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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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is to secure, they would not impair unnecessarily. What is the pe-
nalty which an author has to pay, if he is unable to prove a perform-



58

ance of all these conditions precedent? If he cannot prove that he
gave a copy to the secretary of state ? He forfeits his whole pro-
perty. Can it be believed that Congress, in securing an author's
rights, would create forfeitures for such trifling causes as this ? There
might have been a moderate penalty afiixed. Some fine or forfeiture
not so totally disproportioned. The statute of Anne, as we have
seen, affixes such a penalty. Congress probably did not affix it,
because their power was limited to securing. But the secretary of
state would have a right of action to recover the copy, and this
would be enough. The total disproportionateness of the forfeiture
of the property, as a sanction, proves that it never was intended as
a sanction.

But above all, let us look at the effi;ct and consequences of the
construction contended for. There are four things which an author
must be able, during twenty-eight years, to prove that he has done.
He must prove the record, its publication, its insertion on the title-
leaf, and a delivery of the copy to the secretary of state. These
are made parts of his chain of title, and if he loses one of them, he
loses his property. And all for what ? To prove notice that he is
the author. To prove what must necessarily be known without
them. To prove what a court of equity, in all cases, presumes from
slight circumstances. And all this he is required to do, to entitle
himself to property to which the common law gave him a perfect
right and title without them.

Is it not cruel, unreasonable, and absurd, thus to encumber and
endanger an author's rights, without any object ?

Do not these things endanger an author's rights, and almost com-
pel him to forfeit them ? Is it possible with that ordinary care which
men bestow on human affairs, to preserve, for twenty-eight years, the
necessary evidence of title, or to prove it at all?

What the legislature has made conditions precedent, as we admit,
there is no difficulty in proving. The record proves itself. The
imprint of the record on the title-page proves itself These things
the legislature might well make conditions precedent. The proof
of them is imperishable, and always to be had; and this is, no doubt,
one reason, why Congress has attached the right to them as condi-
tions precedent.

But durinof this period of twenty-eight years, how is publication
in the newspapers to be proved ? Is every author to keep a file of
them to protect his right ? Is he to call witnesses to prove a fact
which the law supposes to be incapable of proof in six years ? How
is he to prove the delivery to the secretary of state ? Can it be done
in any way, except by calling witnesses to the fact ? The judge in
the court below supposed that a certificate from the secretary of



59

state would do. But does the law know any such evidence? The
secretary of state is required to keep no record, to give no certifi-
cate, and if he does so, it is without law. And would his certificate
of this fact be proof any more than the certificate of any other per-
son? Yet it is the only proof that the nature of the case admits of.
The judge below was driven to consider this as good proof, because
it would be impossible to prove the fact by the testimony of witnesses.
The necessity of the case, compels him to admit evidence unknown
to the rules of law. If Congress had intended to create such a case,
would they not have foreseen and prevented such a necessity?

Since Congress have taken care to see that the author should have
the means of proving what they have clearly made conditions
precedent, is it not presumable that they did not mean to make those
things conditions precedent, which they have not enabled him to
prove, and of which, in the nature of things, he can have no proof?

If the acts of Congress take away the author's common law pro-
perty, which they are required to secure, they ought surely to be con-
strued favourably to the author. They should be construed under
the belief, that having removed an ample foundation and protection,
they intended in common justice to provide a substitute of a similar
character, and not a mere trap or quicksand.

Again, if we are to consider the requisites of the first act, as made
conditions precedent by the second, it in fact repeals very important
provisions of the first act, destroys its symmetry and relative bearings,
and deranges the whole. It completely reverses the spirit and inten-
tion of the first act. I say it repeals important provisions of that act,
because that gave a security to the rights of authors, which this act
takes away. Are we to imply such an effect, or give the words such
a construction, if they will admit of any other?

The framers of the first act no doubt considered its provisions
well, and understood the reason and effect of each one of them.
They clothed them in the language in which they are expressed, and
arranged them in their proper order. Those provisions were, before
being passed, presented to the eye and mind of the legislature in a
distinct and bodily shape. How was this with the legislature who
passed the second act ? Did they see the provisions of the first act ?
Is there any evidence of it ? They are not expressed in the second
act. Is it to be supposed, that without having those provisions be-
fore them, in the bill which they were considering, they would weigh
them, understand them, and the objects to be accomplished by them,
and compare the importance of those objects, with the means pro-
vided for attaining them? Can this be supposed? Is it the course
of legislation ? And if not, then are we to suppose that the second
legislature would give these old provisions intentionally an effect and



60

operation never dreamt of by the first, which they manifestly avoided,
and would have revolted from ? And all this, by a single word which
might naturally have been used almost as an expletive, at any rate,
merely with a conjunctive meaning.

Is it not rather to be supposed that a legislature, passing an act in
pari materia, and expressing no different intention, would not be go-
verned by a totally different intention from the former one ? Would
the second legislature, when designing to make a new provision, by
a single word incorporate with such new provision several old and
subsisting provisions of a former act, and give such old provisions a
totally new and most important effect. And would they have done
it without intimating any reason, or any other intimation of such an
intention, than what can be derived from, at best, but a forced, un-
certain, and cruel interpretation of their words. Might we not
rather expect, that a statute, making such momentous and novel
alterations in the existing statute, would recite the evils which re-
quired a remedy, and distinctly enact such remedy in an intelligible
form ? But this first section, as Mr. J. Washington construes it, is a
mere trap for the unwary, and might have remained a century on
the statute-book, and no one but some ingenious counsel have sus-
pected that it would bear such a construction. Can this be the way
that Congress enacts a penal law, which is to deprive one of his pro-
perty ; in our case of the fruits of a laborious life ?

Until Mr. J. Washington's decision, this construction certainly was
never dreamt of; and the proof is, the general neglect to deposit a
copy in the secretary of state's office.

There are no negative words in this act of 1802, and no words
which take away a right conferred by the act of 1790. But as we
have seen, the author has a right on recording his title. Whereas he
has six months to deposit the copy in. But if the act of 1802 makes
the delivery of the copy a pre-requisite, it takes away the right ob-
tained by recording the title. That this cannot be done by affirma-
tive words, see 19 Viner's Abridgment, 510. E. 6. Plowden, 111.
2 Institute, 200.

And for construction of statutes, see 19 Viner''s Abridgment, 510.
E. 6 — 1 Blackstone^s Commentaries, 87.

The second statute cannot be a declaratory statute, because
statutes are only declaratory of the common law. (1 Blackstoiie^ s
Commentaries, 86.)

If Congress, in passing the second act, mistook the first, this court
will disregard the construction they have erroneously put upon it.
(University v. Bryer, 16 East. 316.)

In Postmaster General v. Early, (12 Wlieaton's Reports, 148.) the
words were clearly enacting words. They gave the Circuit Court ju-



61

risdiction, as much as the state and district courts, and there was no
reason why they should not. The words were all the court could
look to. There was no reason, or spirit, or intention of the law about
it. It was not a case for interpretation. There was no evidence in
the second act, except the title, (which, as the court say, cannot re-
strain the enacting clause,) that the legislature mistook the former
law : they refer to no other act. Whereas, in our case, it does ap-
pear in the body of the act, that Congress mistook the former law
and they do not pretend to enact any thing more than what they sup-
posed was enacted by the previous law which they refer to. Besides,
the effect and consequences of the post-ofBce act were beneficial.'
Whereas, in our case, they are productive of no possible good, but the
highest injustice.

The late act of 1831, {Laws of U. S. 11.) is a construction in
our favour of the previous laws of 1790 and 1802. It incorporates
the two acts in one, and makes the record and imprint of the record
on the title-page, the only conditions precedent. As to the delivery
of the copy, it is only directory. When neither the first act nor last
make this a condition precedent, are we to give such a construction
to the words of the intermediate act? (See ss. 1 and 5.) Is legisla-
tive intention so fickle ? Are we not rather to construe the three to.
gether, as statutes in pari materia are always construed ?

The little confidence that can be placed in a subsequept Congress,
especially one long subsequent, knowing what former legislation on
the same subject has taken place, or considering it and construing
it as it ought to be, is apparent from the legislation of Congress on this
very subject of copy-right. Until 1819, no court had jurisdiction of
actions or bills in equity, unless the state courts had. But it must be,
that Congress thought otherwise. So the title of the act o( 1819 only
includes patents, while the body of it extends to copy-rights ; and it
was probably because that act was found necessary in cases of patents,
that copy-rights were then thought of. Congress are not a suitable
body to interpret their own acts. Their business is to make laws,
and not to interpret them.

The words "in addition to the requisites enjoined" by the former
act, are a mere allusion to^that act. Are they, a mere allusion, to dis-
order that whole act, alter its effect and work injustice ? Is such an
allusion, either a declaratory act, or an enactment of itself ?

Again, the act of 1802 does not make the publication and delivery
conditions precedent, because it is impossible that they should be so.
The first act vests the right on recording the title. It then gives two
months to publish the record, and six months to deliver the copy. A
condition precedent is an act to be done precedently. Now it is im-



62

possible to publish the record until the record is first made, and the
right attaches on the making of the record.

Mr. J. Washington refers to the second section of the act of 1802j
as confirming his construction. But even that does not make the
publication a condition precedent, for it is impossible that it should be
so. That, also, gives the right from the recording in the clerk's
office. But it is impossible to publish the record until it is enteredj
and then the right instantly attaches. The delivery stands on the
same ground as the publication. Both go together.

That these things, being to be performed after the right has attach'^
ed, are not conditions precedent, but, at most, causes of forfeiture or
defeasances only. (See 9 WendaWs Reports, 351. The People v.
The Manhattan Company.)

And see same case, that we are not bound to prove their per-
formance. They must make out the defeasance. There is no evi-
dence of it in this case. In Ewer v. Coxe, it must be remembered,
the fact of non-publication or ground of forfeiture was admitted.

But even if it were a cause of forfeiture, I apprehend it could not be
set up in this incidental manner as a ground of defence. The for-
feiture should first be established by proceedings for the purpose, and
by the judgment of court. By the constitution, no person can be de-
prived of property without due process of law.

Again ; the act of 1802 declares that the author, " before he shall
be entitled to the benefit of the act" of 1790, shall, in addition to the
requisites, &c. Now what was the benefit of that act ? It is entitled
an act to secure the author's right, and the power of Congress is to
secure the right, i. e. an existing right. How does the act secure the
right ? Only by penalties and forfeitures. It gives no action on the
case, no bill in equity, and if it had given them, it would have been,
as to them, wholly inoperative, for no court had jurisdiction of them.
What, then, was meant by, what, in fact, was the " benefit of that act."
Certainly the penalties and forfeitures ; nothing else. We claim the
benefit of the act of 1819, which expressly gives a bill in equity, and
the Circuit Court jurisdiction.

It is in vain to say that the acts in question are conditions precedent
to the right. The right itself is recognised by the constitution and
law as an existing right, and the right is not given by the act, but is
only secured by it. The security, as we have shown, are the penalties
and forfeitures which we do not now claim. The action on the case
is a remedy founded on the right, and not on the statute which gives
none. And this bill is founded on the right, and on the act of 1819.
We, therefore, get neither the right nor remedy from the act of 1790,
and what benefit do we claim from it ?



63

That this is the correct view, and that the penalties are merely ac-
cumulative, see Beckford v. Hood, 7 Term R. 616.

See, also, 1 CamphelVs R. 98, where the court held that the name
and date on engravings were not conditions precedent, although the
act (8 Geo. II.) declared that a person should have the "sole right to
commence from the day of the first publishing thereof, which shall be
truly engraved with the name of the proprietor," &c. This was, at
hast, as much a condition precedent as in our case.

I repeat, the object and purpose of these acts of Congress, is to se»
cure the rights of authors, and they should be construed so as to ad-
vance the remedy and prevent piracy. But the construction contend-
ed for, would defeat the purpose of the act, and facilitate piracy.
The object of Congress was, to secure the author, and not the good of
the public. But on this construction, the author's security has been
forgotten in pursuit of something else.

Rules of construction applicable to this point :
" Words and phrases, the meaning of which, in a statute, has been
ascertained, are, when used in a subsequent statute, to be understood
in the same sense." {6 Bac. Abridgment, 319. Statute I. pi. I.)

" The best construction of a statute, is to construe it as near to
the rule and reason of the common law as may be, and by the
course which that observes in other cases." (lb. 383. pi. 4.)

" In all doubtful matters, statutes are to receive such a con-
struction as may be agreeable to the rules of the common law." {lb.)
" A thing which is within the letter of a statute, is not within the
statute, unless it be within the intention of the makers." (76. pi. 5.)

" A statute ought sometimes to have such equitable construction,
as is contrary to the letter." {lb. 387. pi. 6.) Under this rule. Bacon
places the registry acts, the statute of enrolments, and statute of
frauds.

" If the meaning of a statute be doubtful, the consequences are to
be considered in the construction." {lb. 391. pi. 10.)

" If laws and statutes seem contrary to one another, yet if by in»
terpretation, they may stand together, they shall stand," (19 Viner's
Abridgment^dld. Statute E. 6. pi, 86.)

" Every statute which is penal, and goes in derogation of the com.
mon law, shall be taken strictly, and a penal statute is such as gives
forfeituie of money or costs." (19 Vmer''s Abridgment, 520, pi, 96,
Jb. 525. pi. 129.)

" Though the words of an act are general, yet they ought to be
specially construed to avoid an apparent injury." (/6. 524, pi. 119,
lb. 528. pi. 156.)
" If a condition be performed in substance, it is good, although it



64

differs in words." (5 Vmer's Abridgment, 142. Condition 2. a. pL 2,
3, 4, 5.)

" Judges have power over statute laws, to mould them to the
truest and best use, according to reason and best convenience." (19'
Viner^s Abridgment, 528. pi. 154. 158.)

It would seem remarkable, that when the law abounds with so
many rules for construing statutes, Mr. J. Washington should not
have recurred to them in a case where they are so clearly applicable.

It is agreed on all hands, that the only object of these requisites is
to give notice ; and statutes, however strong their language, or posi-
tive their enactments, which require things to be done for notice,
are held not to apply, and that their provisions need not be complied
with, where actual notice is proved.

Such are the registry acts, and other similar acts which declare
that instruments shall be absolutely void, if not recorded. (See Le
Neve V. Le Neve, 3 AtJcyn^s Reports, 651. JacJeso?i ex. dem. v. Bur-
gott, 10 Johns. Reports, 460. Jackson ex. dem. v. West, 10 Johns,
Reports, 466.)

His honour who decided the cause below, censures this interpreta-
tion of the registry and similar acts, and says the profession will join
him. I never before heard it censured. He says the courts have
dispensed with the " permanent, immutable" evidence provided by
law in these cases, and have admitted " floating, fallible,-and tran-
sitory" evidence. Such is all human testimony. Courts must admit
such evidence or none. The object of the registry acts was not to
provide any different or better evidence, as he supposes. It was to
give notice, simply, to bona fide purchasers. Notice is all such a
purchaser can want or be entitled to. And is it important whether
it is just such as the statute points out, so long as it is notice ? Is it
important that he should have notice by the record in the clerk's
office, notice by publication in the newspapers, notice by the imprint
on the title-page, and notice at the secretary of state's office. And
if he does not get all these kinds of notice together, can he say,
I pirated your work as I had a right to do, because I had not notice?
And if he has every one of the other three kinds of notice, except
that at the secretary of state's office, can he say, the notice I have
had is insufficient ; it is " floating, transitory, and fallible" evidence,
the record, and the imprint, and publication together. I am an
" ignorant and innocent invader." 1 have got " innocently into
trouble, and it may be ruin V

No. The principle of those acts is, that being made to prevent
fraud, they shall not be construed to promote fraud. And the prin-



65

ciple of this act should be, that being made to secure an author's
rights and prevent piracy, it shall not be made to promote piracy.

The truth is, that these requisites of a statute ought not to be con-
strued, as conditions precedent are in contracts and deeds. There,
they are the considerations of a grant, a purchase, or a promise, and
the title does not vest until the condition is performed. But in these
statutes, they have nothing to do with the cause, ground, or consider-
ation of acquiring the interest. The only person who can have any
interest in their performance, is the person who wants notice. And
if he has notice otherwise, he has no interest in their performance.
So far as they are conditions precedent, they are substantially com-
plied with, if the person wanting notice, has notice. And a literal
performance of a condition precedent is not necessary ; a substantial
performance is suflicient. (5 Viner^s Abridgment, 142, Condition Q.
a. pi. 2, 3, 4, 5.)

Is it necessary to show that the defendants have had notice ? We
have proved the record, we have proved the imprint, we have proved
the publication. — In exhibits A and B attached to the bill, Mr. Peters
admits the claim made by Mr. Wheaton, and says he is threatened
with a prosecution. He also admits that all the requisites had been
complied with, except the delivery of the copy to the secretary of
state — and insists that the omission to do this is fatal. See also
Donaldson's letter to Peters.

The rule is, that the provisions of the registry acts do not apply,
except in cases of bona fide purchasers. What is a bona fide pur-
chaser ? A purchaser without notice ; no matter what his property,
or his attempt to get it has cost him. Is Mr. Peters a bona fide pur-
chaser ?

Shall it be said, that a rule adopted first by courts of equity, and
afterwards approved and adopted by courts of law ; a rule which
was never complained of, and which recommends itself to the rea-
son and justice of ail, shall not be applied to all cases which come
within its spirit ? That what is law for one shall not be law for
another ?

The title to real estate is hidden and secret, without registry.
Real estate has no indicia of ownership. Yet the courts say, actual
notice shall dispense with statutory notice. The title to a book can-
not be secret. A man might as vv'ell justify himself for picking up a
pocket book and appropriating it to himself, because he did not
know whom it belonged to, as for piVating a book because he did not
know its author. The presumption is, it has an owner, and inquiry
would infallibly lead to finding him out. Still harder is it, to require
the fourth kind of statutory notice to be given, when three kinds



66

have already been given. It is requiring not only the pound of flesh,
but the blood. That cannot be in the bond.

" Judges have power over statutes to mould them to the truest and
best use, according to reason and best convenience." Because the
legislature is supreme and its power irresistible, we are not to infer,
that its enactments are made in the spirit of despotism, or require
from us a blind and unquestioning obedience ; we are rather to re-
gard them, as coming from those who have the power to do any
thing, but the will only to do good.

The court have seen, that in Donaldson v. Becket, there were six
judges to five against the author's perpetual right, (Lord Mansfield
not voting.) But Eyre, J., one of the majority against the author,
took one ground with the other side, directly applicable to our case.
He held, " that there may be a remedy in equity upon the foundation
of the statute, independent of the terms and conditions prescribed by
the statute, in respect of penalties enacted thereby." (4 Burr. R.
2409.)

It is objected, that the record of some volumes is taken out as au-
thor and proprietor. In answer we say, it is the clerk's duty to make
out the record, and we cannot be held to forfeit our property because
he has not done it correct!}'.

But the record is right. As author, and not having parted with his
right, Mr. Wheaton was also proprietor. The act is adapted to a
proprietor as well as an author, and to enable a proprietor who is not
the author, to secure a copy-right. In our case, Mr. Wheaton is de-
scribed as author, and the superaddition of proprietor is mere sur-
plusage.



VI. The directions of the acts of Congress, as to the publication
of the record and delivery of the copy to the secretary of state, and
the renewal of the right to the first volume, have been complied
with, and the complainants have offered all the proof they are bound
to, of those facts.

Files of newspapers containing the publication of notices of 1st,
2d, and 9th volumes could not be found.

As to the delivery of the copies to the secretary of state :
The law is silent as to any proof It directs no record or memo-
randum of the deposit to be made. The presumption, therefore,
is, that none is made. And in fact, they did not begin to make any,
until about the close of these volumes, as Mr. Carey proves.


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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 7 of 20)