- Michel Foucault, “What Is an Author?” ¹

Donaldson v. Becket was before the House of Lords for nearly three weeks until on 22 February the peers voted in favor of Donaldson and the principle that copyright should be limited in time.  Throughout the proceedings public interest was intense.  On the first day of argument, according to a letter from London in Donaldson’s newspaper the Edinburgh Advertiser, several hundred people had to be turned away for lack of space, ² and the Morning Chronicle reported that the

“House below the bar was ... exceedingly crowded,” and that “Mr. Edmund Burke, Dr. Goldsmith, David Garrick, Esq; and other literary characters, were among the hearers.” ³  Samuel Johnson probably was not present but he was, as one would expect, interested.  On 7 February he wrote James Boswell noting that the question of literary property was before the Lords, that their friend Arthur Murphy had drawn up Donaldson’s case, and that he himself opposed making copyright perpetual. ⁴  Meanwhile, the London newspapers devoted multiple columns to the proceedings, reporting the arguments of the lawyers and judges in great detail, and they printed dozens of letters to the editor from lawyers, booksellers, and others commenting, often very colorfully, on the case as it was developing.  The general interest even spawned at least one rather feeble joke.  Having been reprimanded for stealing an old woman’s gingerbread cakes baked in the form of letters, a cheeky schoolboy was supposed to have defended himself by explaining that “the supreme Judicature of Great Britain had lately determined that lettered Property was common.” ⁵

“No private cause has so much engrossed the attention of the public, and none has been tried before the House of Lords, in the decision of which so many individuals were interested.  During the whole time of its duration in the House of Lords, (three weeks including adjournments, and eight days debate) a great number of peers were present, and paid the greatest attention.”  So reported the Edinburgh Advertiser after the decision was rendered, ⁶ and though Donaldson’s paper can hardly be regarded as a neutral source there is no reason to doubt its assertion about the perceived significance of the case at the time.

Why was there such general interest in Donaldson v. Becket?  For one thing the case represented the climax in a commercial and legal struggle between the booksellers of the capital and those of the provinces that had been going on for the better part of a century.  In 1694 the Licensing Act, the statute that regulated the British press, had been allowed to lapse because it was apparent that it was operating primarily as a restraint on trade.  Most affected negatively were the small group of powerful London booksellers who under the ancient rules of the Stationers’ Company had come to control nearly all the old copyrights of value.  This group, whose dominance of the book trade was threatened by the provincial booksellers of Ireland and Scotland (who were not bound by the rules of the Stationers’ Company), petitioned Parliament for permission to bring in a bill to regulate the trade, and in 1709 the Statute of Anne, the world’s first copyright act, was passed. ⁷  The statute was essentially a codification of long-standing practices of the Stationers’ Company, but, whereas under the guild regulations copyright was perpetual, under the statute the term was limited to fourteen years with a possible second term if the author were still living.  For books already in print the statute provided a twenty-one-year term.  The London booksellers were, for obvious reasons, dissatisfied with this aspect of the statute.  For a time they sought parliamentary extensions of the terms, but these attempts were unsuccessful, and

in any case what they really wanted was confirmation of the customary perpetual copyright of the Stationers’ Company.  Starting in 1735, therefore, after the expiration of the twenty-one-year term for existing copyrights, the major copyright holders turned to the courts, first to seek injunctions in particular cases that they regarded as piracy, and later to establish in principle that copyright was a common-law right and therefore continued in perpetuity despite the specifications of the statute.  The first case in which the common-law issue was directly confronted was Tonson v. Collins (1760), which came before the Court of King’s Bench under the formidable Lord Mansfield, the founder of English commercial law.  But when it emerged that Tonson and Collins were acting in collusion in order to test the law on the matter the court refused to proceed to judgment.  A decade later, however, in the landmark case of Millar v. Taylor (1769) the London booksellers secured the judgment they wanted.  By an unprecedented split vote of three judges to one the Court of King’s Bench affirmed the common-law right of literary property and the principle of perpetual copyright.  Donaldson v. Becket in 1774 was in effect an appeal of Millar v. Taylor, and the Lords’ decision against the perpetuity constituted a dramatic reversal of the earlier judgment. ⁸

Because the issue that climaxed in Donaldson v. Becket was so fundamental, the entire publishing industry was implicated, and being directly concerned with the outcome the press naturally focused special attention on the matter.  “There hardly exists a person connected in the most distant manner with the press, who will not, in some degree, be affected by the event of this appeal,” wrote William Woodfall in the Morning Chronicle as he acknowledged his own warm interest in the outcome of Donaldson v. Becket. ⁹  Moreover, the economic stakes were felt to be truly great.  A paragraph that appeared in the Morning Chronicle and in a number of other places after the decision claimed that as a result of the Lords’ vote a vast amount of property by contemporary values had been annihilated:

By the above decision of the important question respecting copy-right in books, near 200,000 1. worth of what was honestly purchased at public sale, and which was yesterday thought property, is now reduced to nothing.  The booksellers of London and Westminster, many of whom sold estates and houses to purchase copy-right, are in a manner ruined; and those who after many years industry thought they had acquired a competency to provide for their families; now find themselves without a shilling to devise to their successors. ¹⁰

held and often deeply conflicting sets of assumptions.  Some of these had to do with such crucial liberal values as “property” and “freedom.”  Others, more specifically literary, had to do with the conception of the author’s role in society, a matter that was rapidly changing in the years immediately preceding Donaldson v. Becket as patronage was declining and authors were becoming independent professionals able to support themselves by writing for the enormously increased reading public. ¹¹  For some, brought up in the aristocratic tradition of polite letters, the conception of the author as a professional who wrote for money was profoundly distasteful.

Glory is the Reward of Science, and those who deserve it, scorn all meaner Views: I speak not of the Scribblers for bread, who teize the Press with their wretched Productions; fourteen Years is too long a Privilege for their perishable Trash.  It was not for Gain, that Bacon, Newton, Milton, Locke, instructed and delighted the World; it would be unworthy such Men to traffic with a dirty Bookseller for so much as a Sheet of Letter-press.  When the Bookseller offered Milton Five Pounds for his Paradise Lost, he did not reject it, and commit his Poem to the Flames, nor did he accept the miserable Pittance as the Reward of his Labor; he knew that the real price of his Work was Immortality, and that Posterity would pay it.¹²

So spoke Lord Camden, a former lord chancellor and a figure of great authority in the House of Lords, on the day the Donaldson appeal came to a vote.  For others, however, the author’s dignity lay precisely in the position of proprietor that copyright created for him.  As an article in the Monthly Review put it, the present was the “Golden Age of Authors,” for now instead of having to depend upon the patronage of the great, authors had it “in their power to repay themselves for their labours, without the humiliating idea of receiving a favour, where they had the right to claim a debt.” ¹³

were appropriate. ¹⁴  But authors did not “own” their works.  A writer of course owned his physical manuscript, and it was this that he might sell to a bookseller or a theatrical company, but the concept of owning a work did not fit the circumstances of a traditional status society that functioned largely through patronage.  Before about the middle of the eighteenth century the author’s primary relations were typically with patrons rather than with booksellers.  In a complex exchange of material and immaterial benefits, patrons honored and sustained worthy authors and themselves received honor and status in return.  Indeed, even the early printing privileges, which are generally regarded as anticipations of modern copyright, can perhaps best be understood as versions of patronage.  When the Venetian republic in 1515 granted Ariosto a lifetime privilege in his Orlando furioso, or a century later when King James granted Samuel Daniel a ten-year exclusive right to print his History of England, both the republic and the king were acting as patrons of worthy individuals. ¹⁵

The earliest statement that I know which speaks of the author in something like the modern mode as a proprietor comes from John Milton.  Milton’s best known dictum on copyright, one that was frequently cited in the eighteenth-century court cases, appears in Aereopagitica (1644) where he speaks of “the just retaining of each man his several copy (which God forbid should be gainsaid).” ¹⁶  But the “copy” to which Milton here refers is plainly the publisher’s copyright of the Stationers’ Company and not an authorial property right.  In Eikonoklastes (1649), however, Milton speaks of the “human right, which commands that every author should have the property of his own work reserved to him after death as well as living.”  The context in which this statement comes is Milton’s denunciation of King Charles’s appropriation of Pamela’s prayer from Sidney’s Arcadia as his personal meditation on the eve of his execution.  Milton’s first objection is religious: it was not appropriate for a. Christian in time of trouble to use a pagan prayer taken from a “vain amatorious poem.”  “But leaving aside what might be justly offensive to God,” he continues,

it was a trespass also more than usual against human right, which commands that every author should have the property of his own work reserved to him after death, as well as living.  Many princes have been rigorous in laying taxes on their subjects by the head, but of any king heretofore that made a levy upon their art and seized it as his own legitimate, I have not whom beside to instance.¹⁷

for books to sustain a commercial system of cultural production, and this market did not develop until the middle of the following century. ¹⁸  The concept of the author as the originator of a literary text rather than as the reproducer of traditional truths also had to be more fully realized than it could be in Milton’s day, and this involved a major aesthetic realignment in which such concepts as “art,” “genius,” and “originality” were transvalued. ¹⁹  As late as 1711 Alexander Pope could still speak of “True Wit” as “Nature to Advantage drest/What oft was Thought, but ne’er so well Exprest.” ²⁰   By 1779, however, Samuel Johnson in his “Life of Milton” stated flatly, “The highest praise of genius is original invention.” ²¹  Finally, there had to be an adequate theory of property, or, more precisely, an adequate mode of discourse about property, a language in which the idea of the proprietary author could elaborated.  This discourse developed as it were under the sign of John Locke and his theory of the origins of property in individual acts of appropriation from the general state of nature.  The key to Locke’s theory was the axiom that an individual’s “person” was his own property.  From this it could be demonstrated that through labor an individual might convert the goods of nature into private property.  The famous passage from the Two Treatises of Government (1690) is worth quoting:

Though the Earth, and all inferior Creatures be common to all Men, yet every Man has a Property in his own Person.  This no Body has any Right to but himself.  The Labour of his Body, and the Work of his Hands, we may say, are properly his.  Whatsoever then he removes out of the State that Nature hath provided, and left it in, he hath mixed his Labour with, and joyned to it something that is his own, and thereby makes it his Property .²²

pany could hold copyright.  Accordingly, the original draft of the bill that eventually became the Statute of Anne made no mention of authors.  In committee, however, the booksellers’ bill was amended to allow authors as well as publishers to secure copyrights.  Furthermore, the title of the act was also amended to emphasize both this and the second major change from traditional guild practices, namely the limitation of the term of protection.  Thus as passed the statute was called “An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned.” ²³  The reference to authors in the act is striking, and it is often said that the Statute of Anne established the author’s copyright.  Nevertheless, as Lyman Ray Patterson suggests, Parliament’s purpose both in limiting the term of copyright and in introducing the author into its provisions was not so much to create an author’s copyright as to prevent the perpetuation of the London booksellers’ monopolistic control of all the most valuable old copyrights.

Emphasis on the author in the Statute of Anne implying that the statutory copyright was an author’s copyright was more a matter of form than of substance.  The monopolies at which the statute was aimed were too long established to be attacked without some basis for change.  The most logical and natural basis for the changes was the author.  Although the author had never held copyright, his interest was always promoted by the stationers as a means to their end.  Their arguments had been, essentially, that without order in the trade provided by copyright, publishers would not publish books, and therefore would not pay authors for their manuscripts.  The draftsmen of the Statute of Anne put these arguments to use, and the author was used primarily as a weapon against monopoly. ²⁴

Authors have ever had a Property in their Works, founded upon the same fundamental Maxims by which Property was originally settled, and hath since been maintained.  The Invention of Printing did not destroy this Property of Authors, nor alter it in any Respect, but by rendering it more easy to be invaded. ²⁵

Law cases such as Donaldson v. Becket have not figured prominently in literary history, and yet the eighteenth-century struggle over copyright clearly was important in the development of the modern idea of the author as the creative originator of a work that bears the imprint of his or her unique personality.  As Martha Woodmansee, who has studied the interaction between aesthetic and legal developments in Germany in the period just after the conclusion of the English struggle, has remarked, the problem of how the legal-economic and the aesthetic levels of discourse interact is one that literary historians - and, I would add, legal historians as well - have barely explored.  “This is unfortunate,” Woodmansee comments, “because it is precisely in the interplay of the two levels that critical concepts and principles as fundamental as that of authorship achieved their modern form.” ²⁶

The English struggle over copyright, fought in polemical pamphlets as well as in the actual legal cases, generated a body of texts in which aesthetic and legal questions are often indistinguishable. ²⁷  What constitutes a literary work?  How is a literary composition different from any other form of invention such as a clock or an orrery?  What is the relationship between literature and ideas?  These were some of the questions that the eighteenth-century lawyers found themselves dealing with as the process of argument and counter-argument took on a kind of life and logic of its own.  What I want to do now, then, is to trace the trajectory of this debate, suggesting the way in its sometimes very abstruse course the modern

“Labour gives a man a natural right of property in that which he produces: literary compositions are the effect of labour; authors have therefore a natural right of property in their works.” ²⁸  Reduced to essentials this was the essence of the London booksellers’ argument for the author’s right.  It was compelling precisely because it so perfectly incorporated the Lockean discourse with its assumptions about the priority of the individual and the sanctity of property.  Liberty and property: the freedom of the individual to employ his efforts to create property and the freedom to dispose of that property as he saw fit.  These were the principles inscribed by reason in the very order of nature.  How could they be denied in the case of the author?

The issues that the booksellers’ argument raised might have been addressed, we would think, as a conflict between individual rights and the broader needs of society at large.  The author has a right to the fruits of his labor, but society has a need to maintain the circulation of ideas.  Somehow the conflict must be adjudicated so that neither the individual nor society is required to surrender entirely to the claims of the other.  This was how Samuel Johnson understood the matter.  On the one hand the author’s claim to a property in his composition was “a metaphysical right, a right, as it were, of creation, which should from its nature be perpetual.”  But no matter how strong this claim, the “interests of learning” and the need to provide for wide dissemination of knowledge were against perpetual copyright. ²⁹  The compromise that Johnson proposed was that copyright should be limited in time but that the term should be substantially longer than that provided in the statute.  The author’s lifetime plus thirty years would be appropriate, he thought.

Johnson’s proposal anticipates modern copyright law in Britain and the United States, which compromises between the conflicting claims of the individual and society by recognizing just such a long but limited term.  But the eighteenth century was a period of increasing idealization and rationalization in legal thinking in which the common law was coming to be understood not only as the repository of past practices but as the embodiment of an ideal and absolute body of principles. ³⁰  This tendency to abstraction made it difficult for eighteenth-century jurists to approach the literary property issue as a matter of finding a solution to a conflict of legitimate interests.  Instead the issue was addressed as a matter of determining through reason and scholarship how the law stood.  The London booksellers’ claim was not that there ought to be an authorial property right but that there always had been one even though it had not been rigorously asserted in the past.  Was their claim correct?  Both in polemical pamphlets and in the court arguments this question was typically addressed in two parts.  First it

phantoms which the author would grasp and confine to himself: and these are what the defendant is charged with having robbed the plaintiff of. ³¹

The crux of this argument was the premise that a literary composition was essentially a collection of ideas.  This was not implausible at a time when the category of “literature” had not yet been specialized toward imaginative writing and Bacon, Newton, and Locke were regarded equally with Shakespeare and Milton as classics of literature.  Moreover, the dominant conception of composition at this time was derived from empirical psychology with its notion of the mind as a kind of mechanism producing a train of associated images and ideas.  Such ideas were the materials from which the writer, like an intelligent artisan or architect, assembled his composition according to a plan. ³²

There is the same Identity of intellectual Substance; the same spiritual Unity.  In a mechanic Invention the Corporeation of Parts, the Junction of Powers, tend to produce some one End.  A literary Composition is an Assemblage of Ideas so judiciously arranged as to enforce some one Truth, lay open some one Discovery, or exhibit some one Species of mental Improvement.  A mechanic Invention, and a literary Composition, exactly agree in Point of Similarity; the one therefore is no more entitled to be the Object of Common Law Property than the other. ³³

An Original may be said to be of a vegetable nature; it rises spontaneously from the vital root of Genius; it grows, it is not made: Imitations are often a sort of Manufacture wrought up by those Mechanics, Art, and Labour, out of pre-existent materials not their own.³⁴

Young’s treatise was very influential in Germany, where it contributed to the development of romantic doctrine, but at the time it attracted only minor attention in England, where the dominant empiricist tradition provided an unfavorable climate for an anti-mechanical theory of composition. ³⁵

Lacking the possibility of arguing along lines such as Young’s Conjectures on Original Composition might have suggested, the proponents of the common-law right made the distinction in terms of the opposition between mind and matter.  The basic argument was sketched by William Warburton in a much cited pamphlet in which he defended the author’s right. ³⁶  Moveable property, Warburton maintained, was divided into two categories, things natural and things artificial, and the latter category might be further divided into things produced by mental activity and things produced by manual activity.  The property in a manually produced utensil such as a knife extended no further than the single material object.  The property in a mental production such as a literary composition, however, was essentially a property in the doctrine itself rather than in the ink and paper on which the doctrine was inscribed, and therefore this kind of property was not limited to any one material object such as the author’s manuscript.  Mechanical inventions fell in between the two categories of mental and manual products, partaking of the characteristics of both.  Thus insofar as a machine was a kind of utensil it was appropriate that the maker’s property should terminate in the individual material object.  Nevertheless, because the operation of the mind was so intimately concerned in inventions, it was appropriate to extend to the inventors a patent for a limited term of years.  The rationale for patent protection, then, was that this special category of limited rights was designed to accommodate the mixed nature of mechanical inventions as opposed to the purely intellectual nature of literary composition.

It is perhaps worth noting that Warburton’s argument assumes that each exemplar of a machine, each new clock or orrery, will be painstakingly wrought by hand.  Plainly such an argument would not have been put forward in an age of general mass production.  What is most interesting, however, is the extreme ingenuity to which Warburton was driven by the problem.  Given the contemporary frame of reference, the empirical conception of composition and the breadth of the category of literature, the parallel with patent law was, as one writer put it, “the strongest hold, wherein the opponents of literary property have entrenched themselves.” ³⁷

Style and sentiment are the essentials of a literary composition.  These alone constitute its identity.  The paper and print are merely accidents, which serve as vehicles to convey that style and sentiment to a distance.  Every duplicate therefore of a work, whether ten or ten thousand, if it conveys the same style and sentiment, is the same identical work, which was produced by the author’s invention and labour. ³⁸

The identity of a literary composition consists intirely in the sentiment and the language; the same conceptions, cloathed in the same words, must necessarily be the same composition: and whatever method be taken of conveying 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 author which is so conveyed; and no other man can have a right to convey or transfer it without his consent, either tacitly or expressly given. ³⁹

Duncan Kennedy has recently analyzed the way Blackstone’s Commentaries transform what should properly be thought of as social relations into property relations through a process of abstraction and reification. ⁴⁰   Blackstone’s characteristic strategy was to divorce a personal right such as an “advowson” (the right of choosing a parson for a church - a remnant of the feudal system of tenure that was in principle bound up with a whole system of reciprocal rights and duties) from its corporeal basis and then to treat the abstracted right as a kind of thing.  Thus a person could be said to own an advowson.  In this process a right of a person could assume the appearance of an absolute property right.  This was exactly how Blackstone treated literary property.  “The same conceptions, cloathed in the same words” - in Blackstone’s thought the literary text has become an incorporeal entity that can be conveyed from owner to owner according to the same principles as a house or a cow.

One way the London booksellers had made their argument was by grounding the author’s common-law right in “invention.”  Blackstone, however, chose to emphasize the principle of “occupation” - that is, the Roman law doctrine whereby one might establish an estate simply by taking possession of unclaimed land - and it was in the section devoted to “Title to Things Personal by Occupancy” that he took up the topic of literary property in the Commentaries.  Occupancy, he explained at the start of this section, was at first the only way of acquiring property, but in civil society it had been restrained, and for the most part things that were found without any other owner belonged to the king.  In a few instances, however, “the original and natural right of occupancy is still permitted to subsist. ⁴¹   Blackstone listed seven instances, each of which was directly related to the material world, after which he turned to literary property.  Thus even as it was being defined as essentially incorporeal – “the identity of a literary composition consists intirely in the sentiment and the language” - literary property was presented in the Commentaries as if it were another in a list of material goods that also included, for example, items seized from an alien enemy or items found in the sea.

The analogy between a literary composition and a landed estate, implicit in Blackstone’s use of the category of “occupancy,” is explicit elsewhere when Blackstone argues against the proposition that a book when published is given to the public like land thrown onto a highway.  On the contrary, he says, “In such a case, it is more like making a way through a man’s own private grounds, which he may stop at pleasure; he may give out a number of keys, by publishing a number of copies; but no man who receives a key, has thereby a right to forge others, and sell them to other people.” ⁴² In fact act the London booksellers in making their case for perpetual copyright had long drawn an analogy between literary and real property. ⁴³  And elsewhere in the documents of the literary property struggle we find the estate analogy developed in some detail as in the following passage in which it is the author’s “fruitful mind” that is compared to the estate:

In this various world, different men are born to different fortunes: one inherits a portion of land; he cultivates it with care, it produces him corn and fruits and wool: another possesses a fruitful mind, teeming with ideas of every kind; he bestows his labour in cultivating that; the produce is reason, sentiment, philosophy.  It seems but equitable, that a fair exchange should be made of these goods; and that one man should live by the labour of his brain, as well as another by the sweat of his brow. ⁴⁴

Just so Edward Young spoke of the “mind of a man of Genius” as “a fertile and pleasant field” and of original compositions as its “fairest flowers.” ⁴⁵  And just as a lord might take his title from the name of his estate, so, according to Young, an original author’s “works will stand distinguished; his the sole Property of them; which Property alone can confer the noble title of an Author.” ⁴⁶

When the London booksellers first pressed the idea of the author’s common-law right they had been careful to note that all they maintained was that the author had a property right in the profits of his book, not in the metaphysical essence of the book as such.  But the distinction between a personal right and an object of property was being eroded, and the process of erosion did not go unnoticed at the time.  Joseph Yates, a distinguished attorney who argued against perpetual copyright in Tonson v. Collins and who then maintained the same position when he delivered his opinion as a King’s Bench judge in Millar v. Taylor, was probably the most penetrating legal thinker on the anti-common-law side of the question, and he understood quite clearly what was happening.  The fallacy in the assertion that a literary composition could be regarded as property equivalent to an estate lay, he said, in “the equivocal use of the word ‘property;’ which sometimes denotes the right of the person; (as when we say, ‘such a one has this estate, or that piece of goods;’) sometimes, the object itself.” ⁴⁷  Yates insisted on maintaining the distinction between a personal right and an object of property.  He did not deny that a personal right might be incorporeal, but he did deny that anything incorporeal could be treated as property in the same sense as a house or land.

It is just, that an author should reap the pecuniary profits of his own ingenuity and labour.  It is just, that another should not use his name, without his consent.  It is fit that he should judge when to publish, or whether he ever will publish.  It is fit he should not only choose the time, but the manner of publication; how many; what volume; what print.  It is fit, he should choose to whose care he will trust the accuracy and correctness of the impression; in whose honesty he will confide, not to foist in additions: with other reasonings of the same effect. ⁴⁸

As Mansfield saw it, the issue in question was simply whether it was also “agreeable to natural principles, moral justness and fitness” that the author’s right should continue after publication as well as before, and on this matter he found that the “general consent of this kingdom, for ages, is on the affirmative side.” ⁴⁹

Justices Edward Willes and Richard Aston concurred with Mansfield, and in their opinions, too, the force of classical liberal ideas is evident.  To Willes the fundamental principle in the case was simple: “It is certainly not agreeable to natural justice, that a stranger should reap the beneficial pecuniary produce of another man’s work.” ⁵⁰   Likewise Aston found the central issue clear and unproblematic:

The invasion of this sort of property is as much against every man’s sense of it, as it is against natural reason and moral rectitude.  It is against the conviction of every man’s own breast, who attempts it.  He knows it, not to be his own; he knows, he injures another: and he does not do it for the sake of the public, but malâ fide et animo lucrandi. ⁵¹

Joseph Yates, however, dissented, maintaining that the proposition that ideas might be treated as property was “quite wild.” ⁵²  Yates apologized for the “singularity” of his opinion but explained that, “be it ever so erroneous, it is my sincere opinion.” ⁵³  Thus by a vote of three to one the court determined that authors had a common-law right of literary property.

pathetic to any plea that smacked of a bid for monopoly in the book trade. ⁵⁴  In the law courts where jurists such as Mansfield were trying to rationalize and systematize the law according to classical liberal principles, the copyright question could be effectively approached as a matter of the author’s natural right.  An appeal to the Lords, however, would be decided not by lawyers alone (the practice of lay peers not being recognized when the house sat as a court had not yet been instituted) but by a general vote of the peers, lawyers and laymen alike.  Might not the issue become entangled in the network of political and personal rivalries that characterized the house?

The opinions of the judges, delivered one by one over the course of three days, were very divided.  On the first question the judges divided eight to three in support of the author’s right.  On the second the vote was seven to four, again in support of the author.  There is, however, a puzzle connected with the vote on the third question.  According to both the Journal of the House of Lords and the standard legal and historical references, the vote on this question was six to five against the author’s right - that is, the majority of the judges were of the opinion that the statute took away the author’s common-law right.  But contemporary newspaper and other accounts give good reason to believe that the clerk of the House of Lords made an honest error in recording the opinion of one of the judges.  Most likely the tally was six to five in favor of the perpetual right. ⁵⁵  We note that only eleven judges voted: Lord Mansfield remained silent.  Perhaps, as Sir James Burrow suggested a few years later, Mansfield abstained out of “delicacy,” since it was his court’s decision that was in effect being challenged. ⁵⁶  Nonetheless, Mansfield’s support of the common-law right was well known, and had he spoken the

The debate on the floor was opened by Lord Camden, who delivered a long and passionate speech that evidently had a considerable effect on the final vote. ⁵⁷  Camden, who was well respected as a lawyer, went through the principal legal issues, arguing that there was no precedent for such a property and that ideas could not be treated as property.  If there was anything in the world that ought to be free and general it was science and learning.  Men of genius did not write for money: “Glory is the Reward of Science, and those who deserve it, scorn all meaner Views,” he declaimed in the passage I quoted earlier.  If the Lords confirmed the decree against Donaldson they would be sanctifying a monopoly, Camden insisted, and the real beneficiaries would not be authors but the small group of booksellers who controlled the trade: “All our Learning will be locked up in the Hands of the Tonsons and the Lintots of the Age, who will set what Price upon it their Avarice chuses to demand, ‘till the Public become as much their Slaves, as their own Hackney Compilers are.” ⁵⁸

The obvious person to reply to Camden on the floor of the house was Lord Mansfield, who though he had abstained as a judge was nevertheless expected to participate in the debate as a peer.  Mansfield and Camden were bitter enemies who had clashed many times before. ⁵⁹  Indeed, given their acrimonious history, it is hard to avoid the suspicion that part of Camden’s purpose in leading the attack on the common-law right may have been the desire to embarrass Mansfield by having the Lords reverse his determination in Millar v. Taylor.  But Mansfield said nothing.  Was his silence again a matter of delicacy?  The newspapers reported that his failure to speak was “much wondered at.” ⁶⁰  The London booksellers, who had counted on Mansfield’s authority as their strongest bulwark in the House of Lords, were more than surprised; they felt betrayed, and they were furious:

those services attendant on their office; and I should be glad to see a law passed to oblige them to a strict performance of their duty. ⁶¹

Lord Camden was followed in the debate by Lord Chancellor Apsley, who had issued the original decree restraining Donaldson and who now delivered the coup de grace to the London booksellers.  He had made the decree, Apsley said, entirely as a matter of course pursuant to the judgment in Millar v. Taylor, and he viewed his action merely as a step toward a final determination of the copyright question in the House of Lords.  As for the substance of the matter, his opinion was against the common-law right, and therefore he favored reversing his own decree.  Three other peers followed, one attempting to respond to Lord Camden by arguing that authors could not be expected to write for glory alone, and the other two arguing against perpetual copyright, after which the question was called.  There is some conflict of evidence on the method by which the Lords voted in the case, but probably it was a simple voice vote.  As Donaldson’s newspaper reported, undoubtedly with some exaggeration about the unanimity of the house, Lord Chancellor Apsley desired “all who were for reversing the judgment, to say Content, and such as were of a different opinion to say, Not: Nothing was heard but the word Content.” ⁶²

On what basis was the decree reversed?  Did the Lords determine that there was no common-law right of literary property, or did they decide that there was such a right but that it was taken away by the statute?  In legal history it is usually said that the Lords determined that the statute ended the common-law right.  This interpretation derives from the influence of Sir James Burrow’s and Josiah Brown’s reports of Donaldson v. Becket, which make it appear that the Lords in their vote were simply confirming the majority opinion of the common-law judges that the statute took away the common-law right. ⁶³  But in fact the Lords addressed only the practical issue of the perpetuity, and they did so in a way that there is good reason to believe ran directly counter to the judges’ opinion.

One of the immediate consequences of the end of perpetual copyright was the legitimation of reprint enterprises such as Donaldson’s.  In the years following the decision, readily affordable editions of classic writers such as John Bell’s famous edition of “The Poets of Great Britain Complete from Chaucer to Churchill” in 109 Volumes poured into the marketplace, contributing significantly to the further development of the reading public. ⁶⁴  Were there other, less tangible, products of the struggle?

tation of the literary work as an object of property was discredited.  Nor, I suspect, could these contentions have been discredited at this point in history: too many and too powerful economic and social and ideological forces were at work.  So long as society was and is organized around the principles of possessive individualism, the notion that the author has the same kind of property right in his work as any other laborer must and will recur. ⁶⁵

Is it possible that this declamation should impose on any man?  The question is simply this: upon what principle, with what justice, or under what pretext of public good, are men of letters deprived of a perpetual property in the produce of their own labours, when all other persons enjoy it as their indefeasible right - a right beyond the power of any earthly authority to take away? ⁶⁶

Such right… was acknowledged by the common law of England; and let them who have cried out so loudly against the extension of the term as is now proposed show cause why that original right should not be restored… This right I hold to be more deeply inherent in that species of property than in any other. ⁶⁷