lord refuse to admit a surrenderee, on account of a disagreement about the fine to be paid, the court of B. R. will grant a mandamus to compel the lord to admit without examining the right to the fine. 2 Term Rep. 484.-But that court will not grant a mandamus to admit a copyholder by descent. A copyholder, so long as he doeth his services, and doth not break the custom of the manor, cannot be ejected by the lord: if he be, he shall have tresspass against him: but, if a copyholder refuses to perform his services, it is a breach of the custom, and forfeiture of his estate. Customs ought to be time out of memory, to be reasonable, &c. And a custom in deprivation or bar of a copyhold estate, shall be taken strictly; but when for making and maintaining, it shall be construed favorably. An unreasonable custom, as for a lord to exact exorbitant fines; for a copyholder for life to cut down and fell timbertrees, &c. is void. A copyholder for life pleaded a custom, that every copyholder for life might, in the presence of two other copyholders, appoint who should have his copyhold after his death, and that the two copyholders might assess a fine, so as not to be less than had been usually paid; and it was adjudged a good custom. 4 Leon. 238. But a custom to compel a lord to make a grant, is said to be against law; though it may be good to admit a tenant. A copyholder may surrender in court, by letter of attorney, and out of court by special custom. 9 Rep. 75, 76. A copyholder being in Ireland, tne steward of a manor here made a commission to one to receive a surrender from him there, and it was held good. 2 Danv. 181. The intent of surrenders is, that the lord may not be a stranger to his tenant, and the alteration of the estate. As a copyholder cannot transfer his estate to a stranger by any other conveyance than surrender; so if one would exchange a copyhold with another, both must surrender to each other's use, and the lord admit accordingly. Comp. Cop. s. 39. With respect to the devising of copyholds, the law formerly was, that no such devise could be made without a surrender to the use of the party's will; and that the lands did not then pass by the will but by the surrender, the will being considered only as declaratory of the uses of the surrender. Many evils were found to result in the cases of creditors wives, and children, from this necessity of a surrender to a will, and the courts of equity were astute in finding reasons for supplying the surrender, with due precaution in favor of the claims of the several parties. See 3 P. Wms. 98 in n. All these questions are now set at rest by a statute passed for that purpose, 55 Geo. III. c. 192, by which it is enacted, That in all cases where, by the custom of any manor in England for Ireland, though instances of copyhold are rare there], any copyhold tenant of such manor may by will dispose of, or charge land, surrendered to the use of the will, every disposition or charge of any such copyhold, made by the will of any person who shall hereafter die, shall be as valid and effectual, although no surrender shall have been made to the use of the will, as if such surrender had been actually made. On admissions under testamentary dispositions, the steward is allowed to charge his fees, ar cases of surrender to the use of the will. Be the act is not to affect the validity of devises Fines are paid to the lord on admittances: ad may be due on every change of the estate s lord or tenant. The lord may have an action debt for his fine: or may distrain by custon. • Rep. 27. 13 Rep. 2. A covenant made copyholder with a stranger to assign and serv der his copyhold to him, which covenant as r terwards presented by the homage, does v. give the lord any right to a fine before adresser 2 T. R. 484. The lord may recover from a pyholder the fine assessed by him on admaster. not exceeding two years' value of the tee although there be no entry of the assessber such fine on the court rolls, but only a den of such a sum for a fine, after the value of tex nement had been found by the homage, R. 56. An heriot is a duty to the lord, rendered un death of the tenant, or on a surrender and J nation of an estate: and is the best beas goods, found in the possession of the tenan ceased, or otherwise, according to custom. A for heriots, reliefs, &c. the lord may distr bring action of debt. Plowd. 96. İt seeme a custom for the homage to assess a compens tion in lieu of heriot, to be paid by an ining copyholder on surrender or alienation, sa good. 1 Bos. & Pul. 282. Relief is a sum of money which every o holder in fee, or freeholder of a manor, pay the lord on the death of his ancestor; & generally a year's profits of his land. Services signify any duty whatsoever ac unto the lord from tenants; and are not annual and accidental; but corporeal, as her fealty, &c. Comp. Court. Keep. 7, 8, % 31 Geo. 2. c. 14, provides that no person ing by copy of court-roll should be ess from that property, to vote at the electi knights for the shire. See Cruise, Scrne, Walker on Copyholds. COPYING MACHINES are amongst the modern inventions of which it is proper s should offer some account. Dr. Franklin proposed to use the com copperplate-printers' rolling press as a ma for copying letters. He directs the letter: written with gummed ink, and then sandd with emery powder. Thus prepared, it wi laid on a smooth plate of pewter, and p through the press. The impression of the e is left on the pewter, and printing-ink bein plied to the plate, an impression may be t which is a copy of the letter. In 1780 M of Birmingham proposed and obtained a 7 for the following method of copying recent ti" scripts. A sheet of unsized patent paper, thin, is wetted and laid between two w cloths, to absorb the redundant moisture, b laid on the manuscript, the two are pass. gether through a rolling or screw-press; w thin paper is found to have received a m impression of the letter, legible when read tom the transparent substance of the paper. Watt says that the thin paper may be we vantageously with a mixture of water, q oyster shells, boracic acid, and gell-nuts. Mr. Ralph Wedgwood has obtained two pants for inventions of this kind. The first was 1806. In this he proposes to employ, 1st, A eet of paper, over both sides of which printer's is spread; this is allowed to dry during six eks, between leaves of blotting paper; 2dly, mooth pewter, or copper plate. 3dly, On the tal plate is laid a leaf of letter paper; over it blackened paper before mentioned; and over s a leaf of thin paper, previously oiled, that it y be the more transparent. 4thly, On the per thus disposed, the writing is performed by tyle of agate, ground and polished to a smooth nd point. The effect is, that the letter paper eives an impression from the blackened paper, I this impression is in the right direction, and istitutes the letter to be used as the original. The upper oiled paper receives an impression which is inverted, but may be read in the right direction by looking through the paper. This constitutes the duplicate or copy. The apparatus, for which he obtained a patent in 1808, consists of a certain disposition of two leaves of paper, by folding or rolling. The part of the sheet on which a line of the original is written, is brought close to the part of the other sheet on which the corresponding line of the duplicate is written. The line of the original and of the duplicate are formed at the same time, by two pens fixed in the socket of one handle. The handle is held like a pen in the usual way. See Repertory of Arts, vol. xxvii. and xxxi. For Mr. Hawkins' and Mr. Brunel's polygraphs, see POLYGRAPH. COPYRIGHT COPYRIGHT is the right which an author, or publisher, or other person, to whom he transit, possesses to the copy, or original manupt, of his works, and to the use and benefit, profit, derivable from publishing them. PART I. F THE TERM OF COPYRIGHT. SECTION I.-BY THE COMMON LAW. t is only since the invention of printing that question as to the extent or duration of coight could be expected to occur in the courts astice. To take an author's manuscript withhis consent was, of course, a criminal act, punishable in proportion to the amount of offence; according as the circumstances might stitute a fraud or theft. A single copy was 1 of much more value than after printing had tiplied the number of copies. The great ual labor necessarily bestowed on each y, and the few readers at that time, rendered publication of insignificant importance comed with what it has since become. We are , therefore, to look for any very ancient reis of the legal recognition of literary property, of remedies against its infraction. 'rinting was first introduced in England about year 1471. During the arbitrary reigns ch succeeded its establishment, the works ch issued from the press naturally became immediate subject of state regulations. The liest evidence which occurs on the subject is be found in the decrees of the Star Chamber. authority of that arbitrary tribunal we are te willing should be estimated as low as posle; but, in adducing the authorities which port the right in question, we are justified in nting out that even the Star Chamber rected the rights of authors, and prohibited the nting of works without the consent of their ners. Of the judges in recent times, before whom title to perpetual copyright has been disssed, the majority have decided that by the common law of England an author is entitled to the exclusive enjoyment of his copyright in perpetuity. The judges, however, were not unanimous, either on the point of common law, or on that of the legal effect of the statute of Anne, and we cannot deem it sufficient merely to describe the actual state of the law; especially as the subject is one of literary interest, and the glaring injustice of the existing regulations can scarcely be permitted long to continue. We purpose, therefore, to relate briefly the progressive stages of the law; to consider the question according to the best legal authorities; to examine the meaning of the statute of Anne; the decisions of the various courts of justice; the objections to a perpetuity of the right; and its general policy and justice. 1.-Recognition of the Right by Acts of State. In 1556, by a decree of the Star Chamber, it was forbidden to print against the force and meaning of any ordinance, &e. in any of the statutes or laws of the realm. By another decree in 1585, every book, &c. is to be licensed ; ' nor shall any one print any book, &c. against the form or meaning of any restraint contained in any statute or laws of the realm, or contrary to any allowed ordinance set down for the good government of the Stationers' Company.' In 1623, by a proclamation reciting the above decree, and that the same had been evaded by printing beyond sea such allowed books, &c. as have been imprinted within the realm by such to whom the sole printing thereof by letters patent, or lawful ordinance or authority, doth appertain.'--And then the proclamation enforces the decree. Again, in 1637, by another decree, no person is to print or import any book or copy which the Company of Stationers, or any other person, hath or shall by any letters patent, order, or entrance in the register book, or otherwise, have the right, privilege, authority, or allowance solely to print. This decree evidently supposes a copyright to exist otherwise' than by patent, &c. which clearly could be by no other authority than the common law. These appear to be all the acts of state relative to the matter. Most of the judicial proceedings of the Star Chamber being lost or destroyed, no case of prosecution for printing without licence, or pirating another man's copy, has been found. But it is certain that, down to the year 1640, copies were protected and secured from piracy by a much speedier and more effectual remedy than actions at law or bills in equity. No licence could be obtained to print another man's copy;' not from any prohibition, but because the thing was immoral, dishonest, and unjust, and he who printed without a licence was liable to great penalties. (4 Burrow, 2313). In 1640 the Star Chamber was abolished, and afterwards all regulations of the press by proclamations or decrees were deemed illegal. The licentiousness of the press, however, induced the two houses to make an ordinance which prohibited printing, unless the book was first licensed and entered in the register of the Stationers' Company. Copyrights, in their opinion, then could only stand upon the common law-both houses take it for granted. The ordinance, therefore, prohibits printing without consent of the owner, or importing (if printed abroad) upon pain of forfeiting the same to the owner or owners of the copies of the said books, &c. This provision necessarily supposes the property to exist; it is nugatory if there was no owner, and an owner could not at that time exist but by the common law.—(Ibid). In 1644 Milton published his famous speech for the liberty of unlicensed printing against this ordinance, and among the glosses which he says were used to color the ordinance and make it pass, he mentions' the just retaining of each man his several copy; which God forbid should be gainsaid!' As one of the judges remarked on the argument in Miller v. Taylor, the authority of Milton, an enthusiast for liberty, is worth all the abstruse reasoning deduced from the rules of property in a supposed state of nature. 2. Recognition of the Right by Acts of Par liament. In 1649 the long parliament made an ordinance which forbids printing any book legally granted, or any book entered, without consent of the owner, upon pain of forfeiture, &c. In 1662 the act of 13th & 14th Charles II. (the licensing act) prohibits printing any book unless first licensed and entered in the register of the Stationers' Company. It also prohibits printing without the consent of the owner, upon pain of forfeiting the book and 6s. 8d. each copy; half to the king and half to the owner; to be sued for by the owner in six months. The act therefore supposes an ownership at common law, and the right itself is particularly recognised in the latter part of the third section of the act, where the universities are forbid to meddle with any book or books, the right of printing whereof doth solely and properly belong to any particular person or persons. The various provisions of this act effectually prevented piracies.without actions at law or bills in equity by ownet, The licensing act of Charles II. was continued by several acts of parliament, but expired in 1679. Soon after which there is a case in Lilly's Entries, Hilary term, 31 Charles II., of an action brought for printing the Pilgrim's Progress of which he was and is the true proprietor, whereby he lost the profit and benefit of his copy.' But it does not appear that the action was proceeded in. The licensing act was revived by 1 James II., cap. 7, and continued by 4 W. & M., cap. 24, and finally expired in 1694. Such is the state of the evidence as deduced from the acts of government and the legislature in the most despotic and unsettled times, and the inference is obviously strong, that if at those periods the rights of literarature were respected, when, if ever, they were liable to abuse, they ought much more to be regarded and protected in an age like the present, which owes its improvements to the diffusion of knowledge. We have next to turn to the only other source from which any public testimonials can be derived of the ancient usages and regulations which bear on the question, namely, 3. Ancient Custom of Entries in the Registry Books of the Stationers' Company. It appears there is no ordinance or by-law relative to copies till after 1640; and yet from the erection of the Company, in 1556, copies were entered as property and pirating was punished. In 1558, and down from that time, there are entries of copies for particular persons. In 1559, and subsequently, there are persons fined for printing other men's copies. In 1573 there are entries which take notice of the sale of the copy, and the price. In 1582 there are entries with an express proviso 'that, if it be found any other has right to any of the copies, then the licence, touching such of the copies so belonging to another, shall be void.' Before the reign of queen Anne it was usual to purchase from authors the perpetual copyrights of their works, and to assign them from hand to hand for valuable considerations; and to make them the subject of family settlements. Thus we find that, by the by-law of the Stationers' Company made in 1681, it is stated that divers of the members of the Company had great part of their estates in copies, and that, by the ancient usage of that company, when any books or copies were entered in their register to any of the members of that company, such persons were always reputed the proprietors of them, and ought to have the sole printing of them. By another by-law in 1694, after the above recitals, and stating that the copies were constantly bargained and sold amongst the members of the company as their property, and devised to their children and others for legacies and to their widows for their maintenance, it is ordained that, when any entry shall be made of any book or copy, by or for any member of the company, in such case if any other member shall, without licence or consent of the member for or to or by whom the entry is made, print, import, or expose to sale, &c., they shall for every copy forfeit twelve pence. Such is the legal and historical evidence down to the time of the act of 8 Anne. SECT. II.-BY THE STATUTES. It is evident from the preamble of the act passed in the year 1710, 8 Aune cap. 19, that the act was not introduced on the part of the public to restrain the duration of copyright. The imaginary evil of its perpetuity (which will be presently investigated) was not then suggested. It is manifest, on the face of the act, that it originated with the aggrieved authors and publishers. The important effects of the art of printing had become generally felt. The great demand for literary works excited the exertions of the booksellers and publishers, and it appears that all the members of the fraternity did not confine themselves to their own productions, but to supply the increased demand committed depredations on the literary property of their contemporaries. It was natural that the greater part, if not all, of these dishonorable transactions should be committed by the lowest class of publishers, who were incompetent to pay any damages that might be recovered against them. The proof of the extent of the damage was also difficult, and it was therefore desirable that penalties and forfeitures should be inflicted, to protect the growing importance of literary property. reasonable. This clause was repealed by 12 Geo. II. cap. 36, which at the same time prohibited the importation of books reprinted abroad which had been first composed and printed in Great Britain. In 1814, by the 54th Geo. III. cap. 156, the term was extended from twenty-eight years conditionally on the life of the author, to the same term absolutely; with a further extension in favor of the author till his death, if he survived the twenty-eight years; and the advantage is given to the authors then living of books published before the act. We confine the statement of the statutory provisions in this place, to those which relate to the duration of the copyright, and refer to their appropriate sections the other enactments. The great question which has been discussed in the courts of justice regarding the limits of literary property depended on the construction of the 8th Anne. Before adverting to the grounds of the interpretation which was put upon it, we deem it appropriate, in the order of time, to notice the legal decisions which took place from the passing of the act in question down to the year 1774, when, contrary to all the previous decisions, it was for the first time determined by the house of lords that the common law right was merged in the statute. SECT. III.-LEGAL DECISIONS ON THE QUES- The act recites that printers, booksellers, and other persons, had of late frequently taken the liberty' [not claimed the right] of printing and publishing books and other writings without the consent of the authors or proprietors, to their very great 1. The earliest decisions on the general quesdetriment, and too often to the ruin of them and tion of literary property occurred in the courts their families. For preventing, therefore, such of equity, which were resorted to as affording a [mal] practices for the future, and for the encou- more speedy remedy against invasions of copyragement of learned men to compose and write right by an immediate injunction, than could be useful books, it was enacted that the authors of obtained by an action at law for damages. books already printed who had not transferred Numerous decisions took place, founded upon their rights, and the booksellers who had pur- the principles of the common law, and on the chased copies, should have the sole right of supposition that a perpetual copyright belonged printing them for the term of twenty-one years, to authors and their assigns. The question upon and no longer; and the authors of books there the common law right to old copies of works after printed, and their assigns, should have the could not arise till twenty-one years from the sole right for fourteen years, and no longer. But 10th of April, 1710, consequently the soonest it was provided that, after the expiration of that it could arise was in 1731. In 1735 an injuncterm, the right should return to the author, if tion was granted by Sir Joseph Jekyll to restrain then living, for another fourteen years. And the printing of the Whole Duty of Man, the first then it enacted the forfeiture of all books printed assignment of which had been made seventywithout the consent of the proprietor, and in- eight years before that time. In the same year ficted a penalty of one penny for every sheet: lord 'Talbot restrained the printing of Pope's half the penalty to the crown, and the other to the and Swift's Miscellanies, though many of the informer. In 1801, by the 41st Geo. III. cap. pieces were originally published prior to the act, 107, the penalty is increased to threepence per namely in 1701-2 and 1708. In 1736 Sir J. Jekyll sheet. And, that persons may not through ig- granted another injunction for printing Nelson's norance offend against the act,' the forfeitures Festivals and Fasts, though printed in 1703 in and penalties do not attach unless the title to the the life-time of the author, and he died in 1714. copy of the book be entered in the register of In 1739 an injunction was ordered by lord the stationers' company. By the 15th Geo. III. Hardwicke against printing Milton's Paradise cap. 53, sect 6, the title to the whole book and Lost, the title to which was derived by an asevery volume thereof must be so entered. It signment of the author seventy-two years antewas provided by 8 Anne that the act should not cedently. And in 1752 another injunction issued extend either to prejudice or confirm any right in favor of Milton's Paradise Lost, with his Life that the universities or any person had, or by Fenton, and the notes of all the former editions. claimed to have, to the printing or reprinting any an injunction to the whole, so that book or copy already printed or thereafter to be printing the poem, or the life, or the notes, would printed. have been a breach of the order. It has been urged in objection, that these injunction cases were only preliminary decisions, and that none of the suits were brought to a final hearing The act authorised the archbishop of Canterbury and other dignitaries to settle the prices of books, upon complaint made that they were unVOL. VI. It was 2 G Great caution, however, has been always exercised in granting injunctions at the commencement of a suit, because, if on further investigation it should be found erroneous, the loss of a defendant does not admit of reparation. The judgment therefore has been invariably given with great deliberation, and lord Mansfield said he looked at the injunctions which had been granted or continued before hearing as equal to any final decree; for that such injunction never is granted upon motion unless the legal property is made out, nor continued after answer unless it remains clear. The court of chancery never grants injunctions in cases of this kind when there is any doubt.' (4 Burrow, 2303). And lord Eldon, in Hogg v. Kirby, referring to the view taken by lord Mansfield, says that in these cases a court of equity takes upon itself to determine as well as it can the right in this period, and with a conviction that, if then the cause was hearing, they would act upon the same rule. The court takes upon itself that which may involve it in mistake, to determine the legal question. It is the decision of a judge sitting in equity upon a legal question, and therefore not having all the authority of a decision of a court at law, but giving an opinion, and pledged to maintain it, unless there should be occasion to alter it.' (8 Vesey, 224). So in the case respecting the publication of Lord Melville's Trial, lord Erskine observed that he was so much convinced by the arguments for the defendant as to the effect of an injunction, that unless he had a strong impression that at the hearing he should continue of the same opinion, and should grant a perpetual injunction, he would not grant the injunction then; which he only did as there was no probability that new facts would appear by the answer.' (Gurney v. Longman, 13 Vesey, 505). There are several cases reported upon questions regarding infringements of copyright within the period protected by the statutes to these of course it is unnecessary to advert, as the general principle was not in any way included in the determination. 2. The general question was first argued in a court of law in the case of Tonson v. Collins, in the year 1762, relative to the copyright in the Spectator. It appears from the best authority, that so far as the court had formed an opinion, they all inclined to the plaintiff; but having received information that although the argument was conducted bonâ fide by the counsel, it was a collusive proceeding between the parties for the purpose of obtaining a judgment, which might be set up as a precedent, they refused to pronounce any decision. (1 Blackstone's Reports, 301, 321. 4 Burrow, 2327.) In the year 1769 the subject was discussed at great length with respect to Thomson's Seasons, in the case of Millar v. Taylor (4 Burr. 2303.) There was a difference of opinion in the court. Lord Mansfield and judges Aston and Willes were in favor of the right, and judge Yates against it. Judgment was of course given according to the opinion of the majority. In 1774 the subject came before the house of lords in the case of Donaldson v. Beckett, when it was finally determined that an author has no property in his copyright, otherwise than according to the terms of the statute. The majority of the judges were of opinion that there was a right at common law, namely, judges Ashurst, Blackstone, Willes, Aston, Gould, Adams, the lord chief baron, and the lord chief justice of the common pleas, besides lord Mansfield. Of the opposite opinion were lord Camden, barons Eyre, Perrott, and Adams, and judge Yates. But there was a majority of seven to four that the right was restrained, or taken away by the statute which prescribed the term of fourteen years, and no longer. SECT. IV.-CONSTRUCTION OF THE ACT OF 8 ANNE. 1. It is remarkable in the constructions put on the statute of Anne, which it was contended had the effect of merging the common law right, that such right is admitted and recognised by providing a remedy for the injury, although at common law we are told there is no injury whatever. The statute professed to encourage learning, and to prevent the printing of books without the consent of the authors or proprietors, to their detriment,' &c. Its object was avowedly not to limit the right, but to facilitate the remedy; yet it has been construed to reduce a perpetuity to a short term of years! In giving an additional protection to literary property, by inflicting a penalty, there might be some reason for limiting that species of punishment to a definite period. The penalty is not reserved to the author, but given to any one who may sue for it; and it is obvious therefore that it was designed as an act of public justice, independently of the private right to compensation at common law. 2. It should be recollected also that it was a remedial statute, and ought to have been construed liberally; instead of which, the contrary principle was adopted, as if the object of the act, as well as justice and policy, had required the suppression of literature, rather than its encouragement. 3. It is important to observe that the bill on which the act was founded, went to the committee as a bill to secure the undoubted property of copies for ever. By the law and usage of parliament, a new bill cannot be made in a committee: a bill to secure the property of authors, could not be turned into a bill to take it away. What the act gives, with a sanction of penalties, is for a term : the words and no longer' add nothing to the sense. Besides which, the proviso is express that the act shall not extend, to prejudice any right, not only of the universities, but of any person. 4. It is admitted that there is a perpetual right in a literary work before publication, and that such right exists according to the common law. Various cases in equity have been decided on this point, all of which are allowed by the opponents of perpetual copyright to be correctly determined. It is evidently most inconsistent to deny the right after publication, which is admitted to exist before it. A man it is granted may maintain trover or trespass for taking his manuscript; but how are the damages to be estimated! Surely not by the price of the paper, but the profit of the publication; and yet we are told he cannot appropriate to himself the advan |