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Commentaries on American Law (1826-30)

Chancellor James Kent

LECTURE 36
Of Title to Personal Property, by Original Acquisition

TITLE to personal property may accrue in three different ways: 1. By original acquisition; 2. By transfer, by act of the law; 3. By transfer, by act of the parties.

It will not be possible to give to every part of so extensive a subject a minute examination, consistently with the preservation of due symmetry in the arrangement of these elementary disquisitions. I shall endeavor to bring every part of the title at least into view, rind reserve a full examination for those branches of it which may appear to be the most fruitful of instruction.

The right of original acquisition, may be comprehended under the heads of occupancy, accession, and intellectual labor.

I. Of original acquisition by occupancy.

The means of acquiring personal property, by occupancy, are very limited. Though priority of occupancy was the foundation of the right of property, in the primitive ages and though some of the ancient institutions contemplated the right of occupancy as standing on broad ground,1 yet in the progress of society, this original right was made to yield to the stronger claims of order and tranquillity. Title by occupancy is become almost extinct, under civilized governments, and it is permitted to exist only in these few special cases, in which it may be consistent with the public welfare.

(l.) Goods taken by capture in war, were, by the common law, adjudged to belong to the captor.2 But now, by the acknowledged law of nations, and the admiralty jurisprudence of the United States, as has been already shown,3 goods taken from enemies, in time of war, vest primarily in the sovereign, and they belong to the individual captors only to the extent, and under such regulations, as positive laws may prescribe.

(2.) Another instance of acquisition by occupancy, which still exists under certain limitations, is that of goods casually lost by the owner, and unreclaimed, or designedly abandoned by him; and in both these cases they belong to the fortunate finder.4 But it is requisite, that the former owner should have completely relinquished the chattel, before a perfect, title will accrue to the finder. He is not even entitled to a reward from the owner for finding a lost article, if none had been promised. He is only entitled to indemnity against his necessary expenses incurred on account of the chattel.5 The Roman law equally denied to the finder of lost property a reward for finding it; and according to the stern doctrine of Ulpian,6 it was even considered to be theft to convert to one’s own use, animo manendi, property found, when the finder had no reason to believe it had been abandoned.

This right of acquisition, by finding, is confined to goods found upon the surface of the earth; and it does not extend to goods found hidden in the earth, and which go under the denomination of treasure-trove. Such goods, in England, belong to the king; and in this state, they strictly being to the public treasury, for we have reenacted the statute of 4 Edw. I, by our act concerning coroners7 which directs the coroner to inquire, by jury, of treasure said to be found, and who were the finders, and to bind the finders in recognizance u) appear in court. 1 presume, however, that this direction has never been put in practice, and that the finder of property has never been legally questioned as to his right, except on behalf of the real owner. The common law originally, according to Lord Coke,8 left treasure-trove to the person who deposited at, or upon his omission to claim it, to the finder. The idea of deriving any revenue from such a source, has become wholly delusive and idle. Such treasures, according to Grotius,9 naturally belong to the finder; but the laws and jurisprudence, of the middle ages ordained otherwise, he says, that the Hebrews gave it to the owner of the ground wherein it was found; and it is now the custom in Germany, France, Spain, Denmark, and England, to give lost treasure to the prince, or his grantee; and such a rule, be says, may now pass for the law of nations. The rule of the Emperor Hadrian, as adopted by Justinian,10 was more equitable, for it gave the property of treasure-trove to the finder, if it was found in his own lands, but if it was fortuitously found in the ground of another, the half of the treasure went to the proprietor of the soil, and the other ball to the finder, and the French new code has adopted the same rule.11

Goods waived, or scattered, by a thief, in his flight, belong likewise, at common law, to the king, for there was supposed to be a default in the party robbed, in not making fresh pursuit of the thief, and reclaiming the stolen goods before the public officer seized them.12 But this prerogative of the crown was placed at the common law under so many checks,13 and it is so unjust in itself that it may, perhaps, be considered as never adopted here as against the real owner, and never put in practice as against the finder, though as against him, I apprehend, the title of the state would be deemed paramount. We must, also. exclude from the title by occupancy, estrays, being cattle whose owner is unknown, for they are disposed of in this states14 and, I presume, generally in this country, when unreclaimed, by the officers of the town where the estray is taken up, for the use of the poor, or other public purposes. All wrecks are likewise excluded from this right of acquisition by occupancy, fur if they be unreclaimed for a year and a day, they are liable to be sold, and the net proceeds paid into the public treasury.15

By the colony laws of Massachusetts, wrecks were preserved for the owner; and they are supposed to belong now to the United States, as succeeding, in this respect, to the prerogative of the English crown.16 The statute law of Massachusetts, since the revolution, pursued the policy of the colony law, and disposed of estrays, lost money, and goods, if unreclaimed for a year, by giving one half of the proceeds to the finder, and the other half to the poor of the town; and those statutes have been extended in practice to all goods, and moneys lost, hidden, waived, or designedly abandoned, when no owner appears.17 This is, upon the whole, as wise and equitable a regulation as any that has ever been made upon the subject at any period of time. By an act in New Hampshire, in 1791, chattels found, waifs, treasure-trove, and estrays, are given wholly to the town, after deducting the expenses of the finder;18 and the learned and laborious author of the General Abridgment of American Law, not unreasonably concludes,19 that in those states where there are no statute regulations on the subject, estrays, treasure-trove, and waifs, belong to the finder, in the absence of the owner.

II. Of original acquisition by accession.

Property in goods and chattels may be acquired by accession; and under that head is also included the acquisition of property proceeding from the admixture or confusion of goods.

The right of accession is defined in the French civil coded20 to be the right to all which one’s own property produces, whether that property he moveable or immovable, and the right to that which is united to it by accession, either naturally or artificially. The fruits of the earth, produced naturally, or by human industry, the increase of animals, and the new species or articles made by one person out of the materials of another, are all embraced by this definition. I purpose only to allude to those general rules which were formed, digested, and refined, by the sagacity and discussions of the Roman lawyers, and transferred from the civil law into the municipal institutions of the principal nations of Europe. By means of Bracton21 they were introduced into the common law of England, and, doubtless, they now equally pervade the jurisprudence of these United States. The subject has received the most ample consideration by the French civilians, and all the distinctions of which it, was susceptible are easily perceived, and clearly understood, by means of the pertinency and fulness of their illustrations. 22

If a person hires, for a limited period, a flock of sheep, or cattle, of the owner, the increase of the flock, during the term, belongs to the usufructuary, who is regarded as the temporary proprietor. This general principle of law was admitted in Wood v. Ash,23 and recognized in Putnam v. Wyley.24 The Roman law made a distinction in respect to the offspring of slaves,25 and so does the civil code of Louisiana.26 Though the children were born during the temporary use or hiring of the female slave, they belonged not to the hirer, but to the permanent owner of the slave. Another rule is, that if the materials of one person are united to the materials belonging to another by the labor of the latter, who furnishes the principal materials, the property in the joint product is in the latter by right of accession, This rule of the Roman and English law was acknowledged in Merritt v. Johnson,27 and it has been applied by Molloy28 to the case of building a vessel. According to the doctrine in the Pandects,29 if one repairs his vessel with another’s materials, the property of the vessel remains in him; but if he builds the vessel from the very keel with the materials of another, the vessel belongs to the owner of the materials. The property is supposed to follow the keel, proprietas totius navis, carinae causam sequitur. This title exercised to a great degree the talents and criticism of the civilians. If A. builds a house with his own materials upon the land of B., the land, said Pothier, is the principal subject, and the other is but accessary; for the land can subsist without the building, but the building cannot subsist without the land on which it stands, and, therefore, the owner of the land acquired, by right of accession, the property in the building. It is the same thing if A. builds a house on his own land with the materials of another; for the property in the land vests the property in the building by right of accession, and the owner of the land would only be obliged (if bound to answer at all) to answer to the owner of the materials for the value of them. The same distinctions apply to trees, or vines planted, or seed sowed by A. in the land of B. When they take root and grow, they belong to the owner of the soil, and the other can only claim, upon equitable principles, a recompense in damages for the loss of his materials. But the Roman law held, that if A. painted a fine picture on the cloth or canvass of B., in that case the rule would be reversed, for though the painting could not subsist without the canvass, and the canvass could subsist without the painting, yet propter excellentiam artis, the canvass was deemed the accessary, and went as the property of the painter by right of accession; for it would be ridiculous, say the Institutes of Justinian,30 that a picture of Apelles, or Parrhasius, should be deemed a mere accessary to a worthless tablet. The Roman law was quite inconsistent on this subject; for if a fine poem or history was written by A., on the paper or parchment of B., the paper or parchment was deemed the principal, and drew to the owner of it, by right of accession, the ownership of the poem or history, however excellent the composition, and however splendid the embellishments of the work.

The French law, according to Pothier and Toullier, does not follow this absurd decision of the Roman law, for it holds, that the paper is a thing of no consideration in comparison with the composition, and that the author has a higher, and, consequently, the principal interest in the written manuscript, and the whole shall belong to him on paying B. for the value of his paper.

The English law will not allow one man to gain a title to the property of another upon the principle of accession, if he took the other’s property wilfully as a trespasser. It was a principle settled as early as the time of the year books, that whatever alteration of form any property had undergone, the owner might seize it in its new shape, and be entitled to the ownership of it in its state of improvement, if he could prove the identity of the original materials; as if leather be made into shoes, or cloth into a coat, or a tree be squared into timber.31 So, the civil law, in order to avoid giving encouragement to trespassers, would not allow a party to acquire a title by accession, founded on his own act, unless he had taken the materials in ignorance of the true owner, and the materials were incapable of being restored to their original form. The Supreme Court of this state, in Betts & Church v. Lee,32 admitted these principles, and held, that where A. had entered upon the land of B., and cut down trees, and sawed and split them into shingles, and carried them away, the conversion of the timber into shingles did not change the right of property. But if grain be taken and made into malt, or money taken and made into a cup, or timber taken and made into a house, it is held, in the old English law, that the property is so altered as to change the title.33 In the civil law there was much discussion and controversy on the question, how far a change of the form and character of the materials would change the title to the property, and transfer it from the original owner of the materials to the person who had effected the change. If A. should make wine out of the grapes, or meal out of the corn of B., or make cloth out of the wool of B., or a bench, or a chest, or a ship, out of the timber of B., the most satisfactory decision, according to the Institutes of Justinian, is,34 that if the species can be reduced to its former rude materials, the owner of the materials is to be deemed the owner of the new species, but if the species cannot be so reduced, as neither wine nor flour can be reduced back to grapes or corn, then he who made it is deemed to be the owner, and he is only to make satisfaction to the former proprietor for the materials which he had so converted.

The English law has been uniform on this subject, from the time of Bracton, who took these distinctions from the civil law; and they have been gradually incorporated into the common law, by a series of judicial decisions.

With respect to the case of a confusion of goods, where those of two persons are so intermixed that they can no longer be distinguished, each of them have an equal interest in the subject assonants in common, if the intermixture was by consent. But if it was wilfully made without mutual consent, then the civil law gave the whole to him who made the intermixture, and compelled him to make satisfaction in damages to the other party for what he had lost.35 The common law, with more policy and justice, to guard against fraud, gave the entire property, without any account, to him whose property was originally invaded, and its distinct character destroyed.36 If A. will wilfully intermix his corn or hay with that of B., or casts his gold into another’s crucible, so that it becomes impossible to distinguish what belonged to A. from what belonged to B., the whole belongs to B.37 But this rule is carried no farther than necessity requires; and if the goods can be easily distinguished and separated, as articles of furniture for instance, when no change of property takes place.38 So, if the corn or flour mixed together were of equal value, then the injured putty takes his given quantity, and not the whole. This is Lord Eldon’s construction of the cases in the old law.39 But if the articles were of different value or quantity, and the original value not to be distinguished, the party injured takes the whole. It is for the party guilty of the fraud to distinguish his own property satisfactorily, or lose it. No court of justice is bound to make the discrimination for him.

III. Of original acquisition, by intellectual labor.

Another instance of property acquired by one’s own act and power, is that of literary property, consisting of maps, charts, writings, and books; and of mechanical inventions, consisting of useful machines or discoveries, produced by the joint result of intellectual and manual labor. As long as these are kept within the possession of the author, he has the same right to the exclusive enjoyment of them, as of any other species of personal property; for they have proprietary marks, and are a distinguishable subject of property. But when they are circulated abroad, and published with the author’s consent, they become common property, and subject to the free use of the community. It has been found necessary, however, for the promotion of the useful arts, and the encouragement of learning, that ingenious men should be stimulated to the most active exertion of the powers of genius, in the production of works useful to the country, and instructive to mankind, by the hope of profit, as well as by the love of fame, or a sense of duty. It is just that they should enjoy the pecuniary profits resulting from mental as well as bodily labor. We have, accordingly, in imitation of the English jurisprudence, secured by law to authors and inventors, for a limited time, the right to the exclusive use and profit of their productions and discoveries. The jurisdiction of this subject is vested in the government of the United States, by that part of the constitution, which declares,41 that Congress shall have power “to promote the progress of science and useful arts, by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries.” This power was very properly confided to Congress, for the states could not separately make effectual provision for the case.

(1.) As to patent rights for inventions.

Any person being a citizen of the United States, and any alien, who, at the time of his application, shall have resided for two years within the United States, and who has invented any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvement on the same, not known or used before the application, may apply to the secretary of state, for a patent, for the exclusive right of making, constructing, using, and vending, for fourteen years, his invention or discovery. The applicant must make oath, or affirmation, that he believes he is the true inventor or discoverer of the art, machine, or improvement, and he must give a written description of his invention, and of the manner of using, or process of compounding the same, in full, clear, exact, and intelligible terms, and accompany it with drawings, and references, and specimens, and models, according to the nature of the case, and cause the same to be attested and filed in the secretary’s office. In the case of the application for a patent, by a resident alien, he must make oath, that the invention, art or discovery, has not, to his knowledge or belief, been known or used in this or in any other country. The legal representatives and devisees of a person entitled to a patent, and who dies before it is obtained, may procure it, on complying with the general requisitions of the law. Any person who shall have discovered an improvement in the principle of any machine, or in the process of any composition of matter, may obtain a patent for such improvement; but he cannot thereby make, use, or vend the original discovery, nor can the first inventor use his improvement. Simply changing the form, or the proportions of any machine or composition of matter, in any degree, is declared not to be a discovery. If the specification does not contain the whole truth relative to the discovery, or contains more than was requisite to produce the described effect, and the concealment or addition was made for the purpose of deception; or if the thing secured by the patent was not originally discovered by the patentee, or had been in use, or described in some public work, anterior to the supposed discovery, or the patent was surreptitiously obtained for the discovery of another person; in either of those cases, the patent cannot be supported, and may be declared void.42

These are the principal statute provisions on the subject, and, under their protection, upwards of four thousand patents have been sued out, and upwards of two thousand ingenious models in the mechanic arts, and relating to every subject connected with domestic and rural economy, manufactures and commerce, have been deposited in the office of the Secretary of State at Washington. In an age distinguished for an active and ardent spirit of improvement in the arts of agriculture and manufactures, and in the machinery of every kind applied to their use, the doctrine of patent rights has attracted much discussion, and become a subject of deep interest, both here and in Europe.43

The courts of the United States have exclusive jurisdiction over these rights; and it has been adjudged by them, that the first inventor, who has reduced his invention first to practice, and put it to some real arrd beneficial use, however limited in extent, is entitled to a priority of the patent right, and a subsequent inventor cannot sustain his claim, although he be an original inventor, and has obtained the first patent. The law, in such case, cannot give the whole patent right to etch inventor, even if each he equally entitled to the merit of being; an original and independent inventor; and it therefore adopts the maxim, riui prior cst in tempore, potior cst in jzcre. If the patentee be not the first inventor he is not entitled to a patent, even though he had no knowledge of the previous use, or previous description of the invention, for the law presumes he may have known it.44 If the first inventor has suffered his invention to go into general use, without taking out a patent, the better opinion, and the weight of authority, is, that he cannot afterwards resume the invention, and hold a patent. It would be unreasonable and injurious, for a person to be permitted to lie by for years, and suffer his invention or improvement to go into use, and expensive undertakings to be assumed, and machinery constructed for the application of that invention, and then sue out a patent, and arrest all such proceedangs. The just inference from such delay is, that he has made an abandonment, or present of his discovery, to the public; and the only limatation to this conclusion is in the case, when it shall be made satisfactorily to appear, as a matter of fact, that the delay was merely with the intention to improve the invention by experiments and practice, before applying for a patent.45 It has been a point of some discussion and difficulty, to determine to what extent an invention must be useful to render it the subject of a patent. This will, as a matter of fact, depend upon the circumstances of each case. It must be to a certain degree beneficial to the community, and not injurious, or frivolous, or insignificant. 46

The act of Congress has described, in substance, the requisite parts of a valid specification of the discovery; and yet the defects of the specification is one great source of a vexatious and perplexing litigation in our own, as well as in the English courts. In the present improved state of the arts, it is often a question of intrinsic difficulty, especially in cases of the invention of minute additions to complicated machinery, to decide whether one machine operates upon the same principle as another, and whether that which is stated to be an improvement, be really new and useful.47 The material point of inquiry generally is, not whether the same elements of motion, and, in some particulars, the same manner of operation, and the same component parts are used, but whether the given effect be produced substantially by the same mode of operation, and the same combination of powers, in both machines. Mere colorable differences, or slight improvements, cannot shake the right of the original inventor. If a machine produce several different effects by a particular construction of machinery, and those effects are produced the same way in another machine, and a new effect added, the inventor of the latter cannot entitle himself to a patent for the whole machine. He is entitled to a patent for no more than his improvement. And if the inventor of an improvement obtain a patent for the whole machine, or mix up the new and the old discoveries together, the patent being broader, and more extensive than the invention, is absolutely and totally void. The invention must be substantially new in its structure and mode of operation.48 The English decisions under their patent law are essentially the same. The statute of monopolies of 21 Jac. I. c. 3. contains the provision under which patents for the term of fourteen years, for new and useful inventions, are granted. It does not confine the privilege to British subjects. It applies to “the true and first inventor of any manner of new manufactures within the realm;” and it has been deemed sufficient to entitle the party to a patent, that his invention was new in England, and that it was immaterial whether the patentee acquired the discovery by study or travel. The policy of the law was equally answered in either case.49 It is allowed in England, as it is with us, to take out a patent for an addition or improvement in any former invention or machine.50 But he invention must be new and useful, and the specification intelligible, and accurately describe it; and if it covers more than is actually new and useful, it destroys the patent, even to the extent to which it might otherwise have been supported; and a patent was declared void, because it extended to a whole watch, when the invention was of a particular movement only.51

In addition to the ordinary remedies by action for violation of a patent right, the party in possession will be protected in the enjoyment of his right, by injunction, provided he has had exclusive possession of some duration. If the right be doubtful, the courts of equity will not interfere by injunction, until the patentee has first established the validity of his patent in a court of law.52

(2.) As to copyrights of authors.

The authors of maps, charts and books, being citizens of the United States, or residents therein, arc entitled to the exclusive right of printing, publishing, and vending them, for fourteen 3 ears; and if the author be living, and a citizen of the United States, or resident therein, at the end of the term, then he is entitled to an additional term of fourteen years, on complying with the terms prescribed by the acts of Congress. Those terms are, that the author or proprietor, before publication, deposit a printed copy of the title of the map, chart, or book, in the clerk’s office of the district where he resides, and which copy is to be recorded; and that he cause a copy of the record to be printed on the title page, or the page next following, of the book, and within two months thereafter, cause such record to be published in one or more newspapers printed in the United States, for the space of four weeks; and within six months after publishing the book, cause to be delivered a copy to the secretary of state, to be preserved in his office. The benefits of copyright are extended upon the same terms to authors in the arts of designing, engraving, and etching historical and other prints.53

It was for some time the prevailing and better opinion in England, that authors had an exclusive copyright at common law, as permanent as the property of an estate; and that the statute of Anne, protecting by penalties that right for fourteen years, was only an additional sanction, and made in affirmance of the common law. This point came at last to be questioned; and it became the subject of a very serious litigation in the Court of K. B. It was debated at the bar and upon the bench, with great exertion of talent, and a very extensive erudition and skill in jurisprudence. It was decided, that every author had a common law right in perpetuity, independent of statute, to the exclusive printing and publishing his original composations.54 The court were not unanimous; and the subsequent decision of the House of Lords, in Donaldson v. Becket, in February, 1774, settled this very litigated question against the opinion of the K. B., be establishing that the common law right of action, (if any existed,) could not be exercised beyond the time limited be the statute of Anne.55

The act of Congress is expressly declared not to extend to prohibit the importation or vending, reprinting or publishang within the United States, of any map, chart or book, written, printed, or published, be any person, not a citizen of the United States, in foreign places, without the jurisdiction of the United States.56

The statute of Anne had a provision against the scarcity of editions and exorbitance of price. The act of Congress has no such provision; and it leaves authors to regulate, in their discretion, the number and price of their books, calculating (and probably very correctly) that the interest an author has in a rapid and extensive sale of his work, will be sufficient to keep the price reasonable, and the market well supplied. The act of Congress, though taken generally from the provisions in the statute of 8 Anne, ch. 19, varies from it in several respects. The statute of Anne does not discriminate, as the act of Congress does, between natives and foreigners, or require any previous residence of the latter, but grants the privilege of copyright to every author of any book. The statute of Anne renews the copyright, at the expiration of the fourteen years, if the author be then living, for another term of fourteen years, without any reentry and republication, as is required with us. In one respect, authors with us are exempted from an exceedingly onerous burden imposed upon them by the statute of Anne. That statute requires not only the title of the book to be entered at stationer’s hall, but nine copies to be deposited there for the use of the libraries of the two universities, and other libraries. In the case of splendid and extensive publications, supporting only a few copies, this requisition is a very heavy tax upon the author. The statute of 8 Geo. 11. ch. 13, securing the privilege of copyright for twenty-eight years to the inventors of prints and engravings, did not require the deposit of any copies for public uses, whereas the act of Congress of the 29th of April, 1802, requires the like entry, publication and deposit, in the case of historical and other prints, as in the case of books. The English law of copyright was more advantageous to the author than that of the United States, even as it stood upon the statute of Anne. But that advantage has been greatly increased by the statute of 54 Gco. III, which gives to the author at once the full term of twenty-eight years, and if he be living at the end of that period, then for the residue of his life.57

The cognizance of cases arising under the acts of Congres securing to authors the copyright of their productions, belongs to the courts of the United States; but there are no decisions in print on the subject, and we must recur for instruction to principles settled by the English decisions under the statute of Anne, and which are, no doubt, essentially applicable to the rights of authors under the acts of Congress.

It was decided in Coleman v. Wathen,58 that the acting of a dramatic composition on the stage was not a publication within the statute. The plaintiff had purchased from O’Keefe the copyright of an entertainment called the Agreeable Surprise, and the defendant represented this piece upon the stage. The mere act of repeating such a performance from memory, was held to be no publication. On the other hand, to take down, from the mouths of the actors, the words of a dramatic composition, which the author had occasionally suffered to be acted, but never printed or published. and to publish it from the notes so taken down, was deemed a breach of right, and the publication of the copy so taken down (being the farce entitled Love a la Mode) was restrained by injunction.59 Since the case above mentioned, injunctions have been granted in chancery even against the acting of a dramatic work without the consent of the proprietor60 and the narrow and unreasonable construction given to the claims of an author by the K. B., seems to have been very properly enlarged by the Court of Chancery. But as the Lord Chancellor, as late as 1822, took the opinion of the Court of K. B. whether an action would lie for publicly acting, and representing for profit, a tragedy altered for the stage, without the consent of the owner of the copyright, and as that opinion was against the action,61 it is probable the rule in chancery will conform to that at law. The preamble of the statute of Anne spoke of books or other writings, but the body of the act spoke only of book or books; and the same words are used in the act of Congress; and it has been made a question whether a musical composition was within the protection of the act. It was so decided in Bach v. Longman;62 but Lord Mansfield, in that case, laid some stress on the words in the preamble to the statute of Anne, “books and other writings,” and our act has no such preamble. Afterwards, in Storace v. Longman, decided at Guildhall before Lord Kenyon,63 it was held, that a musical air, tune and writing, on a single sheet of paper, was a book within the act. So, again, in Clementi v. Goulding,64 it was held by the K. B. that a single sheet of music was a book within the meaning of the act; and this liberal interpretation is, doubtless, to be applied to cases arising under the act of Congress, and the construction is to be considered as having been given to the body of the statute of Anne.

If an author first publishes abroad, and does not use due diligence to publish in England, and another fairly publishes his work in England, it is held, that he cannot sue for a breach of copyright. Whether the act of printing and publishing abroad makes the work publici juris, is not decided. It becomes so if the author does not promptly print and publish in England; and the statute of Anne had a reference to publications in England, and it was them only that it intended to protect.65

An injunction to restrain the publication of unpublished manuscripts has been frequently granted;66 but it seemed to be on the ground, that the author had a property in an unpublished work independent of the statute.67 The act of Congress says, that no person shall be entitled to the benefit of the act, unless he shall, before publication, record the book in the clerk’s office of the District Court, by depositing a printed copy of the title with the clerk. There is another section of the act which declares, that if any person shall print or publish any manuscript, without the consent of the author, (he being a citizen or resident in the United States,) he shall be responsible in damages by a special action on the case. The courts of the United States may issue injunctions, when necessary, for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law; and I see no reason why the courts may not protect manuscripts from piratical publication, since the statute places them under their protection. In England, the publication of private letters forming a literary composition has been restrained. The letters of Pope, Swift, and others, and the letters of Lord Chesterfield, were prevented from a surreptitious and unauthorized publication by the same process of injunction.68 In the case of Perceval v. Phipps,69 the Vice Chancellor held, that private letters, having the character of literary composition, were within the spirit of the act protecting literary property, and that by sending a letter the writer did not give the receiver the right to publish it. But the Court would not interfere to restrain the publication of commercial or friendly letters, except under circumstances. The publication or production of business letters, might often be necessary in one’s own defense. If the publication of private letters would be a breach of trust, the publication has been, and may be restrained.70 It is easy to perceive the delicacy and importance of this branch of equity jurisdiction, relative to the publication of manuscripts and, private correspondence. The publication of private letters ought to be restrained, when it would be a breach of confidence and trust, as letters of courtship, or when injurious to the character and happiness of others.

A copyright may exist in a translation as much as in an original composition, and whether it be produced by personal application and expense, or by gift.71 A copyright may exist in part of a work, without having an exclusive right to the whole. Gray’s poems were collected and published, with additional pieces, by Mason; and Lord Bathurst protected, by injunction, the unauthorized publication of the additions.72 So, Lord Hardwicke restrained a defendant from printing Milton’s Paradise Lost, with Doctor Newton’s notes.73 A mere colorable abridgment of a book is an evasion of the statute, and will be restrained; but, as Lord Hardwicke observed, this will not apply to a real and fair abridgment; for an abridgment may, with great propriety, be called a new book. It is very often extremely useful, and displays equally the invention, learning, and judgment of the author.74 A bona fide abridgment of Hawkesworth’s Voyages has been held no violation of the original copyright. So, an abridgment of Johnson’s Rasselas, given as an abstract in the Annual Register, was held not to be a piratical invasion of the copyright, but innocent, and not injurious to the original work.75

A person cannot, under the pretense of quotation, publish either the whole, or any material part of another’s work, but he may use what is in all cases very difficult to define, fair quotation. A man may adopt part of the work of another. The quo animo is the inquiry in these cases. The question is, whether it be a legitimate use of another’s publication, in the exercise of a mental operation, deserving the character of an original work.76 If an encyclopedia or review should copy so much of a book as to serve as a substitute for it, it becomes an actionable violation of literary property, even without the animus furandi. If so much be extracted as to communicate the same knowledge as the original work, it is a violation of copyright. It must be in substance a copy. An encyclopedia must not be allowed, by its transcripts, to sweep up all modern works. It would be a recipe for completely breaking down literary property.77

But I cannot be permitted to go further into the details on this subject. The justice and the policy of securing to ingenious and learned men the profit of their discoveries and intellectual labor, were very ably stated by the Court of K. B. in the great case of Miller v. Taylor.

The constitution and laws of the United States contain the declared sense of this country in favor of some reasonable provision for the security of their productions. The present law of Congress affords only a scanty and inadequate protection, and does not rise to a level with the liberal spirit of the age. Lord Camden once declaimed against literary property. “Glory,” said he, “is the reward of science, and those who deserve it scorn all meaner views. It was not for gain that Bacon, Newton, Milton, and Locke, instructed and delighted the world.” In answer to this it may be said, that the most illustrious writers in every branch of science, within the last half century, have reaped a comfortable support, as well as immortal fame, from the fruits of their pen. The experiment in Great Britain has proved the utility, as well as the justice, of securing a liberal recompense to intellectual labor, and the prospect of gain has not been found, in the case of such men as Robertson, or Gibbon, or Sir Walter Scott, either to extinguish the ardor of genius, or abate the love of true glory.


NOTES

     1.    Quod ante nullius est, id naturali ratione occupanti conceditur. Inst. 2. 1. 12. Mr. Selden has shown, that among the ancient Hebrews, fruits, fish, animals, and everything found in desert or vacant places, belonged to the first occupant. De Jur. Nat. et Gent. jucta disciplinam Ebraeorum cited by Puf. b. 4. c. 6. sect. 5.
     2.    Finch’s Law, 28, 178. Bro. tit. Property, pl. 18. 38. Wright, J. in Morrough v. Comyns, 1 Wils. 211.
     3.    See vol. ii. p. 95.
     4.    1 Blacks. Com. 296.
     5.    Armory v. Flynn, 10 Johns. Rep. 102.
     6.    Dig. 47. 2. 44. sect. 4-10.
     7.    L. N.Y. sess. 24. ch. 43.
     8.    3 Inst. 132.
     9.    De Jur. Bel. & Pac. b. 2. c. 8. sect. 7.
   10.    Inst.2. 1. 39.
   11.    Code Civil, No. 716. But the French code limits this right of the finder to that particular case. The general rule is, that all property vacant, and without a master, belongs to the state. Code, No. 539, 713, 714, 717; and Toullier, in his Droit Civil Francais, tom. 4 p. 37-42, complains much of the contradiction, confusion and uncertainty of the French regulations, on this subject of goods without an owner.
   12.    Foxley’s case. 5 Co. 109. Cro. Eliz. 694.
   13.    Finch’s Law, 212.
   14.    Laws of N.Y. sess. 36. ch. 21.
   15.    Ibid. sess. 10. ch. 28.
   16.    Dane’s Abr. of American Law, ch. 76. art. 7. s. 12, 21, 23. 38. It is the general law of continental Europe, that wrecks belong to the nation, when the owner does not appear. Heinec. Elem. Jur. ord. Inst. s. 352, 353. Toullier, Droit Civil Francais, tom. 4. No. 42-46.
   17.    Dane’s. Abr. ubi sup. s. 15, 16.
   18.    Ibid. s. 22.
   19.    Ibid. s. 21.
   20.    Code civil, No. 546, 547.
   21.    De acqui. rerum Dom. b. 2. ch .2. and 3.
   22.    Pothier, Traite du Droit du Propriété, No. 150. to No. 193. Toullier, Droit Civil Francais, tom. 3. No. 106. to No. 150.
   23.    Owen, 139.
   24.    8 Johns. Rep. 432.
   25.    Inst. 2. 1. 37.
   26.    B. 2. tit. 3. sec. 2. art. 539.
   27.    7 Johns. Rep. 473.
   28.    De Jure Maritimo, b. 2. c. 1. s. 7.
   29.    Dig. 6. 1. 61.
   30.    De rer div. 2. 1. s. 34.
   31.    5 Hen. VII. 15. 12 Hen. VIII. 10. Fitz. Abr. Bar. 144. Bro. tit. Property, 23.
   32.    5 Johns. Rep. 348.
   33.    Bro. tit. Property, pl. 23.
   34.    Inst. 2. 1. 25.
   35.    Inst. 2. 1. 26 and 28.
   36.    Popham, 38. pl. 2.
   37.    Pop. ub. sup. Ward v. Eyre. 2 Bulst. 323.
   38.    Colwill v. Reeves, 2 Campbell’s N.P. 575.
   39.    15 Vesey, 442.
   40.    2 Johns. Ch. Rep. 108. Hart v. Ten Eyck. Sir William Scott, in the case of The Odin, 1 Rob. Rep. 208.
   41.    Art. 1. sect. 8.
   42.    Acts of Congress, 21st Feb. 1793, ch. 11th; and 17th April, 1800, ch.25.
   43.    Patents are no doubt procured in many cases for frivolous and useless alterations in articles, implements, and machines in common use, under the name of improvements; and the abuses arising from the facility in suing out patents, and provoking litigation, were painted in glowing colors by the district judge at New York. in Thompson v. Haight; (U. S. Law Journal, vol. i. 563 ) and yet the collection of models and machines in the patent office relating to every possible subject constitutes a singularly curious museum of the arts, and one strongly illustrative of the inventive and enterprising genius of our countrymen.
   44.    Woodcock v. Parker, 1 Gallis. 438. Bedford v. Hunt, 1 Mason, 302. Evans v. Eaton, 3 Wheaton, 454.  
   45.    Whittemore v. Cutter, 1 Gallis. 478. Thompson v. Haight, U. S. L. Journal, vol. i. 563. Morris v. Huntington, 1 Paine, 348. Contra, Goodyear v. Mathews, 1 Paine, 300.
   46.    Lowell v. Lewis, 1 Mason, 182. Langdon v. De Groot, 1 Paine, 203.
   47.    The case of Hill v. Thompson, 8 Taunton, 375, and Evans v. Eaton, 7 Wheaton, 356, may be selected as samples of the intricacy and subtlety of such investigations.
   48.    Woodcock v. Parker, 1 Gallis. 438. Whittemore v. Cutter, 1 Gallis. 478. Odiorne v. Winkley, 2 Gallis. 51. Lowell v. Lewis, 1 Mason, 182. Evans v. Eaton, 7 Wheaton, 356.
   49.    Edgeberry v. Stephens, 2 Salle 447. Darcy v. Allen, Noy, 182, 183. The recent decisions in England seem, however, to throw some doubt over this point, for they speak generally, and without any qualification, of the necessity of the discovery being new; and in Wood v. Zimmer, 1 Holts.N. P. Rep 59. Lord Ch. J. Gibbs held, that the invention must be new to the world, and if it had been sold before, though by the inventor only, the patent would be void. If we were to judge from the language of the statute of James, the patentee himself must have been the true and first inventor, and there would seem to be no foundation for the opinion of Lord Holt, in Edgeberry v. Stephens. A recent French publication, however, states the English law precisely as laid down by Lord Holt; and that the English law means only new in England. The writer must have been informed, that such was the received doctrine in England. See M. Renouard’s Traite des Brevets d’Invention, 197.
   50.    Morris v. Branson, cited in 2 H. Blacks. 489. Boulton v. Bull, ibid. 463. Hornblower v. Boulton, 8 Term Rep. 95.
   51.    Hill v. Thompson, 8 Taunton, 375. 3 Merivale, 629. Jessop’s case, cited in 2 H. Blacks. 489.
   52.    Sullivan v. Bedfield, 1 Paine. 441. Hill v. Thompson, 3 Merivale, 622. Livingston v. Van Ingen, 9 Johns. Rep. 507. The law of patents in France is founded on decrees of the constituent assembly of the 31st of December, 1790, and 14th of May, 1791; and it assures to inventors of discoveries in the arts, for a certain period, the exclusive right to make and sell their discoveries, and it makes no distinction between Frenchmen and foreigners. The patent may be taken out for 5, 10, or 15 years, at the option of the patentee, under the charge of a tax proportioned to the time; and whoever first imports a foreign discovery or improvement, is entitled to the privilege of an inventor. The patentee must exhibit a true and accurate specification of the principles, plans, and models of his discovery or importation. If he obtains a patent for the same object in a foreign country, he forfeits his French patent. The French jurisprudence on this point is very fully considered by A. C. Renouard, in his Traite des Brevets d’Invention, de Perfectionnement et d’Importation. Paris, 1825. The same questions concerning priority of invention, and the requisite proofs, have disturbed the French tribunals, which have so long been agitated in ours. (Repertoire de Jurisprudence, tit. Brevet d’Inven. tion. Questions de Droit, tom. 5. pa. 187.) The law as to patents for new inventions and discoveries in the dominions of the Emperor of Austria, rests upon an imperial decree of the 8th of December, 1820. By that decree foreigners, residents and non-residents, may obtain patents on the same terms as the native subjects. The objects of the patents are new discoveries; but those are considered as new, which, although known in other countries, are not, at the time of the application, in practical use in the Austrian dominions, nor specifically described in any printed work. The patents may be taken out for fifteen years, and the application for them must describe accurately and minutely the invention, discovery, or improvement, and be accompanied with models, if the nature of the case requires them. The patentee must put his invention into practice within one year from the date of the patent, or he forfeits it. See the substance of the Austrian decree, published in April, 1824, by the Austrian consul, at New York. The Spanish patent law is founded on a decree of the King and Cortes of 14th of October, 1820. It grants a monopoly of any art or manufacture, to the inventor, for ten years; to him who improves it, for six years; and to him who imports it, for five years. The law is well drawn and guarded, and is annexed to the Treatise of M. Renouard.
   53.    Acts of Congress, May 31, 1790, ch. 15, and April 29, 1802, ch. 36.
   54.    Miller v. Taylor, 4 Burr. 2303.
   55.    4 Burr. 2408, Donaldson v. Becket. 7 Bro. P. C. 88. S. C. Beckford v. Hood, 7 Term Rep. 620.
   56.    Act of May 31, 1790. sect. 5.
   57.    The French law of copyright is founded on the republican decree of the 19th July, 1793, which gave to authors of writings of all kinds, composers of music, painters and engravers, a right for life in their works, and to their heirs, for ten years after their deaths, with strong provisions against the invasion of such literary property. One copy was to be deposited in the national library. The imperial decree of the 5th February, 1810, made some modifications of that law, and gave the right to the author for life, and to his wife, if she survived, for her life, and to their children for twenty years, and the right was secured by adequate civil penalties. A number of interesting questions have been discussed and decided in the French tribunals, under the above law, and they are reported in the Repertoire de Jurisprudence, par Merlin, tit. Contrefacon, sect. 1 to 15; and in his Questions de Limit, tit. Propriete litteraire, sect. 1 and 2. In the case of Masson & Besson v. Moutardier & Leclerc, in the latter work, sect. 1, a new edition of the Dictionary of the French Academy, with colorable additions only, was adjudged to be a fraudulent violation of the copyright, and Merlin has preserved his elaborate and eloquent argument in support of literary property. In, the case of Lahante & Bonnemaison v. Sieber, the question was concerning the rights of foreign authors, and it was decided and settled on appeal, in March, 1810, that the French assignee of a literary or musical work, not published abroad, acquired in France, after conforming to the usual terms of the French law; before any publication abroad, the exclusive copyright under the law of 1793. See Questions de Droit. tit. Propriété litteraire, sect. 3. It is understood to be lawful to publish in France, without the permission of the author a work already published in a foreign country. Repertoire, ub, sup. sect. 10. The French law is much more liberal in the protection of intellectual productions to authors and their heirs, than either the English or our American law; and it is a curious fact in the history of mankind, that the French national convention, in July, 1793, should have busied themselves with the project of a law of that kind, when the whole republic was at that time in the most violent convulsions, and the combined armies were invading France, and besieging Valenciennes; when Paris was one scene of sedition, terror, proscription, imprisonment and judicial massacre under the forms of the revolutionary tribunal; when the convention had just been mutilated by its own violent denunciation and imprisonment of the deputies of the Gironde party, and the whole nation was preparing to rise in a mass to expel the invaders. If the production of such a law, at such a crisis, be not resolvable into mere vanity and affectation, then indeed we may well say, with Mr. Hume, so inconsistent is human nature with itself, and so easily do gentle, pacific and generous sentiments ally both with the most heroic courage, and the fiercest barbarity.
    There is a disposition in France to enlarge still further the term of an author’s property in his works; and the commissioners appointed by the king to frame a new law on the subject reported, in the summer of 1826, the draft of a law, in which they propose to give to authors and artists of works of all kinds, property in their works for life, and to their legal representatives for fifty years, from their death; and copyright in a work to be protected from piracy by representation, as well as from piracy by publication. In Germany, copyright is perpetual; but it cannot be of much value, for there is no one uniform Germanic legislation on the subject, to protect copyright among so many independent states, using a common language. This case of Germany shows how important it was in this country, that the law of copyright should rest on the broad basis of federal jurisdiction.
   58.    5 Term Rep. 245.
   59.    Macklin v. Richardson, Amb. 694.
   60.    Morris v. Harris, and Morris v. Kelly, cited in Eden on Injunctions, 198.
   61.    Murray v. Elliston, 5 Barn. & A1d. 657.
   62.    Cowp. 623.
   63.    11 East, 244. note.
   64.    11 East, 244.
   65.    Clementi v. Walker, 2 Barn. & Cress. 861.
   66.    Eden on Injunctions, 199, 200.
   67.    2 Eden, 329. Duke of Queensberry v. Shebbeare. 2 Merivale, 436. Southey v. Sherwood.
   68.    Pope v. Curl. 2 Atk. 342. Thompson v. Stanhope, Amb. 737.
   69.    2 Ves. & Bea. 19.
   70.    2 Ves. & Bea. 27. Perceval v. Phipps. 1 Ball. & B. 209. Earl of Branard v. Dunkin.
   71.    Wyatt v. Barnard, 3 Ves. & Bea. 77.
   72.    Mason v. Murray, cited in 1 East, 360.
   73.    Lord Kenyon. in 1 East, 361.
   74.    Gyles v. Wilcox, 2 Atk. 141.
   75.    Dodsley v. Kinnersley, Amb. 403.
   76.    Wilkins v. Aikin, 17 Vesey, 422.
   77.    Roworth v. Wilkes, 1 Campb. N. P. 94.