Blackwood's Edinburgh Magazine, Volume 62, Number 385. November, 1847.

"For the intent and purpose of the law,

Hath full relation to the penalty."

You enter "Napper Tandy" in the "Clerk's Office of the Southern District of New York." The next number of Blackwood comes out with your first chapter, which Reprint unguardedly produces in his fac simile. Don't you see, my dear fellow, that if you ever hooked a gudgeon, you have as certainly caught the republisher? You seize ten thousand copies in his warehouse, just as they are about to be distributed over the land. On each copy, he must pay, in addition to his forfeiture, one dollar a sheet; that is to say, ten thousand dollars for your first chapter; of which, after the government has gone snacks, one thousand guineas are your guarantee for the interest which the Republic takes in her invited guests; and (to the dismay of piracy,)

"The law allows it, and the court awards."

Mr Blackwood will doubtless take care that your work shall not be completed too fast: and as long as the interminable "Napper Tandy" continues, the press of the fac-simile must stand still. Meanwhile, you commence a legitimate reprint, under the genuine Ebony arms, and reign as a kind of lord-lieutenant, under his ambrosial majesty, Christopher the Great. The stereotype plates of Maga reach you every month, and the American public discern the difference between a true fac-simile and a cunning counterfeit. Instead of the sham tête-de-Buchanan, they see the very "trick of Cœur-de-lion's face;" and finding themselves as little taxed for the original, as ever they were for the humbug, vote you a public benefactor, and send a round-robin to Congress demanding the instantaneous enactment of a universal copyright law, if not the grant of a gold medal to the beneficent Godfrey. I anticipate, however, your reply. Ten thousand copyrights would not tempt you to pass more than three months in the year away from your Kentish comforts and cousins! Very well – then perish dreams of lord-lieutenancy; and learn the inevitable fate of your neglected literary offspring. The same day that Import and Profits advertise their London copies of "Napper Tandy," at five dollars a volume, any number of shirtless little vagabonds will be crying it in a pamphlet edition from Astor House to Wall Street, and through all the thoroughfares, for a currency shilling. I wish you might see your own degradation, as I shall be forced to behold that of my friend. Think of an illustrated edition coming out, under the auspices of Napper Tandy M'Dermot, Esq., in which that namesake of your hero undertakes to give your biography, and describes you as the occupant of a garret, in the receipt of wages from government, for manufacturing false representations of characters inestimably dear to patriots, and odious to tyrants only! Think of that person actually taking out a copyright for his edition of your own book, on the grounds of his thus doing for your character the very thing which he reprobates as your detestable trade; and so enjoying for no very "limited time," the enormous profits of the "standard American edition" of your outcast work. Permit me to add, significantly —

"The fault, dear Godfrey, is not in the laws,

But in yourself, if you are pirated!"

However, if you seriously ask me whether there is no chance of an alteration in the laws, even should you persist in refusing the invitation to America, I will candidly answer, that the progress of civilisation is probably independent even of you, and may very likely win the honours which would be yours, had you the boldness which fortune delights to favour. If you think me too sanguine, you can possibly obtain an interview with Mr Dickens, and qualify my representations by the discouraging views he will give you. They say here, that he came out to America on purpose to dun brother Jonathan, and it is still spoken of with surprise, that though shrewdly invited to dinner, he was not deterred from presenting his bill at the table. The slight misunderstanding to which such a manœuvre very naturally gave rise, may have seemed to justify his doubts, as they did to check the good intentions of his entertainers, with regard to the speedy adjustment of grievances; yet I think I am not mistaken in believing that popular sentiment in this country is just now setting strongly in favour of a community of copyright between America and Great Britain.

As a mere question of ethics, it can hardly be expected that while doctors disagree, the popular conscience should be much disturbed by the flagrancy of the present laws; yet it is only justice to the tone of moral feeling which characterises what may fairly be called society in America, to say that it is correct, if not even generous. The leading periodicals, which may be taken as an index of the opinions of educated men in general, have always been true to principle in the discussion of this matter. The New York Review, which, during a brief but honourable career was regarded as speaking the high-toned sentiments of American churchmen, contained an elaborate article, as early as in 1839, in which the conduct of Congress, reference to the famous "British Authors' petition," was severely rebuked, and criticised as scandalously unprincipled and disgraceful. About the same time, under cover of its provincial blue and yellow, the North American, or, as Mr Cooper calls it, the East American came out in defence of justice as toweringly as even Maga herself. The "British Authors' petition" had been fiercely opposed by a "Boston booksellers' memorial," which, among other things addressed to the lowest passions of the mob, argued against a copyright law, that it would prevent them from altering and interpolating English books, to accommodate republican tastes! Hear then how the Boston reviewers – who in spite of that snobbish sectarian air of perkiness and pretension which is usually ascribed to them, can now and then do things very handsomely – pounce upon their townsmen's morality. "We cannot help expressing our surprise," say they,² "that the strange and dishonourable ground assumed in that memorial, has not been more pointedly reprobated. We can only account for the adoption of such a document at all, by a body of respectable men, on the supposition that its piratical doctrine, respecting literary property, escaped the notice of the convention; … for in our view, the doctrine to which those respectable gentlemen seemed to give their public support, was one to be mentioned, not in the company of honest men, but only in the society of footpads, housebreakers, and pickpockets." In an earlier number of the same work³ – which was lashed by the New York Review for its astounding ignorance of the most celebrated letters of Junius, and for quoting a judicial opinion of Lord Kaimes's as a speech in the House of Lords – the reviewer, whose blundering intrepidity is only saved from the ridiculous by the honesty of his attempt, comes down on a nobler quarry, and thwacks the memory of Lord Camden as if he had been another Thersites. Sir Joseph Yates gets a sound drubbing from the same sturdy avenger of literary property, for his share in the celebrated case of Millar versus Taylor, as given in Burrow's Reports.⁴ I have been pleased too with the succinct decision of a writer⁵ who has produced an elaborate work on political ethics, in which he lays it down that "the right of property in a book seems to be clearer and more easily to be deduced from absolute principle than any other." Except among the most ultra and radical of theorists, I have met with nothing in American society, but a most hearty subscription to such views as these: but, alas! – said one in conversation upon this subject, – it is nothing that we think right, nor would it be much to bring the people to agree with us, unless something shall force it upon our demagogues.

Public opinion is not always sovereign in America, as the remark of my friend implies. It is curious to see how often a written constitution deprives a people of the very privileges it was intended to perpetuate and secure; and how the practical working of the American constitution is frequently the very reverse of its design. By the constitutional provisions, it would seem apparent, for instance, that the president of this confederacy must always be the choice of a majority of the nation's wisest men, themselves the free choice of the majority of the people. Yet here I have lived under three successive presidents, General Harrison, Mr Tyler, and Mr Polk, not one of them succeeding by the free choice of any one, and Mr Tyler against the suffrages of all. The undefiled patriotism which is the hypothesis of the constitution, does not exist; party, which it seems hardly to anticipate, carries every thing; and parties are ruled by cabals. Thus the greatest national measures, instead of originating with the people, and taking shape in the hands of their servants, are begotten in closets and conclaves, dictated to time-servers and adventurers, and forced on the people, they cannot tell how – but in the name of democracy and freedom. Yet, after all, public opinion is important, because when even demagogues are inclined to do right, it is fatal to their action if public opinion be wrong. For this reason, it may be well for you to understand how far public opinion has advanced with regard to our question. Its progress has been slow, but I believe always in the right direction. Things promised well, when the Oregon dispute became the occasion of an unnatural animosity against Great Britain, and every measure which she was supposed to approve. In the hurly-burly of wind and dust that was blown up under that passing cloud, it is not to be wondered that Dickens and copyright were as completely forgotten as orthography, etymology, syntax and prosody, and whatever else goes to the art of using language correctly. A strip of land that would not purchase the copyright of an almanac, became the subject of the fiercest congressional interest; and the rights of authors, and with them the noblest relations of the republic to the other estates of the world, for the time were wholly lost sight of. "Copyright" then passed into a watchword with some of those underlings of literature, who thought to ride into favour as Cobden has been carried into fortune, by taking the tide at its ebb and ("like little wanton boys that swim on bladders") invoking the flood, as if their yelping and outcries would bring the turn any sooner. A copyright club was got up, it is said by a mere clique in this city, to which, from the mere justice of its proposed ends, large numbers of respectable men, throughout the country, gave in their nominal adhesion. I am not aware that it has accomplished any other result than to favour some ambitious young gentlemen in acquiring the autographs of eminent persons abroad, with whom they opened an officious correspondence; for it has been very generally voted a humbug, and has served to disgust many with the very sound of "copyright," which has thus been degraded into harmony with the scream of "Repeal" and "Free Trade." For awhile, none joined the vociferation, according to my informant, but persons whose stake in literary property was about as deep as the grievances of others in England under the income-tax, or the impost on wheel-carriages, hair-powder, and coats-of-arms.

From temporary stagnation, however, the question has again revived; and during the last six months it has been debated in the daily newspapers, with very encouraging tokens of an improvement in the moral sensibility of journalists. Even the tone of those who oppose the progress of principle, has become so much modified, that they rather excuse than defend the existing laws, representing them as practically less grievous than is imagined. A journal which has signalised itself by its resolute anti-copyright spirit, endeavours to support this representation, by asserting that about as much is now paid to British authors, for their proof-sheets, as would ordinarily be paid for their copyrights! It is asserted in this gazette, that Bulwer receives regularly from one hundred-and-fifty to two hundred guineas for a copy of every novel, which he sends out in advance of its publication in London. For similar proof-copies of their works, James is said to command very nearly as much; and such writers as Dr Dick, of Scotland, from fifty to a hundred guineas. What of it! It is plain that if a single edition of such books be worth these prices, the copyright must be considerably more valuable; and one would think it apparent, that such occasional premiums have no more to do with justice, than a levy of black mail, paid by its victim, because he would fare no worse. The New York Express exposes the sophistry of its contemporary, by simply asking what is paid to authors of less reputation, who may possess even superior merit; and The Literary World– a periodical of The Spectator class, – though it growls a little at Punch, and now and then takes too much in dudgeon the provocations of Maga, by no means allows its moral optics to be put out, by the pepper occasionally thrown into them by foreign jesters and critics. Perhaps it should be added, as somewhat significant, that Mr Bryant, the poet, a prominent democrat and editor of the New York Evening Post, has exerted himself in behalf of another memorial to Congress for justice to authors; which is the more observable, because Mr Legget, his late coadjutor and intimate friend, was perhaps the most radical writer on the other side that has ever appeared in this country, and regarded the maintenance of his extraordinary opinions as essential to genuine democracy. It seems evident to me that no one's political creed will be able to exclude much longer a principle, which, if not instinctively discerned to be sound by every man's conscience, commends itself so much the more forcibly to him who subjects it to a rigid and thorough examination.

So much for those great manufacturers and exponents of popular opinion, the periodical and daily press. The influence of "the trade" is next worthy of consideration; and I shall be able to report as favourably of it. Although the "Boston memorial" was the doing of a convention of booksellers, who faithfully represented, at that time, the sentiments of their brethren of the craft, it is now very evident that they are generally ashamed of it, and that another such convention would be very likely to terminate in precisely the opposite result. The North American Review ⁶ some time since announced the conversion of no less important a personage than the chairman of the committee which emitted the remarkable memorial itself; and the gentleman is certainly to be congratulated upon the improved condition of his moral health. Perhaps you saw in The Times– I think it was in May last – the letter of an eminent American publisher, who not only resented the impeachment of his professional species, as "the Fagins of literature," but adroitly retorted the compliment upon divers respectable houses in London. You must have noticed his declaration, that the commercial house of which he is a member has uniformly exerted its influence on the side of right. With some qualification, I am happy to say that I believe the worthy bibliopole claims no more than his due. Theoretically, his house has encouraged the copyright movement; but I hope I am mistaken in fearing that it has not always exhibited a practical consistency. The "Proverbial Philosophy" of Mr Martin Farquhar Tupper was lately published in Philadelphia, with an announcement, by the author himself, that his publisher had purchased the privilege of its manufacture and sale; and this announcement was accompanied by an appeal to respectable booksellers to regard the moral right, in the absence of legal protection. The book has had remarkable success, and more than one publisher, who would be called respectable, has shown himself too weak to resist even the poor temptation to disregard this reasonable claim. I am sorry to add, that an advertising sheet is now lying on my table which describes the "Proverbial Philosophy" of Tupper as part of Messrs Wiley and Putnam's library of choice reading. Perhaps this internecine piracy among booksellers themselves has had something to do with the convictions of the craft, that the protection of authors would be their own best defence and security.

It needs now some resolute friend in Congress, and the copyright measure would not long fail of success. Unhappily, the gentleman who seemed best fitted for this purpose, and whose former exertions deserve honourable mention, Mr Senator Preston, of South Carolina, has retired from his public career, under the depressing influence of disease; and my knowledge of the public men of America does not enable me to mention any one who will immediately supply his place. Few men of letters sit in Congress. It is too much the paradise of hack politicians and menials of party. Great questions of right have little interest in the eyes of such men. Nothing gains from them a natural patronage, unless it be capable of being manufactured into "political capital." It is surprising that the Americans endure the selfishness with which their legislators will devote the greater part of a session of Congress to personal intrigues and private interests, while great national measures, demanded often by the whole people, are trifled with, or absolutely neglected. The great matter of "cheap postage," for example, though strongly urged by the mass of citizens, without distinction of party, can scarcely gain a hearing; and the fate of literary property must be the same, until some one arises to emulate the examples of Talfourd and Lord Mahon, and give completeness to their achievements, by carrying a corresponding measure through the American Congress. Till then, we must leave them to their responsibilities in "extending the area of freedom," which are, just now, too great to afford them an opportunity of doing as much for the area of copyright.

Meantime, I may safely say, that public sentiment cannot but mature into an eager desire of the consummation: not because of its justice, but because of its policy. I should look for a triumph of principle, rather than of interest, were I not pained to observe how seldom political leaders in America are wont to address the conscience, and rest any cause upon abstract right. The fathers of the republic knew better than to leave the moral powers of the people unexercised; but their successors seem to lack such faculties themselves, or to doubt their existence in the people. The copyright measure, however, may be safely left to the national sense of expediency. America is beginning to feel the value of literary eminence, and must be pardoned, on this account, for absurdly overrating at times the little that she already possesses. You will be surprised to see in how many ways her literature suffers by her present laws, and how safely avenging justice may be trusted to repair its own injuries. Let me show you.

The political theorist would say beforehand, that under the proposed copyright law the people would be deprived of cheap books; and this is one of the popular delusions that experience must dispel. The present laws do indeed make books very cheap, if cheapness is to be estimated only by the cost per copy, and if legibility, convenience, durability, and honesty are to go for nothing: and if the price which a whole nation pays for such books in many serious losses, is also to be excluded from the calculation. The present laws encourage the rapid manufacture of such books as will sell rapidly. Novels and light reading of all kinds are thus multiplied, to the exclusion of more valuable books, which sell slowly; and in consequence, an entire nation becomes infected with the depraved appetite of mawkish school-girls. But these novels must be printed at the lowest rate; for being unprotected, some one will bring them out as cheaply as possible, and he who does so command the market. Thus book-making becomes a mean and debased art; and books are crowded upon the public, at prices merely nominal; having much the appearance, and sharing the fate, of newspapers, which perish in the using. At the same time, these worthless books affect the prices of all books. Valuable works required for libraries must be printed with the least possible investment of capital, or not printed at all. If any one undertakes such publications, he must stint the editor, shave the papermaker, grind the printer, starve the stitchers, and make the binder slight his work. This is the kind of "living" which the report of Congress says is furnished to thousands of persons by the republishing of English works; and such it must be, where every publisher has to make books to sell. The books thus published are dear at any price; and the best works do not get before the public at all. No choice American editions can be found of Burke, of Gibbon, of Hume, or even of Robertson, the historian of the continent; but if one imports such an edition, he finds himself taxed at the Custom-house to pay for the miserable thing he refuses. You look in vain for an edition of Jeremy Taylor; and if you import that of Bishop Heber, you pay a guinea to the Customs to sustain the privilege of American publishers to publish it if they choose. The writings of Lord Clarendon cannot be had in an American edition; your importation is taxed, because at some future day it may be convenient for some one to get up the whole in one volume. The same is the case with the whole works of Milton, of Dryden, and many others quite as essential to libraries: but the case is still more provoking with the better class of modern works, such, for instance, as Alison's "History of Europe." Under a copyright law, it could be published in New York from the English plates, and sold almost as cheap as the poor affair now in the market, which cannot be better, because it would be immediately ruined by a less expensive rival reprint. Yet, if I import a copy, to save my eyesight, I must pay for refusing this. Thus every time an American buys a foreign book – and such books are bought by thousands – he is paying for the broad privilege of booksellers to make the books they import; a privilege which they do not in general care to use, except in the case of new and chiefly ephemeral works.

Cheap books are now furnished, because the manufacturers dread competition; but better books, for the same money, will be readily supplied when the publisher has the market to himself, and fears no competitor. You remember the article on Copyright, which appeared in Blackwood in January 1842, in which it is noticed that Campbell's "Pleasures of Hope" sells at a shilling; that Moore, Wordsworth, and Southey, are handsomely published at three shillings and sixpence a volume; and that such a work as "Hallam's Middle Ages," is as cheap in the London market as books can be made: yet all these pay their authors, and are published in cheap editions, because they find it for their interest. Under a community of copyright, the plates of these very editions would be sent to New York, and the works would be in the market at a slight advance upon the cost of press-work and paper – the latter item being much less expensive here than in England.

But the nation pays for its cheap books more dearly still, when you consider the effect of its present system upon its literary men. It forces this class of its citizens to "make brick without straw." For the reasons I have shown, the books from which authors collect their materials are not to be found at home, and can only be imported at an aggravated expense, and often with great delays and trouble. Think of my waiting ninety days in New York, to procure a work like "Lord Clarendon's History of the Rebellion!" Now, I hazard nothing in saying that many an American author has given up projected works of great importance, from the discouragement of similar delays; whilst proofs are manifold, that the chief defects of valuable works actually produced in America may be traced to such inconveniences. The patient author often confesses as much in his preface, without seeming to know that his country, in stimulating the almost exclusive, publication of trash, and taxing him to support such publications, is the fostering patron to which he owes his difficulties. Thus does America nip her young genius in the bud; and when it perchance comes to flower and fruit, she is not behind-hand with a blight. The unknown production of the American author is brought into a depressing competition with works which have been tried in England, and found certain of success in America. The popular British author, whom the public have long demanded, is furnished at the lowest price – while the yet unheard-of native aspirant, who can only hope for a limited patronage, an cannot dispense with his copyright, must of course be paid more. Whilst all the poems of Mr Tennyson, or his betters, maybe had for a dollar, the maiden effort of an American youth cannot be furnished for much less. Of course, his country has crushed her child, under the weight of an unnatural disadvantage; and in proportion as he is worth any thing, the chances are less that he will persevere against such odds. I know of a man of sterling genius, whose early writings attracted the notice of Maga, who has long since ceased to write for the public, in consequence of the evils I now depict. His country may thank herself that he has not taken rank with the first English authors of his class. But the same system which thus deprives American authors of natural patronage, destroys their chances abroad. Until their own country relieves them, by putting foreign works on a level with theirs as to chance of success, England gives them no copyright, and they cannot get aid from her as heretofore. Cooper and Irving were encouraged by England under a different state of things; and it is safe to say, that under present circumstances there will be no more Irvings and Coopers. I am surprised that American scholars submit with such equanimity to grievances under which genius must languish and emulation dies.

I have now in my mind the case of a man of learning – whom I should rejoice to name – of whom this country might well be proud, but whom she hardly knows; a man, of whom I venture to say, that had he been born an Englishman, he would have bequeathed his country another immortal name. He would have done as much to ennoble his native land, had she known how to foster instead of depressing his early enthusiasm. With a mind fitted for the deepest and most accurate research, and an education, of which the perfection is attributable to his natural love of learning, he undertook, in the prime of life, to accomplish a certain literary work, still a desideratum. With untiring zeal and diligence under many discouragements, he devoted to his grand design the best years of his manhood. In the collection of materials – doubly difficult by reason of the evils of which I have spoken – he spent much time, and exhausted his patrimony. After gathering a noble store, and traversing the ocean to perfect his acquirements in foreign libraries, he at length completed his task, and laid before competent judges the results. These were pronounced of the richest intrinsic value, and the earnest of future works in the same department of letters, yet more honourable to their author and more important to learning. But the very devotedness with which my admirable friend has pursued his one great object, has deprived him of a popular reputation. Though by birth and habits of life a gentleman, refined by intercourse with the choice society of Europe, and furnished with the best introductions, his overtures to publishers here were repulsed with a rudeness of negative, which would have shocked the sensibilities of a footman. Who cared for him, with his parcel of manuscript, when some European work, which had gone through the experiment of success, could be produced with a smaller expenditure, and without per centage to the author! Can it be wondered at that Harpy & Co. refused to treat with him, when a new treatise on the inside of the moon, for which lunatics in general were gaping, and for which twenty guineas had actually been paid to the learned Dr Snooks, of North Britain, was actually waiting its turn for immediate reproduction? Would Snatchett and Brothers cast an eye on their compatriot's scrawled and blotted quires, when they had just run the pen-knife through a new "Dombey," for which fifty compositors waited stick-in-hand, and which the million expected with insatiable greediness? The excellent person to whom I refer ran the gauntlet of such patrons with no better success than my questions imply; and if the dignified production to which I have referred shall ever see the light, I am informed that it will first issue from the English press; for should its author publish it here, at his own expense, he will be forced to put it at a price which, compared with the pirated works of British authors, will appear unreasonable, and kill it in the birth. No American is patriot enough to buy a book, simply because it is valuable, and the product of national genius: and Congress takes care that if any be found to do so, they shall be roundly taxed for their patriotism.

I have given this instance because it has come under my immediate notice; but you will not doubt, dear Godfrey, that the country which, even in existing circumstances, has bred such writers, in their several departments, as Prescott, and Audubon, and Wheaton, and Kent, and Story, has crushed at least as many more by the pressure of her copyright laws: and, if so, America has deprived herself of intellectual sons, whose gifts, in their stimulated exercise, would have made her rich, as well as illustrious in the sure sequel of their fame. The "Calamities of Authors" are indeed proverbial, but few are the unnatural mothers who, to prevent them, destroy genius in the embryo. Yet there is an ingenuity of mischief in this government, from which every thing that can be of benefit to letters, is sure to suffer. Even the poor permission to import books duty free, which has heretofore been enjoyed by the few public libraries that are struggling into existence from private liberality, was, by the tariff of 1846, peremptorily withdrawn; whether through a niggard parsimony, or a besotted indifference to learning, more worthy of Caliph Omar than of an enlightened state, it is difficult to conjecture.