held forth on these subjects with great eloquence. Perhaps because he marshaled all his broad knowledge from the fields of metaphysics, law, science, and politics, he was apparently exhausted by the time he concluded his speech.97 Thurlow and Dalrymple having spoken, Donaldson’s side had completed its first round of assertions; the counterarguments from Becket and other London booksellers would be presented the following day.

95 This anecdote is not recorded in Parliamentary History of England.96 Parliamentary History of England, vol. 17, p. 962.97 Parliamentary History of England, vol. 17, p. 963.

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8 February 1774 (Tuesday): The court was convened. From this day, the Becket side presented its argument. It was only the third day of the case, but the galleries were packed with visitors. The first to take the stand was Attorney General Alexander Wedderburn. All concerned had waited with bated breath in the expectation that Wedderburn would have carefully scrutinized the statements by Thurlow and Dalrymple and would present a tightly formulated counterargument. As he spoke, however, it became clear that he was simply repeating, in more or less the same way, the arguments presented for Tonson in the first Tonson v. Collins case in 1760. Both the judges and the gallery felt betrayed—was the Becket side only going to repeat the stale statements of fourteen years earlier? Here let us look at key passages of the main body of Wedderburn’s speech:

Literary Property, my Lords, hath, by those who have spoke before me, been said to be so abstruse and chimerical, that it is not possible to define it. . . . any Idea, although it is incorporeal in itself, yet, if it promises future Profit to the Inventor of it, is a Property. And the latter Word hath, through Inaccuracy, been used as describing that, over which a Possessor holds an absolute Reign, Dominion, or Power of Disposal. The subject Matter may be immaterial, and yet liable to be appropriated. Property changes its Nature with its Place: In England, Portions of Land are private Property, among the Arabs and Tartars no such Idea prevails; they look upon Cattle and Chattels as the only private Property. Among the Americans, in certain Districts, Land is considered as Property, but not as the Property of Individuals; as the Inhabitants live upon the Gains of hunting, a Circumference of Land, sufficient for them to hunt on, is considered as the general Property of one Tribe or Nation.

The Lawyers Mode of describing Property, my Lords, is exceedingly trite and familiar; they generally divide it into corporeal and incorporeal, and in the present Case it hath been said to commence by Occupation, and continue by Possession. This is a narrow Scale of Argument. In the Courts of Law it is universally admitted, that Matters incorporeal are nevertheless Matters of Property . . .

Authors, my Lords, both from Principles of natural Justice, and the Interest of Society, have the best Right to the Profits accruing from a Publication of their own Ideas; and as it hath been admitted on all Hands that an Author hath an Interest or Property in his own Manuscript, previous to Publication, . . . It is an Author’s Dominion over his Ideas, that gives him Property in his Manuscript originally, and nothing but a Transfer of that Dominion or Right of Disposal can take it away. It is absurd to imagine that either a Sale, a Loan, or a Gift of a Book, carries with it an implied Right of multiplying Copies; . . . it cannot be conceived, that when five Shillings is paid for a Book, the Seller means to transfer a Right of gaining one hundred Pounds . . .

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Licenses in general prove not that Common Law Right did not inherently exist, but were the universal Fetters of the Press at the Times in which Authors were obliged to obtain them.

With Regard to the Statute of Queen Anne, my Lords, I am very willing to let that rest on the same Grounds the Attorney General hath placed it, viz. that if it gives no Right, it takes none away. . . . it contains a positive Clause, to let the Matter respecting a Common Law Right, remain precisely in the State in which it was, when that Act passed: and that the Court of Chancery considers that such a Right does exist, is evident from the several Injunctions that Court hath granted since the enacting of the Statute . . . ,

I hope, my Lords, Sir John Dalrymple’s Memoirs of Great Britain, will not be suppressed, as I have Reason to lament its Author intends. . . . I therefore earnestly invoke your Lordships to sanctify the final Determination of a Question, founded on natural Justice, and the Interest of Society, by affirming the Decree. (Cases of the Appellants: 26–28)

As the argument is rather difficult to understand, I might add, Wedderburn noted that the previous Friday, Thurlow had stated, “[The Statute of Anne is] a new Law to give learned Men a Property which they had not before.” Admitting this, he goes on, “if it gives no Right, it takes none away.” If the Statute of Anne accorded authors new rights, does that not mean that the Act took away some kind of right that existed in common law? As proof for that, Wedderburn pointed out that the Statute of Anne had a provision that took into account common law. The inclusion of this provision, he declared, testifies to the fact that authors had common law rights. The provision he referred to was the ninth section of the Statute of Anne, which states that “nothing in this Act contained shall extend, or be construed to extend, either to Prejudice or Confirm any Right that the said Universities, or any of them, or any Person or Persons have, or claim to have, to the Printing or Re-printing any Book or Copy already Printed, or hereafter to be Printed.” If this provision were taken literally, it would be read that printers had some kind of rights from before the Statute of Anne. And that was what Wedderburn called common law copyright. But this provision is saying that the Act does not nullify the rights to printing recognized by royal decree thus far; it does not claim that there is such a thing as common law copyright.98

The fact that Wedderburn’s statement did not contain any new assertions was wel-come as far as Donaldson’s side was concerned. Once they discovered that the opponent was simply presenting old arguments, they began to think that the outcome would be in their favor and became convinced they would win. Next, Dunning stood for Becket’s side:

98 Shirata 1998, p. 139.

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Attempts, my Lords, have been made to prove that the Establishment of this Right [to perpetual copyright] would be injurious to Literature; a strange Assertion surely. It is as much as to say, that rewarding Authors in proportion to their Merit, is the way to discourage their productions; an Argument too weak to make an impression on your Lordships. . . . it is evident the Money given for Copy-Right has increased with the Increase of Security that has been given to the Property. Go back to Milton’s Time, and from thence advance gradually to Queen Ann[e]’s Reign, when the Act of fourt[e]en Years Right was one Encouragement to the Booksellers, followed by some considerable emoluments in their Way to Authors. . . .

In no way is this to be accounted for, but by supposing the Booksellers Liberty to flow from the additional Security, thus given to their Property; and if this is not an Encouragement to Literature, my Lords, I should be glad to be informed what is an Encouragement. It might as reasonably be asserted, that Pensions and Rewards given by a Sovereign to learned Men, did not advance the Interests of Learning.

My Lords, the very Act of Queen Anne has been brought to prove, that there could not be a previous Common Law Right in the Copies of Books; but, my Lords, nothing can be more futile than such an Idea: let me illustrate this by a simila[r] case; there passed an Act last Sessions to make Turnips, Potatoes, Cabbages, Parsnips, Pease, and Carrots Property; now, my Lords, might it not be urged with as much Justice, that Turnips and so forth were not Property at common Law? Such an Idea would be ridiculous. Acts may pass to regulate Property, and to inflict Penalties on the Invasion of it, without in the least derogating from the Principles and Foundation of such Property.

We have been farther told, my Lords, that giving the Property of Copies will be giving the Right of Suppression; but this I conceive is a groundless Idea; we are not to suppose that Books of Instruction, Entertainment, or Amusement, will ever be suppressed, and as to Books neither instructive nor entertaining, the sooner they are suppressed the better. Certain, however, it is, that on some Subjects they are read in Proportion to their meriting Neglect. . . .

One Part of the Argument, my Lords, used for the Appellants, is that it would benefit Authors, if no exclusive Right of multiplying Copies existed; that is a very strange Assertion, and very extraordinary that Authors in general should think otherwise. It is customary for Booksellers, as Buyers, to buy as cheap as they can, and it is customary for Authors to sell as dear as they can; this cannot be the case if the Moment a Book is published every Man hath a Right to print it.

Authors formerly, my Lords, when there were but few Readers, might get but small Prices for their Labours, but the Books above-mentioned have been paid enormous Sums for, especially the last. If the Purchasers of these Copies have not the sole Right of multiplying Copies, how is the difference to be accounted for? . . .

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The Appellants, my Lords, want to sanctify the Importation of Scotch Books into England, in the same manner as the Importation of Scotch Cattle. The Book on which the present Cause is grounded, was written, indeed, by a Scotchman, but it was written in English, and originally printed in England. The Appellants had invaded the legal Purchaser, by printing a Copy in Scotland, and offering it to Sale in London; I hope, therefore, that your Lordships will teach them that Literary Property is sacred, by affirming the Decree. (Cases of the Appellants: 29–31)

The day’s deliberations ended with Dunning’s words. On Donaldson’s side, the as-sertions of Thurlow and Dalrymple could be summed up as charging that to recognize common law copyright would allow individual booksellers to monopolize the printing of particular books. The counterarguments of Wedderburn and Dunning, for Becket’s side, were that the profits of booksellers need to be protected in order to support the livelihood of authors.

In comparing the arguments of both sides, we come across some curious facets of the assertions on the Becket side. The rights of publishers (printers) were already protected under the Statute of Anne, yet the booksellers called for the author’s perpetual ownership of their “sacred” literary property, linking the need to protect booksellers and the author’s “ownership of the incorporeal.” At the time, it was still customary for booksellers to purchase the manuscripts for books outright, and the amount paid to the author in most cases did not change no matter how well the book might sell. If, in addition to this practice, the publishers were given the right to print a manuscript thus obtained in perpetuity, then they would go on profiting indefinitely without ever having to pay the authors any more.99 The wise members of the House of Lords were apparently quite well aware of the Becket-side deceit.

Five Questions9 February 1774 (Wednesday): Again, Attorney General Thurlow stood for Donaldson. He held forth for nearly two hours, but mainly to repeat the position of his client. It was clear to all concerned that the discussion was getting nowhere.

Observing the situation, Lord Chancellor Apsley presented a proposal to break the deadlock. He proposed to ask questions of twelve judges of England’s three courts of com-mon law—the Court of King’s Bench, the Court of Common Pleas, and the Court of Ex-chequer—to learn their views on the case. These judges were, for the Court of King’s Bench, Chief Justice Lord Mansfield, Richard Aston, William Henry Ashurst (1725–1807), and Edward Willes; for Court of Common Pleas, Chief Justice William De Grey (1719–1781),

99 Shirata 1998, p. 187.

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William Blackstone, George Nares (1716–1786), and Henry Gould (1710?–1794); and for the Court of Exchequer, Chief Justice Sydney Stafford Smythe (?–1778), James Eyre (1733–1799), Richard Adams (1710–1773), and Geroge Perrot (d.u.).

Of these, Blackstone had been Tonson’s defense attorney in the 1761 Tonson v. Collins case and Willes, Aston, and Lord Mansfield were the justices who had accepted Millar’s assertions in the Millar v. Taylor case. All of these were barristers inclined to side with the monopolist booksellers. As far as Donaldson was concerned, these were four votes out of twelve against him from the outset. For his part, on the other hand, Lord Chancellor Apsley—in order to survive the trial questioning his earlier judgment against Donaldson—must have wanted to hear the opinions of individuals who might present his side in a good light. Apsley narrowed down the questions to the following:

1. Whether, at common law, an author of any book or literary composition, had the sole right of first printing and publishing the same for sale, and might bring an action against any person who printed, published, and sold the same, without his consent?2. If the author had such sole right originally, did the law take it away upon his printing and publishing such book or literary composition, and might any person afterward reprint and sell, for his own benefit, such book or literary composition, against the will of the author?3. If such action would have lain at common law, is it taken away by the statute of 8th Anne: and is an author, by the said statute, precluded from every remedy except on the foundation of the said statute, and on the terms and conditions prescribed thereby? (Parliamentary History of England, vol. 17: 970–71)

Translated into our contemporary idiom, the first question asks: Did the monopoly on printing and publishing of books traditionally belong to authors in common law—in other words had that monopoly belonged to authors since time immemorial? The second question is, if authors did hold such a monopoly, did that monopoly end the moment a book was printed and published? The third question is: if the right to bring such suits over the rights to print and publish books was handled under common law, did the Statute of Anne take away that right?

Lord Chancellor Apsley read out these questions twice. The questions focused on how common law—under which, as the Becket side asserted, author’s rights had existed even before the Statute of Anne—was related to the Statute of Anne. If author’s rights were accepted as having existed since before the Statute of Anne, it suggested that booksellers could ignore the fourteen-year limitation on their copyright and monopolize printing and publication for as long as they wanted. Surely everyone in the hall must have thought that these questions would set off the debate.

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And then, the gaze of the audience was drawn to the figure of an elderly member of the House of Lords who rose to be recognized. Lord Camden made his move. Lord Chancellor Apsley, Lord Mansfield, and all in the audience were all ears to learn what he would say. To Lord Apsley’s three questions, Lord Camden added the following two:

4. Whether the author of any literary composition, and his assigns, had the sole right of printing and publishing the same, in perpetuity, by the common law?5. Whether this right is any way impeached, restrained, or taken away, by the statute 8th Anne? (Parliamentary History of England, vol. 17: 971)

His questions probe even deeper into the matter under debate than those of Lord Apsley, who addressed the matter of the rights of the author. Lord Camden’s added to the matter of the rights of the author, the rights of “his assigns.” If Apsley’s questions threw the House of Lords a curve ball, Camden’s were straight and undisguised. Not only that, his questions called into open question the judgment made in the 1769 Millar v. Taylor case. Lord Camden’s intention was obvious. The chief justice presiding at the Millar v. Taylor case was his rival Lord Mansfield. Camden was determined to have the House of Lords examine Mansfield’s judgment on perpetual copyright, and if all went well, have the decision reversed.

One man must have listened to Lord Camden’s statement with mixed feelings: the Becket-side lawyer John Dunning. Dunning had worked with Lord Camden at the time of the Wilkes case and, arguing that the general warrant under which Wilkes had been arrested was illegal, had been able to protect Wilkes from indictment. It must have been Camden who, as lord chancellor, had promoted Dunning to solicitor general in 1768.

And so, here we have Lord Camden—champion of the masses and great rival of Lord Mansfield, as well as having influence over Dunning, one of the barristers on the Becket side. Dunning thus could be counted as essentially on the Donaldson side.

The positions of the Donaldson and Becket sides regarding on these five questions are listed below:

Donaldson side Becket sideQuestion 1 Author did not have sole rights Author did have sole rightsQuestion 2 Those rights were removed Rights were not removedQuestion 3 Rights removed by Statute of Anne Rights not removedQuestion 4 Common law does not give sole rights Common law gives sole rightsQuestion 5 Rights impeached by Statute of Anne Rights not impeached

The five questions posed by Lord Chancellor Apsley and Lord Camden were handed over to the judges and the court was adjourned for six days until 15 February.

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15 February 1774 (Tuesday): After the court re-convened, the judges presented their opinions on the five questions assigned. As they did so, it became clear that their views were divided. These men, though all specialists on common law, were not of one mind on this issue. Lord Chancellor Apsley had hoped that the judges would present a very clear and unanimous support for perpetual copyright. His plan, however, was shattered. He was apparently informed of this prior to the convening of the proceedings, and thus began by saying “as the learned Judges might entertain dissimilar Opinions upon the Subject, their Lordships Attendance was required to hear the Opinion of each Judge delivered seriatim.”100 All the Lord Chancellor could do was to let each judge present his view to the court and then leave the matter in the hands of the members of the House. The first to present his views was James Eyre.

Eyre argued that the contents of a book, by its very nature, is incapable of being the object of common law property. Unlike every other kind of property that is subject to legal controls, for the content of books “nothing can be predicated of them, which is predicable of every other Species of Property subject to the Controul, and within the Limits of Protection under Common Law.” Ideas are too “ethereal,” he observes, to be defined, and too intellectual to be described with acceptable accuracy by the limited powers of the human mind. “Ideas, if convertible into Objects of Property, should bear some feint Similitude to other objects of Property; they do not bear any such Similitude, [so] they are altogether anomalous.”

Next Eyre called attention to “another insuperable Difficulty”: if one holds that ideas can be monopolized, how will they be classified or organized? Would they be categorized as simple, complex, combined, or multifarious? “They are not subject to Alienation, Transmission, Grant, or Delivery; and yet they are Objects of Property, to the exclusive Right of appropriating which, Men are clearly entitled by the Common Law, and by every Principle of natural Justice.”

If ideas are the product of the commonly held human faculty of thought, he then asked, does it conform to the principles of natural justice to limit access to such ideas, which were presented as a common gift to be made available to all, to the exclusive benefit of one or a few?

If one rejected the notion that authors had a right under common law to the distribu-tion of their works, such a rejection would essentially mean, observes Eyre, that authors could not sue anyone for publishing literary work without their consent. The question of a common law right had not even come up, he says, before the invention of “this useful Art” of printing, because authors did not imagine that anyone might appropriate their work to exclusive use. Only once the Stationers’ Company was established did the notion of such exclusive proprietorship over a work emerge, and those who sought to

100 Cases of the Appellants, p. 31.

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appropriate a literary composition secured their right by entering it in the records of the Company, regardless of who the author was.

Eyre posed the question what happens if a book and a mechanical invention were the same sort of thing. In a mechanical invention, ideas take concrete, material form, but “a Book is no more than a Transcript of Ideas; and, whether Ideas are rendered cognizable to any of the Senses, by the Means of this or that Art, of this or that Contrivance, is altogether immaterial: Yet every mechanical Invention is common, whilst a Book is contended to be the Object of exclusive Property!”

So, concluded Eyre, a book and a mechanical device share various similarities, both being distillations of intellect and unity of spirit: “[i]n a mechanic[al] Invention the Corporation of Parts, the Junction of Powers, tend to produce some one End. A literary Composition is an Assemblage of Ideas so judiciously arranged, as to enforce some one Truth, lay open some one Discovery, or exhibit some one Species of mental Improvement.” And he concluded his remarks by saying that he was of the opinion that authors do not hold the right under common law to monopolize sales of their own books, because the inventor of a mechanical device did not possess such a right. 101

101 Original: From the very nature of the Contents of a Book, they are incapable of being made Objects of Common Law Property; nothing can be predicated of them, which is predicable of every other Species of Property subject to the Controul, and within the Limits of the Protection of the Common Law. A Right to appropriate Ideas, is a Right to appropriate something so ethereal as to elude Definition; so intellectual as not to fall within the Limits of the human Mind to describe with any tolerable Degree of Accuracy. Ideas, if convertible into Objects of Property, should bear some feint Similitude to other objects of Property; they do not bear any such Similitude, they are altogether anomalous. . . .

But here, my Lords, lies another insuperable Difficulty. Admitting ideas liable to exclusive Appropriations, and thus to become Objects of Property; in treating of them as such, how would you class, how arrange them? Would you recount them as simple, complex, combined, or multifarious? . . . or would you resort to Truth and common Sense, and say they are not to be classed, arranged, defined, or ascertained? They are not subject to Alienation, Transmission, Grant, or Delivery; and yet they are Objects of Property, to the exclusive Right of appropriating which, Men are clearly entitled by the Common Law, and by every Principle of natural Justice.

For, my Lords, upon a Supposition that Ideas are produced by a thinking Faculty, common to all Men, it becomes a Question whether it is consonant to the Principles of natural Justice, to appropriate that to the exclusive Benefit of one or a few, which was designed as a common Gift distributed to all.

If, my Lords, the Notion of a Common Law Right should be reprobated, such Reprobation carried with it an explicit Answer to the latter Part of the first and to the second Question: There being no Common Law Right, “An Author could not bring his Action against any Person for publishing his literary Composition without his Consent.”…

Previous, my Lords, to the Invention of Printing, the Idea of a Common Law Right, has not been suggested; and subsequent to the Invention of this useful Art, so little Notion had Authors of a Right at Common Law to exclusive Appropriation, that before the Institution of the Stationers Company, they had Recourse to the Legislature for a License, Grant, Patent, or Privilege; after the Institution of the Stationers Company the only Mode thought of to secure the Appropriation of a Literary Composition was, by an Entry in the Records of that Company, and the Person in whose Name the Book was entered, let him come by it how he would, was deemed the Proprietor, the Author never being so much as mentioned on these Occasions. . . .

Consider, my Lords, a Book precisely upon the same Footing with any other mechanical Invention. In the Case of mechanic Invention, Ideas are in a manner embodied, so as to render them tangible and visible;

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We may summarize Eyre’s view as follows:

Question 1: Does an author have a monopoly right under common law? A: No.Question 2: Is the author’s right terminated upon printing and publishing? A: Yes; terminated.Question 3: Was the right to sue for rights under common law taken away by the

Statute of Anne? A: Conditional, yes.Question 4: Does common law give the author and his assigns sole rights to his works? A: No; does not give sole rights.Question 5: Were those sole rights taken away by the Statute of Anne? A: Yes; taken away.

As we can see, Eyre almost entirely supports the assertions of the Donaldson side. His view is that a book is “a Transcript of Ideas” and therefore that the two cannot be distinguished from one another; ideas cannot be monopolized, so therefore there can be no right of possession to a book.

The next judge to present his ideas was George Nares. Nares asserted that literary property existed in common law, and that the Statute of Anne did not take the right to that property away from authors. This view was favorable to Dunning’s defense of the Becket side. Authors held the right to profit from their own manuscripts before publica-tion, he declared, and it did not make sense to argue that such rights disappeared as soon as a manuscript was published. He holds that the Statute of Anne did not take away all

a Book is no more than a Transcript of Ideas; and, whether Ideas are rendered cognizable to any of the Senses, by the Means of this or that Art, of this or that Contrivance, is altogether immaterial: Yet every mechanical Invention is common, whilst a Book is contended to be the Object of exclusive Property! . . .

The Exactitude, my Lords, of the Resemblance between a Book and any other mechanical Invention, form various Instances of Agreement. There is the same Identity of intellectual Substance; the same spiritual Unity. In a mechanic[al] Invention the Corporation of Parts, the Junction of Powers, tend to produce some one End. A literary Composition is an Assemblage of Ideas so judiciously arranged, as to enforce some one Truth, lay open some one Discovery, or exhibit some one Species of mental Improvement. A mechanic Invention, and a literary Composition, exactly agree in Point of Similarity; the one therefore is no more entitled to be the Object of Common Law Property than the other; and as the Common Law is entirely silent with respect to what is called Literary Property, as antient [sic] Usage is against the Supposition of such a Property; and as no exclusive Right of appropriating those other Operations of the Mind, which pass under the Denomination of mechanical Inventions, is vested in the Inventor by Common Law; for these Reasons, I declare myself against the Principle of admitting the Author of a Book, any more that the Inventor of a Piece of Mechanism, to have a Right at Common Law to the exclusive Appropriation and Sale of the same.

I am of Opinion, my Lords, in Answer to the third Question, ... and in Answer to the fifth Question, I am of Opinion, ... for every Principle of a Common Law Right is effectually exploded, by the Adoption of the Word “vest” in the Title, the Words “taken the Liberty” in the Preamble, and the Mode of Expression used in the first Clause of the Act, of giving an Author an exclusive Property for fourteen Years, and no longer. (Cases of the Appellants, pp. 32–34)

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the rights afforded under common law but merely supplemented them. Speaking for nearly an hour, Nares presented his views, which may be summarized as follows:

Question 1: Does an author have a monopoly right under common law? A: Yes.Question 2: Is the author’s right terminated upon printing and publishing? A: No; not terminated.Question 3: Was the right to sue for rights under common law taken away by the

Statute of Anne? A: Yes; taken away.Question 4: Does common law give the author and his assigns sole rights to his works? A: Yes, it does.Question 5: Were those sole rights taken away by the Statute of Anne? A: Yes; taken away.

In his support of common law copyright, Nares differs from Eyre, but he is in agreement on the fifth question, believing that the Statute of Anne did take away the perpetuity of common law copyright.102

The next to take the stand was Judge William Henry Ashurst, who confirmed the precedent of the Millar v. Taylor case and supported the Becket side. Ashurst’s points were as follows:

The Claim of Literary Property, my Lords, is warranted by the Principles of natural Justice and solid Reason. Making an Author’s intellectual Ideas common, means only to give the Purchaser an Opportunity of using those Ideas, and profiting by them, while they instruct and entertain him; but I cannot conceive that the Vendor, for the Price of Five Shillings, sells the Purchaser a Right to multiply Copies, and so get Five Hundred Pounds.

Literary Property, my Lords, is to be defined and described as well as other Matters, which are tangible. Every Thing is Property that is capable of being known or defined, capable of a separate Enjoyment, and of Value to the Owner. Literary Property falls within the Terms of this Definition. According to the Appellants, if a Man lends his Manuscript to his Friend, and his Friend prints it, or if he loses it, and the Finder prints it, yet an Action would lie (as Mr. Justice Yates admitted) which shews that there was a Property beyond the Materials, the Paper and Print. A Man, by publishing his Book, gives the Public nothing more than the Use of it. A Man

102 Deazley notes a “discrepancy in the records” of Nares’s opinion on Question 3 and Question 5. See Deazley 2004, p. 199.

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may give the Public a Highway through his Field, and if there is a Mine under that Highway, it is nevertheless his Property. It hath been said, that when the Bird is once out of the Hand, it becomes common, and the Property of whoever catches it; this is not wholly true, for there is a Case upon the Law Books, where a Hawk with Bells about its Neck had flown away; a Person detained it, and an Action was brought at Common Law against the Person who did detain it; a Book, with an Author’s Name to it is the Hawk, with the Bells about its Neck, and an Action might be brought against whoever pirated it. (Cases of the Appellants: 35–36)

Upon summarizing Ashurst’s judgment, we find that it was virtually the opposite of Eyre, who supported the Donaldson side:

Question 1: Does an author have a monopoly right under common law? A: Yes.Question 2: Is the author’s right terminated upon printing and publishing? A: No; not terminated.Question 3: Was the right to sue for rights under common law taken away by the

Statute of Anne? A: No; not taken away.Question 4: Does common law give the author and his assigns sole rights to his works? A: Yes; does give sole rights.Question 5: Were those sole rights taken away by the Statute of Anne? A: No; not taken away.

The next to speak was to have been Blackstone, but he was suffering from a bad spell of gout and could not appear in court. A document presenting his opinion was read out to the court. Blackstone, of course, believed in the existence of common law copyright; his answers were exactly the same as Ashurst’s.

Thus far, four judges had presented their views, and—putting aside the details for the moment—three of them were in favor of the bookseller’s prerogative to perpetual copyright and one was opposed. All could see that the deliberations were leaning in favor of the Becket side. It was decided that the other judges would be heard from two days hence, on the 17th.

17 February 1774 (Thursday): On this day, the views of five of the justices were presented. The first to stand was Edward Willes. In the Millar v. Taylor case, Willes had been a member of the Millar camp; he was among the advocates of “perpetual copyright.” Judge Willes first explained that copyright is the asset of individuals; a right of possession obvious to anyone. The content of a book belongs to its author, he declared, and even if it is published, that

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ownership is not lost. An author has the right to make copies precisely because his right to a book falls under common law. Although it is said that the assertion of such rights only began with the advent of printing technology, without printing technology, copies could not be easily made. To label such assertions “monopoly” was “odious,” Willes said.

Willes’s argument continued: in common law, he said, a book’s first printing/pub-lishing and sales are the monopoly of the author. Even after publication, an author holds exclusive and perpetual right to the production of copies of his book. Since this right is his according to common law, it is not removed by criticism, by restrictions, or by the Statute of Anne. Through this law, authors would not be excluded from legal recourse. Willes’s judgment came down, as for Ashurst, on the side for Becket, giving the same responses as Ashurst regarding the five questions.

The next judge to speak was Richard Aston. Aston had been Millar’s ally, along with Willes, in the Millar v. Taylor case. His speech is as follows:

I agree with the three Judges who have spoke before me, that it is a Property, and that it belongs to an Author independent of any statutary Security. It is not necessary, for any Man to advert either to the Grecians or Romans to discover the Principles of the Common Law of England. Every Country hath some certain general Rules which govern its Law; our Common Law hath its Foundation in private Justice, moral Fitness, and public Convenience; the natural Rights of every Subject are protected by it, and there does not exist an Argument amounting to Conviction, that an Author hath not a natural Right to the Produce of his mental Labor. If this Right originally existed, what but an Act of his own can take it away? By Production he only exercises his Power over it in one Sense; when one Book is sold it never can be thought that the Purchaser hath possessed himself of that Property which the Author held before he published his Work. A real Abandonment on the Part of the first Owner must take Place, before his original Right becomes common.

In all Abandonments, [barrister for Taylor in the Millar v. Taylor case] Judge Yates hath defined, my Lords, that two Circumstances are necessary; an actual relinquishing the Possession, and an Intention to relinquish it; in the present Case neither can be proved. Many Manuscripts have not been committed to the Press till Years after they were written, the Possession of them for a Century does not invalidate the Claim of the Author or his Assigns. With Regard to mechanical Instruments, because the Act against Monopolies hath rendered it necessary for the Inventors of them to seek Security under a Patent, it can be no Argument that in Literary Property there should be no Common Law Right. I think it would be more liberal to conclude, that previous to the Monopoly Statute, there existed a Common Law Right, equally to the Inventor of a Machine, as to the Author of a Book. . . .

With Regard to the Statute of Queen Anne, my Lords, it is no more that a

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temporary Security, given by the Legislature to the Author, enabling him to recover Penalties, and bring a Matter of Complaint against any Person who printed upon him to a more certain issue than by an Action at Common Law. (Cases of the Appellants: 39)

So Aston’s view was similar to that of Ashurst except on Question 2.103 Comparing the speeches of Willes and Aston, we find that Willes’s argument from the viewpoint of history and Aston’s from the viewpoint of ownership rights supported the Becket side, respectively. In the scheme in which Willes took up history and Aston ownership, their presentations were the same as in the Millar v. Taylor case. It may have been that they argued for common law copyright in this way by pre-arrangement.

When the six justices through Aston had finished their arguments, the only one of them supporting the Donaldson side was Eyre, and the five others stood behind the Becket side. Everyone thought that the matter was virtually settled, but then Justice George Perrot stood to express his view. Perrot stated views in support of Donaldson, turning against the tide of the arguments thus far presented; he spoke forcefully, at length, and with great care.

“The Argument for the Existence of a Common Law Right, and the Definition of Literary Property, as chattel Property, is, my Lords, in my Idea exceedingly ill-founded and absurd,” Perrot began. An author certainly has a right to his manuscript, but after publica-tion, anyone can publish it. In the past, he said, “no Idea was entertained of an Author’s having any Claim to the exclusive Right of printing, what he had once published.”

An author, like the inventor of a machine, Perrot observed, makes his ideas available to the public, but it has never been heard that the purchaser of one of his machines does not have a right to make another after its mode. “The Right of exclusively making any Mechanical Invention is taken away from the Author or Inventor by the Act against Monopolies of the 21st of James the First,” stated Perrot. When a book is published and sold, it cannot be said that there is an “implied contract” between the author and purchaser. “The Purchaser buys the Paper and Print, the corporeal Part of his Purchase; and he buys a Right to use the Ideas, the incorporeal Part of it.”

Perrot continued, “Respecting the Statute of Queen Anne, my Lords, I am perfectly convinced that it is the only Security that Authors or Booksellers have. That it gives a Right for fourteen Years to the Holders of Copies, and after that Period the Right reverts to the Authors for fourteen Years longer. I declare that all the metaphysical Subtlety or Definition which the ablest Logician can muster, cannot give any other Sense to the Words “for the Encouragement of Learning, and for vesting a Right in Authors,” in the Title to the Act, than a Creation of a Property, not a further Security for one.” (Cases of the Appellants: 40–41)

Thereupon, Perrot read out the entire text of the Statute of Anne and following

103 Deazley points out that three of five records show “yes” to Question 2. Deazley 2004, pp. 200–201.

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each paragraph, discoursed upon its meaning. He fiercely criticized the booksellers for asserting that their rights to books were perpetual, and, citing numerous precedents, concluded his argument saying, “there was no Right at Common Law previous to the 8th of Queen Anne, and that if there was, that Statute entirely and effectually took it away.” (Cases of the Appellants: 42)

Perrot’s answers to the questions, thus, were not much different from—nearly the same as—those of Eyre.

Question 1: Does an author have a monopoly right under common law? A: No.Question 2: Is the author’s right terminated upon printing and publishing? A: No.Question 3: Was the right to sue for rights under common law taken away by the

Statute of Anne? A: Yes.Question 4: Does common law give the author and his assigns sole rights to his works? A: No; does not give sole rights.Question 5: Were those sole rights taken away by the Statute of Anne? A: Yes; taken away.

There having been few opinions favorable to Donaldson up to that point, Perrot’s speech injected new heat into the discussion.104

The next up was Gould. His responses were roughly the same as Nares. Although basically favorable to the Becket side, he took the position that the Statute of Anne had removed the perpetuity of common law copyright. Gould’s speech is notable for his ideas about monopoly on books, stating that,

[A]n author had a right at common law to his manuscript previous to publication, and he thought that right should continue to him under certain restrictions after publication; as public convenience was one of the elements of the common law, that should be consulted by an author or printer after publication; he was glad therefore to hear it stated, that the respondents always kept a certain number of the book upon which the present appeal was grounded, ready for those who chose to purchase. . . . [I]f this was not the case, it might be urged that the claim was a monopoly detrimental to the public.... if a book was kept out of print for an unreasonable time, it was a kind of abandonment of property in the original possessor. (Parliamentary History of England, vol. 17: 984–85)

104 According to Deazley, some accounts of the discussion say that Perrot answered with “Yes” to Questions 1 and 2. After comparing numerous records, he concludes that Perrot did reject the idea of common law copyright. Deazley 2004, pp. 201–202.

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Gould thus argued that bookstores always had to keep copies in stock of a book they had an exclusive right to print in order to respond to the demands of readers—to let books fall out of print for a long period of time would therefore be detrimental to the public, and in violation of common law. No doubt he wanted to say that those who monopolized the cultural assets of books had to fulfill the responsibilities that went with that monopoly.

The available record does not preserve much of the statements made by Gould and Richard Adams, who spoke next. Five judges spoke on this day, so the remarks of these two might indeed have been brief. Alternatively, if their opinions had already been more or less expressed by others and were repetitions of what had been said before, the record may have been abbreviated.

Adams gave an academic explanation of the distinctions between patents, privileges, and grant of the Crown. Citing numerous examples going back into the early history of books, he made it clear that the right to literary property was not a right under common law and that prior to the Statute of Anne, authors and booksellers had no guarantees of anything but for patents. His answers to the questions were as follows:

Question 1: Does an author have a monopoly right under common law? A: No.Question 2: Is the author’s right terminated upon printing and publishing? A: No.Question 3: Was the right to sue for rights under common law taken away by the

Statute of Anne? A: No.Question 4: Does common law give the author and his assigns sole rights to his

works? A: No; does not give sole rights.Question 5: Were those sole rights taken away by the Statute of Anne? A: No.

Adams was thus in favor of Donaldson.105 At this point in the proceedings, the score was three for the Donaldson side and six for the Becket side, with the Becket side still holding the advantage. The judges who had yet to speak were the chiefs of the three courts: Sydney Stafford Smythe (Court of Exchequer), William De Grey (Court of Common Pleas), and Lord Mansfield (Court of King’s Bench). Their arguments were to be presented from the following Monday.

105 Deazley writes that, although some the accounts state that Adams responded “No” to all the questions, he is convinced from his detailed study of the evidence that Adams was opposed to common law copy-right. See Deazley 2004, pp. 202–203.

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21 February 1774 (Monday): According to custom, the schedule of the day’s delibera-tions was read out. On this day and the next, the chief justices of the three courts, who had not yet given their opinions on the five questions, would state their cases.

First up was Chief Justice Smythe, whose position turned out to be just the same as that of Judge Aston. He stated that publishing meant selling books to buyers and did not involve giving over the right to copy books to the person who purchased such books. In his view the Statute of Anne neither limited nor took away common law copyright. Taking up again the example given by Aston of the mine found under a public highway, arguing vigorously that it is perfectly possible for there to be private ownership behind things in the public sphere. It is unreasonable, Smythe also argued, that even if an author found misprints in a “pirate edition” he would be unable to have them corrected. Giving the exact same answers as Aston, Smythe was entirely on the Becket side.

Next, Chief Justice De Grey gave his opinion. De Grey was inclined to favor the Donaldson side. According to the Parliamentary History of England record, De Grey, diverging from the views of the other judges who stood behind Donaldson, judged that authors held sole rights to their books in common law. However, he reported that, upon studying the records of common law cases, he had found no precedents recognizing literary property. The Statute of Anne gave “general rights” to the authors and their as-signs, and those rights were to be protected under the purview of the Court of Chancery. Successive lord chancellors, however, had believed that all cases of this kind of suit have been left unsettled. De Grey said it should be treated as an entirely new issue. De Grey’s responses to the questions were as follows:106

Question 1: Does an author have a monopoly right under common law? A: Yes.Question 2: Is the author’s right terminated upon printing and publishing? A: No.Question 3: Was the right to sue for rights under common law taken away by the

Statute of Anne? A: Yes.Question 4: Does common law give the author and his assigns sole rights to his works?

A: No; does not give sole rights.Question 5: Were those sole rights taken away by the Statute of Anne? A: Yes; taken away.

106 According to Deazley, some of the recorded responses were “Yes” to Question 2. Deazley 2004, pp. 204–205.

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Silence and a Momentous Speech22 February 1774 (Tuesday): Now the only justice whose opinion had not been heard was Chief Justice of the Court of King’s Bench Lord Mansfield. All the members of the House of Lords and the members of the audience waited with great anticipation to hear what he would say.

But, as the record shows, Lord Mansfield did not express an opinion. Not only did he refuse to speak on the matter; he left his position on the five questions unanswered.

The reason remains unexplained. Lord Mansfield had been closely involved with countless copyright-related cases, including the Millar v. Taylor case, in the course of his long career. He could have given an even more expert view of the issues than any of the other justices. If he had cared to speak, no doubt he would have supported the Becket side, consistent with the decision he had handed down in the Millar v. Taylor case.

Lord Mansfield’s silence must have startled the barristers on the Donaldson side. Thurlow had firmly stood behind Donaldson, but privately he must certainly have been quite anxious about how Lord Mansfield would counter his defense. Thurlow later expressed his respect for Lord Mansfield as follows:

Lord Mansfield was “a surprising man; ninety-nine times out of a hundred he was right in his opinions and decisions; and when once in a hundred times he was wrong, ninety-nine men out of a hundred would not discover it. He was a wonderful man.”107

Thurlow must have considered himself that one person in one hundred who would know when Lord Mansfield made a mistake. Whatever the case, it was then clear that the majority of the other justices supported the Becket side. Seeing that, perhaps Lord Mansfield thought that all was well; he need say no more. His decision in the Millar v. Taylor case had been placed on the table for discussion; at this juncture when his own judgment was to be deliberated, perhaps his silence was an expression of his deference to the discretion of his peers. Or perhaps he simply did not want to reply to the questions of his long-time rival Lord Camden. Or, perhaps, he was beginning to feel regret that his decision had in fact been in error.

The reason, in any case, is not known, and Lord Mansfield remained silent. The result, then, was that four of the justices supported Donaldson and seven supported Becket. Looked at in terms of the three courts, three justices from the Court of King’s Bench (excluding Lord Mansfield) supported Becket, three justices of the Court of Com-mon Pleas other than Chief Justice De Grey supported the Becket side, and three justices of the Court of Exchequer other than Chief Justice Smythe supported the Donaldson side. The responses can be organized as follows:

107 Foss 1864, p. 343.

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Question For Donaldson For BecketQ1 3 8Q2 3 8Q3 5 6 Q4 4 7Q5 5 6

Counted in terms of individual questions, the Becket side came out ahead on all questions. In some records there are discrepancies in the accounts given. John Feather’s analysis gives the tally for Question 4 as 5 to 5 with one unclear and for Question 5 as 7 to 4.108 Richard Tompson, who analyzed the “Burrow’s Reports”109 gives 10 answers in support of Becket for Question 1, stating that of these, 8 responses recognized even the right to sue.110 If Lord Mansfield were to have come out in support of Becket, the results would have changed, and might have affected the decision.111 Still, the proceedings in the court were in favor of the Becket side at this stage. There was a good possibility that the House of Lords would confirm the booksellers’ claim to “perpetual copyright.”

Then Lord Camden, who had until then had sat quietly listening to the discussion, stood and, one eye on the silent Lord Mansfield, delivered his historic speech that would pulverize all the preceding arguments in favor of “perpetual copyright.”

Lord Camden began by commending the Lord Chief Justice (De Grey) for his able supervision of the debate, declaring that “the Duty I owe to this House, will not suffer me to remain silent”112 on “so important a Question [as] is to be determined.” He was quick to castigate the arguments presented by Becket’s side, which he called “founded on Patents, Privileges, Star-chamber Decrees, and the Bye Laws of the Stationers Company; all of them the Effects of the grossest Tyranny and Usurpation; the very last Places in which I should have dreamt of finding the least Trace of the Common Law of this Kingdom.” He dismissed the efforts of the Becket side to establish “something like a Common Law Principle” and its other arguments as “that heterogeneous Heap of Rubbish, which is only calculated to confound your Lordships, and mislead the Argument.”

Lord Camden then set forth the background:

108 Feather 1994, p. 91.109 English Reports, vol. 98, pp. 257–67.110 Tompson 1992, p. 35.111 Shirata 1998, p. 191.112 We may assume that he made this remark pointedly before the silent Lord Mansfield.

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After the first Invention of Printing, the Art continued free for about fifty Years; . . . but as soon as its Effects in Politics and Religion were felt, all the crowned Heads in Europe at once seized on it, and appropriated it to themselves. Certain it is, that in England, the Crown claimed both the Power of licensing what should be printed, and the Monopoly of Printing. Two Licences were granted to those who petitioned for them. An Author not only was obliged to sue for a Licence to print at all, but he was also obliged to sue for a second Licence that he might print his own Work.113

The King, once having laid claim to the right of printing, secured those rights under various patents and charters, and then, said Lord Camden,

. . . to secure his Monopoly, he combined the Printers, and formed them into a Company, then called the Stationers Company, by whose Laws, none but Members could print any Book at all. They assumed Power of Seizure, Confiscation and Imprisonment, and the Decrees of the Star-chamber confirmed their Proceedings. These Transactions, I presume, have no Relation to the Common Law; and when they were established, where could an Author, independent of the Company, print his Works, or try his Right to it? Who could make head against this arbitrary Prerogative, which stifled and suppressed the Common Law of the Land? Every Man who printed a Book, no matter how he obtained it, entered his Name in their

113 Original: AFTER, my Lords, what the Lord Chief Justice hath so ably enforced, there will be little Occasion for me to trouble your Lordships; nor will the present State of my Health, and the Weakness of my Voice, allow me to exert myself, were I ever so much inclined; but the Nature of my Profession, and the Duty I owe to this House, will not suffer me to remain silent, when so important a Question is to be determined. The fair Ground of the Argument has been very truly stated to you by the Lord Chief Justice; I hope what was Yesterday so learnedly told your Lordships, will remain deeply impressed on your Minds.

The Arguments, my Lords, attempted to be maintained on the Side of the Respondents are founded on Patents, Privileges, Star-chamber Decrees, and the Bye Laws of the Stationers Company; all of them the Effects of the grossest Tyranny and Usurpation; the very last Places in which I should have dreamt of finding the least Trace of the Common Law of this Kingdom: and yet, by a Variety of subtle Reasoning and metaphysical Refinements, have they endeavoured to squeeze out the Spirit of the Common Law from Premises, in which it could not possibly have Existance.

They began, my Lords, with their pretended Precedents and Authorities, which they endeavoured to model in such a Manner, as to extract from them something like a Common Law Principle, upon which their Argument might rest. I shall invert the Order, and first of all lay out of my Way the whole Bede-role of Citations and Precedents which they have produced; that heterogeneous Heap of Rubbish, which is only calculated to confound your Lordships, and mislead the Argument. After the first Invention of Printing, the Art continued free for about fifty Years; I mean to lay no Stress upon this; I mention it only historically, not argumentatively; for as the Use of it was little known, and not very extensive, its want of Importance might protect it from Invasion; but as soon as its Effects in Politics and Religion were felt, all the crowned Heads in Europe at once seized on it, and appropriated it to themselves. Certain it is, that in England, the Crown claimed both the Power of licensing what should be printed, and the Monopoly of Printing. Two Licences were granted to those who petitioned for them. An Author not only was obliged to sue for a Licence to print at all, but he was also obliged to sue for a second Licence that he might print his own Work. (Cases of the Appellants, p. 48)

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Books, and became a Member of their Company: then he was complete Owner of the Book. Owner was the Term applied to every Holder of Copies; and the word Author does not occur once in all their Entries. All Societies, good or bad, arbitrary or illegal, must have some Laws to regulate them. When an Author died, his Executors naturally became his successors. The Manner in which Copy-Right was held, was a kind of Copy-hold Tenure, in which the Owner has a Title by Custom only, at the Will and Pleasure of the Lord. Two sole Titles by which a Man secured his Right was the royal Patent and the License of the Stationers Company; I challenge any Man alive to shew me any other Right or Title; Where is it to be found? some of the learned Judges say the Words or otherwise in the Statute of Queen Anne relate to a prior Common Law Right; To what Common Law Right could these Words refer? At all the Periods I have mentioned, the Common law Rights were held under the Law of Prerogative. It was the general Opinion that there was no other Right, and the corrupt Judges of the Times submitted to the arbitrary Law of Prerogative. In the Case of the Stationers Company against Seymour, all the Judges declared that Printing was under the Direction of the Crown, and that the Court of King’s Bench could seize all Printers of News, true or false, lawful or illicit. But if it was made Use of to protect Authors, what was this Protection? a Right derived under a Bye Law of a private Company; a Protection similar to that which we give the great Mogul; when we want any Grant from him, we talk submissively, and pay him Homage, but it is to serve our own Purpose, and to feast him with a Shadow that we may attain the Substance. In short, the more your Lordships examine the Matter, the more you will find that these Rights are founded upon the Charter of the Stationers Company and the royal Prerogative; but what has this to do with the Common Law Right? never, my Lords, forget the Import of that Term. Remember always that the Common Law Right now claimed at your Bar, is the Right of a private Man, to print his Works for ever, independent of the Crown, the Company, and all Mankind. In the Year 1681 we find a Bye Law for the Protection of their own Company and their Copy Rights, which then consisted of all the Literature of the Kingdom; for they had contrived to get all the Copies into their own Hands. In a few Years afterwards the Revolution was established, then vanished Prerogative, then all the Bye Laws of the Stationers Company were at an End; every Restraint fall from off the Press, and the old Common Law of England walked at large. During the succeeding fourteen Years, no Action was brought, no Injunction obtained, although no illegal Force prevented it; a strong Proof, that at that Time there was no Idea of a Common Law Claim. So little did they then dream of establishing a Perpetuity in their Copies, that the Holders of them finding no Prerogative Security, no Privilege, no licensing Act, no Star-chamber Decree to protect their Claim, in the Year 1708 came up to Parliament in the Form of Petitioners, with Tears in their Eyes, hopeless and

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forlorn; they brought with them their Wives and Children to excite Compassion, and induce Parliament to grant them a statutary Security. They obtained the Act. And again and again fought for a further legislative Security . . .

What are the Foundations of this Claim in the English Common Law? Why, in the first Place, say the Respondents [Becket’s side], every Man has a Right to his Ideas.—Most certainly every Man who thinks, has a Right to his Thoughts, while they continue his; but here the Question again returns; when does he part with them? When do they become publici Juris? While they are in his Brain no one indeed can purloin them; but what if he speaks, and lets them fly out in private or public Discourse? Will he claim the Breath, the Air, the Words in which his Thoughts are cloathed? Where does this fanciful Property begin, or end, or continue? Oh! say they, the Ideas are marked in black and white, on Paper or Parchment—now, then, we get at something; and an Action, I allow, will lie for Ink and Paper: but what says the Common Law about the incorporeal Ideas, and where does it prescribe a Remedy for the Recovery of them, independent of the Materials to which they are affixed? I see nothing about the Matter in all my Books; nor were I to admit Ideas to be ever so distinguishable and definable, should I therefore infer they must be Matters of private Property, and Objects of the Common Law? But granting this general Position, we get Footing but upon one single Step, and new Doubts and Difficulties arise whenever we attempt to proceed. Is this Property descendible, transferrable, or assignable? When published, can the Purchaser lend his Book to his Friend? Can he let it out for Hire as the circulating Libraries do? Can he enter it as common Stock in a literary Club, as is done in the Country? (Every Thing of this Kind, in a Degree, prejudices the Author’s Sale of the Impression.) May he transcribe it for a Charity? Then what Part of the Work is exempt from this desultory Claim? Does it lie in the Sentiments, the Language, and Style, or the Paper? If in the Sentiments, or Language, no one can translate or abridge them. . . .

If there be any thing in the World, my Lords, common to all Mankind, Science and Learning are in their Nature publici Juris, and they ought to be as free and general as Air or Water. They forget their Creator, as well as their Fellow-Creatures, who wish to monopolize his noblest Gifts and greatest Benefits. Why did we enter into Society at all, but to enlighten one another’s Minds, and improve our Faculties, for the common Welfare of the Species? Those great Men, those favoured Mortals, those sublime Spirits, who share that Ray of Divinity which we call Genius, are intrusted by Providence with the delegated Power of imparting to their Fellow creatures that Instruction which Heaven meant for universal Benefit; they must not be Niggards to the World, or hoard up for themselves the common Stock. We know what was the Punishment of him who hid his Talent, and Providence has taken Care that there shall not be wanting the noble Motives and Incentives for Men for Genius

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to communicate to the World those Truths and Discoveries which are nothing if uncommunicated. Knowledge has no Value or Use for the solitary Owner; To be enjoyed it must be communicated. Scire tuum nihil est, nisi te scire, hoc sciat alter.114 Glory is the Reward of Science, and those who deserve it, scorn all meaner Views; I speak not of the Scribblers for bread, who teize the Press with their wretched Productions; fourteen Years is too long a Privilege for their perishable Trash. It was not for Gain, that Bacon, Newton, Milton, Locke, instructed and delighted the World; it would be unworthy such Men to traffic with a dirty Bookseller for so much a Sheet of letter-press. When the Bookseller offered Milton Five Pounds for his Paradise Lost, he did not reject it, and commit his Poem to the Flames, nor did he accept the miserable Pittance as the Reward of his Labor; he knew that the real price of his Work was Immortality, and that Posterity would pay it.

Some Authors, my Lords, are as careless about Profit as others are rapacious of it, and what a Situation would the Public be in with-regard to Literature, if there were no Means of compelling a second Impression of a useful Work to be put forth, or wait till a Wife or Children are to be provided for by the Sale of an Edition. All our Learning would be locked up in the Hands of the Tonsons and the Lintots [Lin-tons] of the Age, who would set what Price upon in their Avarice chose to demand, ‘till the Public became as much their Slaves, as their own Hackney Compilers are.

Instead of Salesmen, the Booksellers of late Years have forestalled the Market, and become Engrossers. If therefore the Monopoly is sanctified by your Lordships Judgement, exorbitant Prices must be the Consequence; for every valuable Author will be as much monopolized by them as Shakespeare is at present, whose Works which he left carelessly behind him in Town, when he retired from it, were surely given to the Public if ever Author’s were; but two Prompters or Players behind the Scenes laid hold of them, and the present Proprietors pretend to derive that Copy from them, for which the Author himself never received a Farthing.——

I pass over the flimsy Supposition of an implied Contract between the Bookseller who sells, and the Public which buys the printed Copy; it is a Notion as unmeaning in itself as it is void of a legal Foundation. This Perpetuity now contended for is as odious and as selfish as any other; it deserves as much Reprobation, and is become as intolerable. Knowledge and Science are not Things to be bound in such Cobweb Chains; when once the Bird is out of the Cage—volat irrevocabile—Ireland, Scotland, America will afford her Shelter, and what then becomes of your Action? If the Legislature had intended to make the Right in Question perpetual, they would have taken Care that the Remedy should be so too. (Cases of the Appellants: 48–55)

114 “Your knowledge is nothing when no one else knows that you know it.”

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The Reversal“Weak of voice” though he might claim to be, Lord Camden did exert himself in an extended speech replete with the force of his convictions. Those listening could not but be moved by the clarity of his argument and the passion of his words. The hall fell quiet, and then, a leading figure in this controversy, Lord Chancellor Apsley, spoke:

I declare, I made the Decree entirely as of Course, in Pursuance of the [Lord Mansfield’s] Decision upon the Right in the Court of King’s Bench, and as what I decreed, as a Chancellor, was merely a Step in the Gradation to a final and determinate Issue in the House of Peers, I am totally unbiased upon the Question, and therefore can speak to it as fairly from my own Sense of it, as any one of the Judges, or any of the Lords present. (Cases of the Appellants: 55)

The Lord Chancellor went on to admit, in detailed terms, that the prerogatives claimed by the Stationers’ Company were implausible, concluding “I am therefore clearly of Opinion with the Appellants [Donaldson’s side].”115 It was as clear a declaration overturning the decision of the previous court as could have been made.

Then Lord Thomas Lyttelton (1744–1779) stood to object. Admitting that he was not knowledgeable in law, he nevertheless was opposed to Lord Camden’s view. Author’s rights of ownership were “sacred” and “deserving of Protection.” He agreed on the “infinite Importance to every Country” of the cultivation and encouragement of the arts and sciences; in places where “Men of Letters are best protected, the People in general will be most enlightened, and where the Minds of Men are enlarged, where their Understandings are equally matured in Perception and in Judgment,” there, he declared, the arts and sciences would become well established. If authors have rights to their work in perpetuity it “is a lasting Encouragement,” but making the right of copying common to all would be like widening the bed of a river so much as to finally dry up its sources.116

Lord Lyttelton stated, “I am of Opinion, that the [Lord Chancellor Apsley’s] Decree should be affirmed.”117 Lyttelton was only thirty years of age at that time, having only

115 Cases of the Appellants, p. 55.116 Original: I own I have no great Acquaintance with the Quirks and Quibbles of the Law. I speak to the

Matter merely as a Question of Equity; I cannot enter into a delusive, refined, metaphysical Argument about Tangibility, the Materiality, or the corporeal Substance of Literary Property; it is sufficient for me, that it is allowed such a Property exists. Authors, I presume, will not be denied a free Participation of the common Rights of Mankind, and their Property is surely as sacred, and as deserving of Protection, as that of any other Subjects. It is of infinite Importance to every Country, that the Arts and Sciences should be cultivated and encouraged; where Men of Letters are best protected, the People in general will be most enlightened, and where the Minds of Men are enlarged, where their Understandings are equally matured in Perception and in Judgment, there the Arts and Sciences will take their Residence. . . . If Authors are allowed a Perpetuity, it is a lasting Encouragement; making the Right of multiplying Copies common to all, is like extending the Course of a River so greatly, as finally to dry up its Sources. (Cases of the Appellants, pp. 55–56)

117 Cases of the Appellants, p. 56.

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the previous year succeeded to his late father’s seat in the House of Lords. We cannot but think that, perhaps by virtue of his youth and inexperience, he spoke spontane-ously, not really reading the general direction of the discussion. The backdrop for his statement, coming just as the discussion had nearly reached a conclusion, cannot be understood simply by following the record of the discussion. It is to be found, rather, in the text of Thomson’s The Seasons, where the romance between Lyttleton’s own parents is mentioned, giving their names, in one of the verses in “Spring.” This anthology is a book that has very special meaning to this young member of the House of Lords. In any case, his remarks may have generated some ripples in the House, but they did not have the power to really change the direction of the debate.

Finally, Edmund Law (Bishop Carlisle, 1703–1787) and Lord Howard of Effington (d.u.) took the stand, both of them strongly opposed to giving the booksellers perpetual access to copyright.

Lord Mansfield, ultimately, did not say anything to the very end. Although like Lord Chancellor Apsley, his decision was being questioned, and although he knew the background of the discussion on copyright better than anyone else, this man puzzlingly made no effort to exercise his famous “silver tongue” throughout the entire proceedings.

The trial was then concluded and a vote was held among the members of the House of Lords. The Parliamentary History records the vote at 23 members for the Donaldson side to 11 for the Becket side. However, there are other accounts stating that 84 members cast votes that day and that the vote was 22 to 11, so the evidence is not conclusive. Some scholars believe that the vote was taken by a voice vote.118 Whatever the case, Donaldson and his son won and the booksellers’ claim to “perpetual copyright” was withdrawn. For Lord Mansfield, it was one of only six cases overturned in a higher court from among the countless decisions he had made during his career.119

With this decision, the booksellers’ dreams of inexhaustible profits were dashed once and for all. It is said that the people of Edinburgh celebrated in the streets, playing music and waving flags, at news of the decision.120 The 1 March 1774 edition of the Edinburgh Advertiser recorded the joy of the court victory and the passions of the debates as follows:

This question, which has been litigated for more than thirty years, is now hap-pily determined, both in England and Scotland, and authors are now in a better situation in Great Britain, than in any other country. In other countries they are obliged to take out patents for fourteen years, at a considerable expence; whereas, in Britain, they have a standing patent (the statute of Queen Anne) for 14 and 28 years, without any expence.

118 Rose 1993, p. 102.119 Fifoot 1977, pp. 46–47.120 Skinner 1928, p. 16.

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No private case has so much engrossed the attention of the public, and none has been tried before the House of Lords, in the decision of which so many individuals were interested. During the whole time of its duration in the House of Lords, (three weeks including adjournments, and eight days debate) a great number of peers were present, and paid the greatest attention. (Edinburgh Advertiser, 1 March 1774)

Although expressed in a somewhat roundabout manner, according to this article, the Donaldson v. Becket decision had clarified that a patent for up to twenty-eight years was granted to authors free of charge—in other words, their “patent” would expire in twenty-eight years.

Where Donaldson and his son were when they heard of the decision is not known, but there is a good possibility that James was in Edinburgh since he published the extra-edition announcement in the Edinburgh Advertiser. Alexander Donaldson was living in London at the time, so he was no doubt present in the court itself and heard the decision firsthand, where he would have been able to celebrate with Thurlow and Dalrymple. One can also speculate that the modest publisher and the noble Lord Camden exchanged satisfied glances across the chamber, communicating their shared pleasure in having achieved their common objective, but that remains in the realm of the imagination.

The London booksellers found their proud arguments, which had held sway for so many years, crushed by the House of Lords. They were not the type, however, to be easily cowed. Within six days, on 28 February, they had already presented a petition for a new copyright protection law, with 87 signatures, to the House of Commons.121 A committee was formed by the House of Commons to consider the petition and Thurlow, Dunning, and Wedderburn presented opinions. A new “Bill for the Relief of the Booksellers” was drawn up and presented in the House. The actual content of the new bill is not recorded. The booksellers of Edinburgh, Glasgow, York and elsewhere countered with their own petition opposing such a bill. On 10 May at the “Second Reading” of the bill in the House of Commons, Dalrymple spoke, representing those opposed to the bill.

At the 13 May Hearing of Council, a barrister named William Mansfield spoke.122 Taking the side of the monopolist booksellers, he argued that the booksellers’ copyright should be longer than that specified in the Statute of Anne, and he criticized Donaldson and his lawyers. Stating that the Donaldson edition of Homer as translated by Alexander Pope (1688–1744) removed 23,851 lines of notes from the original book, he found fault with the quality of “pirate editions.” He decried the House of Lords, calling the decision

121 Parliamentary History of England, vol. 17, pp. 1078–1110; Walters 1974.122 This is not the Lord William Mansfield who figured in the copyright cases discussed above but another

person of the same name. Shirata believes they are the same person (Shirata 1998, p. 194), but Tompson states that they are different (Tompson 1992, p. 41). The Parliamentary History of England records the name of the man who spoke on 13 May 1774 as “Mr. Mansfield,” rather than “Lord Mansfield,” so I will follow the thesis that they are different individuals.

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of that highest court of law in Westminster “misconceived.”123 Then, judging from the fact that Donaldson had apparently sought to sell out his pirate editions before the Court of Chancery impounded his merchandise, he said “it is evident he [Donaldson] thought, as well as the petitioners, that there did exist a common law right.”124 This William Mansfield’s argument seeming to have had its effect, the new bill was passed in the House of Commons. Upon being presented in the House of Lords, however, it faced the thoroughgoing critique of Lord Camden and Lord Chancellor Apsley as before, and it was thrown out. This confirmed that the booksellers’ claim to a “perpetual copyright” to the works they had published, based on the notion that it had existed in common law, would not be recognized.

Impact of the Decision on Authors and Booksellers: Samuel Johnson’s ViewAlready by the eighteenth century, a complex distribution system made up of several levels of intermediaries had taken shape. Thanks to this system, local bookstores could obtain books popular in London, but the more intermediaries were involved, the more costly the book. For example, Life of Johnson records the distribution routes and intermediary margins for Johnson’s Dictionary in a letter of 1776. The retail price was 20 shillings, while the original cost of the Dictionary was 7 to 8 shillings. The printer, looking to make a profit of 6 to 7 shillings, sold the books to a primary agent in London, Mr. Cadell for 14 shillings. He also added one free copy for each 25 Cadell ordered. Cadell kept 1 shilling’s margin for himself and sold the books to wholesale bookseller Edward Dilly (1732–1779) for 15 shillings. Dilly, in turn, sold the books for 16 shillings and six pence to local booksellers. The price on the Dictionary was 20 shillings.125

Looking at this example of book distribution we can see that Cadell is clearly an extra link in the distribution chain. Cadell was Millar’s successor and executor of his estate. Big booksellers like Cadell not only profited by monopolizing the printing of books but also from their distribution. Johnson’s description of Cadell was as one “who runs no hazard, and gives no credit.” 126 He was no doubt a very savvy businessman.

What did Johnson think of Donaldson? It appears that Johnson took an interest in Donaldson from the time the latter set up shop in London. While Johnson was rather critical of Donaldson’s strategy, he was opposed from the outset to the claims to “per-petual copyright” advanced by Millar and his cohorts. Boswell records a conversation between Johnson and the lawyer George Dempster (1732–1818) on 20 July 1763.

123 Parliamentary History of England, vol. 17, pp. 1097–1098.124 Parliamentary History of England, vol. 17, p. 1098. 125 Boswell 1998 (1791), pp. 679–80. 126 Boswell 1998 (1791), p. 679.

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Johnson, though he concurred in the opinion which was afterwards sanctioned by a judgement of the House of Lords, that there was no such right, was at this time very angry that the Booksellers of London, for whom he uniformly professed much regard, should suffer from an invasion of what they had ever considered to be secure: and he was loud and violent against Mr. Donaldson. . . . Now Donaldson, I say, takes advantage here, of people who have really an equitable title from usage; and if we consider how few of the books, of which they buy the property, succeed so well as to bring profit, we should be of opinion that the term of fourteen years is too short; it should be sixty years.’ DEMPSTER. ‘Donaldson, Sir, is anxious for the encouragement of literature. He reduces the price of books, so that poor students may buy them.’ JOHNSON, (laughing) ‘Well, Sir, allowing that to be his motive, he is no better than Robin Hood, who robbed the rich in order to give to the poor.’

It is remarkable, that when the great question concerning Literary Property came to be ultimately tried before the supreme tribunal of this country, . . . Dr. Johnson was zealous against a perpetuity; but he thought that the term of the exclusive right of authors should be considerably lengthened. He was then for granting a hundred years. (Boswell 1998 [1791]: 309–310)

When Donaldson and Becket were battling it out in the Scotland Court of Session, Samuel Johnson was doubtless discussing the case with his friends. On 8 May 1773, he is recorded as saying:

‘There seems (said he,) to be in authours a stronger right of property than that by occupancy; a metaphysical right, a right, as it were, of creation, which should from its nature be perpetual; but the consent of nations is against it, and indeed reason and the interests of learning are against it; for were it to be perpetual, no book, however useful, could be universally diffused amongst mankind, should the proprietor take it into his head to restrain its circulation. No book could have the advantage of being edited with notes, however necessary to its elucidation, should the proprietor perversely oppose it. For the general good of the world, therefore, whatever valuable work has once been created by an authour, and issued out by him, should be understood as no longer in his power, but as belonging to the publick; at the same time the authour is entitled to an adequate reward. This he should have by an exclusive right to his work for a considerable number of years.’ (Boswell 1998 [1791]: 546–47)

He is in favor, therefore, of a good balance between security of public access to work and the handing over of adequate reward to the author. Every author who had the experi-ence of being exploited by big booksellers as Johnson did was careful thereafter to defend

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his own profits. We can only admire Johnson for his faithful pursuit of the “general good.” Johnson’s interest in copyright was not only out of his interest in economic profit. He believed that the author should retain the copyright in order to be able to correct its misprints and errors and to revise it according to the advance of scholarship. If the text became the property of someone else, it might not be possible for an author to ever put out a revised or expanded edition.

But if the right to copy had been different from that determined in the Statute of Anne, Johnson might have been able to publish more frequent revisions of his Dic-tionary.127 The first edition of the Dictionary came out in 1755 and the copyright was held by booksellers until 1783, the year before Johnson died. The final revised edition prepared by Johnson himself was the fourth edition published in 1773. If the copyright had belonged to Johnson himself, readers of his day might have been able to obtain a more perfected dictionary—at least we may be allowed to speculate.

Like other men of culture and members of the nobility, Boswell and Johnson took a close interest in the Donaldson v. Becket case. Boswell, who had defended Donaldson in the 1773 Hinton v. Donaldson case in Scotland’s Court of Session, was naturally on Donaldson’s side. Just before the Donaldson’s case was heard in the House of Lords, Boswell had published through the Donaldson bookstore a 37-page booklet detailing the points at issue in the Hinton v. Donaldson case. It was an open effort to appeal to public opinion in support of Donaldson.128

In a letter by Johnson dated 7 February 1774, we find: ‘The question of Literary Property is this day before the Lords. Murphy drew up the Appellants’ case, that is, the plea against the perpetual right. I have not seen it, nor heard the decision. I would not have the right perpetual.”129 The case had begun in the House of Lords on February 4, so Johnson’s information is slightly delayed, but in those days a three-day lag was actually quite short.

According to the 20 July 1763 conversation with Dempster quoted above, Johnson concurred with the decision of the House of Lords. He continued to maintain interest in issues of copyright after the decision, which Boswell records in several places. In 1775, mentioning a case in which an author received only one third of the profits from the sale of his book and had been forced to sign over the copyright for 99 years in the contract with the bookseller, Johnson is said to have remarked: “I wish I had thought of giving this to Thurlow, in the case about Literary Property. What an excellent instance would

127 Reddick 1996, pp. 172–73.128 Deazley assumes that Donaldson petitioned the House of Lords to adjourn the session for a month in

order to make sure that Boswell’s book would come out in the meantime. Deazley 2004, pp. 194–95; Rose 1993, pp. 95–96.

129 Boswell 1998 (1791), p. 557.

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it have been of the oppression of booksellers towards poor authours!”130 He also notes how even in 1779, the work of a famous poet was still under the control of “the several booksellers who had the honorary copy right [sic], which is still preserved among them by mutual compact, notwithstanding the decision of the House of Lords against the perpetuity of Literary Property.”131 In other words, there was apparently some skepticism about the effectiveness of the House of Lords decision stating that copyright was not perpetual. Indeed, at least in book distribution in London, the role of the monopolist booksellers must have been quite dominant. Regardless of the House of Lords decision, it was unlikely that the business practices that the London booksellers had agreed upon among themselves would suddenly be changed.

The 1774 decision opened up a place for what had been called “pirate publishing,” but I do not think it fundamentally changed the practices of the publishing world of England. After all, the copies that would no longer be called “pirate editions” were only of those works that had been in print for more than the number of years stipulated in the Statute of Anne; recently written works in fashion were securely under the protection of the Statute. What this suggests is that as far as society’s understanding went, copyright only needed to be protected “during the times therein mentioned” in order to serve the “encouragement of learning” as enshrined in the Statute of Anne.

130 Boswell 1998 (1791), p. 613.131 Boswell 1998 (1791), pp. 1008–1009.

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How did it happen that Alexander Donaldson ended up as a “pirate” publisher in the first place? In answering that question, it helps to know something about the history of Scotland and the society, economy, and publishing conditions of the eighteenth century, an important era in copyright history. To give a sense of the atmosphere of the times and the reasons for the upsurge of literature in Scotland, I introduce the poet and booklender Allan Ramsay (1686–1758).

Scotland has preserved its distinctive culture over the centuries—often stereotypi-cally portrayed by such things as bagpipes, tartan-weave textiles, the kilt traditionally worn by men, and Scotch whisky. Today the northern part of Great Britain, Scotland was a separate kingdom until 1603, and for another century had a separate parliament and legal system. In 1707 it was made part of the kingdom of England. It is difficult to fully understand the Donaldson v. Becket case without being aware of the disparities that this “union” brought to the publishing industry of the two countries.

Here is a puzzle to consider first: Why did the publishing industry flourish in a remote northern city like Edinburgh? Eighteenth-century Scotland produced a wealth of brilliant figures—among them father of modern economics and capitalism Adam Smith, key figure in Western philosophy David Hume, inventor of the steam engine James Watt (1735–1819), father of modern sociology Adam Ferguson—all men who led the way in the development of England’s modern civilization. Such figures active in Edinburgh or Glasgow were closely interconnected. The philosophical and intellectual trends advanced by these and others came together in what is known as the Scotland Enlightenment or Scotland Renaissance. Scholars today are increasingly pointing to this ferment as the cradle of “modern civilization” itself—calling Edinburgh the “Athens of the North.” To appreciate what was achieved in eighteenth-century Scotland, however, we need some further background. Let me trace briefly how Scotland came into being and the flow of its history until the late eighteenth century that is the setting of this book.

Scotland’s Stone of DestinyThe complex history that ties together England and Scotland is well symbolized by what is known as the “Stone of Destiny,” or the “Stone of Scone” from the locale associated with the type of stone from which it was cut. (By pure coincidence, Lord Mansfield was

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a native of Scone.) I saw the stone in 1992, when it was still at Westminster Abbey, a very ordinary sort of stone, built into a by-then rather shabby-looking throne of wood. The “Stone of Destiny” had been used for the coronation of the kings of Scotland until 1296 when it was taken to England as booty of war. It came to be used for the coronations of the sovereigns of the British Isles and he or she who was crowned on that stone was recognized as the legitimate sovereign of the land. The stone thus became the symbol of the monarchy. In 2002, I found the stone inside Edinburgh Castle, to which it had been moved in 1996, after an interval of 700 years, when England returned it in response to Scotland’s demands.

The Stone of Destiny provides a glimpse into the complex histories of the two countries. The kingdom of Scotland is believed to have been established in 843 by a man named Kenneth MacAlpin (?–858). Under the reign of the famed eleventh-century Duncan I (?–1040; r. 1034–1040), the entire territory of Scotland was united. Gen-erations of Scotland’s kings swore fealty to the kings of England. In 1290, when the Canmore family line of kings extending from Duncan I died out, Scotland’s nobles asked the English king Edward I (1239–1307; r. 1272–1307) to intercede in the succession. Edward chose a member of nobility named John Balliol (1250–1313; r. 1292–1296), and though Balliol owed his kingship to Edward, the two did not get on well. Edward had just finished conquering Wales and was waiting for a chance to take over Scotland as well. Claiming that Balliol had formed an alliance with France, Edward I invaded Scotland and his army was invincible. Scotland was soon defeated and Edward took the “Stone of Destiny” back to England.

The patriot to take up Balliol’s banner was William Wallace (1270?–1305). Through his exploits, the army of England was temporarily defeated, but it was only a matter of time until Wallace was captured by the English army, and later executed in London. Robert the Bruce (1274–1329), one of the claimants to the Scottish throne who had sided with Wallace, defied Edward I’s rule, proclaiming himself Robert I (r. 1306–1329) of an independent Scotland. Edward naturally sent out an army against him, but Robert managed to elude capture. When, not long after, Edward I died, his successor, Edward II (1284–1327; r. 1307–1327) showed no interest in Scotland. So Robert I lived out his life as king of Scotland, and it was his grandson, Robert II (1316–1390; r. 1371–1390) who was to found the Stewart (Stuart) family line, which united the royal houses of the two countries.

The fifteenth and early sixteenth centuries were a time of repeated and bloody wars, as England sought to force Scotland into submission. With the reign of Elizabeth I (1533–1603; r. 1558–1603), cultural exchange was encouraged between the two countries, and as she did not marry and at her death in 1603 left no direct heir, her cousin James VI of Scotland (1566–1625; r. 1567–1625) was crowned James I of England (r. 1603–1625). The royal house of England and the Stewarts had strengthened their blood ties from the

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time of Elizabeth I’s grandfather, Henry VII (1457–1509; r. 1485–1509), and James was the closest in line to Elizabeth I. In this way, the royal houses of England and Scotland were united and the two countries were brought together by the personal union of their monarch. At this time, the “Stone of Destiny” at Westminster Abbey changed its nature from emblem of the conquest of Scotland to a symbol of the united royal house.

The Union with EnglandThe language of Scotland is a dialect of English, although to those from other countries it may sound like another language altogether. People who speak the same language quickly band together, and not surprisingly, people of Scotland living in England were quick to embrace their common heritage and loyalty to their homeland. Apparently, that tendency was famous among people from Scotland, as Samuel Johnson observed with some irony, referring to Boswell:

‘The Irish mix better with the English than the Scotch do; their language is nearer to English; as a proof of which, they succeed very well as players, which Scotchmen do not. Then, Sir, they have not that extreme nationality to say, that you are the most unscottified of your countrymen. You are almost the only instance of a Scotchman that I have known, who did not at every other sentence bring in some other Scotchman.’132

Scotland is divided geographically into two regions, the Lowlands and the High-lands. The Lowlands, the region closer to England, includes the cities of Edinburgh and Glasgow. Commerce, industry, and culture flourished in this region where the climate was relatively moderate and England not far away. In the Highlands, by contrast, the land was less fertile and the climate cold; no major industry developed and life was very hard. Scotland is also a country of strong ties among members of the same clan, or extended family, and these blood relations are especially strong in the Highland region. The differences between the Lowlands and the Highlands, in addition to these clans, are what make Scotland’s culture complex.

After Scotland’s James VI went to London to become James I of England, he did not return to Edinburgh save for very short visits. The nobility of Scotland he left behind was divided in two: those seeking to gain favor with the king and success in London and those advocating reliance on the Catholic state France. The conflict between these two camps often led to political deadlock. James II (grandson of James I; 1633–1701; r. 1685–1688) came to the throne of Britain in 1685, but misgivings about his Catholic leanings led to the Glorious Revolution of 1688, and he was driven into exile. Anti-Catholic forces con-

132 Boswell 1998 (1791), p. 531.

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trived for the throne of Scotland to pass jointly to Dutch born William III (1650–1702; r. 1689–1702) and his wife James II’s daughter Mary II (1662–1694; r. 1689–1694), who was a Protestant. Forces loyal to James II, declaring that he and his male descendants were the real kings of England, were known as Jacobites. The Catholic James II received support from France, so the connotation of “Jacobite” is Catholic and “pro-France.” Particularly in Scotland, Jacobites were connected with anti-England activism, and there were periodic Jacobite-led rebellions in the Highlands during the eighteenth century.

In 1695 the population of England was around six million and that of Scotland around one million. The annual revenue of Scotland was about one-fortieth that of Eng-land and the value of the pound was about one-twelfth. Scotland was one of the poorest countries in all Europe.133 Natural disasters and poverty added suffering to continual political turmoil. Famine struck Scotland following unstable weather from 1695 through 1699, and it is said that more than one hundred thousand people—13 percent of the population—starved to death.134 The income gap with England only grew wider, with conditions in the Highlands region particularly cruel. Even in Edinburgh, Scotland’s capital, the situation was not good, causing Adam Smith to write in The Wealth of Na-tions: “There was little trade or industry in Edinburgh before the Union. When the Scotch parliament was no longer to be assembled in it, when it ceased to be the necessary residence of the principal nobility and gentry of Scotland, it became a city of some trade and industry.”135

The poverty of Scotland was the result not only of climate but of misjudgments. England and Spain had established colonies in the “New World,” but Scotland did not have such sources of supply. It had no trade routes such as the English East India Company. Then a plan was proposed, known as the “Darien Scheme,” by which it was hoped Scotland would be able to obtain both a colony and money-making trade routes in the New World at one stroke. The plan was to establish a colony in Darien, a place in Spanish territory near the Panama Canal today. At Darien, a slender stretch of land only thirty miles wide separated the Atlantic and Pacific Oceans. A colony established there would command a key center of trade between the two great oceans. Everyone thought it was a wonderful idea. The nobility of Scotland placed the nation’s fate in this plan and invested vast fortunes in it. It is said that half of Scotland’s wealth was invested in the “Darien Scheme.”

In 1696, three ships carrying 1,200 settlers sailed forth on this mission to Darien. They reached the New World on 3 November the same year. They were met, however, with unimaginable misery as malaria ravaged their ranks. An average of twelve people died every day from the malaise. Many also lost their lives in the assault by the Spanish forces. English

133 Ross 1998, p. 209.134 Allan 2002, p. 87.135 Smith 2009 (1776), p. 244.

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forces were not far away, but they did nothing. They simply watched while the Scotland scheme failed. The desolate survivors drowned their sorrows in drink136 and the Darien Scheme ended in complete failure within half a year. In July 1699, the remnants of the mis-sion left Darien by ship, but only a handful of the settlers were able to return home. With this failure, Scotland’s economy completely collapsed. Some people in Scotland believed that England was at fault, but even if England had done nothing culpable, few people in Scotland thought well of England’s stance, treating Scotland as a vassal kingdom.

England—in its need to placate Scotland as part of its efforts to be on the winning side the War of the Spanish Succession (1701–1714)—found union to be its most expe-dient option. One of many people mobilized as part of the propaganda effort in support of union was Robinson Crusoe (1719) author Daniel Defoe (1660?–1731). Traveling around Scotland on observation tours, he wrote political tracts designed to guide public opinion in favor of bringing the countries together.

The nobility of Scotland were favorably disposed to union. Some, by currying favor in Westminster, hoped to recoup the losses incurred in the Darien Scheme, and this was the motive of all the Scottish nobles who participated in the debates on union in 1706. The debates focused on two issues: funds that would be paid to Scotland as incentives and the treatment of Scotland’s nobility in England. Prior to union, the House of Lords of England was composed of 170 members of the peerage and 26 members of the clergy. In Scotland all 130 of its nobles held seats in its parliament. As a result of the negotiations, it was decided that 16 of Scotland’s peers would be chosen by election and given seats in the House of Lords at Westminster.137 When the negotiations were concluded, the Treaty of Union was ratified, and Scotland became part of the United Kingdom of Great Britain in 1707. Under the provisions of the treaty, private law and the courts of Scotland were to remain as they were, and as mentioned earlier, Alexander Donaldson used the result-ing institutional mismatch to his advantage in his battle with the monopolist booksellers.

Among the populace of Scotland, however, the highhanded maneuverings of the nobility in pushing for the union were unpopular. The discontent, linked to Jacobite sen-timent that continued to brew in the Highlands region, was at the root of the frequent revolts against the crown that occurred in the eighteenth century. The uprisings of 1715 and 1745 were among the largest. The attempt to reassert Scotland’s sovereignty in 1745 collapsed of its own weakness, but London launched policies aimed to weaken Scotland’s cultural identity, among which was the prohibition on the use of the clans’ distinctive tartan dress (kilts). The national anthem of Great Britain at the time included a sixth stanza—today no longer sung—that went as follows:

136 Herman 2002, pp. 28–29.137 Aoki 1997, pp. 24–36.

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Lord grant that Marshal Wade,138

May by thy mighty aid,Victory bring.May he sedition hush,And like a torrent rush,Rebellious Scots to crush.God save the King (Queen)!

These lines vividly evoke the way the nation that is Great Britain came into being, but no Scot would be happy to see such words. In a sense, the embers of popular dissatisfaction with the union continue to glow, stirring independence-movement sentiment even today.

The Church and LiteracyAlso essential to an understanding of Scotland’s history and culture are the religious reformer John Knox (1514?–1572) and the Presbyterian Church. Religious reform paved the way for increased literacy and the advancement of printing and publishing.

Until the reign of Queen Mary Stewart (1542–1587; r. 1542–1567), Scotland had been a Catholic country. Mary Stewart is not to be confused with her more vengeful contemporary, Mary I, Queen of England (also a Catholic; known as “Bloody Mary”), introduced earlier in Chapter 2. Knox was originally a member of the Catholic clergy, but under the influence of religious reformer George Wishart (1513?–1546) he had converted to Protestantism. He went to England and continued to propagate his reform-ist ideas, but as the suppression of Protestantism under England’s Mary I grew violent, he escaped to Geneva, where he met and studied under John Calvin (1509–1564). In 1559, when a Protestant monarch again came to the throne in England, Knox returned to Edinburgh. He led an upsurge of support for Protestantism in Scotland and became a minister at St. Giles’ Cathedral. Knox stridently criticized Catholicism in his sermons and destroyed icons of Catholic worship. His reforms and teachings spread throughout most of Scotland, with Catholicism lingering only in fringe areas.

Knox had been successful in spreading Protestantism in part because of the ab-sence of Queen Mary Stewart, who left Scotland at the age of five (1548) following her engagement to the heir apparent to the throne of France. She returned after the death of her husband in 1561, but by that time Knox’s teachings had already spread quite widely. Still the queen regnant of Scotland, Mary sought to rein in Knox’s influence. She ordered him to appear at the palace four times, and their interviews were the scene of

138 George Wade (1673–1748). Commander of the English army who put down the Jacobite uprising of 1715.

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fierce religious debates. Ultimately, however, she was forced to recognize the support he enjoyed and compromise with him. Scotland’s nobility was divided between Catholics and Protestants, and she herself perpetrated a scandal by her second marriage and was ultimately forced to flee to England. The queen of England, by then the Protestant monarch Elizabeth I, imprisoned Mary Stewart for eighteen years before finally execut-ing her for treason. After Mary Stewart’s departure, Protestant nobles in Scotland made sure that the infant son she had left behind was raised a Protestant, and from that time onward, Scotland has been predominantly Protestant. Scotland’s Protestantism is of the Presbyterian persuasion, in which each church is managed jointly by its minister and “presbyters” elected from among the members of the congregation.

One of the main teachings of the Presbyterian Church is that the Bible is the sole authority for all things. This absolute faith in the Bible had two important ramifications: one was that the Bible needed to be printed and widely distributed and the other was that the faithful had to acquire the ability to read the Bible for themselves.

The strategy of spreading the content of the Bible through printing technology was very good for the propagation of knowledge in general. In attempting to spread the teach-ings of the faith, the impact of sermons was necessarily limited, since people had to be physically present in church to hear their message. By relying on printed matter, it was possible to take the teachings of the Presbyterian Church into every home. The Catechism, Bible, and the hymns were brought in from England and “pirate” editions mass-produced. And thus were laid the foundations of the publishing industry of Scotland.

The Presbyterian Church also emphasized literacy education in order to enable people to read the Holy Scripture, and by the beginning of the eighteenth century Scotland had a better primary education system in place than did England. The “Act for Setting Schools” was issued in 1696, providing for a school to be established in every parish throughout Scotland, the purpose of which was to teach children to read Holy Scripture.139 The basic curriculum of these parish schools consisted of the Catechism, hymns, reading, writing, arithmetic, and a little Latin.140

So what was literacy like in Scotland in those days? Of course, it is probably impos-sible to find out for sure how well people of long ago could really read. The literacy rate will differ depending on what they could read. A common index that is used to measure literacy is whether a person could write his or her own name, and that can be determined by studying documents showing people signing their own names. Robert Allan Houston’s Scottish Literacy and the Scottish Identity (1985) gives the results of his survey of signatures found in old records. His figures for literacy by occupation in the seventeenth and eighteenth centuries are shown below.141

139 Herman 2002, p. 19.140 Herman 2002, p. 97.141 Houston 1985, p. 33 (figure revised for this publication).

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England Scotland 1640–99 1700–70 1640–99 1700–70Professional 97 100 97 99Gentry/Laird 100 100 99 97Craft & Trade 57 74 75 82Yeoman/Tenant 51 74 74 68Husbandman 25 58 not applicableLaborer 15 37 18 32Servant 27 50 42 45Soldier 45 54 35 61Unknown 38 70 49 53

Comparing the lower strata of society in the seventeenth century, literacy in Scotland is higher than that of England. By the eighteenth century, the gap had nearly closed. These figures, however, are for the Lowland region of Scotland only, and literacy in the Highlands region of the north was said to be the lowest in Europe. As mentioned above, the reason literacy was high in the Lowlands of Scotland was because of the teachings of the Presbyterian Church. Followers of the Presbyterian Church believed that children had to be taught to read the Bible. Knox, too, in his First Book of Discipline (1560), appealed for a country-wide effort to advance education.

To fulfill the demands of the Presbyterian Church for Bibles, therefore, the printing industry became established, and it was on that groundwork that the publishing industry of eighteenth-century Scotland flourished. Books, pamphlets and sermons were exported to the European continent and to the American colonies from Edinburgh, making it an important center of publishing culture.142

The Heyday of the Publishing IndustryThe growing prosperity of Scotland’s publishing culture is reflected in a number of statistics. In 1763, there were 6 printing companies in Edinburgh; by 1790 there were 16. Another record indicates that 4 printing companies in 1739 had increased to 27 by 1779.143 One record shows that there were about 300 bookstores in Scotland before 1775.144 The population of Edinburgh in 1763 was about 60,000 and in 1779 it was

142 Colley 2008 (1992), p. 40.143 Chitnis 1976, p. 18.144 Kaufman 1965, p. 247.

Figure 4. Literacy by occupation in England and Scotland. (Houston 1985: 33, revised)

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about 80,000.145 It is believed that the population of Scotland in around 1775 was about 1.4 million.146 That means that around the end of the eighteenth century, there was about one bookstore for every 4,000–5,000 people in all of Scotland, and in Edinburgh about one printing company and bookseller for every 3,000 people.

Other figures are available that offer insight into the level of culture in eighteenth-century Scotland. Of the population of 1.5 million in 1795, some 5,000 families, about 20,000 people made their livelihood from work relating to “literature.” The numbers for those who supported themselves from teaching were 3,500 families and 10,500 persons.147

Samuel Johnson’s observation on Scotland’s learning, too, suggests something about the level of learning there in his time: “Their learning is like bread in a besieged town: every man gets a little, but no man gets a full meal.” “There is (said he,) in Scotland, a diffusion of learning, a certain portion of it widely and thinly spread. A merchant there has as much learning as one of their clergy.”148

Informed discussion on literature, philosophy, and science seems to have been part of daily life in post-Union Scotland, spreading widely among “students, lawyers, clergy-men, merchants, lairds, noblemen and, in some cases, women.”149 The reason for this can easily be attributed to the high level of literacy and the prosperity of publishing. The culture of the so-called Scotland Renaissance emerged from the learning and cultivation achieved even among the general population.

Poet Allan RamsayNow that we have a general grasp of conditions in Scotland after union with England, I would like to introduce the story of the poet and book lender Allan Ramsay. As a member of Edinburgh’s cultural circle in the first half of the eighteenth century, his life and career provide valuable insights into the way people lived in those days and the nature of Scotland’s publishing culture.150

Ramsay was born 15 October 1686 (although there is some debate about whether it might have been more accurately 1684 or 1685) in the village of Leadhills, in South Lanarkshire, forty miles southwest of Edinburgh. Located at a height 1,500 feet above sea level, it was known for its lead and gold mines. The neighboring village of Wanockhead was called “the highest village in Scotland.” Leadhills fell within the lands of the Earl

145 Longman Companion to Britain, p. 290.146 Smout 1998 (1969), p. 242.147 Chitnis 1976, p. 16. Chitnis does not explain what occupations are included in the scope of “literature,”

however.148 Boswell 1998 (1791), p. 627.149 Allan 2002, p. 132.150 For more on the life of Allan Ramsay, see Chalmers and Woodhouselee 1851, vol. 1; Smeaton 1896;

Gibson 1927; Martin 1931a, 1931b; and Brown 1984.

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of Hopeton, and lead had been mined there since the thirteenth century. Gold mined in the village had been used for the crown of Scotland’s King James IV (1473–1513; r. 1488–1513) and rings for Queen Mary Stewart.

We can get an image of what the village of Leadhills was like at the time from the Statistical Account of Scotland, published in the late eighteenth century:

The external appearance of Leadhills is ugly beyond description: rock, short heath, and barren till. Every sort of vegetable is with difficulty raised, and seldom comes to perfection. Spring water there, is perhaps as fine as any in the world: but, the water below the smelting-milns, the most dangerous. The lead before smelting is broke very small and washed from extraneous matter. It contains frequently arsenic, sulphur, zinc, &c. which poisons the water in which it is washed. Fowls of any kind will not live many days at Leadhills. They pick up arsenical particles with their food, which soon kills them. Horses, cows, dogs, cats, are liable to the lead-brash. A cat, when seized with that distemper, springs like lightning through every corner of the house, falls into convulsions, and dies. A dog falls into strong convulsions also, but sometimes recovers. A cow grows perfectly mad in an instant, and must be immediately killed. Fortunately this distemper does not affect the human species.

About 30 years ago, most of the smelters died either madmen or idiots. Now they retain their senses as well as other people. The reason given is: formerly spirits were cheap, and the smelters partook liberally of them at their work. For many years past they drink nothing at their work, but pure spring water; they now live as long and as rationally as others.151

This account describes Leadhills about 100 years after the time Ramsay would have lived there. That was not the environment, however, in which Ramsay spent his child-hood. Born at the end of the seventeenth century, Ramsay grew up before the onset of the Industrial Revolution, and demand for lead was much smaller than it was at the end of the eighteenth century. In a time before the invention of the steam engine, mining would have been done entirely by hand, and the amount of lead mined would have been quite limited. Judging from the world of the works Ramsay wrote, we imagine a much more beautiful and rich landscape than that portrayed in the above account, although this must remain largely conjecture.

Work in the eighteenth-century lead mines was hard. Women did not work in the mines, but boys began to work at an early age. Boys who had turned eight years old were put to work helping with the smelting and with the loading of ore onto the sledges to be carried out of the mines. At age ten they would become apprentices in the mines and

151 Sinclair 1973 (1799), pp. 215–16.

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learn to excavate the lead. Lead was mined by raw manpower, breaking through rock deep in the darkness of the mines, with only candles for illumination. The heavy ore was hauled through mine shafts to the surface by manpower as well, the wooden barrels piled high with ore pulled up on a winch rotated by powerfully built men. The men worked six-hour days and had one day off per week. The homes of the miners were cottages where families of eight often lived in one room serving as kitchen, living, bath, and bedroom. The floor was covered with straw and a fireplace in the center fueled with peat from the moors provided heat and the cooking fire. Lead poisoning and tuberculosis were common afflictions and men lived to an average age of fifty-five. The wages of the lead miners were better than for ordinary laborers, but were not paid until the lead that had been mined was sold, which usually took about a year. The miners bought necessities at the mining company store on credit, which was subtracted from their wages upon payment.

Allan Ramsay’s father was John Ramsay (d.u.), described as “overseer to the Hopes of Hopeton” and superintendent of the Earl of Hopeton’s lead mines. His mother was named Alison Bower (?–1701?) and the daughter of a mine engineer. His grandfather Robert (d.u.) was in the employ of a lawyer who was also an “overseer to the Hopes of Hopeton.” Thus Allan and his older brother Robert were born to a family that had served the Hopeton family for two generations. But John died in his mid-twenties, leaving behind his wife and two young sons. The cause of his death is unknown, but is easy to imagine, given the dangers of the lead-mine environment. Allan Ramsay was born either just before or after his father died.

His mother remarried a local small-holder named Andrew Crichton (d.u.), and had several other children by her second husband. Allan was still very young when his mother remarried and he had no memory of his real father. Thanks to his mother’s remarriage, the young Ramsay was saved from the fearsome fate of the lead mines. Instead, he was assigned to tend his stepfather’s sheep, a task that suited him fortuitously. Spending his days watching over sheep on the endlessly rolling hills, he developed into a sensitive and thoughtful young man. The experiences of his boyhood can be seen reflected in one of the works for which he is best known, The Gentle Shepherd. He attended a local school until the age of fifteen. Since Leadhills did not have a school until 1715, he probably attended the parish school in Crawfordmoor, which was 7.5 miles away. Thus, it was at one of the parish schools where literacy education under the Presbyterian Church flourished that Ramsay got his grounding in poetry reading works in Latin by the Roman poet Horace (b.c. 65–68).

To EdinburghAllan Ramsay’s mother Alison died around 1701, and his stepfather appears to have remarried by 1703. Although the great famine that ravaged Scotland six years earlier had more or less passed, Andrew Crichton had many young mouths to feed, so life cannot

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have been easy. No doubt Andrew was eager to have his first wife’s fifteen-year-old son become independent. Ramsay himself wanted to become a painter, and he had shown talent not only as a writer but as an artist. Andrew seems not to have had the power to grasp and encourage his stepson’s exceptional talents or aspirations. Still, Ramsay’s writ-ing records no unhappiness about his boyhood, and no resentment toward his stepfather, even though he was virtually sent away from home at age fifteen.

Ramsay became an apprentice to a wigmaker in Edinburgh named Jerome Robert-son (d.u.) around 1704. Allan’s older brother Robert had been apprenticed to Robertson in 1695, and had probably set up his own business by the time his brother arrived in the city. Apprenticeship to the same firm where his brother had served assured the young Allan could earn a living in Edinburgh, and in the eighteenth century, wigs were part of formal dress, symbols of elite status, in Europe and the British Isles. A wigmaker’s customers, then, were wealthy and of high social standing. No doubt Ramsay’s expand-ing acquaintance among the well to do greatly benefited from his training in the wig trade. In that sense, for a young man from the country, the work of a wigmaker was quite a fortuitous choice.

Ramsay served Robertson for seven years, learning the wig-making trade, and then set up his own shop in Grassmarket, southeast of Edinburgh Castle. On 14 December 1712, at the age of twenty-six, he married Christian Ross (?–1743). The eldest daughter of Robert Ross (d.u.), who worked in the office of a lawyer, and Elizabeth Archibald (d.u.), Christian was two years Ramsay’s senior. They were happily married and had numerous children. Their eldest son was named Allan (1713–1784) after his father, and later became a central figure in the Scotland Renaissance and a well-known portrait painter. Several other children—Christy, Susanna, Niell, Robert, and Agnes—all died young. It is believed that three of his daughters—Janet, Anne, and Catherine—worked in his shop, but how many children he had in all is not clearly known.

On 12 May 1712, seven months prior to the marriage, Ramsay formed a Jacobite literary group with a number of friends called the “Easy Club.” The club was active until 1715 and was known as a gathering place of the more refined followers of the Jacobite persuasion. Members of the club wrote poetry, polished their skills at conversation while commenting on each other’s works, and read The Spectator, a single sheet daily newspaper then published in London with observations and opinions on current events, cultural issues, and moral behavior. Ramsay was no monarchist, nor was he anti-England, but he was discontented with the state of Scotland. As Jacobites went, he was more emotional than political, so he did not participate in the uprising of 1715. All the club members had pen names, and Ramsay’s was Isaac Bickerstaff. At the end of 1713, he adopted the pen name Gawin Douglas. Both these names have the ring of both Scotland and England, suggesting Ramsay’s aspiration to revive Scotland’s literary arts and seek a new literature merged with the culture of England. His talents nurtured in the critical atmosphere of

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the Easy Club, Ramsay’s poetry blossomed. He earned a reputation as a poet who knew how to use the language of both Scotland and England. Indeed, while most of his works are composed in classical meter, they brim with a good Scot’s humor and satire.

Within a few years after becoming independent, Ramsay gave up the wig-making trade. Ramsay’s first collection of poetry was published in 1721, and its introduction began with the foppish salutation—“To the most Beautiful the Scots Ladies.”152 The printing of the anthology was funded by subscriptions from people requesting copies beforehand. The subscription method seems to have been quite the common practice in the publishing culture of the time. It was customary to list the names of the subscribers in the acknowledgement, and people contributed funds with the expectation that their names would be listed in the printed book. In some cases, persons interested in support-ing a book would be invited by placing an advertisement in the newspaper.153

Not only was he an active poet but a folklorist and student of literature who collected the old poetry, essays, and songs of Scotland, which he edited and made into books. The first product of these efforts was The Tea Table Miscellany, published between 1724 and 1737. But Ramsay was apparently not the rigorous scholar type of collector, and he freely revised the works he selected into a neo-classic style of English and added his own touches before printing. In 1724 he also published an anthology called The Ever Green, a collection of late-medieval period Scottish poems chosen from old hand-copied books. Ramsay changed the spelling and order of the words given in the original poems and even the style of the poems, sometimes completely rewriting verses. His editing was apparently motivated by the desire to have the poems accepted by his contemporaries, but later scholars have tended to decry his efforts as excessive distortion. He also published A Collection of Scots Proverbs (1737). Including not only proverbs, but folk songs and poems, this work represented a valuable effort to rediscover and record Scotland’s culture. The standard proverb collections of today invariably include those gathered by Ramsay.

Ramsay’s efforts to bring old Scotland’s literature to light were of course a product of his times. About twenty years had passed since the union of Scotland and England, but the gap in the economies of the two countries had not narrowed. Influential members of the nobility were drawn to London. Information and culture from London poured into Scotland, driving its rapid Anglicization. Ramsay’s efforts to find and preserve the literary heritage of Scotland must have arisen from his sense of crisis—that English culture might completely overwhelm and wipe out the culture of the Scotland that he loved. These activities were both part of, and moving forces in a renaissance of regional culture that was embraced by the people of Scotland.

152 Martin and Oliver [1945]–1974, vol. 1, p. xv.153 Chitnis 1976, p. 38.

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The Gentle ShepherdOne of Allan Ramsay’s major poetic works was the comedy The Gentle Shepherd (1725), set in rural Scotland. Told in verse, the story goes as follows: In the period of the restora-tion of monarchial rule (around 1660–1685) a gentle shepherd named Patie and Peggy, the daughter of another shepherd of the neighborhood he has known since childhood, are in love. Patie’s close friend, also a shepherd, named Roger, loves a lovely, clever girl named Jenny, but Jenny is attracted to another man named Bauldy and does not respond to Roger’s overtures. Patie and Peggy, hoping to get Roger and Jenny together, offer both of them advice.

Bauldy, meanwhile, who was once betrothed to a woman named Neps, is attracted to Peggy and seeks the advice of another woman named Mause in capturing Peggy’s affections. Bauldy firmly believes that Mause is a witch. He asks Mause to cast a spell so that Peggy will fall in love with him and that Peggy’s lover Patie, will fall in love with his current fiancé, Neps. Mause, however, scolds Bauldy, declaring that she is no witch and that the so-called powers she possesses are the result of the “education” she received.

Now a local landowner named Sir Worthy appears on the scene, announcing that he is Patie’s real father. Sir Worthy recounts how he was driven from the land under the regime of Oliver Cromwell and left his son Patie in the care of the shepherd. Patie is happy to be reunited with his father, but when forbidden to marry Peggy because she is of lesser birth, he is plunged into misery.

Jenny, meanwhile, is persuaded to accept Roger’s love, but Bauldy is tormented by ghosts, and he appeals to Sir Worthy, declaring that his torments are the work of Mause. Observing this, Sir Worthy realizes the importance of education in preventing people from coming under the influence of superstition.

In the end, Bauldy returns to Neps. It turns out that Peggy is in fact the daughter of Sir Worthy’s younger sister. Like Patie, she had been left in the care of a shepherd when she was small. And so in the end, Patie and Peggy are happily married.

This romantic pastoral comedy is written in a mixture of English and Scottish, with numerous folksongs of Scotland included. Drawing on the experiences of his boyhood in Leadhills, Ramsay himself is no doubt the model for the shepherd Patie. Having lost his father early in life and spent years in the countryside tending his stepfather’s sheep, Ramsay’s imagination spread its wings wide in that pastoral setting. There was likely a model for Peggy as well—and the author’s dreams of how he would have been united with such a girl if only his father were the Earl of Hopeton.

What was Ramsay’s message in The Gentle Shepherd ? The story portrays people who are swayed by ancient superstitions about witches and ghosts. The Witchcraft Act had yet to be abolished, and for the common people, witches may have seemed very real. Indeed, until 1727, witches were regularly sentenced to death in England. Bauldy is a character symbolic of the popular belief in superstition. He relies on magic to achieve his

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wish and is tormented by ghosts. The story offers an instructional tale on the importance of education so as not to be misled by superstition. Certainly Ramsay wanted to send a message of the power of education in defeating medieval irrationality and building a new era. That conviction was what inspired his circulating library business.

The Gentle Shepherd won acclaim as a leading example of the “pastoral comedy” of Scotland. James Boswell, a man of Scotland, was among those impressed by the work, which he mentions in Life of Johnson in a 1773 passage, as follows:

I spoke of Allan Ramsay’s Gentle Shepherd, in the Scottish dialect, as the best pastoral that had ever been written; not only abounding with beautiful rural imagery, and just and pleasing sentiments, but being a real picture of manners; and I offered to teach Dr. Johnson to understand it. ‘No, Sir, (said he,) I won’t learn it. You shall retain your superiority by my not knowing it.’154

Johnson’s reaction, reflecting his slight disdain for Scotland’s world of letters, may have been typical of the reviews of Ramsay’s work in England.

In 1729, Ramsay created an opera version of The Gentle Shepherd. He was probably influenced by John Gay’s (1685–1732) The Beggar’s Opera, which had been a big hit in London the year before. The opera of The Gentle Shepherd was performed widely throughout the eighteenth and nineteenth centuries, in Edinburgh, London, Birth, and New York. Recently revived, it was included on the program of the Edinburgh Festival in the summers of 1986 and 2001, and is firmly established as a classic of Scotland’s performing arts.

Ramsay’s Circulating LibraryIn 1725, the year Ramsay published the first edition of The Gentle Shepherd, he moved to the center of guild trade in the city of Edinburgh called the Luckenbooths, where he started a circulating library, said to be the first shop of its kind in Great Britain. The li-brary also sold books. Some sources say that the books for sale were lent out to fee-paying members of the library for one- to two-week periods. Others say that the bookshop and circulating library were separate.155 It is difficult to corroborate either claim.

Ramsay’s shop flourished. It was a popular gathering place in Edinburgh regularly used by young people as a meeting place. It drew not only young people but the literary elite of the town, as well as travelers. Unfortunately, the Luckenbooths was demolished when the neighborhood was redeveloped in 1817, and no trace remains today to sug-

154 Boswell 1998 (1791), p. 515.155 Booksellers Dictionary, pp. 246–47.

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gest the atmosphere of Ramsay’s shop. As of 2005, only a single souvenir shop called “Luckenbooth” remained as testimony to that interlude of local history.

Ramsay’s shop enjoyed overwhelming popular support, but his business was cause for furrowed brows among some in positions of authority. Leaders of the church and conservative government condemned his circulation of “obscene” books, as testified in one mid-nineteenth century document referring to Ramsay’s circulating library in 1728.

Besides this, profaneness is come to a great height; all the villainous, profane, and obscene books and playes, printed at London by Curle and others, are gote down from London by Allan Ramsay, and lent out, for an easy price to young boyes, servant women of the better sort, and gentlemen, and vice and obscenity dreadfully propagated. Ramsay has a book in his shop, wherein all the names of those that borrow his playes and books for two-pence a-night or some such rate are set down, and by these wickednes of all kinds are dreadfully propagated among the youth of all sorts. My informer, my Lord Grange, tells me he complained to the magistrates of this, and they scrupled at meddling in it, till he mooved that his book of borrowers should be inspected, which was done, and they were alarmed at it, and sent some of their number to his shope to look through some of his books; but he had notice an hour before, and had withdrawn a great many of the worst, and nothing was done to purpose.156

Ramsay did indeed make it his business to bring to Edinburgh before anyone else all sorts of “diabolical” books as soon as they had been published in London and make them available to young people at cheap prices. His shop was filled with irreverent and enjoyable books of all kinds and the church tried to get the authorities to close it down. Their alarm was not surprising, as Ramsay’s store stood just to the left of the St. Giles’ Cathedral, the very headquarters of the Presbyterian Church of Scotland. No doubt it appeared to them a direct challenge to have such a provocative establishment in that particular place. Alerted by the church authorities, the magistrates went to inspect the circulating library, but Ramsay was warned in advance and removed the most “danger-ous” books before they arrived. When the magistrates got there, and found only row upon row of books on theology and philosophy, they had no choice but to reluctantly withdraw. Some say there is no evidence of such dramatic moments in the history of Ramsay’s shop,157 but given Ramsay’s overall activities, it would not be surprising if there had been, for he was engaged in a guerilla-like strategy against the authorities. What he was doing was certainly considered “diabolical” from the viewpoint of so-called “upright”

156 Literary Gazette, p. 455.157 Kaufman 1965, p. 244.

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people of the time. That which was considered “diabolical,” however, ended up fostering the endeavors of young people in developing new values, and these young people did in fact give rise to the Scotland Renaissance.

The business of a circulating library could only have been successful in Edinburgh because the popular literacy rate was quite high. The Presbyterian Church policy of furthering elementary education succeeded in pushing up the literacy rate, so Ramsay simply took advantage of the cultural momentum set in motion by the church itself, and ultimately contributed to the overturn of the very values the church had sought to put in place. The play The Rivals (1775) written by Ireland-born author Richard Brinsley Sheri-dan (1751–1816), includes the line, “a circulating library in a town is, as an ever-green tree of, diabolical knowledge!”158 Although this depiction of London was made about fifty years after Ramsay’s day, it expresses an interesting view of the circulating library in the eighteenth century. “Diabolical knowledge” means knowledge considered wicked or ungodly from the viewpoint of Christian values. The “tree” that Ramsay tended spread branches quite unlikely ever to wither from the very center of Edinburgh, and in the shadow of its boughs, the youth of a new civilization gathered.

Now let us take a somewhat closer look at the “circulating library” business. Until their position was ousted by “public libraries” under the Public Libraries Act of 1850, there were all sorts of circulating libraries in England. Some operated for profit, some as a non-profit service; some were managed by individuals, others by local communities; some were membership-based, some not, and so on. Whatever their form, they all played a major role in the increased literacy of the populace and the flowering of culture. In an account of London in the 1780s in a book entitled Travels Chiefly on Foot, Through Several Parts of England in 1782, a German named Karl Philipp Moritz (d.u.) wrote of his surprise to find that his landlady, the widow of a tailor, was entertaining herself with literature by reading borrowed books. “My landlady, who is only a taylor’s widow, reads her Milton; . . . I have conversed with several people of the lower class, who all knew their national authors, and who all have read many, if not all of them.”159 Booklending was clearly helping to improve the literacy of the common people.

Ordinary people were not the only users of the circulating libraries. Historian De-vendra P. Varma (1923–1994) writes that well-known authors like Walter Scott (1771–1832) and Robert Burns, as well as Romantic-movement authors such as the following were regular users:160

William Shenstone (1714–1763)William Cowper (1731–1800)

158 Sheridan 1775, p. 27.159 Moritz 1797 (1795), p. 38.160 Varma 1972, p. 81.

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Thomas Chatterton (1752–1770)Fanny Burney (1752–1840)William Wordsworth (1770–1850)Taylor Coleridge (1772–1834)Jane Austen (1775–1817)Henry Crabb Robinson (1775–1867)Leigh Hunt (1784–1859)John Keats (1795–1821)

According to Ephraim Chambers’ Cyclopaedia, 75 percent of popular fiction was purchased by circulating libraries.161 So at this stage, the circulating libraries were welcome not only to ordinary readers and educated people but booksellers and writers as well.

So how many circulating libraries were there in eighteenth-century England? Paul Kaufman, who has done a detailed study of booklending in modern England, says evidence shows that there were already at least six booklenders in London as of the year 1700, rejecting the popular belief that Ramsay’s was the first in Great Britain.162 Accord-ing to a study by Hilda M. Hamlyn, there were at least nine booklenders in London in the 1740–1750 period. Between 1770 and 1780, the number had risen to nineteen, and stood at twenty-six in the following decade. Some sources indicate that there were more than 1,000 lending libraries throughout England in 1800. In 1802, John Feltham writes that “every intelligent village throughout the nation now possesses its Circulating library.”163 This affords a glimpse of how these circulating libraries supported English literature in Great Britain.

In Allan Ramsay’s native town of Leadhills, in fact, the “Leadhills Miners Library” stands even today, calling itself the “oldest subscription library in Great Britain.” Founded in 1741, it boasts a sign reading “Instituted by Allan Ramsay.” The year 1741 was forty years after Ramsay moved to Edinburgh, however, and it seems unlikely that he had retained his connection with Leadhills. The guidebook published by the library admits that there is no evidence that Ramsay founded the library, so the sign is no doubt an expression of wishful thinking. The Statistical Account of Scotland, published toward the end of the eighteenth century, includes a passage about this library:

The Leadhills library contains some trash, but as many valuable books as might be expected to be chosen by promiscuous readers. They are the best informed, and therefore the most reasonable common people that I know.164

161 Varma 1972, p. 79. 162 Kaufman 1965, p. 244.163 Feltham 1802, p. 238.164 Sinclair 1973 (1799), p. 216.

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I myself visited this library. Neither the building nor its contents were of the eighteenth century, but its collection was extremely interesting. It was full of weighty—both physically and content-wise—books on subjects like theology and philosophy. Leadhills was a village of miners, however, and I just could not imagine—though I have no intention to belittle—men exhausted from work in the mines sitting down to read books of theology in the dim light of their poor homes. I even asked the librarian—did the miners read difficult books like this?—and was told that they did.

In any case, what kind of books did Ramsay’s circulating library actually provide? Kaufman has studied the composition of the collection of the circulating library that James Sibbald (1747–1803) managed, after taking over Ramsay’s original shop. Accord-ing to Kaufman’s study, the inventory of the collection published 1780 and before was as follows:165

Classes No. of TitlesHistory and Antiquities of Great Britain, Ireland, and Foreign

Nations; Geography, Voyages and Travels; Lives, Trials, Peerages, &c. 832Arts and Sciences, Natural History & Philosophy, Metaphysics,

Trade, Husbandry &c. 544Anatomy, Physics, Surgery, Midwifery, Materia Medica 326Divinity & Ecclesiastical History 346Poetry—Plays—Essays—Letters &c Entertaining & Critica—

Translations of the Greek and Roman Poets and Orators 829Novels and Romances 888

It is difficult to draw a line between what is “serious” and what “profane,” but if we compare the top four categories with the bottom two categories, we see that the ratio is about 1:0.84. Before the middle of the eighteenth century, we should note, the “novel” as a genre was as yet not established, so it is likely that the proportion of popular books in Ramsay’s time was lower than the figures shown here. Studies of extant catalogs of booklenders in England from the late eighteenth century indicate that the proportion of fiction in the collections was around 10 to 15 percent.166 A report of the composition in 1791 of the collection of the Hamilton booklender of London indicates that of a total 1,500 titles, 1,050 were “novels.”167

Perhaps more important than the composition of the collections, however, was what books people actually borrowed and read. What people were reading can be learned by careful examination of the lending records of these libraries. In general, the main

165 Kaufman 1965, p. 239.166 Shimizu 1994, p. 114. 167 Varma 1972, p. 198.

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strength of the circulating libraries would appear to be popular fiction, but some studies indicate that that was not necessarily so, at least with regard to Scotland. In the country town of Innerpeffray, about forty miles northwest of Edinburgh is “Scotland’s Oldest Lending Library,” established around 1680. Kaufman, who examined 1,483 records of books borrowed between 1747 and 1800, reports on 370 titles lent in the following categories.168

Religion 171History, Law and Politics 85General Secular Literature 37Agriculture 18Travel 11Mathematics and Science 8Miscellaneous 40

He gives the most frequently borrowed books, with number of times borrowed during that period, as follows:169

Robertson, History of Charles V 46Clark, Sermons 37Tillotson, Sermons 34Sherlock, Sermons 30Buffon, Natural History 27Monthly Review 26Mosheim, Ecclesiastical History 26Abernethy, Discourses (Sermons) 24Universal History 23Atterbury, Sermons 20Locke, Works 20

The occupations of the people who borrowed the books were extremely diverse, as Kaufman notes, “barber, bookseller, army captain, cooper, dyer, dyer apprentice, factor, farmer, flaxdresser, gardner, glover, mason, merchant, miller, minister, quarrier, schoolmaster, servant, shoemaker, student (of humanity, divinity, philosophy), smith, surgeon, surgeon apprentice, tailor, watchmaker, weaver, wright”170—obviously includ-ing many ordinary folk.

168 Kaufman 1964, p. 228.169 Kaufman 1964, p. 229.170 Kaufman 1964, p. 231.

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Another example may be found in the library of Haddington, a town about twenty miles east of Edinburgh, where of 2,837 lending records from the 1732–1796 period have been preserved. Kaufman notes that works like Universal History; Rolin, Ancient History; Henry Fielding (1707–1754), Works; Callender, Collection of Voyages; Sully, Memoirs; Rollin, Roman History; and William Robertson (1721–1793), History of Charles V were frequently borrowed.171

Kaufman’s reports on these libraries is quite detailed but—given the rather extended time period for both libraries—the number of records studied seems strangely small. It would suggest, calculated by simple arithmetic, that Innerpeffray lent out only 27 books per year and Haddington only 43 books per year. Whether Kaufman’s figures are based on only records that happened to survive or whether the study examined only part of the available records is not clear. Although it would be risky to draw any conclusions about the average level of education of country readers in Scotland from these records alone, they do offer convincing evidence that ordinary folk were reading quite difficult books.

Confirming in the above how significant was the cultural role of circulating libraries, let us return to the story of Allan Ramsay’s career. It seems that by around 1730, Ramsay had ceased publishing collections of poetry, although he left numerous unpublished poems written after 1730.172 Perhaps he found he could not write poetry he thought worth publishing. Instead he became active in various venues of the performing arts.

Ramsay also left his mark on the history of art education in Scotland. La-menting that although he had had artistic talent but had been unable to realize his dream of becoming a painter, he seems to have decided to entrust his dream in the next generation by participating in the founding of an art school. The Academy of St. Luke, Edinburgh’s first art school, was founded 29 October 1729, providing instruction in painting, sculpture, and architecture. Ramsay sent his sixteen-year-old eldest son to this school—or perhaps it was more accurate to say that he participated in its founding so that he could send his son to art school to fulfill his own unrealized dream of becoming

171 Kaufman 1965, pp. 265–66.172 Martin 1931a, p. 36.

Figure 5. Portrait of poet Allan Ramsay (1686–1758) by his son Allan. (Smart 1992a: 17)

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a painter. In actuality, the academy served the function of art school for only a short period, until 1733, but that was enough for Ramsay to educate his son, who drew the portrait of his father (see Figure 5). Drawn in 1729, the year the Academy of St. Luke was founded, the sketch is the oldest work of its kind among the extant works of the younger Ramsay. Vividly capturing his father’s piercing gaze at something far away, the work foreshadows the genius that would make him one of the most successful portrait painters of his time.

Ramsay’s nurturing of the “evergreen tree of diabolical knowledge” extended to the theater as well, with his creation of Carrubber’s Close, a theater located just off High Street in Edinburgh. In the period of the Glorious Revolution of 1688, this was the loca-tion of a safe house for Jacobites. The theater’s formal opening, held 8 November 1736, included a performance of Henry Fielding’s The Virgin Unmasked. With a provocative title that might have seemed controversial, in fact it was more of a moral tale. A merchant who has grown very wealthy decides to marry off his daughter to one of three bachelors who are related to him by blood, as a means of protecting his fortune. The three men, one a druggist, another a ballroom dancer, and another a lyricist, vie to display their talents, but in the end the daughter marries a servant. The publisher of The Virgin Unmasked was the London bookseller John Clark (d.u.). Ramsay purchased the publishing rights to the book from Clark in July 1732, suggesting that he had been preparing to open the theater from four years earlier. His enthusiasm for the theater was not just a passing whim.

Ramsay sold year-long tickets to his theater to collect funds, but he probably had no idea of what its destiny would be. The youth of Edinburgh, eager for new forms of culture, were strong supporters. The Presbyterian Church, however, was not pleased, attacking the theater as a corruptive influence among youth. By unhappy coincidence, the Licencing Act, a law designed to control playhouses (which were likely to become the basis of anti-establishment activity in outlying parts of the country) went into effect on 24 June 1737. Under the Act, it became impossible to run a theater for profit anywhere outside of London. Caught by surprise by the law, Ramsay wrote to a friend in London, asking for a copy of the text of the law and any advice about getting around it, saying: “I am particularly attacked by a certain act against our publick Theatres having a set of players under my management I should be sory to see them driven to Beggary now, when I had last year got a braw new House for them.”173

Since the laws of England and Scotland continued to be different in principle at that time, one wonders whether the Licencing Act would have applied in Edinburgh, yet Ramsay’s alarm indicates that in fact it was fairly influential in the capital of Scotland as well. Clever as he had been at circumventing the law in his circulating library, it was to prove difficult for his theater to elude the long arm of the law. No longer able to present

173 Kinghorn and Law 1951–1961, vol. 4, p. 207.

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plays, Ramsay sought to get through his difficulties by giving performances of music and dance in the theater. The Presbyterian Church kept up its attacks on Ramsay under the terms of the Licencing Act, until he was finally forced to close it down. Only three years had passed since the theater had first raised its curtain.

Whereabouts of Ramsay’s LibraryIn 1738, Ramsay built a house on land he had obtained five years earlier north of Edinburgh Castle. Standing on high ground with a spectacular view, the area today is called “Ramsay Garden.” In the early twentieth century, the area was redeveloped into a complex of homes for educated people, inspired by the idea of recreating the intellectual ferment of the eighteenth century.174 Today, there are luxury apartments and tourist ac-commodations standing there.

Ramsay’s original house is preserved today, featuring an octagonal structure evoking the architecture of Naples, familiarly known as a “goose pie” house, from the resemblance of its shape to the pie tin used to make the “goose pie” that is a traditional Christmas-season dish in Scotland.

The year after his theater was closed, in 1740, Ramsay retired to his goose-pie house, where he remained for the last seventeen years of his life, in imitation, it is said of the poet of the Roman empire, Horace, who escaped Rome to live in the quiet of the countryside. Enjoying conversation with his friends, reading, tending his garden, he frequently wrote to friends and penned poetry, living out his life without further rabble-rousing. His wife, Christian, died 28 March 1743 at the age of sixty. Ramsay survived her for fifteen years, but he suffered from scurvy in his later years and died 7 January 1758. An elegy written by a friend upon his death goes as follows:

How sweet his Voice when of Content he sings,Soft as the Musick of Angelick strings;No sour Philosophy disturbs his Rules,Free from the faults, and pedantry of SchoolsNo severe Moral interrupts his Song,But all is Native Innocence along,Pleas’d with his Precepts, which so just appear,We view the Road of blest Contentment near.175

174 Takahashi 2004, p. 185.175 Kinghorn and Law 1951–1961, vol. 4, p. 312.

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Ramsay was a man of middle stature, of a cheerful and kind disposition. Blessed with a rich imagination, he treated people of all levels of society on an equal basis. He devoted tremendous effort to gathering and publishing the poetry and songs of old Scotland in danger of being lost in the midst of the union with England. The texts that he published were perhaps not strictly faithful to the originals, but his efforts pioneered many other projects of similar vein. Although he came under the pressure of church authority, he imported progressive culture from London and made it available to the youth of Edinburgh. By operating a bookshop, circulating library, as well as theater, he acted as a kind of “producer” of culture, setting the stage upon which the Scotland Enlightenment of the eighteenth century was to flourish. His projects may have been called “diabolical,” but they may have been the sort of necessary evil that made it possible to break away from long-entrenched conventions and forge a new culture.

What happened to Ramsay’s circulating library? After Ramsay’s death, the shop passed to a man named James Macewan (d.u.), who subsequently turned it over to the large bookseller Alexander Kincaid176—the same Kincaid who was a business partner with Alexander Donaldson and who was both friend and foe to Millar. Later the circulat-ing library passed to a man named William Creech (1745–1815).177 Creech went on to work jointly with Cadell, who was the successor to Millar’s bookstore, and Millar’s close associate Strahan, and to publish the first Edinburgh edition of Poems (1787) by Scotland’s leading poet, Robert Burns.

In 1757, a man named John Yair (d.u.), who had operated a bookseller in Edinburgh’s Parliament Close since 1742, purchased the circulating library from Creech. After Yair’s death, his widow Margaret continued the circulating library’s business until 1780 after which it was purchased by Sibbald, as mentioned earlier.178 Sibbald’s circulating library was to be the stage of an important encounter in the history of English literature: the meeting there in 1786 of Robert Burns and the young Walter Scott, two figures who became the champions of the Romantic movement of English literature.

John Gibson Lockhart (1794–1854), who was Scott’s son-in-law and his biographer writes in The Life of Sir Walter Scott (1837–1838) that Scott was a regular customer at Sibbald’s circulating library. It recounts how, having been granted the freedom to freely search for books in the library’s shelves, Scott thus came in contact with the classics of France and Italy. It seems certain that many of the books that Romantics like Scott and Burns read were those that had formerly been collected by Ramsay. Lockhart writes:

I fastened also, like a tiger, upon every collection of old songs or romances which chance threw in my way, or which my scrutiny was able to discover on the dusty

176 Chalmers and Woodhouselee 1851, vol. 3, p. 221.177 Chalmers and Woodhouselee 1851, vol. 3, p. 222.178 Booksellers Dictionary, p. 370.

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shelves of James Sibbald’s circulating library in the Parliament Square. This collection, now dismantled and dispersed, contained at that time many rare and curious works, seldom found in such a collection. Mr. Sibbald himself, a man of rough manners but of some taste and judgment, cultivated music and poetry, and in his shop I had a distant view of some literary characters, besides the privilege of ransacking the stores of old French and Italian books, which were in little demand among the bulk of his subscribers. Here I saw the unfortunate Andrew Macdonald, author of Vimonda; and here, too, I saw at a distance the boast of Scotland, Robert Burns.179

In the year Sibbald died (1803), the circulating library was purchased by a man named Alexander Mackay (d.u.).180 Records state that Mackay owned books that have the bookplate of Ramsay’s circulating library,181 but in 1805, the shop that had stood on the site where Ramsay had his original library was torn town and the collection was auctioned off in 1832. A large proportion of the collection was purchased by William Wilson (d.u.), who ran his bookstore until 1851.182 What happened to the books after that is not known.

Representations of Allan Ramsay, the elder, have changed with the times. Having been described as “diabolical,” his reputation until around the mid-1780s was pitiably low. Burns and Scott, however, had tremendous respect for Ramsay, who greatly influenced them. Thanks to the success of Burns and Scott, Ramsay was applauded throughout most of the nineteenth century as a pioneer of Scotland’s arts and letters. Toward the end of the nineteenth century, Ramsay’s reputation again declined, but since research on Scotland’s Enlightenment began to flourish from the 1960s, it has again risen.

Regardless of the ups and downs of his reputation over the centuries, his importance as an influential figure in the Romantic movement of English literature is undeniable. Sir Walter Scott recalled the influence of Ramsay’s poetry collections on him as follows:

Two or three old books which lay in the window-seat were explored for my amusement in the tedious winter days. Automathes, and Ramsay’s Tea-table Miscellany, were my favourites, . . . My kind and affectionate aunt, Miss Janet Scott, whose memory will ever be dear to me, used to read these works to me with admirable patience, until I could repeat long passages by heart.183

Active in the first half of the eighteenth century, Ramsay helped revive Scotland’s native culture in the tumultuous era following the union with England and contributed

179 Lockhart 1969 (1837–1838), p. 35. 180 Kaufman 1965, p. 239.181 Varma 1972, p. 31.182 Kaufman 1965, p. 239. 183 Lockhart 1969 (1837–1838), p. 16.

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to the gradual incorporation of up-to-date culture from London. After the middle of the century, the demands of the times changed radically.

The Younger Allan RamsayJust down the hill from Edinburgh Castle, on a rocky cliff rise the walls of the “goose-pie” house where the poet and book lender Allan Ramsay spent the later years of his life. In the days of the Donaldson v. Becket case, its main resident was his son, also named Allan Ramsay, the well-known portrait painter.

The younger Ramsay took as his second wife a cousin of Lord Mansfield, and by marrying a woman of good birth, he expanded his links with the upper echelons of Brit-ish society. By then he had established his reputation as a portrait painter. Based mainly in London, he also resided in Edinburgh for certain periods.

The Ramsay houses in London and Edinburgh were gathering places of prominent figures of the times. According to The Life of Johnson, both Johnson himself and Boswell, his biographer, lunched there together at least twice in 1778–1779. The 29 April 1778 luncheon at the Ramsay house was attended also by Scottish historian William Robertson. The account says that Robertson related to Ramsay, Johnson, and Boswell his experiences publishing The History of Scotland, during the Reigns of Queen Mary and of King James VI (1759) as follows:

I sold my History of Scotland at a moderate price, as a work by which the booksellers might either gain or not; and Cadell has told me that Millar and he have got six thousand pounds by it. I afterwards received a much higher price for my writings. An authour should sell his first work for what the booksellers will give, till it shall appear whether he is an authour of merit, or, which is the same thing as to purchase-money, an authour who pleases the publick.184

His advice was, thus, that those who wished to make a living by their writing should take what the market (the booksellers) offered at the beginning, with the expectation that once they had established themselves, they could then ask for more. Most writers must have had to accept this situation, and yet not everyone could come out ahead. The vast majority of writers were simply taken advantage of by the booksellers. In 1778, even four years after the decision in the Donaldson v. Becket case, there appears to have been little change in the ways that booksellers exploited authors; authors for their part seemed to mostly put up with the situation.

184 Boswell 1998 (1791), p. 980.

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Boswell’s account of the luncheon on that day describes an argument between Adam Smith and the bookseller and printer William Strahan and relates an exchange that took place about the work of Alexander Pope. The following day, Johnson remarked to Boswell “Well, Sir, Ramsay gave us a splendid dinner. I love Ramsay. You will not find a man in whose conversation there is more instruction, more information, and more elegance, than in Ramsay’s.”185

The painter had some memories about the publishing world. When he was still only nineteen years of age, his father had sent him to negotiate for the publication of the father’s The Tea Table Miscellany with bookseller Andrew Millar. In 1732, the young man paid a visit to Millar in London, carrying a letter from his father. The father had told his son, “If you do not like the proposal tell Mr Millar so.” In the postscript to his letter to Millar, moreover, he wrote, “My son brings you this, if he approves it.”186 We can tell from this account that the father already had full confidence in the judgment of his teenage son. Doubtless the latter had cultivated considerable learning from exposure to his father’s library. Ramsay did go on, though he made his living as a painter, to be a man who could converse intelligently about the London publishing business and the issues of copyright.

After graduating from the Academy of St. Luke, which his father had been involved in founding, the younger Ramsay studied painting in London for about a year. In 1733 he returned to Edinburgh and began working as a portrait painter while living in his father’s house. In the summer of 1736, just before the father opened the theater on Carrubber’s Close, the son traveled to Paris, Florence, and Rome to study art. In 1738 he returned to London and took up residence in Covent Garden. He lived there until 1751 and his fame as a portrait painter grew.

In 1739 Ramsay married Anne Bayne (?–1743). They had two sons and a daughter but none survived, and his wife too, died in childbirth. In 1752, he married the above-mentioned cousin of Lord Mansfield, Margaret Lindsay (?–1782), with whom he had two sons (John and Allan) and two daughters.

During late 1753 to July 1754, the younger Ramsay moved back to Edinburgh and was involved in the founding of the Select Society, a kind of salon frequented by scholars such as Adam Smith and David Hume, writers, members of the clergy, and other prominent intellectuals. Donaldson’s counsel, Sir John Dalrymple was also a member of this society. Alexander Wedderburn, who would serve as co-counsel to Becket, was at the young age of twenty-two a central member. Social scientist and historian Adam Ferguson and Boswell as a young man, too, were later members. Indeed, it was a society of all the leading lights of the Scotland Renaissance.187

185 Boswell 1998 (1791), p. 982.186 Smart 1992a, p. 7.187 Smart 1992a; Chitnis 1976, p. 201.

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The Select Society met almost weekly from summer into winter beginning in 1754 and until around 1763, its purpose mainly being to pursue philosophical subjects and refine the arts of conversation. The arts, science, industry, agriculture, and conversational skills were regular topics. The group was similar to the Easy Club founded earlier by the senior Ramsay. Among the numerous private clubs of eighteenth-century Scotland, the Select Society is one that historians believe had an especially great influence on the Scotland Enlightenment and the later modernization of Britain. I think it is worth em-phasizing that the painter Ramsay was a member of this network of figures who built the foundations of modern society.

Ramsay made a second trip to study in Italy from 1754 to 1757 and when he returned, he took up residence in the Soho district of London. He painted a portrait of King George III and went on to solidify his status as a royal portrait painter. He also did portraits for many of the philosophers of the Enlightenment, including two for David Hume (in 1754 and 1766), and one of Jean-Jacques Rousseau (1712–1778) in 1766. Rousseau was staying in London with Hume’s support, his writings having gotten him into trouble in his native Switzerland. It must have been through Hume’s introduction that Ramsay did the portrait. We also know that Ramsay associated with Denis Diderot (1713–1784), editor of the famous L’Encyclopédie, when he was in Paris in 1765, although he did not paint Diderot’s portrait.

In 1773, after seriously injuring his right shoulder in a fall from a ladder, Ramsay was forced to retire as a painter. He spent the rest of his life writing essays and traveling in Italy. While residing in Edinburgh in the famous goose-pie house he lunched often with friends. In March 1782 his wife Margaret died. Grief stricken, he left half a year later for his fourth trip to Italy with his son John. He died at the port of Dover in August 1784, just after having returned to England.

Ramsay was closely associated with the people of the Enlightenment. These men created loose networks within which they inspired and edified each other, and Ramsay was part of these networks. Although he was not a central figure, one gets the impression that if he had not been among them, the interrelations among these men might have been rather different.

The younger Allan Ramsay was not only talented as a painter; he also inherited his father’s literary gifts. He wrote a number of social tracts that reveal the cultivation of his close association with the great minds of his day. His Essay on Ridicule (1753) and The Investigator (1755) were published by Millar’s bookstore and his Essay on the Constitution of England (1765) was published by Becket. What we can tell from this is that both the elder Ramsay and his son associated with Millar and that the painter Ramsay and Becket, Wedderburn, and Dalrymple were connected via the same human networks. It was not as if the network of Enlightenment figures of which Ramsay was a part was a separate and rival network to that in which Donaldson moved. There is no doubt that

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the elder Ramsay’s circulating library contributed to Edinburgh culture and that both the Donaldson bookshop and Ramsay’s network emerged in the setting of that cultural fer-ment. One of the reasons for the blossoming of Scotland’s Enlightenment was definitely the ready availability of “pirate editions”—books available more cheaply than in London. The relationship between “pirate publishers” like Donaldson and the leaders of culture may seem at odds, but was in fact one of coexistence.

With the rise of the Scotland Renaissance and against the backdrop of developing trans-port networks, it became necessary to both challenge London and quickly and actively import its culture. It would be Alexander Donaldson who carried on Ramsay’s legacy.

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Now let us look at what happened to the main players in the Donaldson v. Becket case in the ensuing years.188 Thurlow, Wedderburn, and Lord Mansfield all ended up patrons of the arts, albeit representing differences in stance. Both Wedderburn and Lord Mansfield were at pains to support writers, and even Thurlow is said to have assisted writers who had yet to establish themselves.189 The Statute of Anne only protected the booksellers; writers had to rely as always on the support of patrons to get their start. These three men shared a desire to foster the leaders of their culture, and their fates were diverse.

Lord Mansfield’s later years were not happy ones, mainly because of his connections to the Catholic Relief Bill (1778). From the time of Elizabeth I, Catholics had been discriminated against in England. They were prohibited from holding masses and barred from holding public office or purchasing land. The 1778 law had finally allowed them to own land and to enter the army.

One of the most virulent opponents of the Catholic Relief Bill was House of Lords member George Gordon (1751–1793). He organized Protestants to oppose the bill and on 2 June 1780 held a mass demonstration at Parliament in Westminster. Some 40,000–60,000 people took part in the demonstration. When Gordon entered the House of Commons to submit his petition, the crowd grew violent, resulting in what is known as the Gordon Riots.

The crowd then moved elsewhere, headed for symbols of Catholic institutions and state power. They attacked and destroyed Newgate Prison, and, joined by the prisoners thus released, turned their fury on Catholic churches and the Bank of England. The rioters moved to Bloomsbury Square, near the British Museum, and then fastened their attention on the home of Lord Mansfield, who had long served on the Court of King’s Bench and as chief justice. To them he was a figure of state authority. He had, moreover, tried to influence the justices of the court in releasing a Catholic priest who had held mass in violation of the law. Mansfield’s Scotland origins also irritated the crowd, and his past connections with the Jacobite cause only added to their anger. It is said that they carried a rope with them, intending a lynching.

Apparently Lord Mansfield had made the mistake of refusing a protective guard

188 Skinner 1928; Fifoot 1936; Heward 1979; Eeles 1934; and Gore-Browne 1953.189 Collins 1973 (1927), pp. 207–208.

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for his house, thinking that the sight of soldiers would further inflame the crowd. He was wrong, however, and when the crowd found no guard they quickly attacked the house. Upon seeing the crowd assembled in front, Mansfield and his wife fled out the back, barely escaping with their lives. The house was destroyed along with its massive and priceless collection of books and legal documents and records; the mob burned everything, along with all the household furnishings, in the square.

The rioters then proceeded toward Thurlow’s house on Great Ormond Street, for Thurlow had been promoted at this time to lord chancellor. Unlike Mansfield, Thurlow’s house was guarded by thirty-one soldiers and therefore escaped destruction.190

Boswell’s Life of Johnson quotes a letter to a certain woman in which Johnson gives a vivid account of the riots, which I quote despite its length:

‘On Friday, the good Protestants met in Saint George’s-Fields, at the summons of Lord George Gordon, and marching to Westminster, insulted the Lords and Commons, who all bore it with great tameness. At night the outrages began by the demolition of the mass-house191 by Lincoln’s-Inn.’

‘An exact journal of a week’s defiance of government I cannot give you. On Monday, Mr. Strahan, who had been insulted, spoke to Lord Mansfield, who had I think been insulted too, of the licentiousness of the populace; and his Lordship treated it as a very slight irregularity. . . . On Tuesday evening, leaving Fielding’s ruins, they went to Newgate to demand their companions who had been seized demolishing the chapel. The keeper could not release them but by the Mayor’s permission, which he went to ask; at his return he found all the prisoners released, and Newgate in a blaze. They then went to Bloomsbury, and fastened upon Lord Mansfield’s house, which they pulled down; and as for his goods, they totally burnt them. They have since gone to Caen-wood,192 but a guard was there before them. They plundered some Papists, I think, and burnt a mass-house in Moorfields the same night.’

‘On Wednesday I walked with Dr. Scot to look at Newgate, and found it in ruins, with the fire yet glowing. As I went by, the Protestants were plundering the Sessions-house at the Old-Bailey. They were not, I believe, a hundred; but they did their work at leisure, in full security, without sentinels, without trepidation, as men lawfully employed, in full day. Such is the cowardice of a commercial place. On Wednesday they broke open the Fleet, and the King’s-Bench, and the Marshalsea, and Wood-street Compter, and Clerkenwell Bridewell, and released all the prisoners.’

‘At night they set fire to the Fleet, and to the King’s-Bench, and I know not how many other places; and one might see the glare of conflagration fill the sky

190 Gore-Browne 1953, pp. 159–60.191 A Roman Catholic house of worship.192 Kenwood, where Lord Mansfield’s villa stood.

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from many parts. The sight was dreadful. Some people were threatened: Mr. Strahan advised me to take care of myself. Such a time of terrour you have been happy in not seeing.’193

After the ordeal in Bloomsbury Square, Lord Mansfield took up residence in the London suburb of Kenwood in “Kenwood House” on an estate he owned near the upscale residential suburb of Hampstead, now an English Heritage site. The 112-acre gardens and lake on the grounds and the beautiful paintings that decorate the ceiling and walls of his magnificent study transmit something of the atmosphere of his later years.

Mansfield served as chief justice at the Court of King’s Bench until 1788 at the age of eighty-three, and thereafter lived a quiet life in Kenwood. It is said that he never once lodged elsewhere in the last five years of his life. He had no children of his own, but four nieces whom he was supporting resided with him. His health took a turn for the worse on 10 March 1793. After breakfast he lay down, saying he was sleepy, and two days later, saying “let me sleep—let me sleep,” he lost consciousness and died on the 20th of the month.194 He was eighty-eight. Lord Mansfield was buried in Westminster Abbey, well known as the place where all the royal ceremonies are held. There he is remembered with a monument of him over ten feet tall, seated comfortably in a chair. In his boy-hood Mansfield attended Westminster School, next door to the Abbey; the inscription on the monument mentions his wish that he would be buried in Westminster, a place full of memories.

Lord Camden, Mansfield’s rival, had already retired from the position of lord chancellor at the time of the Donaldson v. Becket case. In fact, from about two years ear-lier than that, he had had almost no involvement in public affairs, and thereafter as well, he engaged in little work of special note.195 He seems to be best known for his opposition during this period to taxing the American colonies. He became increasingly mindful of his health as he grew older and enjoyed relaxing at the famous resort at Bath.196

Camden owned land north of London, and in 1788 he obtained permission from Parliament to develop the land. He died six years later on 18 April 1794 at the age of seventy-nine and is buried in a small chapel in the country town of Seal (some eighteen miles southeast of London), in the District of Kent, where he had had a house from the time of his father, in a striking contrast with Mansfield’s burial at Westminster Abbey.

Lord Camden’s lands north of London eventually grew into a town that came to be called “Camden Town,” and is today known as a mecca of punk rock and fashion. The streets are lined with shops selling clothing and metallic accessories, and even—quite

193 Boswell 1998 (1791), pp. 1053–1054.194 Heward 1979, p. 169.195 Eeles 1934, p. 117.196 Eeles 1934, p. 180.

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openly—“magic mushrooms,” and is always crowded with people on the weekends. It is an extremely lively town, where young people stride down the streets in sometimes bizarre fashions that would have made good Lord Camden stare. The liveliness of the town might be thanks to the fact that he was very popular with the masses. Kenwood, the location of Lord Mansfield’s retirement residence, is only 2.5 miles away from Cam-den Town, and the elegance of the former and colorful bustle of the latter make for an interesting contrast. The different styles of the two men seem to be vying with each other even today.

Lord Apsley, who had been lord chancellor from 1771 to 1778, became embroiled in the political struggles surrounding the American War for Independence, and was forced to resign because of his position on the matter. That was 1778. His successor as lord chancellor was Edward Thurlow, who had served as Donaldson’s lawyer. Thurlow retained this position at the pinnacle of England’s juridical system for fourteen years, only to be pushed out of the position of lord chancellor because of his opposition to the policies of the current prime minister William Pitt the Younger (1759–1806). The man selected to replace Thurlow as lord chancellor was Wedderburn, Lord Apsley’s lifelong rival.

Wedderburn, who had been solicitor general at the time of the Donaldson v. Becket case, became attorney general in 1778. Later, after serving as chief justice in the Court of Common Pleas, he became lord chancellor in 1793. Comparing his career with that of Thurlow, who was two years his senior, he seems to have followed roughly the same path. Wedderburn, too, became embroiled in the disagreement between William Pitt the Younger and George III over emancipation of the Catholics in Ireland following the 1800 Act of Union, and resigned as lord chancellor in 1801. He rarely appeared in public after that time.

After leaving the post of lord chancellor, Wedderburn became the first Earl of Rosslyn, taking the name of a place not far from his birthplace in Scotland. It may have been because he held lands in Rosslyn, the place known for the Rosslyn Chapel built in 1446. On 2 January 1805, Wedderburn suffered a sudden attack of abdominal pain and died in his chair at his home in Windsor. George III, though he was suffering mental problems at the time, wryly commented: “He has not left a greater rogue behind in my dominions.” Thurlow, despite his rivalry with Wedderburn, is said to have paid tribute to his life-long rival on this occasion, saying that, “His Majesty is quite sane at present.”197 A justice who divided his time between Edinburgh and London, Wedderburn is interred in a crypt in the middle of St. Paul’s Cathedral in London.

On 12 September the following year, Edward Thurlow, too, passed away. The anecdote passed down from his death is that as a servant carried him to his deathbed, Thurlow’s foot struck the handrail, and the servant heard him mutter a curse. According

197 Gore-Browne 1953, p. 357.

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to another person, he blurted out the cryptic words, “I’m shot if I don’t think I am dying.” Thurlow was a man who fought for “what he believed to be the interests of the people.”198 He seems to have never married, but mistresses bore him a son and two daughters. His son died at the age of twenty-eight, so Thurlow’s baronage passed on to his nephew Edward (1781–1829). Thurlow is buried at the Temple Church near the Royal Courts of Justice.

The Donaldson Bookshop after the TrialAlexander Donaldson remained in London after the decision. He continued to operate his bookshop until around 1788 and returned to Edinburgh a year or so later. About three years before that he had obtained land at Broughton Hall on the northern outskirts of Edinburgh where he would spend the rest of his life. Two years after his wife Anna died in 1792, Alexander also passed away, on 11 March 1794. He is buried in Greyfriars Kirk in the central part of Edinburgh.

Alexander’s son James took over the editorship of the Edinburgh Advertiser in Janu-ary 1774 just before the Donaldson v. Becket case, and kept it going steadily until 1820. While the American War of Independence was being waged during the 1775–1783 period, people would mass in front of Donaldson’s printing shop and vie to obtain copies of the news as it was printed. In 1782, James became a citizen of Edinburgh as a book-seller. He was assiduous in keeping the enterprise and newspaper his father had founded going, taking time off from his work only once. That was for a honeymoon in 1792. He married a woman named Jean Gillespie (1770–1828), the daughter of a doctor. The story goes that after they returned from their honeymoon, James brought his new wife to the office. There she gave some small change to the employees of the shop, saying she hoped they would buy strawberries or some other treat. Jean’s gesture was to become a regular custom on Wednesdays during the period of the Leith Races. The summer horse races were among the entertainments Edinburgh citizens most enjoyed, and the people working at the Donaldson bookshop were no exception. The races were also the occasion for feasting the servants and workers. The Donaldsons attended the races every year, and the treats handed out at the time of the Leith Races continued without fail except on one occasion, when there was an accident. In the midst of the festivities a boy in the cavalcade fell off his horse and broke his leg. James was much aggrieved at the accident and made sure that the boy received good care at the Royal Infirmary.

James was an affable person who ably carried out the responsibilities of his job. He looked after the needs of his employees and they worked enthusiastically and hard. People who visited on business or errands were invariably served beer with bread and

198 Gore-Browne 1953, pp. 360–61.

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meat. But James kept regular hours and would always be in his office at the appointed times. He was meticulous and trustworthy. Waking early, he would be in his chair at the office a little after 6 o’clock a.m., waiting for the errand-boy from the post office to bring the mail. He always asked the boy if he had any troubles and gave him some breakfast.

The readers of the Edinburgh Advertiser increased again at the time of the French Revolution in 1789. Advertising revenues rose, making James a wealthy man. As he neared the age of seventy, he was increasingly laid up with gout and publication of the newspaper became difficult. His name as publisher appeared in the paper for the last time on 7 March 1820. In addition to his work as a bookseller and newspaper editor, James held various public offices. From 1790 to 1819 he was director of the Chamber of Commerce of Edinburgh. From 1799 through 1818 he served as manager of the Public Dispensary. In 1807 he was chosen as an ordinary director of the Bank of Scotland, and, except for a two-year period, served continuously in that position until 1830.

James and Jean Donaldson had five children, but none of them lived to adulthood. Jean died in 1828 and James passed away on 19 October 1830. He was buried alongside Jean in the cemetery at St. John’s Chapel. The Donaldson bookshop on High Street suffered a major fire in 1824 and the original building no longer stands.

The Legacy of the CaseWhat did the eighteenth-century litigation over literary property produce? Liter-ary property was often conceived in much the same way as land ownership. And in eighteenth-century England, the handling of land itself was undergoing change by the process of enclosure, the assertion of new property rights by building fences around specific tracts of land.

Members of the nobility were particularly keen on this kind of privatization, assert-ing new ownership rights to land that had once been held in common. Until the first half of the eighteenth century, land had been enclosed and its private ownership recognized through acts of Parliament in only sporadic cases; between 1719 and 1743, only 87 cases were passed. Then, from 1770 the number sharply increased. In 1770–1794 as many as 1058 cases were passed. As seen from the cases taken up in Parliament in 1773, the year prior to the Donaldson v. Becket case, the enclosure of land was progressing actively.199 According to historian Roy Porter, Parliament passed 64 cases in the 1740s, 87 cases in the 1750s, 304 cases in the 1760s, and 472 cases in the 1770s.200

No doubt the mood of the enclosure era influenced litigation over copyright among the big booksellers. The House of Lords decision in the Donaldson v. Becket case,

199 Matsusono 1999, pp. 112–13.200 Porter 1991 (1982), p. 209.

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however, was made by a wide margin to stop the movement to “enclose” ownership of book content based on the idea of perpetual copyright. Even the aristocrats of the House of Lords, who were so eager to encourage when it came to the enclosure of land, recognized that the cultural property contained in books could not be possessed in the same economic terms as land. The lords were all landowners themselves and could readily grasp the fundamental distinction between the ownership of land and possession of the content of books.

The members of the House of Lords were all very highly educated people and they were themselves readers of books; often they were authors as well. They were, indeed, the central figures of literary culture. To recognize “perpetual copyright,” they knew full well, might be to the profit of a few large booksellers, but they deemed it would not serve the interests of readers. They were quick to see that the copyrights to books were cultural assets first and economic property only secondarily.

The vast majority of the knowledge or information written in books comes from that which has already been written about before in some way. It consists of recompositions of what has already been said elsewhere. If knowledge is something to which property rights are attached, people would not be able to express anything without using knowledge in the possession of someone either now or in the past. No book—or any other product of culture, for that matter—is made starting entirely from scratch, from completely original content. Culture, by its nature, consists of the rearrangement or adding on of something new to culture that already exists.

Encyclopedias and dictionaries are easily recognizable examples of works created by the cut-and-paste method. Ephraim Chambers’ Cyclopaedia, introduced in earlier chapters, was compiled by excerpting text and illustrations from all manner of existing books. The compilation of dictionaries takes full advantage of the limits of copyright. The first edition of the Encyclopedia Britannica, which was published in Edinburgh in 1768–1771, was made up of a notable number of such excerpts from other works. It may have been no accident that the encyclopedia that came to be the most highly respected in the world was created in Scotland thanks to the relatively scant restrictions on copyright there. Johnson’s Dictionary, too, was of course a collection of already existing English words, not words he came up with himself. The Dictionary contains much that derives from more than just his own admittedly monumental labors. One can perhaps think of the Dictionary as Johnson’s cultivation of the wild field of the English language that had been opened up and abundantly seeded by generations before him. By the same logic, it was unnatural that a handful of booksellers like Millar should monopolize the right to print the Dictionary—or any other work—and go on monopolizing the profits from its sale in perpetuity.

Now let us shift to the perspective of today. We can get a sense of what was achieved from the enclosure of culture by comparing it with the results of enclosing land. For one

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thing, one of the results of the enclosure of land was that agriculture became a kind of business. The owners of land began to pursue greater profits by using the labor of farm workers. One other outcome was that as the places that had originally been “commons” were subject to enclosure, the people who had benefited from their use were kept out, resulting in widening disparities between rich and poor. Enclosure also took away the places where people could freely hold festivals and engage in recreation.

Culture that was “enclosed,” too, became subject to commerce. Those who pos-sessed the “land” of copyright, so to speak, acted like big plantation owners. In the case of the large-scale culture enterprises, the owners of the copyrights are not the actual people clearing and tilling the soil of culture through their creative toil; the creators and the rights holders are different people. The rights holders hire the creators, as one might hire farm workers, buying up on contract from them rights that they are inherently entitled to, and using those rights to run their commercial concerns. The rights holders assert that this arrangement serves the advancement of culture, but this may be a point that deserves careful scrutiny.

Over the years, these culture enterprises have worked to influence the government and expanded the scope of copyright protections from literature to the arts, music, pho-tography, film, and computer programs and extended the period of protection. They have engaged in enclosure of the commons of culture. By this means, the powerful culture businesses have grown increasingly large, and creators who had tilled the common fields of culture in hopes of obtaining something from their toil find the scope of their activity increasingly confined. Obsession with the need to assert one’s copyright has become so entrenched that it has caused all cultural activity to shrink in fear of infringing upon someone’s rights.

What one should not do is excessive possession—especially far beyond what is needed to subsist. The monopoly practiced by the big booksellers was clearly not simply in order to make a living but for the excessive expansion and reproduction of individual assets and capital. An even greater problem was that while exploiting the horizons of knowledge cultivated by authors, these booksellers asserted that they held perpetual copyright to the works in the name of the author.

Donaldson’s idea in a sense followed the principles of the market economy. Keeping restrictions imposed by law to a minimum, and allowing books for which the copyright had expired to be handled according to the free enterprise of the marketplace would lead to the best situation for society, as if guided by the “invisible hand” of the market, as Adam Smith had observed. Donaldson was influenced by Smith—or, it may be more ac-curate to say that in the midst of the intellectual ferment of eighteenth-century Scotland, it was Smith whose theories were influenced by Donaldson-style commercial activity going on around him.

The Donaldson v. Becket case led to changes in the publishing world in England.

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To begin with, the classics were made freely available. Once books published before the Statute of Anne had been adopted could be freely printed and sold, publishing the clas-sics became a viable business and one that would go on to provide strong underpinnings for the publishing world for a long time. A second change was that publishers began to invest in new writers and new writing. Since rights to a work would only be protected for twenty-eight years, booksellers found they needed to encourage new writers and encourage them to create new works. The heyday of English literature that began at the end of the eighteenth century unfolded on the momentum of that need.201 As it turned out, limiting access to copyright was what best served the advancement of culture.

201 Feather 2006, pp. 73–74.

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In September 2003 I boarded a limousine bus from Edinburgh airport bound for the city. The summer’s Edinburgh Festival had just ended and quiet was beginning to return to the streets. I was headed for Donaldson’s College, a splendid building designed by William Henry Playfair (1790–1857) that lay just outside the city, facing the bus route. Surrounded by lawns and looking like some sort of castle, it presided over a spacious site of 1.58 acres (Figure 6).202

Until 1992, the school was known as Donaldson’s Hospital. Founded by James Donaldson, it is a school for children with special needs. Children aged three to eighteen board at the school, which is among the world’s leading institutions for the hearing impaired. My visit fell just during the break between school years, so there were no children in sight as most had returned to their families for the holidays.

Dr. George Montgomery, a gentleman of about sixty thoroughly conversant with the history of the school, showed me around the building. As one sees in many old schools in England, the courtyards and corridors were spacious. The rooms were not much decorated but all the ceilings were high. When I remarked on the pleasantly open feeling the high ceilings gave the rooms, my guide remarked wryly that in winter all the heat was likely to rise to the ceiling, so one could feel quite cold sitting there.

When I explained that I was studying James Donaldson and his father Alexander,

202 Donaldson’s College was moved to the suburbs of Edinburgh in 2008.

EPILoGUE

Figure 6. Former Donaldson’s College. Photograph by Yamada Shōji.

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my guide said “Matters of literary property?” and looked a bit uncomfortable. It seemed clear he did not want to hear the founder called a “pirate publisher,” but he showed me into the library-cum-gallery of the school. Among the many items on display I saw James Donaldson’s will. Apparently it had been found in his safe the day after he died. It wasn’t the original, but had been written in a flowing cursive hand giving an authentic feel of history copied into a notebook. It read as follows:

‘At Broughton Hall the 4th of July eighteen hundred and twenty-eight, I, James Donaldson, of Broughton Hall and Broughton Park, declare this to be my last Will and Testament, with liberty to add, eik, pare, and alter at any time, even on [my] death-bed (cancelling and annulling all my former Wills, Codicils, etc.).‘I leave all my property, heritable and personal, viz.:—

My Stock 3 per cent. Consols, £100,000;Bank of England Stock; Stock New 4 per Cents.;Bank of Scotland Stock; Royal Bank Stock;Deposit Money, Bank of Scotland;Property, Broughton Hall and Broughton Park;ditto Princes Street;ditto Castle Hill, and of whatever description which I may possess at my death;Annual Rents;

to build and found an Hospital for Boys and Girls, to be called Donaldson’s Hospital, preferring those of the name of Donaldson and Marshall’ (which latter was his mother’s name), ‘to be after the plan of the Orphan Hospital in Edinburgh and John Watson’s Hospital’;

According to this will, in other words, all the considerable wealth that had accumu-lated from the publishing business James carried on from his father’s generation was to be used to build a charitable home for needy children. The entire amount involved must have come to a figure of several millions of pounds in the currency of today, but since the value of land was quite different at that time, it is difficult to grasp the total sum of his endowment.

Donaldson’s Hospital was built in accordance with James’ will over a period of nine years beginning 1842. Queen Victoria, who visited in 1850 is said to have remarked that, “It is finer than some of my Scottish palaces.”

Gazing over the broad lawns of the College, I imagined children chasing balls and running around at play. The Donaldsons’ work may have been “pirate publishing,” but the books that they made available at cheap prices satisfied young people’s thirst for knowledge and the wealth they amassed had been used to support the needs of children. One could not deny that their fight to end perpetual copyright had ultimately led, not to

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the satisfaction of personal greed, but to the public good. It seemed to me that Alexander Donaldson would have been delighted with his son’s decision to invest his wealth in an institution for public welfare. He must have been quite proud of his son.

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Appendix A: Donaldson’s AssertionsThe Respondents then proceeded to charge, that the Appellants, notwithstanding the Premises, and without the Licence and Consent of the Respondents, published and sold several Copies of the above mentioned Poems, called The Seasons, and the said Hymn on the Succession of the Seasons, each Copy being bound up in a single Volume, and entitled, The Seasons, by James Thompson; Edinburgh, printed by A. Donaldson, 1768, thereby deriving to themselves great Gain, to the Detriment of the Respondents, who claimed to themselves the whole Profit arising from the Publication and Sale of the same.

… But, forasmuch as twenty eight Years (the longest Period allowed by the Statute of Queen Anne, for the Monopoly of any new Work) had elapsed since the first Publica-tion, and before the Appellants had printed or sold the same, they denied (and think themselves still warranted to deny) that the Respondents had, or could then have the sole Privilege of printing and uttering the Seasons and the Hymn. And thy admit the Publication and Sale of the said Poems, as charged by the Bill….

The Question, therefore, before the Court of Chancery, stood in this simple Form: Whether the Author, having sold and delivered, for a competent Price, One or Five hun-dred true Copies of his Work, retains in each of the Copies to [be] sold and delivered…

Every Book, they say, consists of Two distinct Parts, the material Part, namely, the Paper, Print, and Binding, which is a Manufacture; and the immaterial Part, namely, the Doctrine contained in it, which is the Facture of the Mind. The Property in the material Part passes according to the Law in all other Cases; but the Property in the immaterial Part remains to the Author,…

Reasons.I. The Object contended for by the Respondents, is of so abstruse and chimerical a Nature, that it is hardly capable of being defined. It is sometimes called Property, and for the Sake of Distinction, Literary Property. The Word Property has various Significations. In a Philosophical Sense, the Qualities, inherent in any Subject or Thing, are called its Properties. In a Civil Sense, Property is corporeal or incorporeal. Corporeal Property is the actual Possession of some Substance, with the Power of enjoying and disposing of it. The Object now contended for is not corporeal Property. Incorporeal Property is of two Sorts; First, it is a Right relating to some Substance, as a Right to take the Profits of Land, without having the Possession of the Land, or a Title to it. 2dly, It is a right to exercise

APPENdICES

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some Faculty, or to do some particular Thing for Profit. The Perception of the Profits, is a taking of some Substance, or corporeal Property; and hence the incorporeal Right is metaphorically called Property. The Word, thus used, becomes equivocal, importing al-ternately the Right and the Profits resulting from the Right. In like manner Land and the Right to it, are both called Property. If the Object of the Respondents be an incorporeal Right, it is a mere Right to do some particular Thing for Profit. The Thing to be done is the multiplying of Copies of Books. The sole Right of multiplying Copies, is a sole Right to exercise a natural Faculty, and this, it is obvious, is an extraordinary Privilege. A sole Right to take the Profits arising from the Exercise of a natural Faculty, is a Monopoly in itself very extraordinary. This Privilege and this Monopoly, the Respondents chose to call their Property, and they are to maintain their Title to it at Common Law. But by that Law, it is submitted, on the Part of the Appellants, that the Privilege and Monopoly never did, and never can exist.

II. A Right at Common Law must be founded upon Principles of Conscience and natural Justice. Conscience and natural Justice are not local or municipal. Natural Justice is the same at Athens, at Rome, in France, Spain, and Italy. Copies of Books have existed in all Ages, and they have been multiplied; and yet an exclusive Privilege, or the sole Right of one Man to multiply Copies, was never dictated by natural Justice in any Age or Country, and of course the sole Liberty of vending Copies could not exist of common Right, which gives an equal Benefit to all.

III. An exclusive Privilege to exercise a natural Faculty is an Encroachment upon the Rights of Man. A natural Faculty differs from the Execution of an Office. An Office is the Work of civil Policy, and being of positive Institution, may be granted to one, without Injury to the Rest: But when that, which of common Right should be free to all, becomes confined to any one Man, or any Body of Men, the rest of the Community suffer an Abridgement of their natural Liberty. But such a Restraint of the Liberty of many, for the Sake of one, was never established by natural Justice. If it ever has existed, it has been the Creature of the civil Magistrate upon Principles of Policy; but the Respondents disclaim the Aid of the Legislature upon the present Question, and derive their Claim from the Common Law.

IV. The Common Law has ever regarded public Utility, the Mother of Justice and of Equity. Public Utility requires that the Productions of the Mind should be diffused as wide as possible, and therefore the Common Law could not, upon any Principles consistent with itself, abridge the Right of multiplying Copies. When the Common Law took Root in this Kingdom, Literary Composition stood, in regard to the Manner of making it public, upon the same Footing as in Greece or Rome. Writing was, in those States, the only Method of multiplying Copies. To transcribe or copy out a Book was the Right of every Individual; there was no other Way of propagating Knowledge: Of a perpetual Right in one Man to write out Books or to make Copies, there is not a single

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Trace in any Author that has come down from Antiquity…. In like Manner the natural Liberty of transcribing Books was never checked by the Common Law….

V. The Common Law is immemorial Usage. If, therefore, there was a Time, when the Privilege and Monopoly, now contended for, could not, and in Fact did not exist at Com-mon Law, they never can exist by that Law. But such a Time has been, namely, from the Beginning of our History down to the great Æra of Printing; and Printing (which is only a more expeditious Method of multiplying Copies) it is contended, could not change the Principle of Right and Wrong, or innovate the Law. (Cases of the the Appellants: 2–6)

Appendix B: The Statute of Anne

Anno OctavoAnnæ Reginæ.

An Act for the Encouragement of Learning, by Vest-ing the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned.

Whereas Printers, Booksellers, and other Persons, have of late frequently taken the Lib-erty of Printing, Reprinting, and Publishing, or causing to be Printed, Reprinted, and Published Books, and other Writings, without the Consent of the Authors or Proprietors of such Books and Writings, to their very great Detriment, and too often to the Ruin of them and their Families: For Preventing therefore such Practices for the future, and for the Encouragement of Learned Men to Compose and Write useful Books; May it please Your Majesty, that it may be Enacted, and be it Enacted by the Queens most Excellent Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and Commons in this present Parliament Assembled, and by the Authority of the same, That from and after the Tenth Day of April, One thousand seven hundred and ten, the Author of any Book or Books already Printed, who hath not Transferred to any other the Copy or Copies of such Book or Books, Share or Shares thereof, or the Bookseller or Booksellers, Printer or Printers, or other Person or Persons, who hath or have Purchased or Acquired the Copy or Copies of any Book or Books, in order to Print or Reprint the same, shall have the sole Right and Liberty of Printing such Book and Books for the Term of One and twenty Years, to Commence from the said Tenth Day of April, and no longer; and that the Author of any Book or Books already Composed and not Printed and Published, or that shall hereafter be Composed, and his Assignee, or Assigns, shall have the sole Liberty of Printing and Reprinting such Book and Books for the Term of fourteen Years, to Commence from the Day of the First Publishing the same, and no longer; And that if any other Bookseller, Printer, or other Person whatsoever, from and

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after the Tenth Day of April, One thousand seven hundred and ten, within the times Granted and Limited by this Act, as aforesaid, shall Print, Reprint, or Import, or cause to be Printed, Reprinted, or Imported any such Book or Books, without the Consent of the Proprietor or Proprietors thereof first had and obtained in Writing, Signed in the Presence of Two or more Credible Witnesses; or knowing the same to be so Printed or Reprinted, without the Consent of the Proprietors, shall Sell, Publish, or Expose to Sale, or cause to be Sold, Published, or Exposed to Sale, any such Book or Books, without such Consent first had and obtained, as aforesaid, Then such Offender or Offenders shall Forfeit such Book or Books, and all and every Sheet or Sheets, being part of such Book or Books, to the Proprietor or Proprietors of the Copy thereof, who shall forthwith Damask and make Waste-Paper of them: And further, That every such Offender or Offenders, shall Forfeit One Peny for every sheet which shall be found in his, her, or their Custody, either Printed or Printing, Published or Exposed to Sale, contrary to the true intent and meaning of this Act, the one Moiety thereof to the Queens most Excellent Majesty, Her Heirs and Successors, and the other Moiety thereof to any Person or Persons that shall Sue for the same, to be Recovered in any of Her Majesties Courts of Record at Westminster, by Action of Debt, Bill, Plaint, or Information, in which no Wager of Law, Essoign, Privilege, or Protection, or more than one Imparlance, shall be allowed.

And whereas many Persons may through Ignorance Offend against this Act, unless some Provision be made whereby the Property in every such Book, as is intended by this Act to be Secured to the proprietor or Proprietors thereof, may be ascertained, as likewise the Consent of such Proprietor or Proprietors for the Printing or Reprinting of such Book or Books may from time to time be known; Be it therefore further Enacted by the Authority aforesaid, That nothing in this Act contained shall be construed to extend to subject any Bookseller, Printer, or other Person whatsoever, to the Forfeitures or Penalties therein mentioned, for or by reason of the Printing or Reprinting of any Book or Books without such Consent, as aforesaid, unless the Title to the Copy of such Book or Books hereafter Published shall, before such Publication be Entred, in the Register-Book of the Company of Stationers, in such manner as hath been usual, which Register-Book shall at all times be kept at the Hall of the said Company, and unless such Consent of the Proprietor or Proprietors be in like manner Entred , as aforesaid, for every of which several Entries, Six Pence shall be Paid, and no more; which said Register-Book may, at all Seasonable [sic; should be: Reasonable] and Convenient times, be Resorted to, and Inspected by any Bookseller, Printer, or other Person, for the Purposes before mentioned, without any Fee or Reward; and the Clerk of the said Company of Stationers, shall, when and as often as thereunto required, give a Certificate under his Hand of such Entry or Entries, and for every such Certificate, may take a Fee not exceeding Six Pence.

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Provided nevertheless, That if the Clerk of the said Company of Stationers, for the time being shall Refuse or Neglect to Register, or make such Entry or Entries, or to give such Certificate, being thereunto Required by the Author or Proprietor of such Copy or Copies, in the Presence of Two or more Credible Witnesses, That then such Person and Persons so refusing, Notice being first duly given of such Refusal, by an Advertisement in the Gazette, shall have the like Benefit, as if such Entry or Entries, Certificate or Certificates had been duly made and given; and that the Clerks so refusing, shall, for any such Offence, Forfeit to the Proprietor of such Copy or Copies the Sum of Twenty Pounds, to be Recovered in any of Her Majesties Courts of Record at Westminster, by Action of Debt, Bill, Plaint, or Information, in which no Wager of Law, Essoign, Privilege or Protection, or more than one Imparlance shall be allowed.

Provided nevertheless, and it is hereby further Enacted by the Authority aforesaid, That if any Bookseller or Booksellers, Printer or Printers, shall, after the said Five and twentieth Day of March, One thousand seven hundred and ten, set a Price upon, or Sell or Expose to Sale, any Book or Books at such a Price or Rate as shall be Conceived by any Person or Persons to be High and Unreasonable; It shall and may be Lawful for any Person or Persons to make Complaint thereof to the Lord Archbishop of Canterbury for the time being; the Lord Chancellor, or Lord Keeper of the Great Seal of Great Britain for the time being; the Lord Bishop of London for the time being; the Lord Chief Justice of the Court of Queens Bench, the Lord Chief Justice of the Court of Common Pleas, the Lord Chief Baron of the Court of Exchequer, for the time being; the Vice-Chancellors of the Two Universities for the time being, in that part of Great Britain called England; the Lord President of the Sessions for the time being; the Lord Justice General for the time being; the Lord Chief Baron of the Exchequer for the time being; the Rector of the Col-lege of Edinburgh for the time being, in that part of Great Britain called Scotland; who, or any one of them, shall and have hereby full Power and Authority from time to time, to Send for, Summon, or Call before him or them such Bookseller or Booksellers, Printer or Printers, and to Examine and Enquire of the reason of the Dearness and Inhauncement of the Price or Value of such Book or Books by him or them so Sold or Exposed to Sale; and if upon such Enquiry and Examination it shall be found, that the Price of such Book or Books is Inhaunced, or any wise too High or Unreasonable, Then and in such case, the said Archbishop of Canterbury, Lord Chancellor or Lord Keeper, Bishop of London, two Chief Justices, Chief Baron, Vice-Chancellors of the Universities, in that part of Great Britain called England, and the said Lord President of the Sessions, Lord Justice General, Lord Chief Baron, and Rector of the College of Edinburgh, in that part of Great Britain called Scotland, or any one or more of them, so Enquiring and Examining, have hereby full Power and Authority to Reform and Redress the same, and to Limit and Settle the Price of every such Printed Book and Books, from time to time, according to the best of

146

Appendices

their Judgements, and as to them shall seem Just and Reasonable; and in case of Alteration of the Rate or Price from what was Set or Demanded by such Bookseller or Booksellers, Printer or Printers, to Award and Order such Bookseller and Booksellers, Printer and Printers, to Pay all the Costs and Charges that the Person or Persons so Complaining shall be put unto, by reason of such Complaint, and of the causing such Rate or Price to be so Limited and Settled; all which shall be done by the said Archbishop of Canterbury, Lord Chancellor, or Lord Keeper, Bishop of London, two Chief Justices, Chief Baron, Vice Chancellors of the Two Universities, in that part of Great Britain called England, and the said Lord President of the Sessions, Lord Justice General, Lord Chief Baron, and Rector of the College of Edinburgh, in that part of Great Britain called Scotland, or any one of them, by Writing under their Hands and Seals, and thereof Publick Notice shall be forthwith given by the said Bookseller or Booksellers, Printer or Printers, by an Advertisement in the Gazette; and if any Bookseller or Booksellers, Printer or Printers, shall, after such Settlement made of the said Rate and Price, Sell, or expose to Sale any Book or Books, at a higher or greater Price than what shall have been so Limited and Settled, as aforesaid, then and in every such case such Bookseller and Booksellers, Printer and Printers, shall Forfeit the Sum of Five Pounds for every such Book so by him, her, or them Sold or Exposed to Sale; One Moiety thereof to the Queens most Excellent Majesty, Her Heirs and Successors, and the other Moiety to any Person or Persons that shall Sue for the same, to be Recovered, with Costs of Suit, in any of Her Majesties Courts of Record at Westminster, by Action of Debt, Bill, Plaint or Information, in which no Wager of Law, Essoign, Privilege or Protection, or more than one Imparlance, shall be allowed.

Provided always, and it is hereby Enacted, That Nine Copies of each Book or Books, upon the best Paper, that from and after the said Tenth Day of April, One thousand seven hundred and ten, shall be Printed and Published, as aforesaid, or Re-printed and Published with Additions, shall, by the Printer and Printers thereof, be Delivered to the Warehouse-Keeper of the said Company of Stationers for the time being, at the Hall of the said Com-pany, before such Publication made, for the Use of the Royal Library, the Libraries of the Universities of Oxford and Cambridge, the Libraries of the Four Universities in Scotland, the Library of Sion College in London, and the Library commonly called the Library belonging to the Faculty of Advocates at Edinburgh respectively; which said Warehouse-Keeper, is hereby required, within Ten Days after Demand by the Keepers of the respective Libraries, or any Person or Persons by them or any of them Authorised to Demand the said Copy, to Deliver the same, for the Use of the aforesaid Libraries; and if any Proprietor, Bookseller or Printer, or the said Warehouse-Keeper of the said Company of Stationers, shall not observe the Direction of this Act therein, That then he and they, so making Default in not Delivering the said Printed Copies, as aforesaid, shall Forfeit, besides the value of the said Printed Copies, the sum of Five Pounds for every Copy not so Delivered,

147

as also the value of the said Printed Copy not so Delivered, the same to be Recovered by the Queens Majesty, Her Heirs and Successors, and by the Chancellor, Masters, and Scholars of any of the said Universities, and by the President and Fellows of Sion College, and the said Faculty of Advocates at Edinburgh, with their full Costs respectively.

Provided always, and be it further Enacted, That if any Person or Persons incur the Penalties contained in this Act, in that part of Great Britain called Scotland, they shall be recoverable by any Action before the Court of Session there.

Provided, That nothing in this Act contained do extend, or shall be construed to extend, to Prohibit the Importation, Vending, or Selling of any Books in Greek, Latin, or any other Foreign Language Printed beyond the Seas; Any thing in this Act contained to the contrary notwithstanding.

And be it further Enacted by the Authority aforesaid, That if any Action or Suit shall be Commenced or Brought against any Person or Persons whatsoever, for doing or causing to be done any thing in pursuance of this Act, the Defendants in such Action may Plead the General Issue, and give the Special Matter in Evidence; and if upon such Action a Verdict be given for the Defendant, or the Plaintiff become Nonsuited, or Discontinue his Action, then the Defendant shall have and recover his full Costs, for which he shall have the same Remedy as a Defendant in any case by Law hath.

Provided, That nothing in this Act contained shall extend, or be construed to extend, either to Prejudice or Confirm any Right that the said Universities, or any of them, or any Person or Persons have, or claim to have, to the Printing or Re-printing any Book or Copy already Printed, or hereafter to be Printed.

Provided nevertheless, That all Actions, Suits, Bills, Indictments, or Informations for any Offence that shall be Committed against this Act, shall be Brought, Sued, and Commenced within Three Months next after such Offence Committed, or else the same shall be Void and of none Effect.

Provided always, That after the Expiration of the said Term of Fourteen Years, the sole Right of Printing or Disposing of Copies shall return to the Authors thereof, if they are then Living, for another Term of Fourteen Years.

FINIS.

(Source: Bently and Kretschmer (eds.), Primary Sources on Copyright (1450–1900) (http://www.copyrighthistory.org/)

149

Academy of St. Luke (Edinburgh) 109–10, 115Adams, Richard 64, 74Anne, Queen (of Great Britain) 2Aozora Bunko 青空文庫 xApsley, Lord (Henry Bathurst) 52, 55–56, 63–66,

82–83, 85, 122Archibald, Elizabeth 100Ashurst, William Henry 63, 69–72Aston, Richard 49, 63–64, 71–72, 75attorney general 16, 40, 55–56, 60–61, 63, 122Austen, Jane 106author’s right viii, 28, 31, 37, 42, 49, 64, 68–70,

73–75, 82

Balfour, John 14Balliol, John 90Bathurst, Henry, See ApsleyBayne, Anne 115Becket, Thomas 1, 10–11, 15, 18–21, 24, 27,

47–49, 51–52, 55, 59–61, 63–65, 68–77, 80, 83, 86, 115–16

Bickerstaff, Isaac 100, See also Ramsay (poet)Blackstone, William 42, 48, 64, 70Boleyn, Anne 26Boswell, James 12–13, 28, 38–39, 41, 46, 52,

57–58, 85–87, 91, 103, 114–15, 120Bower, Alison 99Burke, Edmund 53Burney, Fanny 106Burns, Robert 48, 105, 112–13Bute, Earl of (John Stuart) 54

Cadell, Thomas 36, 48–49, 85, 112, 114Caen-wood, See Kenwood (England)Calvin, John 94Camden, Lord (Charles Pratt) 53–55, 65, 76–82,

84–85, 121–22Camden Town (England) 121–22Carlyle, Alexander 40Catherine of Aragon 26Caxton, William 25

INdEx

Chambers, Ephraim 31–32, 106, 125Charles I (of England) 27Charles II (of England) 27, 57circulating library 80, 105–106

poet Ramsay’s 103–104, 107, 110, 112–13, 117Sibbald’s 107, 112–13

Civil War (England) 27Clark, John 110Clarke, Edward 27–28Coleridge, Taylor 106Collins, Benjamin 36–37, 39, 42Comic Market (Tokyo) xiicommon law 15–16, 63copyright

common law 19, 21–22, 24, 31, 36–37, 42, 44–45, 47, 49–50, 56–59, 61–75, 77–80, 85, 142–43

perpetual xiii, 1–3, 22–25, 27, 31, 33, 36, 44, 46–47, 51, 53, 58–59, 62–63, 65–66, 70–71, 73, 77, 81, 83, 85–88, 125–26, 130, 142

copyright lawof Britain xiv, 1, 6of Japan viii–ix, xiof the U.S.A. ix–x

Copyright Term Extension Act (U.S.A.) xCourt of Chancery 16–17, 21, 44, 46–47, 49,

51–52, 56, 61, 75, 85, 141Court of Common Pleas 16–17, 54, 63, 74, 76,

122, 145Court of Exchequer 42, 63–64, 74, 76, 145Court of King’s Bench 16–17, 37, 41, 47, 49, 51,

53–54, 63, 74, 76, 79, 82, 119, 121Court of Session (Scotland) 29, 31–32, 38, 51–52,

86–87, 147Court of Star Chamber, See Star Chamber Cowper, William 105Cranmer, Thomas 26–27Creech, William 112Crichton, Andrew 99–100Cromwell, Oliver 27, 102Cyclopaedia (Chambers) 31–32, 106, 125

150

Index

Dalrymple, John 55, 57–61, 63, 84, 115–16Darien Scheme 92–93De Grey, William 63–64, 74–77Deazley, Ronan xiv–xv, 37, 51, 56, 69, 72–75, 87Defoe, Daniel 93Dempster, George 85–87Dictionary of the English Language (Johnson) 8,

13–14, 39, 85, 87, 125Diderot, Denis 116Dilly, Edward 85Disney ix–xDonaldson, Alexander xiii–xiv, 1–3, 5–12, 20–21,

24, 30, 32–36, 42–48, 84–87, 89, 93, 112, 116–17, 123, 126, 129, 131

assertions of 18–19, 21–24, 33–36, 42–46, 141–43

bookshop of 5–12, 46, 52, 87, 117, 123–24 cases of 11, 46–47, 51–52, 55–57, 59, 61,

63–65, 68, 70, 72–77, 82–85, 87catalogs of 7–9printing workshop of 5–7, 123

Donaldson, James 1, 5, 10–11, 83–84, 123–24, 129–31

Donaldson, Jean, See GillespieDonaldson, John 5, 7Donaldson’s College, 129–30Donaldson’s Hospital, See Donaldson’s CollegeDonaldson v. Becket case xv, 1–3, 7, 9, 11, 18, 21,

24, 30–31, 51–53, 55–87, 89, 126Douglas, Gawin 100, See also Ramsay (poet)Duncan I 90Dunning, John 47–48, 55, 61–63, 65, 68, 84

Easy Club 100–101, 116Edinburgh Advertiser 5, 10, 83–84, 123–24Edinburgh Festival 103, 129Edinburgh Review 37, 39Edward I (of England) 90Edward II (of England) 90Elizabeth I (of England) 90–91, 95, 119Emile (Rousseau) 59enclosure of land 124–26Encyclopedia Britannica xv, 125equity 16, 19, 22, 82, 142Ever Green (Ramsay [poet]) 9, 101

Eyre, James 64, 66–70, 72–73

Feather, John 77Ferguson, Adam 36, 89, 115Fielding, Henry 109–110

general warrant 53–54, 65Gentle Shepherd (Ramsay [poet]) 99, 102–103George III (of the United Kingdom) 40, 53–55,

116, 122Gibbon, Edward 48Gillespie, Jean 123–24Goldsmith, Oliver 53Gordon, George 119–20Gordon Riots 119–21Gould, Henry 64, 73–74

Hamilton, Gavin 14–15Henry, Robert, See NorthingtonHenry VII (of England) 91Henry VIII (of England) 26Hergrave, Francis 55Hinton, John 52Hinton v. Donaldson case 52, 87History of Great Britain (Hume) 14Hobbes, Thomas 16Hopeton, Earl of 97–99, 102Horace 99, 111Houston, Robert Allan 95–96Howard of Effington, Lord 83human rights 2–3, 16, 19, 24Hume, David 7–9, 14–15, 36, 48, 59, 89, 115–16Hunt, Leigh 106

Jacobite 41, 92–94, 100, 110, 119James I (of England), See James VI (of Scotland)James II (of England) 91–92James IV (of Scotland) 98James VI (of Scotland) 90–91Johnson, Samuel 8, 12–14, 39–41, 46, 48, 58,

85–88, 91, 97, 103, 114–15, 120, 125Johnston, William 35

151

Kaufman, Paul 106–109Keats, John 106Kenwood (England) 120–22Kincaid, Alexander 6, 32, 36, 112King’s Bench, See Court of King’s BenchKnox, John 94, 96

Lackington, James 15Law, Edmund 83Leadhills (Scotland) 97–99, 102, 106–107L’Encyclopédie (Diderot) 32, 116Licensing Act

of plays 110–11of publishing 22, 27–28, 56–58, 79

Life of Samuel Johnson (Boswell) 12–14, 28, 38–40, 46, 48, 57–58, 85, 91, 97, 103, 114, 120–21

Lindsay, Margaret 115–16literary property 18, 21, 24, 28, 33, 43–45, 52,

55–57, 59–60, 63, 68–69, 71–72, 74–75, 82, 86–88, 124, 130, 141

Locke, John 8, 16, 27–28, 31, 42, 81, 108Lockhart, John Gibson 112–13Longman, Thomas 13Longman II, Thomas 48–49lord chancellor 16, 20, 40–41, 44, 46–47, 51–56,

63–66, 75, 82–83, 85, 120–22, 145–46Louis XIV (of France) 57Luckenbooths (Edinburgh) 103–104Lyttelton, Thomas 82–83

MacAlpin, Kenneth 90Macewan, James 112Mackay, Alexander 113Mansfield, Lord (William Murray) 41–42, 47, 49–55,

63–65, 74, 76–77, 82–84, 89, 114–15, 119–22Mansfield, William 84–85Marshal, Anna 5, 123, 130Mary I (of England) 26–27, 94Mary II (of England) 92Mary Stewart (Queen of Scotland) 94–95, 98McEuen, James 12Merrill, John 33Mickey Mouse ix–xMidwinter case 31–32

Midwinter, Daniel 31Millan, John 12, 47Millar, Andrew 11–15, 35–36, 39, 42, 51, 57, 64,

70–71, 85, 112, 125cases of 32, 46–49Ramsay and 114–16reputation of 11–15

Millar v. Donaldson case 46Millar v. Kincaid case 32, 47Millar v. Taylor case 9, 47–49, 51–52, 55, 64–65,

69–72, 76Milton, John 8, 22, 33–34, 62, 81, 105Moritz, Karl Philipp 105Murphy, Arthur 48, 55, 87Murray, William, See Mansfield

Nares, George 64, 68–69, 73natural law 16natural rights 16, 27–28, 31, 42, 45, 71Neill, Patric 14Newton, Isaac 81North Briton 53–54Northington, Earl of (Robert Henry) 46

Osborne, Thomas 46Osborne v. Donaldson case 46

Paradise Lost (Milton) 8, 33, 81Perrot, George 64, 72–73Picard, Liza 52Pitt, William (the Elder) 53Pitt, William (the Younger) 122Pope, Alexander 84, 115Pratt, Charles, See CamdenPresbyterian 5, 94–96, 99, 104–105, 110–11Project Gutenberg x, 3public domain ix, 59

Ramsay, Allan (poet) 8–9, 89, 97–107, 109–117Ramsay, Allan (painter) 100, 109–110, 114–16Reynolds, Joshua 40Rivington, John 35

152

Index

Robert I (of Scotland) 90Robert the Bruce, See Robert IRobertson, Jerome 100Robertson, William 108–109, 114Robinson Crusoe (Defoe) 93Robinson, Henry Crabb 106Ross, Christian 100, 111Rosslyn (Scotland) 122Rosslyn, Earl of, See WedderburnRousseau, Jean-Jacques 59, 116

Scone (Scotland) 41, 89–90Scott, Walter 105, 112–13Seasons (Thomson) 1, 9–12, 15, 18, 20, 23, 33,

47–49, 51, 83, 141Select Society 115–16Shakespeare, William 33–34, 81Shenstone, William 105Sheridan, Richard Brinsley 105Sheridan, Thomas 38Shirata Hideaki 白田秀彰 xiv–xv, 37, 42, 84Sibbald, James 107, 112–13Smith, Adam 10, 25, 36, 39, 48, 89, 92, 115, 126Smythe, Sydney Stafford 64, 74–76solicitor general 16, 40, 65, 122Sonny Bono Copyright Term Extension Act, See

Copyright Term Extension Act (U.S.A.)Spectator 8, 33, 36–37, 100St. Giles’ Cathedral (Edinburgh) 5, 94, 104St. Paul’s Churchyard (London) 7, 52Stackhouse, Thomas 52Stamp Act 54Star Chamber 21–22, 27, 77–79Stationers’ Company 2, 11, 21, 25–29, 31–32, 34,

52, 56–58, 66–67, 77–79, 82statute law 15–16, 45Statute of Anne 1–2, 6, 25, 28–32, 34, 43–45,

51–52, 83–84, 87–88, 119, 127, 141content of 29–31, 143-47referred in cases 18, 21–24, 31–32, 37, 47,

49–50, 56–59, 61–65, 68–75, 79Stone of Destiny 89–91Stone of Scone, See Stone of DestinyStrahan, William 13, 36, 38–39, 48, 112, 115,

120–21

Strand (London) 7, 12, 42, 46, 52Stuart, John, See Bute

Taylor, Robert 47–49, 51, 55, 71Tea Table Miscellany (Ramsay [poet]) 9, 101, 113,

115Thomson, James 1, 9, 11–12, 18, 20, 23, 33, 47,

59, 83Thurlow, Edward 37, 39–40, 42, 48, 55–57, 59–61,

63, 76, 84, 87, 119–20, 122–23Tompson, Richard 77, 84Tonson, Richard 35–37, 42, 48, 60, 64, 81Tonson v. Collins case 36–39, 41–42, 44, 47–50,

60, 64

Victoria, Queen (of the United Kingdom) 130Virgin Unmasked (Fielding) 110

Wade, George 94Wallace, William 90Warburton, William 44–45Watt, James 89Wealth of Nations (Smith) 25, 92Wedderburn, Alexander 37–40, 42, 55, 60–61, 63,

84, 115–16, 119, 122Weir, Thomas 6Westminster Abbey (London) 90–91, 121Westminster Hall (London) 17, 52–53Westminster Palace (London) 1, 17Whiston, John 33–35Wilkes case 53–55, 65Wilkes, John 53–54, 65Wilkie, John 36Willes, Edward 49, 63–64, 70–72William III (of England) 92Wilson, William 113Wishart, George 94Wordsworth, William 106Worral, John 34–35

Yair, John 112Yates, Joseph 42, 49, 69, 71