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the cases reported in the volume, in alphabetical
order, of a head-note or syllabus to each opinion,
with the names of the respective counsel, and
their arguments in some cases, and a statement of
facts, sometimes embodied in the opinion and
sometimes preceding it, and of an index, arranged
alphabetically, and consisting substantially of a
reproduction of the head-notes. Of this natter,
all but the opinion of the court and what is con-
tained in those opinions is the work of the re-
porter, and the result of intellectual labor on his

The broad proposition is contended for by the
defendants that these law reports are public prop-
erty, and are not susceptible of private ownership,
and cannot be the subject of copy-right under the

1 The entire opinion in this case is very long. Much
of it is taken up with interesting questions bearing on
procedure in obtaining copy-right. We have elimi-
nated all except that which pertains to the main ques-
tion at issue, viz : the right of a State reporter to
obtain a copy- right.— [Ed. Cent. L. J.

legislation of congress. It is urged that Mr. Free-
man, the reporter, was a public officer, whose
.office was created by chapter 29 of the Revised
Statutes of Illinois of 1845, which enacted as fol-
lows, in regard to the supreme court and the re-

*^Sec. 20. The court shall appoint some person
learned in the law to minute down and make
report of all the principal matters, drawn out at
length, with the opinion of the court, in all such
cases as may be tried before the said court ; and
the said reporter shall have a right to use the
original written opinion after it shall have been
recorded by the clerk.

**Sec. 21. The reporter, before entering upon
his duties, shall be sworn by some one of the jus-
tices of the supreme court faithfully to perform
the duties of his said office. He may, for mis-
conduct in office, neglect of duty, incompetency,
or other cause shown, to be entered of record, be
removed from office.

"Sec. 22. It shall be the duty of the reporter to
deliver to the secretary of State, as soon as con-
venient after publication, such number of copies
of the respective volumes of the rei)ortB of said
court as may be necessary to enable the said sec-
retary to distribute the saxe in the manner pro-
vided in the following section, together with one
hundred copies in addition, to be deposited in the
secretary's office for the use of the State." Sec-
tion 23 provided for the distribution of the volumes
by the secretary of State, .and section 24 provided
that, upon the delivery of the requisite number of
any volume, the secretary of State should deliver
to the reporter a certificate specifying the number
of copies which had been so delivered, and that
such certificate should entitle the reporter to a
warrant drawn by the auditor of public accounts
upon the treasury for an amount, for those vol-
umes, at the price for which the books should be
sold to individuals, provided, the price should not
exceed the ordinary price of law books, of the
same description, to be determined by the auditor,
treasurer, and secretary of State. These statutory
provisions were amended in 1863, by making the
term of office of the reporter six years, and in 1865
it was enacted that the price of the volumes to be
delivered to the secret».ry of State should be $6
each. The reporter was given a salary, by law,
in 1877, of $6,000 a year.

It is further contended that Mr. Freeman, in
preparing the official edition of the reports, was
not an author, within the meaning of the act of
congress, and that it was not intended by that act
that he should assert a monopoly in the result of
his official labors.

But, although there can be no copy-right in the
opinions of the judges, or in the work done by
them in their official capacity as judges (Banks v.
Manchester, ante, 36), yet there is no ground of
public policy on which a reporter who prepares a
volume of law reports, of the character of those
in this case, can, in the absence of a prohibitory
statute, be debarred from obtaining a copy-right

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No. 5

lor the yo]ume which will cover the matter which
is the result of his intellectual labor. In the pres-
ent case there was no legislation of the State of
Illinois which forbade the obtaining of such a
copy-right by Mr. Freeman, or which directed
that the proprietary right which would exist in
him should pass to the State of Illinois, or that
the copy-right should be taken out for or in the
name of the State, as the assignee of such propri-
etary right. Even though a reporter may be a
sworn public officer, appointed by the authority
of the government which creates the court of
which he is made the reporter, and even though
he may be paid a fixed salary for his labors, yet.
In the absence of any inhibition forbidding him to
take a copy-right for that which is the lawful
subject of copy-righ't in him, or reserving a copy-
right to the government as the assignee of his
work, he is not deprived of the privilege of taking
out a copy-right which would otherwise exist.
There is, in such case, a tacit assent by the gov-
ernment to his exercising such privilege. The
universal practical construction has been that such
right exists unless it is affirmatively forbidden or
taken away, and the right has been exercised by
numerous reporters, officially appointed, made
sworn public officers, and paid a salary, under the
governments both of States and of the United

This question was, it is true, not directly ad-
judged in Wheaton v. Peters, 8 Pet. 591. In that
case the owners of the copy- rights of Wheaton^s
Reports of the Supreme Court of the United States
brought a suit in equity against Mr. Peters for
publishing and selling a volume of his Condensed
Reports of the Supreme Court. The bill was dis-
missed by the circuit court. On an appeal by the
plaintiffs to this court one of the points urged by
the defendants was that reports of the decisions
of this court, published by a reporter appointed
nnder the authority of an act of congress, were
not within the provisions of the law for the pro-
tection of copy-rights. This court held (1) that
the plaintiffs could assert no common law right to
the exclusive privilege of publishing, but must
sustain such right, if at all, under the legislation
of congress; (2) that, under such legislation,
there must have been, in order to secure the
copy-right, a compliance with the provisions of
the statute in regard to the publication in a news-
paper of a copy of the record of the title of the
book, and in regard to the delivery of the copy of
it, after publication, to the secretary of State.
The court remanded the case to the circuit court
for a trial by a jury as to whether there had been
a compliance with the above named requisites of
the act of congress. In a note by Mr. Peters, at
page 618 of the report of the case, he states that
he has been informed that the court did not con-
sider the point whether reports of the decisionaof
the court, published by a reporter appointed un-
der the authority of an act of congress, were
within the provisions of the law for the protection
of copy-rights. When the suit was brought, Mr.

Wheaton had published the twelve volumes of his
copy-righted reports. The allegation of the bill
was that the volume complained of, published by
Mr. Peters, contained all the reports of cases
found in the first volume of Wheaton 's Reports.
It appears from the report of the case, and the
record in it, that Mr. Wheaton had published his
first volume in 1816, and his twelfth volume in
1827. From March 3, 1817, for three years, the
reporter had a salary of ^l^OOO a year, and the
same salary from May 15, 1820, to March 3, 1826,
and for three years from February 22, 1827. The
decree of this court, providing for a trial by a
jury (page 698), covered the entire twelve vol-
umes of Wheaton 's Reports.

If this court had been of opinion that there
could not have been a lawful copy-right in the
volumes of Wheaton's Reports, it would fanEivebeen
useless to send the case back to the circuit court
for an inquiry whether the conditions precedent
to the obtaining of a lawful copy-right, under the
act of congress, had been complied with, espe-
cially in view of the fa«t that the opinion of the
court concludes (page 668) with this statement :
'<It may be proper to remark that the court are
unanimously of opinion that no reporter has or
can have any copy-right in the written opinions
delivered by this court, and that the judges thereof
cannot confer on any reporter any such right.*'
Therefore, the only matter in Wheaton's Reports
which could have been the subject of the copy-
rights in regard to which the jury trial was di-
rected was the matter not embracing the written
opinions of the court, namely, the title-page, table
of cases, head-notes, statements of facts, argu-
ments of counsel, and index. Such work of the
reporter, which may be the lawful subject of
copy-right, comprehends also the order of ar-
rangement of the cases, the division of the reports
into volumes, the numbering and paging of the
volumes, the table of the cases cited in the opin-
ions (where such table is made), and the subdi-
vision of the index into appropriate, condensed
titles, involving the distribution of the subjects of
the various head-notes, and cross-references,
where such exist. A publication of the mere
opinions of the court, in a volume, without more,
would be comparatively valueless to anyone. The
case of Wheaton v. Peters was decided at January
term, 1834. In Gray v. Russell, 1 Story, 11, in
1839, Mr. Justice Story, in speaking of the ques-
tioL as to how far a person was at lit>erty to ex-
tract the substance of copy-righted law reports,
says (page 2Q;) 'lb the case of Wheaton v.
Peters, 8 Pet. 591, the same subject was considered
very much at large. It was not doubted by the
court that Mr. Peters' Condensed Reports would
have been an infringement of Mr. Wheaton's
copy-right, supposing that copy-right properly
secured under the act, if the opinions of the court
had been or could be the proper subject of the
private copy-right by Mr. Wheaton. But it was
held that the opinions of the court, being pub-
lished under the authority of congress, were not

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Vol. 28.



the proper subject of private copy-right. But it
was as little doubted by the court that Mr.
Wheaton had a copy-right in bis own marginal
notes, and in the arguments of counsel as prepared
and arranged in his work. The cause went back
to the circuit court for the purpose of further in-
quiries as to the fact whether the requisites of the
act of congress had been complied with or not by
Mr. Wheaton. This would have been wholly use-
less and nugatory unless Mr. Wheaton^s marginal
notes and abstracts of arguments could have been
the subject of a copy-right (for that was the work
which could be the subject of a copy-right) ; so
that, if Mr. Peters had violated that right, Mr.
Wheaton was entitled to redress. ^^ This seems to
us to be a proper view of the decision in Wheaton
V. Peters, and that decision is as applicable where
a rei>orter receives a compensation or salary from
the government as where he does not, in the ab-
sence of any restriction against his obtaining a

In the present case, although Mr. Freeman,
duripg the period of his preparation of volumes
32 to 46, received no direct salary from the State,
it is contended by the defendants that be received
from the; State compensation for his services,
through tha purchase by it, under a statute, of
copies of his volume at a stated price of 96 per
copy for 553 copies of each volume, and that thig
was substantially the payment of a salary to him
by the State. But, as stated before, in the view
we take of the case, the question of a salary or no
salary has no bearing upon the subject. The
general proposition that the reporter of a volume
of law reports can obtain a copy- right for it as an
author, and that such copy-right will cover the
parts of the book of which he is the author, al-
though he has no exclusive right in the judicial
opinions published, is supported by authority.
Curt. Copy r. 131, 132; Butterworth v. Robinson,

5 Ves. 709 ; Gary v. Longman, 1 East, 358, and
note, 362; Mawman v. Tegg, 2 Buss. 385,398, 399;
Hodges V. Welsh, 2 Ir. Eq. 266, 287; Lewis v.
Fullarton, 2 Beav. 6; Saunders v. Smith, 3 Mylne

6 C. 711 ; Sweet v. Benning, 16 C. B. 491 ; Jarrold
V. Houlston, 3 Kay & J. 708, 719, 720.

"NOTB.— The principal case is the first and only di-
rect adjudication by the Supreme Ck)urt of the United
States, sustaining the right of a law reporter to a
copy-right of a volume of law reports. Although
such right was clearly intimated in Wheaton v. Peters,!
yet the court in the principal case expressly states
that that question was **not directly adjudged In
Wheaton v. Peters." ,

The right of the reporter to secure his copy-right,
springini: wholly from the constitution and laws of
congress, is based on the ground that bis work in pre-
paring the syllibii statements of the cases, index, etc.,
is *'the result of intellectual labor on his part,'* and
that he can obtain a copy-right "for the volume which
will cover the matter which is the result of his intel-
lectual labor," although he is a sworn public officer^
reoelving a fixed salary for his labors I While the

1 8 Pet. 001.

English decisions recognize the right of a reporter of
law reports to protection by copy- right,* yet, as was
stated by the learned counsel for appellants, "in all
these cases the reporter w%8 a private citizen, occupy-
ing no official relation, and owing no duty to the
public," and therefore )they are "not in point upon the
question under consideration. "^

That there can be no such {Proprietary interest in
the reporter or Judges of the opinions of the court as
will entitle them to a copy-right thereof is well

The reasons are aptly stated in Drone on Copy-
rights, p. 161, as follows: "It is obvious that the copy-
right in an opinion written or delived by a judge can-
not be acquired by a reporter or the first publisher on
the ground of authorship, for the reason that he is not
the author. It is not less clear that the Judge who
pronounces the decision is not entitled to the copy-
right therein, because he is not the owner of the prop-
erty. Hence, neither in the Judge nor in the reporter
will a valid oopy- right vest, except by a derivative
title. The copy-right must be secured by the owner
of the property ; and all difficulty disappears when it
is determined who is the owner. Elsewhere it is
shown that any person who employs another to pre-
pare a work, may, by virtue of the contract of employ-
ment, become the owner of the literary property
therein. On this principle, the people who employ
and pay Judges are the rightful owners of the literary
property in the opinions written by them. Hence,
the United States government may secure to itself the
copy-right in the decisions pronounced in the federal
courts, and each State may do the same with the
opinions of its own Judges. And the government may
confer upon any person the right of securing, or the
copy -right after It has been secured."

The doctrine is also dearly stated in 2 Morgan's
Law of Literature, p. 569: "An examination of all
the reported cases warrants us in the conclusion that
the reason why a Judge can have no literary property
in opinions pronounced by himself, upon legal ques-
tions presented or discussed before him, is simply and
solely because be is but the mouth -piece of the State,
paid by the people of the State, to utter and construe
their law. We have seen that the courts are the dis-
tributors of the Justice of the people, and that, by the
theory of the law, the State hears all disputes of its

In the recent case of Banks v. Manchester,^ it is held
that ( 1 ) a copyright, obtained by a reporter on a volume
of the reports published by a contractor in accordance
with the Ohio statute, which, in effect, provides that a
reporter of the supreme court shall be appointed, to
report and prepare for publication its decision, and to
receive therefor a certain compensation, and to secure
a copy-right for the usd of the State for each volume
when published, and also for the publication of the
reports under a contract with the Secretary of State of
the State, and that "such contractor shall have the
exclusive right to publish such reports, so far as the
State can confer the same," does not cover the syllabi^
statements of the cases, and opinions, which were the

s Carter, p. 89; Bacon's Abrldg., title Prerogatives, F
6; Skinner, 284; MUlar v. Taylor, 4 Burr. 83(4. 2883; Beck-
ett V. University of Cambridge, 1 W. Black. 106; Manners
V. Blalr, 8 Bllgh (X. S.)> 891. See also aathorities cited
In opinion.

s See Heine v. Appleton, 4 Blatohf. 125.

4 Wheaton v. Peters, 8 Pet. 691; Gray v. BasseU, 1
Story, 11.

6 Affirming s. O., 23 Fed. Rep. 148; 9 8. C. Bep. 36.

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No. 5

work of the judges; and (2) a State cannot properly
be called a citizen, within the meaning of Rev. Stat.
U. S. ii 4962, 4854, which confers the copyright on
any citizen, **who shall be the author, inventor, de-
signer, or proprietor of any book,'' and upon his
representatives or assigns; and (8) so a copy-right is
denied a judge who, in his official capacity prepares
the syllabif statements of the cases and opinions under
i 4952, for the reason that he cannot be considered an
author or proprietor within the provisions of those
sections, so as to confer any title by assignment on the
State or other person, sufficient to authorize a copy-
right to it or him as the assignee of the author or

Respecting the latter point, the court observed (per
Blatchford, J.) : ** Judges, as it is well understood, re-
ceive from the public treasury a stated annual salary,^
fixed by law, and can themselves have no pecuniary
interest or proprietorship, as against the public at
large, in the fruits of their judicial labor. This ex-
tends to whatever work they perform in their capacity
as judges, and as well to the statements of cases and
head-notes prepared by them as such, as to the opin-
ions and decisions themselves. The question is one
of public policy, and there has alwas been a judicial
eonsensuSt from the time of the decision in the case of
Wheaton v. Peters,* that no copy-right could, under
the statutes passed by congress, be secured in the
products of the labor done by judicial officers in the
discharge of their judicial duty. The work done by
the judges constitute the authentic exposition and in-
terpretation of the law, which, binding every citizen,
is free for publication to all, whether it is a declara-
tion of unwritten law, or an interpretation of a con-
stitution or statute." 7

This quotation clearly shows the ground upon which
judges are denied a copy-right, to-wit: Because they
are public officers, laboring for the State, and receiv-
ing **from the public treasury a stated annual salary;"
hence, the fruits of their labor, "extending to what-
ever work they perform in their capacity as judges, as
well to the statement of cases and head-notes pre-
pared by them as such, as to the opinions and decis-
ions themselves," belong to the public.

If it is conceded that this view is sound, and it is
believed that it is unquestionably so, there appears to
be no good reason why it should not with equal pro-
priety be applied to a reporter who holds his office by
virtue of the same authority—is a public officer,
laboring for tbe State, and "receives from the public
treasury a stated annual salary, fixed by law." Why
should he have a "pecuniary interest or proprietor-
ship, as against the public at large," in the fruits of
his labors as a public court reporter, when it is held
that no such right belongs to the judge who prepares
the opinion for him to report? Why should that "ju-
dicial consensus^** which has existed from the time of
the decision of Peters v. Wheaton, "that no copy-right
could, under the statutes passed by congress, be se-
cured in the products of the labor done by judicial
officers in the discharire of their judicial duties," be
limited to "judicial officers?" It is because their
work is public property, constituting tbe "authentic
exposition and interpretation of the law, which, bind-
ing every citizen, is free for publication to all," and
the work of the reporter in rendering their judicial
labors available to the public, in the discharge of his
official duty^ by preparing the title page, table of cases,
head-notes, statements of facts, arguments of counsel

6 8 Pet. 601.

7 Nash V. Lathrop, H2 Mass. 20, 86.

and index (for, as said by the court in the principal
case, "a publication of the mere opinions of the court
in a volume, without more, would be comparatively
valueless to any one)," is private labor, in which he
possesses a "pecuniary interest or proprietorship?"
Can any good reason be conceived why that "judicial
consensrjts^* should not also include the labors of a
public officer discharging the duties of a reporter, as
well as the labors of a judicial officer? The reason of
the discrimination in favor of the reporter does not
seem clear. Though one. possessed "the meta-
physics of Hudibras, though he were able

"to sever and divide
A hair 'twixt north and northwest side.*'

yet he could not insert his metaphysical scissors" be-
tween the public office and duties of a court reporter
and those of the judges, respecting the question under

Mr. Morgan, in his Law of Literature, vol. 2, p. 569,
after stating the reasons which deny the judges pro-
prietary interest in judicial opinions, says: "But, if
the reason is a good one, it would seem to app)y
equally to a reporter,who also receives a salary from the
people, to catch the opinions as thf^y fall from the lips of
the judges appointed by the people, and to arrange and
publish them for the use of the people, and that there
would, therefore, be no copy-right in the labors of an
official reporter, appointed by the court or elected by
the people, provided his salary or the compensation
for his services be paid from the publift treasury. In
Little v. Hall,8 it was held that, under the statute of
the State of New York, by virtue of which Judge
Comstock was appointed reporter of the decisions of
the court of appeals, no copy-right could be had in
the reports."

Mr. High, in his able argument in the principal case,
challenged the existence of any * literary property in
law reports, and denied that they are or can be the
subject of copy-right under the act of congress, for
the power of congress to legislate, under the consti-
tution, is limited to authors, and it does not extend to
officers of the government engaged in public or official
duties. He argued that the test is, whether a writer
is engaged in a private business, and, therefore, an
author, within the meaning of the constitution, or
whether he is engaged in a public service, which for-
ever dedicates the result of his labors to the public,
whom he serves. Unquestionably this is the true

The decision of Banks v. Manchester, svpra^ re-
specting judicial opinions, clearly restR upon thi»
distinction, and, therefore irreconcilable with the
principal case. Eugene McQuillin.

8 18 How. 16b.


Query No. 6.
A appeals from judgment of justice court, and by
erroneous advice of his attorney he falls to pay docket
fee in appellate court within twenty days' limit, as
provided by statute. Case was dismissed by motion
of B, appellee, and motion of A's to permit payment
of fee and have case pocketed overruled by appellate
court. Has A no remedy? Cite authority, if any.


Digitized by


Vol. 28.



OUERT No. 6.

A makes a contract in writing with B to buy land.
Under said afirreemeni A goes in possession and pays
purchase money, except $100. A being unable to meet
the last payment, goes to C, in whom he reposes con-
^dence. agrees to lend the money, on being secured
by mortgage, the land to be sold on thirty days' notice
to A if the same is not paid at maturity, to which A
assents. A being ignorant and unlettered, accom-

Online LibraryAugustus John Cuthbert HareThe Central law journal, Volume 28 → online text (page 32 of 151)