Henry Wheaton.

Report of the copy-right case of Wheaton v. Peters : decided in the Supreme Court of the United States : with an appendix, containing the acts of Congress relating to copy-right online

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the propriety of a delay, in consideration of the known division
of opinion between the judges, was pressingly urged upon his
honour the district judge. The irreparable injury to the complainants,
from a dissolution of the injunction, was also urged. This motion
for delay was opposed by the counsel for the defendants, and the
judge decided that the cause should then be heard.

The complainants proved by exemplifications of the records,

that the title-page of each volume of Wheaton's Reports was duly

entered of record in the clerk's office as alleged in the bill. The

volumes themselves were also offered in evidence, from which it



appeared that the record was imprinted on the title-leaf of each
volume. Files of newspapers, as far back as 1818, were produced, to
prove the publication of the records in the newspapers. From
these it appeared that all the records had been duly published, except
of the first, second and ninth volumes. No newspapers were pro-
duced, showing the publication as to those three volumes. But Mr.
Carey, who attended to his father's business at the time he published
the first volume, testified that the securing of copy-rights was his
particular charge, and that the house was at that time in the constant
habit of advertising copy-rights, but not of keeping copies of the ad-
vertisements ; and that he had no doubt, from the course of business,
that it was advertised, although he had no recollection of it. The
publication of the renewal of the copy-right of the first volume was
also proved by the production of the newspaper.

To prove the delivery of a copy of each volume to the secretary
of state, a deposition of Daniel Brent was read in evidence, in which
he deposed that he had been chief clerk in the department of state,
since the fourth of November, 1817, and that its affairs were inti-
mately and particularly known to him. That eighty copies of each
volume of Wheaton's Reports were, within six months after publi-
cation, delivered, under the acts of Congress giving the reporter a
salary, to the department of state. That there had always been,
according to deponent's recollection, one or more complete sets of
said reports, from the time of their publication, in the said depart-
ment of state, but that he was unable to recollect or state more
particularly, when the same were first placed there, or for what
purpose. That there did not appear any evidence in the depart-
ment, to his knowledge, that the successive volumes of said reports,
or copies of them, were deposited in the department by the maker
or publisher, as they were printed, agreeably to the provisions of the
laws of Congress for securing copy-rights, though the memorandum
of similar deposites was kept in the patent office, a branch of the
department of state, and not at the department itself, for several
of the first years referred to ; and that the deponent was under a
thorough impression and belief that the memorandum of such de-
posites of books, and the giving receipts for the same, were often
neglected to be made and given during the whole period referred
to. That said sets of Wheaton's Reports are placed in, and consti-
tute a part of the library of said department ; and that the books
of the library were often lent out to persons, including members of
the bar, for reference ; and that the books placed in the department
under the copy-right laws were also placed in, and constituted a
part of the same library, and were subject to be lent out in the same
manner as the other books of the library.


Mr. Carey also testified as to the delivery of the first volume,
published by his father, that he did not doubt that a copy was
deposited in the state department, although his house had no
evidence of it. They were always accustomed to do it, but never
deemed it necessary to have a certificate of the deposit, because
they had never seen one. They as well as the trade had supposed
a record of the deposit was kept in the department. The earhest
certificate they had was dated in 1820, and they had but two prior
to 1825, Until Mr. Clay came into the department there was no
order in sending certificates, or attention given to it. Ever since
then, witness' house had been obliged to write four, five and six
times before they could get the certificate. Witness' house had been
more largely concerned in publishing than any other in the
United States.

The complainants also gave in evidence the acts of Congress
allowing Mr. Wheaton his salary, as reporter. The first was the act
of March 3d, 1817. It provides, " That the reporter who shall from
time to time be appointed by the Supreme Court of the United
States to report its decisions shall be entitled to receive from the
treasury of the United States as an annual compensation for his
services the sum of one thousand dollars : Provided nevertheless,
the said compensation shall not be paid unless the said reporter shall
print and publish, or cause to be printed or published, the decisions
of said court made during the time he shall act as such reporter, within
six months after such decision shall be made, and shall deliver eighty
copies of the decisions so printed and published to the secretary of
state, without any expense to the United States." The act pro-
vides that these eighty copies should be distributed among certain
officers, whom it enumerated, and should be delivered to their
successors in office. Among the officers enumerated was the
secretary of state. This act was continued in force by subse-
quent acts of the 15th May, 1820, 3d March, 1823, and 22d
February, 1827, and there were two additional clauses in the last
act, as follows : " Provided nevertheless that the said com-
pensation shall not be paid, unless said reporter shall print
and publish the decisions of said court, within six months after such
decisions shall be made ;" " and provided also, that said decisions
shall be sold to the public at large at a price not exceeding five
dollars a volume."

The various assignments by which Mr, Donaldson acquired his
partial interest in the copy-right of each volume were also proved.

The complainants also gave in evidence a letter from the com-
plainant, Donaldson, dated September 25th, 1828, to the defendant,
Peters, inquiring whether it was true that he intended to publish the


eases contained in Wheaton's Reports, as had been reported. The
letter then proceeds : " For myself, I readily anticipate your answer ;
that you will not issue such a work, the effect of which would be to
me literally ruinous on a large amount of property I have vested in
the work, which I have been endeavouring to accumulate from my
labour and care of twelve years ; likewise the injury that would be
done to my absent friend, Henry Wheaton, Esquire, by such a publi-
cation, and the result of which would be to deprive him and his
family of the pecuniary reward due to his professional labours of twelve
years. However, should you see fit to bring out such a work, we
must, under such circumstances, look to the laws of our country for
redress of so great an injury as would thereby be done us. But ere
you receive this, I have little doubt that you have determined to
pursue a more honourable course,by having abandoned said project."
In reply to this the defendant, Peters, wrote Mr. Donaldson as
follows :— " Philadelphia, September 26th, 1828. Mr. Robert Do-
naldson, New-York : Sir — In reply to your letter of the 25th, I have
forwarded you a copy of my correspondence with Judge Cranch, to
which I refer for my views and determinations upon the matters which
are the subject of your communication. I am your obedient servant,
Richard Peters."

The correspondence between Judge Cranch and Mr. Peters, refer-
red to in the above letter, and sent to Mr. Donaldson, was also
proved, and was as follows : — " Washington, D. C, July 18, 1828.
R. Peters, jr. Esq. : Dear Sir — I have been informed that you propose
to publish a new edition of my reports. It is with great reluctance
that I deem it my duty to others to inform you that I have not yet been
reimbursed the actual expense of publishing my three last volumes
by one thousand dollars, and that I must insist upon all my legal
rights. W. Cranch."

" Philadelphia, August 14, 1828. Hon. W. Cranch : Dear Sir— I
have been absent from this city since the 18th of July, and this
moment have your letter of that date.

" I do assure you in the kindest spirit, I shall not object to your in-
sisting on your legal rights in reference to your reports, and should 1
invade them I must submit to the consequences. I do not, nor have
I ever desired to propose to publish a new edition of your reports.
My plan is, to publish in a condensed form the decisions of the Su-
preme Court of the United States, and as the opinions of the court
cannot be the subject of copy-right, neither can the facts of the cases
be the property of any one, my work will not be obnoxious to the
laws protecting literary property. These are opinions, which have
had high professional sanction, and by which I am willing to abide.
I have issued a prospectus of my work, a copy of which I take the


liberty to enclose. From every part of the United States, I have ce-
ceived expressions of the highest approbation of my plan ; and the
beneficial influence in our country of placing the decisions of the
court within the power of many who cannot purchase the reports at
their present price, is admitted by all. I have not adopted the opinion
that my work will injure the sale of yours or Mr. Wheaton's Reports:
on the contrary, 1 think they will be more in demand, as their more
valuable contents shall by my means be made more known. All
booksellers say ' digests' promote the sale of original works. My
work will be a ' digest' of the facts of the cases and the opinions of
the court, no more. I beg you will not consider this as intended to
extract from you any observation on my plan. I assure you I am
desirous to have our relations upon this matter on the ground the rest
in connexion with your letter of the 18th July."

The third volume of Condensed Reports, as well as the first of
Wheaton being made evidence, it appeared that Mr. Peters had in
his volume made an entire and literal copy of the whole of Mr.
Wheaton's volume, with the exception of the arguments of counsel.
These arguments at length he had omitted, and had only taken the
points and authorities. But the abstract or syllabus at the head of
each case, the statement of the facts of the case, the marginal notes,
the opinions of the judges, oral as well as written, the index at the
end of the volume, and the order and arrangement of the whole, were
exactly copied, without abbreviation or alteration.

Upon this evidence the District Judge pronounced a decree dis-
missing the bill and dissolving the injunction. The decree was pro-
nounced on the 9th of January, 1833. An appeal to this court was
entered on the spot, by the complainants, the record sent up, and the
cause forthwith placed on the calendar for argument at the present

Between the decree and the commencement of the term, however
Mr. Peters had published the three last volumes of his Condensed
Reports, containing the eleven remaining volumes of Wheaton's Re-
ports. These on the argument were referred to, and it appeared
that he had made the same use of the eleven last volumes of Wheaton's
Reports as of the first.

Mr. Webster, and Mr. Paine, for the complainants.

1. An author was entitled, at common law, to a perpetual property
in the copy of his works, and in the profits of their publication, and
to recover damages for its injury by an action on the case, and to
tlie protection of a court of equity.


The best definition of " copy," or as it is now generally termed,
" copy-right," may be found in the following words of Lord Mansfield,
in the case of Millar v. Taylor, (4 Burr. 2396.) " I use the word
copy, in the technical sense in which that name or term has been
used for ages, to signify an incorporeal right to the sole printing
and publishing of somewhat intellectual, communicated by letters."

The laws of all countries recognise an author's property in his
copy. In Germany, the property is free from regulation and per-
petual. And in no country are books so cheap and common, learn-
ed men so numerous, information so universally diffused, and science
and literature so triumphant, as in Germany. There the public are
blessed in blessing and rewarding the author.

In Sweden and Norway, also, the property is perpetual. In
France, an author's right in his works is secured to him during his
life, and for twenty years after his death to his representatives. In
that country, where they call things by their right names, literary
piracy is denominated a theft, un vol, is provided against in their
criminal code, and punished like other similar crimes, by a disgrace-
ful punishment. ( Merlhi's Repertoire de Jurisprudence, vol. 3, title
" Contrefacon.'''') And there, learning and authorship are so much
encouraged, that Dr. Johnson observed that they have a book on
every subject.

In England, beyond all question, (for it has been solemnly settled,
after a controversy, which for duration and obstinacy has no parallel
in the history of English jurisprudence,) an author had, at common
law, the sole and exclusive property in his copy. This property was
placed by its defenders, ( and they finally prevailed,) upon the foun-
dation of natural right recognised by the laws, ordinances, usages
and judicial decisions of the kingdom, from the first introduction
of the art of printing.

The opponents of literary property insisted that an author had
no natural right to his copy ; and, resorting to those laws which are
supposed to have governed property before the social compact, they
maintained that because the copy was incapable of possession, it
was impossible to have property in it. Mr. J. Yates, the great op-
ponent of literary property, and who has probably said all that ever
was or can be said against it, urges that it is impossible to appro-
priate ideas more than the light or air ; (4 Burr. 2357. 2365. )
forgetting that books are not made up of ideas alone, but are, and
necessarily must be, clothed in a language, and embodied in a form
which give them an individuality and identity that make them more
distinguishable than any other personal property can be. A watch,
a table, a guinea, it might be difficult to identify ; but a book never.

Indeed it is impossible to read Mr. Justice Yates' argument


without distrusting the conclusion which is arrived at from premise
such as those which he adopts. He cavils at the impossibility of de-
termining when the property attaches. He insists that other men may
have the same ideas as an author, and will not understand that
the question is not as to property in ideas but in books, and that
although men may have the same ideas, they may never choose to
express them, and if they do, it is impossible to express them as any
other person has done. In deciding as to this point, he throws me-
thod, arrangement, style and language entirely out of view. (4 Burr.

Mr. J. Yates is incapable of perceiving that authors have any
moral or equitable right because their publications are the fruit of
their labour and abilities. He says, " the argument has indeed a cap-
tivating sound ; it strikes the passions with a winning address, but it
will be found as fallacious as the rest." ( lb. 2359.)

One of the strongest points in Mr. J. Yates's opinion is, that it is
impossible for an author to have a property in his works after he has
published and sold them. (lb. 2363.) He insists that by so doing,
he necessarily parts with all his property, and that the purchaser has
a right to make what use he pleases of the book, and to republish it.
As well might he say that a man who leases lands, parts with all his
property in them, and can never claim the reversion ; and that the
tenant has a right to sell or waste the inheritance. As well might
he say that one who loans a chattel can never reclaim it. The
fallacy is, in overlooking the contract between the parties; in suppos-
ing that men cannot or do not agree to allow others a partial and
qualified use of their property, and that the right to use cannot ex-
tend beyond the agreement. If an author sells his books with the un-
derstanding (and custom would make such an understanding, whether
expressed or not) that he retains the right of publication, where is
the difficulty in acknowledging and protecting the right ?

Mr. J. Blackstone has probably placed literary property on its
true ground. " When a man," says the learned commentator, " by
the exertions of his rational powers has produced an original work,
he seems to have clearly a right to dispose of that identical work as
he pleases ; and any attempt to vary the disposition he has made of
it, appears to be an invasion of the right. Now the identity," says he,
"of a literary composition, consists entirely in the sen/2me«< and the
language. The same conceptions, clothed in the same words,
must necessarily be the same composition ; and whatever method
be taken of exhibiting that composition to the ear or the eye of
another, by recital, by writing, or by printing in any number of copies,
or at any period of time, it is always the identical work of the au-


thor which is so exhibited ; and no other man, it hath been thought^
can have a right to exhibit it, especially for profit, without the au-
thor's consent. (2 Bh Com. 406.)

Mr. Christian has also observed — " Nothing is more erroneous than
the practice of referring the origin of moral rights, and the system of
natural equity, to that savage state which is supposed to have pre-
ceded civilized establishments, in which literary composition, and of
consequence the right to it, could have no existence. But the true
mode of ascertaining a moral right, is to inquire whether it is such as
the reason, the cultivated reason, of mankind must necessarily assent
to. No proposition seems more conformable to that criterion, than
that every one should enjoy the reward of his labour ; the harvest
where he has sown, or the fruit of the tree which he has planted.
Whether literary property is stii generis, or under whatever denomi-
nation of rights it may be classed, it seems founded upon the same
principle of general utility to society, which is the basis of all other
moral rights and obligations. Thus considered, an author's copy-
right ought to be esteemed an invaluable right, established in sound
reason and abstract morality." {lb. 407. n.)

I would also refer the court to the able opinions of Mr. J. Willes,
Aston and Lord Mansfield, in Millar v. Taylor, (4 Burr. 2310. 2335.
2395.) They agreed not only that an author had a property at com-
mon law, but that it was perpetual, notwithstanding the statute of

Not long after that decision, however, the question as to the per-
petuity of an author's property was brought before the House of
Lords, and it was there decided that it was not perpetual, its duration
being limited by the statute of Anne. Yet, even upon this point, the
twelve judges were equally divided, (if we include Lord Mansfield,
who did not vote, as he was a peer,) and there were eleven out of the
twelve who maintained, that an author had a property at common
law in his copy. (See Donaldson v. Beckett, 4 Burr. 2408. 2 Br.
P. C. 129.)

It may be observed of these two cases, that in Millar v. Taylor,
(4 Burr. 2306.) the jury found as a fact in the case, that " it was
usual before the reign of Anne, to purchase from authors the perpe-
tual copy-right of their books, and to assign the same from hand to
hand for valuable considerations, and to make the same the subject
of family settlements for the .provision of wives and children." In
Donaldson v. Beckett there was no such finding of a jury. It was a
bill in equity, and appears to have been heard on bill and answer.
The probability is that the confidence inspired by the decision in the
case of Millar v, Taylor led the counsel for the author's rights to


neglect both the proof and argument, for it appears to have been
hardly argued by them at all, and to have been very ably argued
against them. (2 Br. P. C. 129.) It may be as well also, here to
observe of this case, that the only question decided adversely to an
author's riglits, was as to the perpetuity. The answer sets up (/6.
p. 130 — 1) no ground of defence, except the expiration of the term
of twenty-eight years allowed by the statute of Anne, and this luas
the only question decided, as was held in Beckford v. Hood. (7 T. R.
616.) There was no question, as to the provisions of the statute
being complied with.

We will now, having seen how the great question of common
law property was finally disposed of, recur to its origin and history
in England. The introduction of the art of printing into the kingdom,
occurred in 1468 or 1471. It was claimed to have been in-
troduced in 1468, secretly, and at great expense, by the king, from
Harlaem; and out of this probably sprung the king's prerogative,
<4 Burr. 2415.)

While the art was in its earliest infancy, and when there were pro^
bably few or no rival presses, the question as to literary property is
not known to have arisen. But in 1556, we have evidence of its
acknowledged existence, in the charter granted to the stationers'
company, (4 Burr. 2312. Maugham, on literanj prop. 12.) who were
incorporated with the exclusive privilege of practising the art. Of
course they became the sole purchasers and possessors of copy-rights,
and they kept a registry to show to whom the copy in any book be-
longed. Carte, the historian, says that " he was surprised on care-
fully examining one of the registers in Queen Elizabeth's time, from
1576 to 1595, to find, even in the infancy of English printing, above
2000 copies of books, entered as the property/ of particular persons,
either in whole or in shares, and mentioned from time to time to
descend, be sold, and be conveyed to others," {Maugham, 17.) It
appears from Maugham, as well as Millar v. Taylor, that there were
entries even as early as 1558, of the ownership and transfer of the
copy in books.

The decrees of the Star Chamber, show, that that court admitted
and protected the rights of authors, as early as 1556. {Millar v. Taylor,
Maugham, 12, 13.)

Ordinances of parliament, as early as 1641, recognise and protect
the owner''s property in his copy. These ordinances were several
limes repeated. {lb. Maugham, 13, 14.) In 1662 and 1679, acts of
parliament were passed, prohibiting any persons from printing with?
,<5ut the consent of the owners of the copy. (/6. 15, 16.)

Iij the reign of Charles II., there were several cases in the


courts in which the- ownership of the copy by authors is treated as
the settled common law ; and in one case, the case of Crokes' Re-
ports, the right of the author was sustained, even against the claim
of the king's prerogative to pubhsh all law books. (/6. 19. 4 Burr.
2316.) Chief Justice Hale presided.

In the reign of Anne, when the perpetual ownership of literary
property was thus firmly established, the booksellers, annoyed by the
piracy of unprincipled and irresponsible adventurers, applied to par-
liament for protection. A bill was accordingly brought in for the
purpose, entitled, " An act to secure the property of authors." In
committee its title was changed to that of " An act to vest authors
with their copies, for the times therein mentioned." {Maugham,20 —
27.) And the act declared, that authors should have an exclusive
right for twenty-one years, and no longer. In this shape it was

Notwithstanding the strong and explicit terms of the statute of
Anne, both as to vesting the author with his right, and limiting its
duration, (terms not to be found in our act,) the courts, by an uninter-
rupted series of decisions from the passing of the statute down to the
case of Donaldson v. Becltet, maintained that an author still had his
original perpetual common law right and property ; and we have seen,
that had Lord Mansfield voted in that case, the twelve Judges would
have been equally divided.

One cannot forbear inquiring, why the learned chancellors and
judges, who sat on the English bench during that period, should
have so long contended against the inflexible and unequivocal lan-
guage of the act of Anne. An answer can only be found in the sup-
position, that they resisted what they deemed an act of injustice, and

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Online LibraryHenry WheatonReport of the copy-right case of Wheaton v. Peters : decided in the Supreme Court of the United States : with an appendix, containing the acts of Congress relating to copy-right → online text (page 2 of 20)