eth an exclufive title to his copy, without invading my praperty for though he may be faid to build on my foundation, yet he rears a different fuperftructure. An inconfiderable addition or improvement, however, will not fupport his claim: the fupplying literal or verbal omiffions, or the correcting of literal or verbal errors, for inftance, will not be fufficient to found a new right in him: and a Jury endowed with the flighteft degree of common understanding, may, be the fubject what it will, diftinguish, or be taught to diftinguifh, where the difference is effential, and where it is evafive."

If this be not thought a fufficient anfwer to what the Enquirer advances, about perplexing the courts with caufes of this kind, we may venture to fay, that an exclufive right to the title, form, and compofition of the piece, will be liable to no fuch perplexity; and that fuch a right is all that either Authors or Bookfellers expect the law can fecure to them.

As to what has been advanced on either fide the question, about Utility as the bafis of property in this fubject, it has been to little purpofe. Mere pleasure, fays the Enquirer, is not the object of the Legiflature; and therefore books of entertainment, we fuppofe, are not fufceptible of property. The term, Utility, however, is here made ufe of in a vague and indeterminate fenfe. Does it mean a phyfical or political utility? Is it that of individuals or of fociety? There are many inventions and difcoveries that have been adopted and encouraged, as ufeful to fociety, which have been neverthelefs evidently deftructive to our fpecies. Mere amufements and idle diffipations have alfo their political ufe. And there are fome governments that would think the exhibitions of a popular actor or buffoon more useful than the difcovery of the longitude. It is idle, therefore, to talk of utility as the bafis of property, before we afcertain what that utility is. We do not deny that the utility of a book is problematical; but we would be glad to know what new invention or defign is not fo.

The fecond affertion of the opponents of literary property is, that fuppofing a literary copy fufceptible of property, it is incapable of perpetual exclufive poffeffion.

If, indeed, this property be fuppofed to exift only in the fendmental or doctrinal part of the book, we fee no poffibility of f curing fuch perpetual exclufive poffeffion. But if we fuppon that property placed where it really exifts, the difficulty vanishes. By its being incapable of fuch poffeffion,

however,

however, is farther understood that it is inconsistent with the principles and practice of the common-law, fo to establish and protect this property. This matter we fhall confider, therefore, under the next divifion of our subject.

What we have faid above, refpecting the nature of this property, may ferve as an answer to what has been advanced, concerning that protection which the law is capable of affording it. How far it has been protected by the common-law of England, therefore, becomes the next object of confidera

tion.

Both the Author of the Enquiry, and of the prefent Vindication, have, in order to clear up this point, endeavoured to trace back the claim in queftion to its fource, and to deduce thence an argument in favour of their different opinions. Their method is ingenious, but we think no argument drawn from thence can be conclufive. The estimation in which a property might be held when fuch property was of no value, is little to the purpose. The ftrongeft hold, fays the prefent writer, wherein the opponents of literary property have entrenched themselves, is in the fimilitude between a literary copy and a mathematical or mechanical machine.

It is admitted by all parties that at common-law, the inventor hath no property in the form of his machine; and hence it is queried how the Author can claim any in his copy?

The Author of a Letter to a Member of Parliament, endeavoured to establish an effential difference between a copy and a machine. His principal arguments were, That the chief expence of a machine is in the materials employed, whereas in that of a book it lies in the compofition or invention. That the imitator of a machine muft work with the ideas of the inventor, but that a book may be copied by the moft ignorant and illiterate feribler: That the inventor of a machine hath plainly no regard to any one's benefit but his own, whereas the author writes for public ufe. These arguments the Enquirer engages to refute. He obferves, in particular, that it is not always true that the chief expence of a machine lies in the materials employed: That the claim of an ignorant imitator of a machine is equally good with that of the illiterate tranfcriber of a book; and that there are many ufeful machines invented, which are of no other benefit to the conftructor than what accrues from the fale of them. "Where then, fays he, is the juftice that the profit of the

inventor

inventor fhould terminate in the individual machine, which poffibly might coft him fome years in inventing, and might be imitated by another in a few days? The end of the inventor is not more fully obtained in the first individual machine, than the end of the author, in the firft individual book." Hence he concludes that if the inventor has, at commonlaw, no exclufive right in his machine, it must neceffarily follow that the author hath none in his copy.

On the other hand, the prefent Vindicator takes upon him to fecond and enforce the arguments before advanced in fupport of the effential difference in queftion. To this end, he makes two distinctions in a literary copy; confidering it, I. as an ideal or doctrinal compofition; and II. as a manual or mechanical compofition. In the latter sense only he conceives it to refemble a machine, and to be esteemed an object of trade. "Therefore, fays he, if the queftion was, whether a printer fhould have a perpetual exclufive right of printing, the argument which places a book on the fame footing with a machine, might apply with fome force. But an author's right to a literary compofition depends on different principles. It is a compleat compofition, before it is printed, and before it becomes an object of trade." We might here afk our author, however, what he means by an object of trade? He owns that a Writer may fell his original manufcript abfolutely for a grofs fum, before it be printed at all. Is it not then an object of trade? If he has ever been at a bookfeller's fale, he might know that copies and fhares. of copies are equally objects of trade with printed or bound books*. How then can he maintain a literary copy to be only an object of trade, quatenus its mechanical compofition; that is, fays he, the printing, &e? Again, he fays,

"A ma

Suppofing, however, that the transfering of copies from bookfellers to each other, as they are not the ultimate confumers, fhould be objected to, as a trade; yet a machine may be as justly faid to be compleated, when the defign of it is fully and compleatly perfected and a draught of it made, as a book when the manufcript is finish

New invented defigns, and drawings of machines, may be fold to mechanics as well as copies of books to bookfellers; and one is in every cafe juft as much an object of trade as the other. If there be fometimes more difficulty in conftructing a mechanical engine from a draught or defign, than in printing a book from a manufcript, there is at other times much lefs. That design alfo which is not reducible to practice is no more a perfect defign, than an illegible manufcript is a perfect copy of a book.

« A machine, if exhibited to view, may be copied or imitated without the leave of the inventor-but an author may produce his copy, may use it in public, and fuffer it to be infpected, and yet no one without his confent can make themfelves mafters of the contents." Now we may fafely venture to deny the truth of the affertions here advanced both in the one cafe and the other, as they thus ftand expreffed in general and indefinite terms. It must be a very fimple machine indeed that, being exhibited to view, may be copied or imitated without leave of the inventor. An engine of a complicated structure could not be thus imitated. Again, what copy can be produced, made ufe of in public, be inspected, and yet no one, without the confent of the author, be able to make himself mafter of the contents? If by inspection, indeed, our author means a bare, fuperficial view of the printed book, and not a perufal of it, we deny that fuch copy is publickly exhibited in the fame manner as a mechanical invention or machine whofe component parts are laid open to the eye of the spectator; without which it cannot be imitated. Suppose, for inftance, fo complicated a piece of mechanism as a watch, had been invented at once, and by one man; would any body have known how to imitate fuch a machine by looking on the cafe or the dial plate? If you fay the watch is not exhibited to view unless it be opened and its movement exposed and subjected to examination; fo we fay must the book too, and be fubmitted to as long and as curious a perufal; in which cafe it must be a very voluminous and extraordinary book indeed that might not be fooner imitated than the mechanism of a watch. It may be faid a man must have a prodigious memory to retain all the fentences in a book : but we know not that it is effential to a book to be too voluminous for the memory; nor that all, which may be original and worth imitating in a book, may not be stolen from it without our being under the neceffity of remembering the words of a single period.

To this we may add, that a machine may, with as much propriety, be divided into a doctrinal and mechanical compofition as a book; and that so far is the imitator of the former from being under the neceffity of working with the ideas of the inventor, that he has no more to do with those ideas than an amanuenfis has to do with the ideas of his author. The inventor of a machine must know and confider the nature of mechanic powers, the friction and other resistances of bodies, and muft form not only a theoretical fyftem of his

defign,

defign, but must sketch out its several parts so far in idea that he may lay them down when he pleases on paper. A machine may be invented and defigned long before it be conftructed. The conftruction is frequently the eafieft part, and merely a manual operation. An imitator needs no knowledge of all this; he has only to follow his draught or model. There are to be found numbers of excellent workmen in London, who, fo far from knowing the theory of the machines they conftruct, know not even their ufe when they have made them.

In a word, we think the advocates for literary property a little unfortunate, in their infifting fo tenaciously, and laying fo great a ftrefs, on this pretended difference. It is with much greater fuccefs the prefent writer hath undertaken to confute what the Enquirer had advanced, respecting the right in queftion having been recognized at common law.

"Let us fuppofe, fays he, a literary copy to be, a perfonal thing, and it will be found to have every quality, by which the common law of England hath defined and defcribed this fpecies of property. For it may be acquired. 1. By the King's Prerogative. 2. By Gift. 3. By Sale. 4. By theft. 5. By teftament. 6. By adminiftration.*

may

<< It likewife be recovered in the fame manner as any other perfonal property: for if any one wrongfully poffeffeth himself of an author's copy, he may fue what the law calls a mixed action against him; that is an action to recover as well the thing demanded, as damages against the wrong doer for the unjuft detention and we may challenge the oppofers of literary property to produce an inftance where it cannot be governed by the established rules of law."

The divifion of property into corporeal and incorporeal (fays this writer) makes no difficulty in this cafe. For though the fentiment or doctrine, confidered abftractedly, is incorporeal and ideal, yet, being impreffed in vifible characters on the paper, the manu fcript copy is a corporeal fubject.

The argument drawn by the writer of the Enquiry from the propofition that ideas are not fufceptible of property," may be granted without admitting his conclufions. For though ideas confidered abstractedly, are not fufceptable of property, yet when impreffed in vifible permanent characters on paper, they then become as it were incorporated, and a literary copy is thereby made the property of the author.

Our