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ON QUESTIONS OF LAW.
THE following opinions on cases of law may be regarded as among the strongest proofs of Johnson's enlarged powers of mind, and of his ability to grapple with subjects, on general principles, with whose technicalities he could not be familiar. Of law, as a science, he ever expressed the deepest admiration, and an author who combines an accurate knowledge of the practical details of jurisprudence with the most philosophical views of legal principles, has quoted Dr. Johnson, as pronouncing the study of law "the last effort of human intelligence acting upon human experience." We allude to the eloquent and excellent Sir James Mackintosh's Discourse on the Study of the Law of Nature and Nations, p. 58. Lord Bacon, in his two books on the Advancement of Learning, has affirmed, that professed lawyers are not the best law authors; and the comprehensive and lucid opinions which Dr. Johnson has here given, and which, in many instances, have been subsequently sanctioned by legislative authority, seem to establish the remark.
The first Case in the present edition, involves an ingenious defence of the right of abridgment, founded on considerations on Dr. Trapp's celebrated sermons on the nature, folly, sin, and danger of being righteous over-much." These discourses, about the year 1739, when methodism was a novelty, attracted much attention. Mr. Cave, always anxious to gratify his readers, abridged and extracted parts from them, and promised a continuation. This never appeared; stopped, perhaps, by threats of prosecution on the part of the original publishers of the serIt was, in all probability, on this occasion, that Dr. Johnson wrote the following paper.-Gent. Mag. July, 1787. It is a subject with whose bearings he might be presumed to be practically conversant; and, accordingly, we find, in his memoirs, many recorded arguments of his, on literary property. They uniformly exhibit the most enlarged and liberal views-a readiness to sacrifice private considerations to publick and general good. He wished the author to be adequately remunerated for his labour, and tenderly protected from spoliation, but, by no means, encouraged in monopoly. See Boswell's Life, i. ii. iv.
CASE OF DR. T [RAPP]'s SERMONS.
ABRIDGED BY MR. CAVE, 1739.
1. THAT the copy of a book is the property of the author, and that he may, by sale, or otherwise, transfer that property to another, who has a right to be protected in the possession of that property, so transferred, is not to be denied.
2. That the complainants may be lawfully invested with the property of this copy, is likewise granted.
3. But the complainants have mistaken the nature of this property; and, in consequence of their mistake, have supposed it to be invaded by an act, in itself legal, and justifiable by an uninterrupted series of precedents, from the first establishment of printing among us, down to the present time.
4. He that purchases the copy of a book, purchases the sole right of printing it, and of vending the books printed according to it; but has no right to add to it, or take from it, without the author's consent, who still preserves such a right in it, as follows from the right every man has to preserve his own reputation.
5. Every single book, so sold by the proprietor, becomes the property of the buyer, who purchases, with the book, the right of making such use of it as he shall think most convenient, either for his own improvement or amusement, or the benefit or entertainment of mankind.
6. This right the reader of a book may use, many ways, to the disadvantage both of the author and the proprietor, which yet they have not any right to complain of, because the author when he wrote, and the proprietor when he purchased the copy, knew, or ought to have known, that
the one wrote, and the other purchased, under the hazard of such treatment from the buyer and reader, and without any security from the bad consequences of that treatment, except the excellence of the book.
7. Reputation and property are of different kinds; one kind of each is more necessary to be secured by the law than another, and the law has provided more effectually for its defence. My character as a man, a subject, or a trader, is under the protection of the law; but my reputation, as an author, is at the mercy of the reader, who lies under no other obligations to do me justice than those of religion and morality. If a man calls me rebel or bankrupt, I may prosecute and punish him; but, if a man calls me ideot or plagiary, I have no remedy; since, by selling him the book, I admit his privilege of judging, and declaring his judgment, and can appeal only to other readers, if I think myself injured.
8. In different characters we are more or less protected; to hiss a pleader at the bar would, perhaps, be deemed illegal and punishable, but to hiss a dramatick writer is justifiable by custom.
9. What is here said of the writer, extends itself naturally to the purchaser of a copy, since the one seldom suffers without the other.
10. By these liberties it is obvious, that authors and proprietors may often suffer, and sometimes unjustly: but as these liberties are encouraged and allowed for the same reason with writing itself, for the discovery and propagation of truth, though, like other human goods, they have their alloys and ill consequences; yet, as their advantages abundantly preponderate, they have never yet been abolished or restrained.
11. Thus every book, when it falls into the hands of the reader, is liable to be examined, confuted, censured, translated, and abridged; any of which may destroy the credit of the author, or hinder the sale of the book.
12. That all these liberties are allowed, and cannot be prohibited without manifest disadvantage to the publick,
may be easily proved; but we shall confine ourselves to the liberty of making epitomes, which gives occasion to our present inquiry.
13. That an uninterrupted prescription confers a right, will be easily granted, especially if it appears that the prescription, pleaded in defence of that right, might at any time have been interrupted, had it not been always thought agreeable to reason and to justice.
14. The numberless abridgments that are to be found of all kinds of writings, afford sufficient evidence that they were always thought legal, for they are printed with the names of the abbreviators and publishers, and without the least appearance of a clandestine transaction. Many of the books, so abridged, were the properties of men who wanted neither wealth, nor interest, nor spirit, to sue for justice, if they had thought themselves injured. Many of these abridgments must have been made by men whom we can least suspect of illegal practices, for there are few books of late that are not abridged.
15. When bishop Burnet heard that his History of the Reformation was about to be abridged, he did not think of appealing to the court of chancery; but, to avoid any misrepresentation of his history, epitomised it himself, as he tells us in his preface.
16. But, lest it should be imagined that an author might do this rather by choice than necessity, we shall produce two more instances of the like practice, where it would certainly not have been borne, if it had been suspected of illegality. The one, in Clarendon's History, which was abridged, in 2 vols. 8vo.; and the other in bishop Burnet's History of his Own Time, abridged in the same manner. The first of these books was the property of the university of Oxford, a body tenacious enough of their rights; the other, of bishop Burnet's heirs, whose circumstances were such as made them very sensible of any diminution of their inheritance.
17. It is observable, that both these abridgments last mentioned, with many others that might be produced, were
made when the act of parliament for securing the property of copies was in force, and which, if that property was injured, afforded an easy redress: what then can be inferred from the silence and forbearance of the proprietors, but that they thought an epitome of a book no violation of the right of the proprietor?
18. That their opinion, so contrary to their own interest, was founded in reason, will appear from the nature and end of an abridgment.
19. The design of an abridgment is, to benefit mankind by facilitating the attainment of knowledge; and by contracting arguments, relations, or descriptions, into a narrow compass, to convey instruction in the easiest method, without fatiguing the attention, burdening the memory, or impairing the health of the student.
20. By this method the original author becomes, perhaps, of less value, and the proprietor's profits are diminished; but these inconveniencies give way to the advantage received by mankind, from the easier propagation of knowledge; for as an incorrect book is lawfully criticised, and false assertions justly confuted, because it is more the interest of mankind, that errour should be detected, and truth discovered, than that the proprietors of a particular book should enjoy their profits undiminished; so a tedious volume may, no less lawfully, be abridged, because it is better that the proprietors should suffer some damage, than that the acquisition of knowledge should be obstructed with unnecessary difficulties, and the valuable hours of thousands thrown away.
21. Therefore, as he that buys the copy of a book, buys it under this condition, that it is liable to be confuted, if it is false, however his property may be affected by such a confutation; so he buys it, likewise, liable to be abridged, if it be tedious, however his property may suffer by the abridgment.
22. To abridge a book, therefore, is no violation of the right of the proprietor, because to be subject to the hazard of an abridgment was an original condition of the property.