David Bates.

The standard library cyclopaedia of political, constitutional, statistical and forensic knowledge. Forming a work of universal reference on subjects of civil administration, political economy, finance, commerce, laws, and social relations online

. (page 33 of 76)
Online LibraryDavid BatesThe standard library cyclopaedia of political, constitutional, statistical and forensic knowledge. Forming a work of universal reference on subjects of civil administration, political economy, finance, commerce, laws, and social relations → online text (page 33 of 76)
Font size
QR-code for this ebook


by reason of the attainder or conviction
of trustees or mortgagees who have no
beneficial interest therein.

If the lord (having acquired a copyhold
tenement by forfeiture, escheat, or sur-
render to his own use) afterwards grant
it away by an assurance unauthorized by
the custom, the customary tenure is for
ever destroyed. And if he makes a legal
conveyance in fee-simple of a copyhold
tenement to the tenant^ the tenement is
said to be enfranchised, that is, converted
into freehold.

Copyholders were till very lately in-
capable of serving on juries, or voting at
county elections of members of parlia-
ment ; but the former disability was re-
moved by 6 Geo. IV. c. 50, § 1, and the
latter by the 2 & 3 Win. IV. c. 45, § 19.
As to the qualification for killing game
under 22 and 23 Chas. II. c. 25, § 3, there
seems to be no distinction between free-
holders and copyholders.

There are no lands of a copyhold tenure
in Ireland.

Still greater changes in the nature of
estates of copyhold and customary tenure
are gradually taking place under the pro-
visions of the stat. 4 & 5 Vict. c. 35, the
principal objects of which are — 1. The
commutation of certain manorial rights
in respect of lands of copyhold and cus-
tomary tenure ; 2. The facilitating the
enfranchisement of such lands; and 3.
The improvement of such tenure.

1. The enactments with respect to the
commutation of manorial rights are partly
compulsory and partly permissive. All
rents, reliefs, and services (except service
at the lord's court), fines, heriots, or money
payments in lieu thereof, the lord's rights
in timber, and in mines and minerals, may
be made the subject of compulsory com-
mutation upon an agreement being entered
into between the lord and the tenants of
any manor at a meeting called in the way
prescribed by the act. As soon as this
agreement receives the signatures of the
lord or tenants whose interests are not
less than three-fourths in value of such
manor and lands, and of three-fourths in
number of the tenants, it becomes (on re-
ceiving the confirmation of the commis-
sioners appointed under the act) compul-
sory on the lord and all the tenants of such

manor. Powers are likewise given to any
lord, and any one or more of the tenants,
to effect by agreement between themselves
a commutation, wholly voluntary, of the
above-mentioned rights or any other rights
of the lord, such as escheats, waifs, fairs,
markets, &c. The lord's rights may be
commuted either for an annual rent-
charge and a small fixed fine not ex-
ceeding 5*. on death or alienation, or for
the payment of a fine on death or aliena-
tion or any other contingency, or at any
fixed period or periods to be agreed upon
between the parties: such annual rent
charge or such fine, as the case may be,
if exceeding the sum of 20s., to be vari-
able according to the price of corn, upon
the principle of tithe rent-charges. After
the completion of the commutation, the
lands are to continue to be held by copy
of Court Roll, and to pass by surrender and
admittance or other customary mode of
conveyance, but the customs of Borough-
English, or Gavelkind (except in Kent),
or any other customary mode of descent
or custom relating to dower, freebench, or
curtesy to which the lands may have been
subject, are to cease, and they are to be
thenceforth subject to the general law of
descent, dower, and curtesy relating to
lands of freehold tenure.

2. For the purpose of facilitating the
enfranchisement of copyhold lands, the
act enables lords of manors, whatever
may be the extent of their interests, with
the consent of the commissioners under
the act, to enfranchise all or any of the
lands holden of their manors, in con-
sideration of any sum or sums of money
payable forthwith or at a future time,
according to agreement : and tenants,
whatever be the extent of their interests,
are in like manner enabled, with the
consent of the commissioners, to accept
of enfranchisement on the terms agreed
upon. After the completion of any such
enfranchisement, the lands included in it
are to become of freehold tenure, subject
to the consideration agreed upon for the
enfranchisement, but without prejudice
to the tenant's right of common and
existing limitations affecting the land.

3. The act contains a clause applicable
to cases where commutation or enfran-
chisement has been effected, and there has


[_ 639 J


been a reservation of the lord's right in
mines and minerals, enabling the tenants
to grant to the lord such rights of entry
and way, and such other easements, as
may be necessary to the enjoyment of the
reserved rights. [Enfranchisement.]

It also, after stating the doubts enter-
tained as to the power of the courts of
equity to decree a partition of lands of
copyhold or customary tenure, confers
that power to be exercised according to
the practice of the court in freehold cases.
Formerly a customary court could not be
legally constituted unless two or more
tenants were present to form the homage ;
all acts of court were by usage required
to be matters of presentment by the
homage ; and in a great majority of
manors grants could not be made nor
admissions taken except at courts held
within the manors. A remedy is pro-
vided for these inconveniences by clauses
giving power to hold customary courts
though there should be no tenant of the
manor holding by copy, or though no
such tenant, or not more than one such
tenant, should be present ; enabling lords
and stewards to make grants and take
admissions out of court and out of the
manor : and requiring the lord forthwith,
upon payment of the usual fees, to enter
on the rolls all such surrenders, deeds,
wills, grants, and admissions as would
formerly have required the formality of
a court to authorize their entry or to give
them legal effect ; and also declaring that
no presentment of a surrender, will, or
other instrument shall be essential to the
validity of any such admission. But the
operation of these provisions is restrained
by a clause providing that wastes and
commons are not to be granted or in-
closed without the consent of the homage
at a court duly constituted.

The act also contains a provision ex-
tending the powers of the lords and
tenants of certain manors to dispose of
and divide ancient tenements held of the
manor, subject to a due apportionment of
the ancient rent where a tenement is sold
in parcels.

There are likewise numerous provisions
in the act for defining boundaries, settling
disputes, providing for cases of disability,
payment of expenses, &c, similar to those

in the Tithe Commutation Act, 6 & 7
Wm. IV. c. 71.

The act applies partially to the Duchy
of Lancaster, but not otherwise to Crown
lands, and not at all to the Duchy of

COPYRIGHT, or, as it was formerly
termed, Copy, has been defined by Lord
Mansfield, "to signify an incorporeal
right to the sole printing and publishing
of somewhat intellectual, communicated
by letters." By this " somewhat intellec-
tual" is to be understood something pro-
ceeding from the mind of the person by
whom, or through whom, such a right is
claimable. Yet, although mere republi-
cations of the compositions of others are
no subject for copyright, it is not limited
to such productions as contain new or
original ideas. Translations both from
ancient and modern languages, and notes
and additions to existing works, are
similarly protected. Further, a right of
copy attaches to the authors of ideas
expressed by other symbols as well as
letters, to musical composers for example.

The origin of copyright must be sought
in the general opinion of its justice and
expediency. It has been supposed that
a common-law right of copy existed in
England previously to any statute on the
subject. As a legal proposition, however,
this cannot be supported by any proper
and direct proof of a fair judicial ie-
cision before the passing of the first sta-
tute relating to copyrigt, 8 Anne, c. 1 9 ;
inasmuch as it never appears to have
been directly controverted up to that
time. But, in the absence of positive
authority, it may be fairly inferred, from
the old charters of the Stationers' Com-
pany, and much more from their regis-
ters, whence it appears that some thou-
sands of books, even as early as the times
of Elizabeth, passed from one owner
to another by descent, sale, and assign-
ment ; from acts and ordinances of par-
liament which imply a recognition of it
by the nature of their provisions respect-
ing printing; and from decrees of the
Star-chamber, which, though not binding
precedents, are evidence of the opinion of
many learned men as to the then state of
the law. The non-existence of express
decisions on the point is accounted for


[ G40 J


down to 1640 by the necessity of obtain-
iug a licence prior to the printing of any-
thing, so that authors had no occasion to
apply to civil tribunals for protection, as
none but themselves and those claiming
under them were so licensed, and he who
printed a book without this was subject
to enormous penalties.

It has hardly been controverted in the
various arguments upon this eoinmon-
law right of copy that literary composi-
tions in their original state, and the right
of the publication of them, are the exclu-
sive property of the author. The argu-
ment has been that this property was put
an end to by publication : and yet without
publication it is useless to the owner,
because it is without profit, and property
without the power of use or disposal is
not property. In that state it is lost to
society as a means of improvement, as
well as to the author as a means of gain.
Publication is therefore the necessary act
and the only means to render such a pro-
perty useful to the public and profitable to
the owner. If, says Lord Mansfield, the
copy which belonged to the author before
publication does not belong to him after,
where is the common law to be found
which says there is such a property be-
fore? All the metaphysical subtleties
from the nature of the thing may be
equally objected to the property before.
It, is equally detached from the manu-
script or any physical existence whatso-
ever. There is in fact nothing in the act
of publication to vary the nature of the
right, so that what is necessary to make
a work useful and profitable should be
taken as destructive at once of an au-
thor's confessed original property against
his expressed will. It has accordingly
been the almost unanimous opinion of the
high authorities who were called on to
decide the point, that by the common
law of England authors were entitled to
copyright, and. as there was nothing in
statute or custom to determine it, or dis-
tinguish this from other species of pro-
perty, that such right was once perpetual.
The arguments for the contrary opinion
are collected in the judgment of Mr. Jus-
tice Yates in the case of Millar v. Taylor,
4 Burrow, p. 2303. It must be observed
that this argument in favour of a com-

mon-law copyright is founded on the as-
sumption that copyright is property inde-
pendently of written law ; a proposition
which may be denied.

From the above premises arose the
question, after the passing of the first
statute respecting literary property in
1710, whether by certain of its provisions
this perpetual copyright at common law
was extinguished for the future. After
some less important decisions in the ne-
gative on motion in the Court of Chancery
and elsewhere, the question was argued
before the Court of King's Bench, during
the term, when Lord Mansfield presided,
in 1769. Tiie result was a decision in
favour of the common-law right as un-
altered by the statute, with the disap-
proval, however, of Mr. Justice Yates.
Subsequently, in 1774, the same point
was brought under the consideration oi
the House of Lords, and the decision erf
the court below was reversed by a ma-
jority of six judges in eleven, as Lord
Mansfield, who adhered to the opinion
of the minority, declined to interfere ;
it being very unusual, from motives of
delicacy, for a peer to support his own
judgment on appeal to the House of
Lords. It is somewhat remarkable, that
although this could hardly be termed a
decision, as the judges were in point of
fact divided equally, it has since been
held so important as a precedent and sus-
tained in so many subsequent cases, that
it must now be considered as settled law
that perpetual copyright is put an end to
by the statutes.

The universities of Cambridge and
Oxford protected themselves from the
consequences of this decree in the case of
Donaldsons and Beckett, by obtaining
from parliament, in 1775. the following
year, an act for enabling the two univeiv
sities in England, the four universities in
Scotland, and the several colleges of Eton,
Westminster, and Winchester, to hold in
perpetuity their copyright in books given
or bequeathed to the said universities and
colleges for the advancement of useful
learning and other purposes of education.
This protection, sanctioned by penalty
and forfeiture, so long as such books are
printed at the presses of the universities
and colleges respectively, is still enjoyed,


[ 641 J


unaffected by the general statutes on the
subject; and a similar protection is ex-
tended to the university of Dublin by 41
Geo. III. c. 107.

The chief provisions of the 8 Anne, c.
19, entitled 'An act for the encourage-
ment of learning, by vesting the copies of
printed books in the authors or purchasers
of such copies during the times therein
mentioned,' as regards the effecting of
that purpose, were, that the authors of
books already printed, and those claiming
under the authors, should have the sole
right and liberty of printing them for a
term of twenty-one years and no longer ;
and that the authors of books thereafter to
be printed, and their assigns, should have
the same right for fourteen years and no
longer. The last clause of the statute
directed that after the expiration of these
fourteen years the same right should re-
turn to the authors, if living, for another
fourteen years. The persons infringing
these provisions were to be punished by
forfeiture of the pirated book to the pro-
prietor, and a penalty of one penny for
each sheet, one-half to go to the crown
and the other half to the informer, pro-
vided always the title to the copy of the
book had been duly entered with the
Stationers' Company.

The 41 Geo. III. c. 107, which extended
the same law to Ireland, gave a further
protection to authors and their assigns by
action for damages and double costs, and
raised the penalty per sheet to three pence,
to be divided in the same way.

The 54 Geo. III. c. 156, entitled 'An
aet to amend the several acts for the en-
couragement of learning by securing the
copies and copyright of printed books to
the authors of such books and their
assigns,' enacted, that the author of any
book which should be published after the
passing of the act, and his assigns, should
have the sole liberty of printing and re-
printing such book for the full term of
twenty-eight years from the day of publi-
eation, and, if the author should be living
at the end of that period, for the residue
of his natural life; while with regard
to books at that time already published,
of which the authors were then living,
and in which copyright had not expired,
if the authors should die before the expi-

ration of fourteen years from publication,
their representatives should have the
benefit of the second fourteen years ; and
if the authors should survive till twenty-
eight years from publication, they them-
selves should have the benefit for the
remainder of their lives; the rights of all
assigns being saved in both cases. The
penalties for the infringement of copy-
rights were the same as in the former
statutes, but with the limitation that all
legal proceedings under the act must be
commenced within one year.

The act 5 & 6 Vict. e. 45 (Lord Ma-
hon's Act), entitled 'An act to amend
the law of copyright,' and having for its
preamble, " Whereas it is expedient to
amend the law relating to copyright, and
to afford greater encouragement to the
production of literary works of lasting
benefit to the world," is the act now
regulating literary property. It repeals
the three before-mentioned acts, and
enacts that, in every book published
in the life-time of the author, after the
passing of the act (1st of July, 1842), the
author and his assigns shall have copy-
right for the term of the author's life, and
for seven years after his death, or if these
seven years expire before the end of forty-
two years from the time of publication,
then for such period of forty-two years ;
while for books previously published, in
which copyright still subsisted at the
time of the passing of the act, the copy-
right should be continued for the full
term provided in the cases of books there-
after published, except in cases where
the copyright should belong wholly or in
part to a person other than the author,
" who shall have acquired it for other
consideration than that of natural love
and affection.'' In these excepted cases,
however, the author, or his personal re-
presentative, and the proprietor or pro-
prietors of copyright may agree, before
the expiration of the subsisting term of
copyright, to accept the benefits of the act :
and on a minute of such agreement being
entered in a book of registry directed to
be kept at Stationers' Hall, the copyright
will be continued, as in other cases, for
the author's life and seven years after his
death, or for forty-two years from the
time of publication, arid will be the pro-
2 T




perry of the person or persons specified in
the minute. The copyright of a book
published after the author's death is to
endure for forty-two years from the time
of publication, and to belong to the pro-
prietor of the manuscript from which it
is first published, and his assigns. With
regard to encyclopaedias, reviews, maga-
zines, periodical works, or works pub-
lished in a series of books or parts, or
any book in which the publisher or pro-
jector shall have employed persons to
write, on the terms that the copyright
shall belong to himself, the copyright
shall be in the publisher or projector, after
he has paid for it, in the same manner and
for the same term as is given to authors
of books, except only in the case of essays,
articles, or portions forming part of and
first published in reviews, magazines, or
other periodical works of a like nature,
the right of publishing which separately
shall revert to the authors at the end of
twenty-eight years after publication, for
the remainder of the term given by this
act ; and during these twenty-eight years
the publisher or projector shall not have
the right to publish any such essay, ar-
ticle, or portion separately, without the
consent of the author or his assigns.

The act provides, at the same time,
against the suppression of books of im-
portance to the public, by empowering the
judicial committee of the Privy Council,
on complaint made to them that the pro-
prietor of the copyright in any book,
after the death of its author, refuses to
republish or allow the republication of
the same, to license the complainant to
publish the book, in such manner and
subject to such conditions as the Privy
Council may think fit.

The remedies provided by this act for
infringement of copyright are, an action
for damages (in which the defendant is
required, on pleading, to give notice to
the plaintiff of the objections to the plain-
tiff's title on which he means to rely), and
a power given to the officers of customs
and excise to seize and destroy all fo-
reign reprints of books in which copyright
exists, with a penalty on the importer (if
he be not the proprietor of the copyright)
of 10/., and double the value of every
copy of any book imported, on conviction

before two justices of the peace ; 52. of
the penalty to go to the officer of customs
or excise who shall procure the convic-
tion, and the remainder to the proprietor
of the copyright.

The act provides that a book of registry
be kept at Stationers' Hall, where entries
may be made of proprietorships of copy-
right, assignments thereof, licences of the
judicial committee, and agreenv its as to
copyrights subsisting at the time of the
passing of the act, on payrrent in each
case of a fee of 5s. The jntry of pro-
prietorship of copyright in this book does
not affect copyright; but no action can be
brought for infringement of copyright,
nor any other legal proceedings taken,
unless the proprietorship of copyright
has been entered. The entry of an as-
signment in the registry book is to all
intents and purposes an effectual assign-
ment. § 1 3. Certified and stamped copies
of entries in the registry book arc to be
evidence in all courts of justice, and are
to be taken as prima facie proof of copy-
right. The making of a false entry in
the registry book, or the production in
evidence of any paper falsely purporting
to be the copy of an entry therein, is
made a misdemeanor. Persons thinking
themselves aggrieved by any entry in the
registry book, may apply to a court of
law in term time, or a judge in vacation,
for an order to vary or expunge such
entry ; and such court or judge may
make an order for varying, expunging,
or confirming such entry, with or without

It has been said that the exclusive pro
perty of authors in their manuscripts has
always been recognised by the law. But
as this principle only prevented the print-
ing or circulating copies of them without
the licence of the owner, it has been found
necessary to provide for the peculiar pro-
tection of the authors of dramatic and
musical compositions. The 3 Will. IV.
c. 15, entitled 'An Act to amend the
Laws relating to Dramatic Literary Pro-
perty,' and known as Sir Bulwer Lyt-
ton's act, after reciting the 54 Geo. III.
c. 156, provided that the author of any
dramatic piece, not hitherto printed or
published by authority of him or his as-
signs, should have as his property the so»e




liberty of representing it, or causing it to
be represented, at any place of dramatic
entertainment ; and the author or assig-
nees of any such work, printed and pub-
lished within ten years before the date of
the act, should have the same privilege,
for twenty-eight years from publication,
and for the remainder of the author's life,
if he lived longer ; the penalty for violat-
ing these enactments to be enforced by ac-
tion for damages, with double costs, to be
brought within twelve months from the
commission of the offence. The 5 & 6
Vict. c. 45, has extended the term of the
sole liberty of representing dramatic
pieces to the period provided by that act
for the copyright of books, and gives the
same protection to the authors of musical
pieces and their assigns. The remedies
provided by the 3 Will. IV. c. 15, in the
case of dramatic pieces are confirmed by
the 5 & 6 Vict c. 45, and extended to
musical pieces. The 5 & 6 Vict. c. 45,
also enacts that no assignment of the
copyright of any book consisting of a
dramatic piece or musical composition
shall convey the right of representing or
performing such dramatic piece or musical
composition, unless an entry, expressing
the intention that such right should pass
by the assignment, be made in the registry
book at Stationers' Hall.

There are certain works excepted from
the benefit of the law of copyright from
the nature of their contents. Such are,
all publications injurious to morality,
inimical to Christianity, or stimulating,
either as libellous or seditious, to a breach
of the peace. This must however be un-
derstood of their general tenor, and not of
isolated passages. As far as a rule on the
subject can be laid down, it is, that any
work containing matter for which a pub-
lic indictment or private prosecution could
be sustained is not protected by the law,
but may be pirated by other parties
at pleasure, who, if sued for penalties
under the act, are allowed to give in evi-
dence the nature of the composition which
they have published, in order to defeat
the action. This is a remarkable excep-
tion to the general rule of law, that none
shall take advantage of his own wrong ;
and its operation is quite as remarkable,

Online LibraryDavid BatesThe standard library cyclopaedia of political, constitutional, statistical and forensic knowledge. Forming a work of universal reference on subjects of civil administration, political economy, finance, commerce, laws, and social relations → online text (page 33 of 76)