CHAPTER XXII

THE REWARDS OF GENIUS

1774

WHILE Goldsmith lay upon his death-bed there was much discussion in London about the rights of authors. After two decisions in the courts of common law, which declared an author's property to be perpetual in any work he might have written, the question had been brought upon appeal before the House of Lords, where the opinions of the judges were taken.' This was that dignified audience in whose ears might still be ringing some echo of the memorable words addressed to them by Lord Chesterfield. "Wit, my lords, is a sort of property-the property of those who have it, and too often the only property they have to depend on. It is, indeed, but a precarious dependence. We, my lords, thank God, have a dependence of another kind."

'Lord Shelburne, in a letter to Lord Chatham, describes the scene, with a very manifest spleen against the Chief Justice. "Lord Mansfield showed himself the merest Captain Bobadil that, I suppose, ever existed in real life. I ought, instead of being a bad writer, to be a good painter, to convey to your lordship the ridicule of the scene. You can, perhaps, imagine to yourself the Bishop of Carlisle, an old metaphysical head of a college, reading a paper, not a speech, out of an old sermon-book, with very bad sight, leaning on the table, Lord Mansfield sitting at it, with eyes of fixed melancholy looking at him, knowing that the Bishop's were the only eyes in the house who could not meet his; the judges behind him full of rage at being drawn into so absurd an opinion, and abandoned in it by their chief; the bishops waking, as your lordship knows they do, just before they vote, and staring on finding something the matter; while Lord Townsend was close to the bar, getting Mr. Dunning to put up his glass to look at the head of criminal justice."-Chatham Correspondence, iv. 327–

Safe in that dependence of another kind, what was their judgment, then, as to the only property which not the least distinguished of their fellow-citizens had entirely and exclusively to count upon for subsistence and support?

First for the opinions of the judges. Five declared their belief that, by the common law of England, the sole right of multiplying copies of any work was vested forever in him by the exercise of whose genius, faculties, or industry such work had been produced; and that no enactment had yet been passed of force to limit that estate in fee.' The special verdict in the case of Millar vs. Taylor found it as a fact, "that before the reign of Queen Anne it was usual to purchase from authors the perpetual copyright of their books, and to assign the same from hand to hand for valuable considerations, and to make them the subject of family settlements"; and, in the subsequent elaborate judgment, Lord Mansfield, Mr. Justice Willes, and Mr. Justice Aston, concurred in holding that copyright was still perpetual by the common law, and not limited, except as to penalties, by the statute. Six other judges, on the contrary, held that this perpetual property which undoubtedly existed at common law had been reduced to a short

1 Arthur Murphy, at this time practising as a barrister, argued the case against the perpetual right, as counsel for Donaldson and the other appellants (Foot's Life, 356). He had already, five years earlier, defended against Millar's prosecution a Scotch pirate named Taylor, for having seized and appropriated Thomson's Seasons. I mention this because his argument, in which I have little doubt that Johnson assisted him, is a somewhat elaborate statement of the reasoning in favor of the limitation of the author's right, and is partly printed in Foot's Life, 340-346. It is to be hoped, however, that Johnson did not supply him with the hint for one part of his defence, which would be equally good as an argument against the admission of any kind of property in the production of a book. "To whom," says Murphy, "is it owing that many valuable compositions are now to be had in pocket volumes? To the country booksellers altogether . . . and the London booksellers, in their own defence, and not from choice, have had recourse to the same measure. The present defendant lives at Berwick; he goes about to fairs and markets with a cart, and there disposes of Thomson's Seasons, etc., by which means a taste for reading is propagated in the country, where perhaps, without his activity, that benefit would not be so extensive."