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lish, have been protected, as regards a property in them, in that Court. The Edinburgh, taking up the question in a view strictly legal, has impugned the present practice as a professional writer would do, by quoting former cases, and among them the piracy of the libellous and immoral Miscellanies of Pope, Swift, and others. In this mode I have no intention to second it; but there are two or three important reasons notwithstanding, why the subject should be noticed at present. In the first place, it seems tantamount to a duty that every literary work should, as much as possible, expose the serious evil of the new doctrine, and contribute a modicum to the exposure of its fallacy. In the next place, an instance somewhat different from the former, but of a character equally singular, has occurred in the Vice-Chancellor's Court too recently to have been noticed in the before-mentioned publications; and lastly, it is beneficial to society to second public opinion on such a question, upon grounds which have nothing to do with law, but are derived from universally received principles of justice, within the boundaries of which all law decisions must at no very distant period be circumscribed.
The success of an application to the Court of Chancery for an injunction to restrain a pirate, or, in plainer terms, a thief, who deprives another of his property, and deals openly in the stolen wares, never should depend on the tendency of the writings stolen, because the application to that Court should simply be considered as a temporary protection for a disputed property, the nature of which, and the ownership also, is to be subsequently judged of elsewhere. In the view of the Chancellor, a book ought to be but as so much waste paper of a certain value, more or less, that constituted a property. He is placed in the situation of a trustee of a litigated property, to prevent injury, which he must hold entire until the question at issue between the parties is decided by an arbitrator. Should the work be immoral, it is part of the question for the Court of Law to decide, and for that alone. The final decision may be that the work is of such a nature as that an action cannot be sustained. “ You, Mr. Author, or Bookseller, have been robbed, but you have been robbed of contraband goods, as has clearly appeared in evidence, and therefore you can have no satisfaction here, for, that which the law cannot recognise as a property, it cannot secure to you." Such seems to have been the spirit of practice until Lord Eldon, placing himself in the situation of a Judge and Jury of the Law Courts, refused the plaintiff's application, and made himself the censor of literary works--thereby, if bad, according to his notions or doubts, indirectly sanctioning piracy, and aiding the circulation in the cheapest possible form, and in augmented numbers, by the robber. It is true, the plaintiff may still apply to a Law Court; but, in the interim, the pirate sells edition upon edition, and, before the trial can be brought on, he has achieved his object-sold all he might ever be able to sell, if he but used common diligence, and rendered even the expenses of an action at law a useless waste of money. Here, then, is an evil, confessedly of great magnitude, removable by following the former practice of the Court and the simplest dictates of reason-a path, indeed, so plain that a child could not err in it-and the difficulty seems to me how to find an excuse for deviating from the beaten track. If a book be immoral, giving it tenfold circulation, by allowing its
piracy, must be infinitely more pernicious than permitting the man who at all events is the rightful owner of the property, to hold it, bad as it may be, till a Court of Law decides against him. In Chancery it seems that the reverse of the maxim “ Of two evils choose the least" is to become an established precedent.
Who, in such cases, if the Chancellor is made a judge of literature as well as equity, is to fix the limit when he shall cease to have doubts? The property of the subject is to lie open to plunder, because the caprice, political prejudice, incapacity, or what not, of a Chancellor, may make him refuse it the instant protection of the law. I deny the ability of nine Chancellors out of ten to form correct opinions on literary works. Men bred to the law, who have grown old in the pursuit, toilsome and arduous as it is, are the persons in society the worst constituted of any to form opinions on literary matters : they have all their lives been employed with line and rule, upon case and fact, compressing their energies into one narrow pursuit, and cramped within boundaries over which imagination dares not cast an excursive glance. They are to act only upon facts; and in proportion as they would climb to high eminence in their profession, they must stifle every feeling that would lead them aside into scenes of fancy or fiction; they must be deaf to the voice of the charmer, “ charming never so wisely ;” the “ spoils of time,” in the page of any but law history, they must not contemplate; the poetry of life must be a dead letter to them; and they must abhor the pages of romance, and the very book of Nature itself. Is it not likely, therefore, with such, that the visions of the poet, and the lively scenes of the novelist, run but a bad chance of fair and honest interpretation ? Twelve men, who have not been indurated by the character of such a pursuit against the impressions of external nature, and who are still governed by the dictates of sober sense, are infinitely to be preferred as judges in such matters. Moreover there is no earthly reason why authors or booksellers should be excluded from the safeguard, as to property, that their fellow-subjects receive, from the first to the last step that the law can afford. If the great names that now reflect so much glory on England had been involved in the doubts of a Chancellor, how would their noblest works have been treated. Let us imagine a pirate of Spenser's Faery Queen brought up to Lincoln's Inn, what justice could the author expect? how many stanzas would be found exceptionable ! Milton would be esteemed as worthless as Byron in “Cain ;” and Pope would be lost past redemption, were it for his “ Eloise" alone—more especially, perhaps, as she was under guardianship at the time she is supposed to have encouraged her lover's passion! But if such would be the fate of works of fancy, what have we not to fear for political publications that may taunt the
Chancellor himself, his friends and supporters? How may the cause of truth be injured, and property in a work of such a nature be deteriorated, under pretence of its being libellous ! It is not meant to insinuate that the present Chancellor would so act, but it is possible he or his successors might; and what sort of security for property is that which remains at the mercy of one man's prejudices?
But every work may now be printed that will remunerate the robber; and this brings me to the last most curious decision in the Vice
Chancellor's court. I say any work may be printed, because it appears that injunctions are only now to be granted after it is shewn by a Court of Law that they are deserving protection; and then, when an injunction is not of the smallest advantage it may be had on being applied for-the Court of Law, be it observed, having previously passed judgement on the pirate for the self-same piracy! All the time, to be sure, the thief sells the stolen property ; but he is, if the proceeding in a Law Court be against him, to declare to the Court of Chancery, on an application from the party robbed, the profit he has made by the theft up to that time. A notable shift in justice; thus making the thief disgorge the plunder, or what he may choose to say is the amount of it. Thus, too, the quality of the goods purloined are made to constitute the guilt, or otherwise, of the taker! The persons who pirate books are known to be not worth sixpence; and it is notorious, that a penny can never be obtained from this low class of pilferers, let the future decisions of the Law Courts be what they may. Responsible and respectable booksellers hold such conduct in a just abhorrence. Thus sagely, therefore, has the court managed, that the injured can have no real remedy—instead of protecting the property till trial in a Law Court, where, if deemed immoral or libellous, no redress would be given, and a penalty might afterwards attach to the publication. The rightful proprietor may, indeed, marvel at the wisdom of such a decision-but I will state the proceeding itself.
Soon after the three last Cantos of Don Juan issued from the press, a low tradesman immediately printed and circulated a pirated edition; an injunction was applied for and granted by the Court of Chancery, to restrain him from selling the pirated copies. He had the hardihood, however, to come personally into court and apply for the injunction to be set aside, on the ground that the book was of an immoral tendency, and that therefore he had a right to print and circulate as many copies as he pleased. The Court, it is to be presumed, in its great zeal for the public good and its high regard for public morals, granted the prayer of the pirate, with the proviso, that he kept an account of the profits until a Court of Law should decide whether the work was of a nature that entitled it to protection. Now, it being clear that the party who first applied for the injunction was the rightful owner of the work, good or bad as it might be, the line pointed out by reason and common sense indicated, that, until it was found by a verdict in a Law Court not entitled to protection, the real owner had a claim upon the justice of the country. Indeed this can be the only use of an application to Chancery-namely, that a temporary relief may be instantly afforded, until the question is decided elsewhere. The Vice-Chancellor, however, did not let the character of the book rest upon his own doubts of its tendency; but he thought " the Court had no original jurisdiction in such cases, and that it only interfered to prevent an injury." Now, if the work be unimpeachable, a Court of Law gives the remedy, until which, injury is prevented by the interdiction of the work to the pirate; this would seem to be the proper course of proceeding, for it is surely more reasonable that the rightful owner should be secured until the question has been brought to an issue, than that the plunderer should be suffered to circulate a cheap edition, for the eopy-right of which the real owner had probably paid a large sum of
money. This edition he could not afford to sell for five times the sum of the edition pirated, and consequently could not command for it an equal circulation with the coarse editions, which had cost the plunderers nothing but the expense of printing and paper. It is therefore, obvious, that the bookseller, if he be subsequently protected in a Court of Law, must suffer great injury, even were it possible for him to make the pirate refund the exact sum of profit he had made. The ViceChancellor observed, that he had refused the protection of the Court lately to a song, because it was " a flippant trifling production;" but what had the nature of the production to do with the matter, when it might have involved a great property? The very act of going into Chancery, by men in the
full possession of their fáculties, is of itself sufficient evidence that it is for no trivial object in value, when the expenses of the Court are considered. It will not be denied, that in a country like England, an article which the Court may regard as very trifling in itself, and which is in fact really so, may involve property to, an enormous extent.
This decision of the Vice-Chancellor is still much more consistent than the refusal of his superior in Chancery to interfere because of his own doubts of the tendency of a publication. If a Chancellor's notions of equity are to be made the sole rule of the Court, they must change with every new Chancellor ; there is no guessing the extent of the mischief they may produce. Few works that have had a great circulation, and that are stupendous monuments of the Nation's glory, have been free from passages and sentiments in policy, morals, and religion, that some scrupulous Chancellor might not imagine undeserving the protection of his court.
Lord Chancellors are as much party-men in politics as others, and they may be to the full as much bigots in religion :--this may be lax in morals; that may be unimpeachable as to morals, but not overnice about religion ; and the opinion of each is still to be equally good upon both points, and equally decisive as to the property which may depend upon them. It has been remarked, on the authority of Selden, “ that the making the Chancellor's sense of equity a rule for the administration of justice in Chancery, was like making the length of the Chancellor's foot the standard of cloth measure-one Chancellor might have a long foot, another a short one, and so on.” If it is to be so, Chancery law will become very unsatisfactory to the public mind. The question of preceding law, in the Edinburgh Review, is so clearly in opposition to the late decisions, that one is wholly at a loss to account for them.
But if we examine the allegations of the defendant, and the grounds which he urged in support of setting aside the injunction, we shall discover matter for the astonishment of the country. Men defending themselves in cases of action, or indictment for libel, when their feelings are warm, often give the rein to vituperation against individuals, and are instantly checked by the judge, who informs them, that one libel is not to be defended by another. In the Court of Chancery, however, there is no resemblance to this sort of proceeding. From a professed regard to public morals, the Court refuses its protection to the comparatively limited circulation of a work of doubtful tendency, in the hands of the rightful owner ; but still farther to evince its regard for morals, allows a pirate to circulate without number, in the cheapest
possible form, that very property, and permits in Court the barefaced iniquitous ground of defence, that the work is immoral! Now, if preceding Chancellors had made it a rule to refuse their protection to such property, which it does not appear they have done, the officer who fills the seat of equity at present seems bound to take the means most consistent with reason and justice, to keep the circulation as limited as possible ;-and if the reverse had been the preceding practice, he should have laboured to effect an alteration. At present, it appears as if the Court were determined to annoy the proprietor of the work, rather than do what was consistent with sound sense, even at the expense of fourfold injury to those morals, of which it alleges itself the champion. Ought the reason urged by a pirate to secure himself in the enjoyment of his plunder, ever to be listened to in a British court of justice, but as an additional charge of criminality against the speaker? How venial is the offence of the worst libellers to such an offender as this ! The libeller may have endured repeated and unprovoked provocation from the libelled : the latter may be one high in office or rank; he may be a landlord who has oppressed his tenant, a seducer who has robbed the libeller of all he holds dear in the world ; or the latter may have overstepped the bounds of prudence, and in a moment of the indignant feeling of honest patriotism, he may have hurled a well-merited but imprudent sarcasm at the head of an authority. Here there is some motive in palliation of the offence— something redeeming even in a breach of the rigid enactments of the law, . But what palliation is there for a vile pander in lucre-a man careless of consequences, so that he may put money into his pocket, coming unblushingly into the sanctuary of justice, and there holding up his head, the brazen token of avarice and dishonesty, and pleading that the work before the Court is licentious, wicked, and will corrupt the community, and that, therefore, he is justified in administering a tenfold dose of its poison for his private advantage? Is not the allowing such a wretch to reap the fruits of his infamy a greater evil inflicted on society, and a more mischievous decision, than securing the rightful owner until a Law Court has decided the matter? But even were good sometimes attained by such means, they ought not to be used, being unworthy the dignity of character, and the pure attributes which should attend the administration of justice. Though the law may not have forbidden many practices in its execution, it does not follow that it is always correct to act upon them. A sheep-stealer was hung at Exeter a year or two ago, who was convicted solely on the forced evidence of two of his children ; now, though a conviction was legal under such circumstances, it was once nobly observed by a judge in a like horrid case, that he should not suffer the trial to proceed-he would not punish one crime by the permission of a greater. It is manifestly a greater mischief to suffer a pirate to justify himself for a literary robbery, by alleging that he had committed a robbery of immoral goods, and that therefore he had a right to spread the mischief infinitely farther than it would otherwise have reached—it is manifestly a greater evil to allow this in open Court, than to concede a temporary protection to him who fairly possesses the right of property.
He who feels a respect for the courts of judicature of his country, and is well acquainted with the operation of what passes in them upon