AN ADDRESS TO THE ARTISTS and MANUFACTURERS OF GREAT BRITAIN.
[PRICE TWO SHILLINGS.]
AN ADDRESS TO THE ARTISTS and MANUFACTURERS OF GREAT BRITAIN;
Reſpecting an APPLICATION TO PARLIAMENT for the farther Encourage⯑ment of New Diſcoveries and Inventions in the USEFUL ARTS; to the facilitating future Improvements in the Produce, Manufactures and Com⯑merce of theſe Kingdoms.
To which is added, AN APPENDIX, Containing Strictures on ſome ſingular Conſequences, attending the late Deciſion on LITERARY PROPERTY.
By W. KENRICK, LL. D.
LONDON: Printed for Meſſrs. DOMVILLE, at the Royal-Exchange; DILLY, in the Poulty; F. NEWBERY, Ludgate-Street; WILLIAMS, Fleet-Street; EVANS, in the Strand; and RILEY, Curzon-Street, May-Fair.
MDCCLXXIV.
AN Attachment to Letters, and a regard for the profeſſion of an author, would, perhaps, never have permitted the writer of the following pages, to doubt the ſuperiority of the literary artiſt, or the propriety of the encouragement given to his labours above thoſe of others; had not an equal encouragement been obtained of the Legiſlature, a few years ago, for Engravers, etchers and mezzo⯑tinto ſcrapers.
This circumſtance leading to an enquiry into the reſpective merits of Artiſts in general, the practi⯑tioners of the uſeful, were found to lay ſo ſimilar a claim to public encouragement with the profeſſors of the polite arts, that the diſtinction, which the Law had made in the right of property to their different labours, could not fail to appear extremely partial and inequitable.
[vi]With a view to ſtate this partiality to the pub⯑lick, the following tract, in which the ſcientific and uſeful Arts are compared with thoſe of Litera⯑ture and Curioſity, in the reſpect abovementioned, would have earlier appeared, agreeably to the no⯑tice given in the Public Advertiſer of June 29, 1771, had not the argument been thought to be affected by the then uncertain ſtate of Literary Property. This being ſince in ſome Meaſure deter⯑mined, and the Doctrine in queſtion having received the ſanction of very high authority, the preſent Publication is judged expedient to promote the De⯑ſign of obtaining farther encouragement for the ex⯑ertions of uſeful Ingenuity, and thence facilitating future Improvements in the Produce, Manufactures, and Commerce of theſe Kingdoms.
Not that Artiſts in general will probably think it prudent to ſolicit an innovation, at preſent ſo repugnant to public prejudice, as that of being put preciſely on the ſame footing with Authors and Engravers. By diſplaying, however, the equity of their pretenſions to equal conſideration and en⯑couragement, it is preſumed that the leſs objection [vii] may be made to their application for a parliame⯑tary extenſion of the uſual term of exerciſing their inventions by patent, with a repeal of the clauſe in the monopoly act, which now reſtrains the crown in all caſes indiſcriminately, from granting ſuch patents for more than fourteen years; a term in many particular caſes greatly inadequate to the labour, pains and expence, attendant on bringing uſeful inventions and diſcoveries to perfection.— The Moderation of ſuch a requeſt may poſſibly in⯑duce ſome public-ſpirited patron of the uſeful arts, to urge more powerfully the expediency of granting to their profeſſors privileges proportionate to their perſonal merit and public Utility.
A Writer, who has devoted his time as much to the uſeful as the polite Arts, may take on him, without impropriety, to treat of that very partial diſtinction, which the laws of his country have made between his right of property to the emo⯑luments ariſing from his different purſuits.
As an Author and an Artiſt of a certain claſs, an excluſive right, to profit by his compoſitions and inventions, is ſecured to him by Statute for a conſiderable term of years; as an Ar⯑tificer or artiſt of any other claſs, he is deſtitute of ſuch ſecurity. Let his inventions or diſcoveries coſt him what time, or expence they may, let them redound ever ſo much to public utility, or private profit, the author of them is adjudged to have no ex⯑cluſive right to the exerciſe of his invention or the uſe of his diſcovery.
[2]It is indeed whimſical that, in a ſcientific age and commercial nation, a property in words ſhould be held more ſacred than a property in things; that an Artiſt, who has literature enough to give a verbal deſcription of the nature and deſign of any newly-invented and uſeful machine, ſhould be legally entitled to the ſole right of multiplying the copies of ſuch deſcription, though he is denied ſuch right of manufacturing or multiply⯑ing the copies of the Machine itſelf. This is ſtill more whim⯑ſical if we reflect, that ſuch verbal deſcription may be only a matter of mere curioſity, and the firſt copy of it have been compoſed with facility in a few hours; while the real inſtru⯑ment may be a ſubject of great utility, and its fabrication have coſt the inventor the ſtudy, application and labour of years, to ſurmount the difficulties attending its firſt conſtruction.
At a time, therefore, when the farther indulgence of the Legiſlature is ſolicited in favour of literary property, and even that, which has been already granted by Statute, is thought by many an infringement of the natural rights of genius, the profeſſors of the uſeful arts will be wanting to themſelves if they neglect: the opportunity of laying claim to at leaſt an equal indulgence, founded on a plea of at leaſt equal validity.
Not that the Uſeful Artiſt need reſt his cauſe ſolely on com⯑parative merit, or found his pretenſions to a like indulgence on the Statute in favour of Literary Property. With equal claim to the natural rights of Genius, it is by no means diffi⯑cult to ſupport his ſuperior right to public encouragement on principles of political expediency.
[3]At the ſame time, it is not pretended that this partial diſ⯑tinction between the Author and the Artificer is altogether pe⯑culiar to this iſland. The practice of moſt other nations, re⯑ſpecting the common property of diſcoveries and inventions in the uſeful arts, affords a ſtrong preſumption that, even grant⯑ing a natural right of property in them to ſubſiſt, it is either incapable of being aſcertained and ſecured by Law, or incom⯑patible with the political intereſts of the community: And it is in vain for individuals to talk of poſſeſſing a property which the law cannot aſcertain and ſecure; or to contend for ſuch poſſeſſion, if it militate againſt the general intereſts of Society.
How far a right of property in uſeful inventions and diſco⯑veries be founded in Nature, be capable of being protected by Law, or conſiſtent with the general good of a commercial people, becomes of courſe the ſubject of diſquiſition in the following pages.
IN the late conteſts about Literary Property much hath been ſaid and written on the nature and origin of property in gene⯑ral. The common lawyers, wedded to words and forms, have bandied about the technical terms of corporeal and incorporeal till they have almoſt forgot their ſimple uſe. It hath been proved, however, againſt them, that there are incorporeal rights as eaſily aſcertainable by law, and as juſtly entitled to the protection of it, as others which are corporeal. Without entering therefore into the diſpute of the jus in re, or particu⯑larly diſcuſſing the nature of the property contended for, I ſhall enquire only how it originated and became the natural right of the claimant.
The Lawyers in general have not leſs perplexed the queſtion, reſpecting the origin of property, than they have puzzled that about the nature of it. Reſtricted by the narrow notions, which confine property to a corpus or body, they have recurred no farther back for a right of poſſeſſion than prior occupancy; ſetting diſcoveries and inventions in literature and ſcience on the ſame footing with the uſe and improvement of corporeal poſſeſſions. But the Author and Inventor may deduce a right of property to their reſpective labours from a ſtill earlier and more general ſource. Every man whom Providence ſends into the world hath a natural right to live in it; and, if to live in [5] it, to the means of ſubſiſtence. In the preſent ſtate of ſociety, however, the man who is born to no eſtate real or perſonal, finds the means of ſubſiſtence by mere poſſeſſion already en⯑groſſed by prior occupants; he is therefore of neceſſity reduced to the creation of new means of livelihood; a right to all corporeal property being already ſecured to others, he muſt have recourſe for ſubſiſtence to the incorporeal property he is en⯑dowed with by Nature in the uſe of his perſonal talents; he muſt live by his wits or his labour. Steal he muſt not, and if to beg he be aſhamed, ſhall he be denied a right to the contriv⯑ance of his brain or the work of his hands? This were to af⯑firm, that the poor are the natural-born Slaves of the Rich; and that the poſſeſſion of corporeal property, however obtained, gives a right to the poſſeſſion of all other: an affirmation which, I preſume, no free-born ſubject of this country will venture to make.
It is indeed now very generally admitted, that a man can have no better natural right to any thing in the world, than to the fruits of his own ingenuity and induſtry; it were needleſs, therefore, to throw away time in confuting the caſuiſtry, by which the contrary opinion hath been maintained.
THE Advocates for Literary Property have laboured much to maintain as real, an imaginary difference, which they have ſet up between the Author and the Artificer, in regard to an excluſive right of property in their reſpective compoſitions. Not that they had any valid plea to offer, in ſupport of their argument; but becauſe the right of the Artificer being univer⯑ſally held untenable at Common-law, if they admitted the Author to ſtand in the ſame predicament, they could not ſup⯑port his claim to a perpetuity in his copy-right; which they modeſtly contended for.
The futility of the arguments, adduced to maintain this ſuppoſed difference between the inventors of machines and the authors of books, hath been ſo fully diſplayed in ſeveral late publications and pleadings, that it were ſuperfluous to at⯑tempt to corroborate what has been delivered with ſo much equity and energy by the firſt lawyers of this and perhaps any other nation*
[7]A certain celebrated writer, however, having ſince taken up the pen to urge a ſimilar plea, it may not be amiſs to take ſome notice of it *. With the intention, ſays Mrs. Macau⯑lay, of depriving authors of the honeſt, the dear-bought re⯑ward of their literary labours, they have been raiſed a little higher (inſtead of lower) than the Angels†, and at the ſame time been levelled with the Inventors of a very inferior Or⯑der. Theſe inventors of an order very inferior to authors of books, are the authors of new inventions and diſcoveries in the uſeful arts; who, it is aſſerted, would be better rewarded for their ingenuity than writers, even did they both ſtand upon the ſame footing, in regard to time and other circumſtances, for the emoluments ariſing from their different inventive fa⯑culties.
I know not how this ingenious writer will make good this aſſertion; but I am perſuaded that, if the authors of ſuch new inventions and diſcoveries did ſtand upon the ſame footing, in regard to a legal ſecurity of a right of property in their reſpective productions, as authors of books do, they would not complain of injuſtice or contend for a perpetuity in ſuch right.
Every common capacity, ſays this writer, can ſoon find out the uſe of a machine, which is not the caſe with a book. I accede to the latter part of the aſſertion, becauſe there are many books whoſe uſe cannot be found out at all, as they are totally uſeleſs, if not hurtful: the former part I deny, for as good a reaſon. Had this advocate for literary merit been [8] familiar with the labours of our mathematical, philoſophical and even mechanic artiſts, ſhe would have known that there are many curious and uſeful machines, with whoſe uſe the very makers of them are totally unacquainted.
I hope the writer does not ſpeak experimentally on this occaſion, as I am ready to go ſtill farther in favour of de⯑ſerving authors. It is not only to the ſelfiſhneſs of individuals and the prejudice of party we may impute the keeping back the ſale of a good book; it may alſo be imputed to ignorance, inattention or want of taſte in the Public, in general: from which cauſes, the more curious, refined and inſtructive the book, the longer it will be before it attract ſufficient notice to obtain a general ſale.
If I do not miſtake, no leſs than ſeven and twenty years elapſed before Sir Iſaac Newton's Principia came to a ſecond edition: and I may cite Mrs. Macaulay's own authority for ſaying, that when Lord Bacon publiſhed his Philoſophical Ideas, they were ſo little underſtood that they were deemed [9] literary lumber: nay, that the learned and Royal James, whom the Earl of Shaftelbury terms the ſchool-maſter of his people, compared them to the ways of God, paſt finding out.
In the ſame predicament may alſo the laſt book of New⯑ton's Principia be ſaid to ſtand, even with moſt of our beſt mathematicians to this very day.
This is undoubtedly a good argument for extending the term at preſent limited by ſtatute in literary copy-right. There are certainly many laborious and expenſive works, whoſe ſale during that term will by no means compenſate the authors or undertakers, for the intenſe ſtudy, long labour, and immenſe coſt attending their execution.
But the ſame argument holds equally good with reſpect to the authors of new inventions and diſcoveries, in the arts and ſciences; many of which are effected only by amazing appli⯑cation, tedious proceſs and prodigious expence. And yet the author thinks eight and twenty years too ſhort a term, in which to reap the benefit of his labours, while the artiſt or artificer is not entitled, by any law in being, to a property in the effects of his ingenuity for a ſingle day.
I will not cenſure the impropriety with which the above⯑mentioned writer calls the latter an inventor of a very inſe⯑riour order; I beg leave, however, to remind the reader that it is not in the capacity of writers that either Bacon or Newton, particularly the latter, lays claim to public vene⯑ration. The genius of Newton was not of a literary caſt, nor does he raiſe our admiration or command our reſpect ſo [10] much as an author, as he does in the capacity of an inventor or artiſt. The ſuperiority of his character is not derived from his ſuperior talents in turning periods and making books, but in ſolving geometrical problems, making phyſical experiments and manufacturing priſms and optic-glaſſes. It is Sir Iſaac Newton the mathematician, the experimentaliſt, the mechanic, and not the writer, whoſe name is ſo highly honoured and tranſmitted with ſo much renown to poſterity.
It was to this great philoſopher in theſe capacities alſo, that the reſpect paid to him when living, and the emoluments he reaped in conſequence of it, are more immediately to be at⯑tributed: and ſhall the ingenuity of thoſe talents which made his fortune in life, and confer immortality on his name after death, be held very inferiour to his literary abilities; which were at beſt on a level with mediocrity?
Locke hath remarked it, as a circumſtance affecting to a ſpeculative mind, that a rational being ſhould be employed all day long, like a mere mechanical machine, in ſawing a block of marble. Monteſquieu thought it no leſs ſo that a man of learning and ingenuity ſhould employ himſelf as con⯑ſtantly in culling out words of the ſame found, in order to expreſs himſelf in rhime: and yet we have numerous in⯑ſtances, in which a knack at verſification (though almoſt as eaſily attained as the gift of counting one's fingers) has raiſed the poſſeſſor into a degree of public eſtimation; and hath elevated a blockhead, deſtitute of ſcience as of ſenſe, to an equal rank with men of invention and genius*.
[11]It is hinted by the writer abovementioned, that authors claim a greater indulgence of the legiſlature than other artiſts, becauſe their writings tend to the improvement of the human mind, whereas the productions of inventors of an inferivur order, ſerve only to promote the purpoſes of luxury, or at beſt to furniſh thoſe conveniences which are not abſolutely neceſſary to the comforts of life. I ſhall not here enter into the diſcuſſion of the political diſpute about the conveniences of life, or take on me to determine how far the purpoſes of luxury may be rendered compatible with the intereſts of a commercial nation: but this I may venture to declare, that there is a wide difference between the encouragement, po⯑litically neceſſary to be given to literature in the infancy of a language and uncivilized ſtate of ſociety, and that which is either neceſſary or expedient when both are arrived to a degree of cultivation and refinement.
Indeed, I do by no means admit that the human mind is ſo much improved by mere reading as is generally imagined. An application to practical ſcience enlarges and improves it frequently much more than the ſtudy of mere theory. But, were it even otherwiſe, I cannot help thinking that the lite⯑rary productions of a refined and luxurious age tend leſs to the [12] farther improvement of the minds of individuals, than new inventions and diſcoveries in the arts and ſciences contribute to the farther improvement of the body politic, and the po⯑litical happineſs of a people.
Be this as it may, whatever general argument affects the intereſt of the author, in regard to his right of property in new literary compoſitions, muſt equally affect the artificer in reſpect to a right of property in new mechanical or other uſeful inventions, It is therefore very inconſequentially in⯑ferred, that the one hath a greater or leſs natural right to the fruits of his induſtry and ingenuity than the other.
If the caſe of ingenious authors, or of their repreſentatives the bookſellers, be then in any degree hard and deſerving relief, that of ingenious artificers is ſtill much more ſo; as they would be well ſatisfied were they only placed on the worſt footing in which the former ſecurely ſtand under the protection of the ſtatute.
IT may be thought needleſs to urge any other argument, to prove the political expediency of encouraging improvements in arts and ſciences, than the univerſal practice of enlightened and well-regulated ſtates. Among commercial nations in particular, the ſuperiority which the one acquires over the other, is univerſally allowed to reſult from a ſuperior degree of ingenuity and induſtry in its reſpective inhabitants. It is theſe that give riſe to improvements in agriculture, manu⯑factures and commerce, and are the inexhauſtible reſources of national wealth and political happineſs.
While a ſpirit of emulation, therefore, prevails between ſtates, as among individuals, it becomes the national intereſt, and thence the indiſpenſible duty of Government to promote a ſpirit of induſtry, and foſter the ſeeds of ingenuity; not only among the ſuperior claſs of authors and artiſts, but alſo among the lower order of artiſans, mechanics, mariners and huſbandmen.
The favourites of the Muſes and ſuch of the higher order of inventors, whoſe thirſt of glory or natural curioſity ſuf⯑ficiently animate them to exploits of genius; theſe, I ſay, need no ſtimulation to urge them forward in the purſuits of [14] fame or knowledge. It is to ſuch, however, that Government has been frequently liberal, as if it were laudably neceſſary to make a generous proviſion for thoſe who devote their talents diſintereſtedly to the ſervice of the public, without regard to their private emolument. With the generality of mankind, nevertheleſs, whatever be their inventive talents or intellectual capacity, a principle of ſelf-intereſt is the ruling motive of action, and the only conſtant ſtimulative to the exertion of their private abilities for the public ſervice. * Hence it is that a reward proportional to the merit of that ſervice ſhould ever be held forth, for their encouragement.
As to mere labour, though it ſhould not, as Virtue is ſaid to be, left merely to its own reward, it certainly ſhould be, as Virtue generally is, rewarded but moderately. Men poſſeſſed of no property and capable of nothing but labour, are en⯑titled to nothing but the means of daily ſubſiſtence. Were they poſſeſſed of more they would remit their daily labour; ſo that a numerous body of induſtrious poor is a fund of real wealth to the community. But the reward of inceſſant la⯑bour, and that of induſtrious ingenuity ſhould be different; the perſeverance of the labourer providing merely for the ſubſiſt⯑ence of the individual or of a few; while the induſtry of the inventor provides for the convenience of hundreds, the ſubſiſt⯑ence of thouſands, and the ſupport of the State. The differ⯑ence, which Nature hath thus made among men, and which [15] is infinitely more ſtriking and characteriſtical than the gew⯑gaw diſtinctions of civil ſociety, gives them a real title to pre⯑eminence. The marks of ſuperior talents are indelible proofs of their rightful claim to ſuperior reſpect and conſideration. It is hence with the utmoſt injuſtice that the ignorant and in⯑dolent Great blend the artificer and the labourer together, and confound them indiſcriminately with the refuſe of man⯑kind.
With the labourer may alſo be ranked the retailer of ſimple commodities, whoſe profeſſion, requiring the meaneſt of na⯑tural talents, ſhould be as little profitable as poſſible, con⯑ſiſtent with the ſupport of a family employed in domeſtic du⯑ties, or engaged like himſelf in the buſineſs of his profeſſion.
Nothing, it is true, is more common than to ſee an opu⯑lent retailer live luxuriouſly himſelf and maintain his family in idleneſs, out of profits oppreſſively wrung from the hard hands of the labourer, or inſidiouſly derived from the in⯑ventive brain of the artiſan; but where the channels of con⯑ſumption are not increaſed by the increaſing number of tra⯑ders, their multiplicity becomes a burthen to the ſtate, and their extravagance a political evil of the moſt fatal tendency. Theſe therefore merit no encouragement that may ſerve to in⯑creaſe their number, which is already become a public nui⯑ſance.
With venders of their own manufactures, cultivators of their own or other mens' lands, and with traders of a ſupe⯑rior claſs, by whom the Art of Commerce itſelf is almoſt im⯑proved into a Science, the caſe is different. As patrons and [16] promoters of the uſeful arts in general, they merit every en⯑couragement which the law can ſecure or miniſterial policy beſtow.
Again, it is neceſſary to diſtinguiſh not only between the merits of different claſſes of artiſts, but between the real and nominal artiſts of the ſame claſs: between the Manufacturer, for inſtance, who merely copies and vends the inventions of others, and he who fabricates and vends his own. Any pe⯑culiar encouragement, given to the former, tends to eſtabliſh a monopoly injurious to traders in general; but without ſuch encouragement being given to the latter, the ſpirit of invention is checked, ingenuity droops, and the want of improvement in the commodities of ſale prove equally injurious to trade itſelf.
That the Legiſlature have in ſome inſtances looked on the expediency of giving public encouragement to uſeful inven⯑tions and diſcoveries in the ſame light, is obvious. The par⯑liamentary rewards, that have been offered and paid for the finding out the Longitude, for the method of making ſalt⯑water freſh, for a noſtrum for the Stone, and for ſeveral other inventions and diſcoveries, afford a ſufficient proof that the encouragement of ingenuity, by rewarding the authors of ſuch inventions and diſcoveries, is in general adjudged to be politically expedient.
From the many objections, therefore, that have been ſtarted to almoſt every ſuch particular encouragement, it is preſumed that exceptions muſt have been taken either to the nature and extent of it, or to the method in which it has been [17] beſtowed; I ſhall for this reaſon proceed to take a view of the ſeveral modes in which ſuch encouragement hath been offered and given, and endeavour, by obviating thoſe objections, to point out a method of beſtowing it in ſuch a manner, as may be leaſt hurtful to individuals and moſt conducive to the ends propoſed; viz. the contributing to the conveniencies and em⯑belliſhments of life, and the facilitating future improvements in the produce, manufactures and commerce of our country.
AS the firſt of theſe methods I rank parliamentary premiums, being the moſt liberal and beſt becoming the character of an opulent and powerful people.
To this method, however, may be made many objections, as well on the part of the public, whoſe money is thus be⯑ſtowed; as on the part of the Artiſt, or inventor, who is to receive it, as a compenſation for his labour or ingenuity. The expence and difficulty of obtaining it may be grievous to the one, as that of granting it may be burthenſome to the other; while the quantum of it will always run the riſk of being in⯑adequate either to the utility of which the invention may prove to the public, to the merit of the diſcovery, or to the pains which the author may have taken to bring it to per⯑fection; [18] whereas ſuch premium ſhould be ever adapted to all three.
We have a remarkable inſtance of all theſe circumſtances united in the affair of Mr. Harriſon's contrivance for finding out the Longitude. There is no doubt that the ingenious contriver, after the ſucceſs of forty years application, deſerved the reward to which he was entitled. It was yet with diffi⯑culty he obtained it; and, though it might be deemed ade⯑quate to the pains he had taken, and the ingenuity of his contrivance; it is indubitable that the diſcovery of his inven⯑tion hath proved of little utility in Navigation. I do not find his clock is ever likely to become of general and common uſe, as the encouragement given by ſo ample a compenſation ſeems to require.
It is remarkable alſo, that Mrs. Stevens's famous medicine for diſſolving the Stone, for the diſcovery of whoſe compoſi⯑tion the Legiſlature granted five thouſand pounds, however efficacious before, has cured hardly any body fince it was made public.
I will not call in queſtion Mr. Irwin's method of making ſalt⯑water freſh; but am well aſſured that the diſcovery of as ſimple and ſpeedy a proceſs might have been purchaſed for leſs money.
There is indeed no little danger that both the quantum and the facility of obtaining of parliamentary premiums, may de⯑pend as well on perſonal intereſt as on particular ingenuity, or public utility. The merit of the incomparable Hogarth is univerſally acknowledged, and yet it will hardly be denied [19] that an uſeful artiſt of equal ingenuity hath ſome right to complain, that he is entitled to no property in his inventions, when the widow of that ingenious engraver was indulged with an additional term of twenty years' copy-right in the de⯑ſigns of her deceaſed huſband, over and above the fourteen years that had already been enjoyed by virtue of the Statute.
The indulgence, lately granted by Parliament to the pro⯑prietors of that elegant pile of building, the Adelphi, to diſ⯑poſe of their property by way of Lottery, appears to have given very general diſguſt. It is to be hoped the like favour, beſtowed on the ingenious Mr. Cox. to diſpoſe of his Mu⯑ſeum, will give more ſatisfaction. But, whatever merit might juſtly recommend theſe Artiſts to parliamentary indulgence, this method, of giving public encouragement to the Authors of new inventions, is ſo liable to be perverted by partiality or prejudice, that it can, by no means, be conſiſtent with ſound policy to permit the indiſcriminate application of individuals to be indulged in the uſe of it.
Of the petty premiums preſented by the Societies for the Encouragement of Arts and manufactures, ſupported by po⯑pular ſubſcription, I ſhall ſay but little, as indeed but little is to be ſaid, Inſtituted on public-ſpirited principles, but per⯑verted by private cabals, the laudable purpoſes of their inſti⯑tution have been ſeldom attained. In the mean time, we hear the candidates for their premiums as clamorous in their complaints of injuſtice done to their merit, as ſevere in their invectives againſt the want of knowledge or candour in thoſe who are to judge of it. It is with theſe, as with all other mixed ſocieties; however unanimous and moderate in their [20] commencement, like the parts of an heterogeneous fluid, the more ſolid and important ſubſide, while the volatile and in⯑ſignificant riſe uppermoſt and float conſtantly on the ſurface. The more ſenſible and judicious of the members remain ſilent or retire; leaving the buſineſs of the aſſociation to be tranſ⯑acted by the empty, the ignorant and the vain.
From ſuch ſocieties, therefore, little good, and ſtill leſs per⯑manency in the adminiſtration of it, is to be expected. If par⯑tiality and prejudice alſo may be ſuppoſed to affect the great council of the nation, how much more may ſuch an unwhole⯑ſome leaven be ſuppoſed to affect the fermenting particles of ſo prepoſterous a compound!
As an eſſential part of the criterion, by which the quantity and quality of public encouragement, proper to be given to artiſts and inventors of any kind, is the public utility of their compoſitions and inventions, it is indeed highly improper that the quantum at leaſt of ſuch. encouragement, ſhould be de⯑termined before ſuch utility be eventually decided.
The moſt plauſible and politic method of beſtowing that encouragement is, therefore, that by which the eventual uti⯑lity of ſuch inventions is made the meaſure of reward. This is effected either by veſting a legal right of property in the inventor, as in the caſe of writers, engravers, &c. or by the grant of Letters-patent from the crown, as in the caſe of ma⯑thematical artiſts, chemical experimentaliſts, artificers and manufacturers.
I Have already endeavoured to ſhew that authors, who prac⯑tiſe rather the imitative than the inventive arts, (at leaſt all but thoſe few writers, whoſe productions are truly original) have not a more natural right to the proprietary indulgence, granted them by the legiſlature, than have the artificers, whoſe in⯑ventions and diſcoveries are really new and uſeful. I am not a little flattered to find an opinion, long ſince ſuggeſted by my own reading, coincident with a late reflection of that great luminary in law and equity, Lord Camden.
I ſhall beg leave to expatiate here, therefore, ſomewhat more diffuſely on the impropriety of that diſtinction, which the legiſlature hath made between the practitioners of the uſeful and thoſe of the polite arts, and of the injurious par⯑tiality of the law in regard to their right of property in their reſpective productions.
But perhaps, the ſtate of dereliction and oppreſſion, under which the uſeful arts at preſent labour, proceeds rather from involuntary neglect than deſign. Inventors and artificers have been wanting to their own intereſts, in not applying, like authors and bookſellers, for a copy-right in their inventions and compoſitions. Time has been when literary artiſts were [22] obliged, as others are now, to purchaſe a temporary property in their works, with letters-patent from the Crown: nay, the uſe of the preſs itſelf was once held dependant on royal prerogative. Writers have been emancipated from ſuch a ſtate of ſlavery; the preſs hath been laid open and, on appli⯑cation to the legiſlature, authors and their aſſigns have been veſted with an excluſive right of property in their productions. Nay, practitioners in the arts of deſign, and, as I conceive, compoſers of muſic too are inveſted with a ſimilar right. Shall the authors then of chemical diſcoveries, the inventors of mathematical inſtruments, the contrivers of eſſential im⯑provements in manufactures; ſhall theſe, I ſay, heſitate to follow the example, or doubt of obtaining ſimilar redreſs?
On principles of equity no rational objection can be made to it, nor indeed on any other ground without arguing in⯑ferior merit from ſuperior utility: and hard indeed were the caſe of induſtrious ingenuity if its deſert ſhould defeat its reward.
The polite arts, it is true, make a more ſplendid and im⯑poſing appearance; they aſſume a dignity and importance, which may ſeem to give them a right to property and ſupport; but it is merely on the preſumptuous plea by which a reduced and beggarly nobleſſe infer from the poſſeſſion of empty titles, a right to the luxuries of life, while they indolently eat the bread of idleneſs.
But, granting that authors, under the auſpices of the Muſes and the ſpecious pretence of improving the human mind by their writings, are entitled to greater encouragement than other artiſts, the merit of engravers, etchers and mezzo⯑tinto-ſcrapers, ſurely places them in the ſame predicament, in the eye of reaſon, with that of practitioners in the other manual arts▪ It cannot be pretended that the labour of the engraver of a print or the copyiſt of a picture in chiaro oſcuro, is either more ingenious or uſeful than that of the contriver of a mathematical inſtrument or mechanical machine. And yet the engravers and mezzotinto-ſcrapers, following the example of the authors, obtained by degrees, an equal indulgence from the Legiſlature to an excluſive right of property in their labours.
It may not be amiſs to trace the proceeding of theſe fa⯑voured artiſts in their ſucceſsful attempts to obtain this de⯑ſired indulgence.
It appears from the Journals of the Houſe of Commons, that the petition of the engravers for the act, which paſſed in their favour in the 8th of George II, refers to the ſtatute of Queen Anne in favour of authors; with whom the pe⯑titioners deſired to be put on the ſame ſooting. This deſire, however, ſeems at that time to have been rather premature, as they could obtain only a ſtatutory right for the ſingle term of fourteen years, and that only in the copies of their own original deſigns. The obtaining this, was yet encouragement to aſk more.
[24]By a ſubſequent act in the 7th of his preſent Majeſty, they were accordingly indulged in the very ample manner following. ‘Be it enacted, That all and every perſon and perſons, who ſhall engrave, etch, or work in mezzotinto or chiaro oſcuro, or cauſe to be engraved, etched or worked, any print taken from any picture, drawing, model or ſculpture, either ancient or modern, ſhall have, and are hereby declared to have, the benefit and protection of the ſaid act [meaning the act of the 8th of George II.] and this act for the term herein after mentioned, in like manner as if ſuch print had been graved or drawn from the original deſign of ſuch graver, etcher or draftſman; and if any perſon ſhall engrave, print and publiſh or import for ſale, any copy of any ſuch print, contrary to the true intent and meaning of this and the ſaid former act, every ſuch perſon ſhall be liable to the penalties contained in the ſaid act, to be recovered as therein and herein after mentioned.’
The term of the excluſive privilege granted by the former act, was in this alſo extended.
‘The ſole right and liberty, intended to be ſecured and protected by the ſaid former act and this act ſhall be ex⯑tended, continued and be extended, continued and be veſted in the reſpective proprietors for the ſpace of twenty⯑eight years, to commence from the day of the firſt pub⯑liſhing of any of the works reſpectively herein before and in the ſaid former act mentioned.’—We ſee here the mere copyiſt or imitator put on a ſooting with original inventors, and even the manual excrciſe of the graver, ſcraping knife, [25] ſtippling punch and needle more fully rewarded than even the labours of the writer *.
But will it be pretended that the uſe of thoſe tools in their operation on the ſurface of a copper-plate, is more ingenious or uſeful, and therefore more worthy of public encourage⯑ment than is the uſe of the ſame, or ſimilar tools in their operation on any other ſubſtance or to any other purpoſe?
It is remarkable, that by the laſt mentioned act, the par⯑tiality complained of by uſeful artiſts is extended alſo to the polite (I had almoſt ſaid the uſeleſs) ones. It will not be doubted that the arts of ſculpture, and of caſting figures of plaiſter of Paris, potter's earth, &c. from models, are equally ingenious and curious with thoſe of etching, engraving and ſcraping delineations of them on copper; and yet the engra⯑ver, who copies after any ſuch model, either ancient or modern, is veſted with an excluſive right to multiply ſuch copies for his own profit; whereas the artiſt, who is at the pains to form moulds from ſuch models, and caſts the very figure itſelf, has no ſuch right; but may have his figures imitated and multiplied to the profit of others, without legal redreſs.
A ſingular inſtance of partiality, reſpecting the right of property in this particular, may be obſerved between the caution, with which engravers invade the right and attempt [26] to pirate the works of each other, and the temerity with which modellers copy without ſcruple the ingenious works of their brother artiſts.
Nay, ſo little idea of copy-right have the latter in their reſpective labours, that they diſregard even the privilege of a patent in the hands of other artiſts, under pretence that their manufacture is not of new invention*. I know not how far our courts of law may countenance this pretext, but the mo⯑dellers are certainly as much entitled, in reaſon, to an exclu⯑ſive right of copying models ancient and modern, as the ea⯑gravers to copy ancient or modern drawings of them.
I might indeed go farther, and inſiſt that in equity they ſhould be admitted to claim a right under the ſame act, which ſeems peculiarly intended to favour the arts dependent on the preſs: for if the linen-printers, paper-ſtainers [there are other paper-ſtainers beſides authors] claim under it, as ſome of them do †, an excluſive right to their reſpective prints and patterns, the caſter of impreſſions of models in plaiſler of Paris, potter's clay, or papier-macheé, has an equal right to inſiſt on his excluſive property to the copies taken off his moulds: [27] unleſs, indeed, an eſſential difference be made by the ſurfaces, ſuſtaining the impreſſion, being hollow or ſlat; between a ſeeming plane and a baſſo-relievo; which, I think, will be hardly aſſerted, as it would lead to a farther diſtinction be⯑tween the baſſo and alto, and the whole argument become ridiculous.
If then, linen-printers, paper-ſtainers, papier-maché-work⯑ers, and modellers of every kind are equally entitled in equity, and ſome of them by law, to an excluſive copy-right in their reſpective labours, no good reaſon can poſſibly be given why artificers of all kinds ſhould not be equally entitled to ſuch an excluſive privilege of fabricating any manufacture, whoſe novelty of form, or uſe and deſign are peculiar to themſelves.
The late Lord Hardwicke, ſpeaking of the act of Queen Anne in favour of authors and bookſellers, called it "a ge⯑neral ſtanding patent," calculated to ſave them the trouble and expence (from between fourſcore and an hundred pounds) of applying to the King for a privilege every time they printed a new book.
Now the acts of the 8th of George II. and of the 7th of his preſent Majeſty, are nothing but copies of the ſaid act of Queen Anne; confeſſedly paſſed to put engravers, etchers, mezzotinto-ſcrapers and printſellers, on the ſame footing With authors and bookſellers *.
[28]But why are authors, engravers, etchers, mezzotinto⯑ſcrapers, and by virtue of their right, bookſellers, printſellers, linen-printers, paper-ſtainers, &c. to be ſo highly favoured above letter-founders, wood-cutters, modellers in plaiſter, chaſers, enamellers, engravers on plate and gems, and indeed all other artiſts and artificers employed in the embelliſhments and conveniencies of life?
If this queſtion be unanſwerable, ſurely that muſt be equally ſo, which aſks why the authors of new inventions in the uſeful arts, the improvers of our produce and manufactures, the promoters of our national trade and commerce, ſhould not be equally favoured!
The inventor of a machine, or art uſeful in life, is now almoſt univerſally admitted to ſtand preciſely on the ſame footing with the author of a book; but, were this ſtill doubted, it cannot be doubted that he ſtands upon as good a footing, and has the ſame right to encouragement, as the engraver of a print, or the practitioner of an art more orna⯑mental than uſeful.
Would it not be extremely inequitable, therefore, and highly derogatory to the wiſdom and juſtice of the legiſlature, that the latter ſhould continue to enjoy the benefit (to uſe Lord Hard⯑wicke's words) of a general ſtanding patent, without any expence for every new print he publiſhes, and that the former ſhall ſtill be put to the trouble of applying to the King for a patent, and [29] put to the expence of eighty or a hundred pounds *, every time he publiſhes a new invention?
An artificer may be very ingenious, and at the ſame time be very poor; he may have beſtowed his time and induſtry, he may even have expended a moderate patrimony, in bring⯑ing his invention to perfection; and ſhall his labour, time and money, be after all thrown away (at leaſt with regard to himſelf and his family) unleſs he can raiſe an hundred or an hundred and forty pounds to purchaſe a right of property in the fruits of his paſt labour? Yet ſo it is, and the conſe⯑quence is, that either the invention is ſuppreſſed, and the public deprived of its advantages, or it is ſold for a trifle to ſome wealthier artiſan, whoſe purſe enables him to profit by the other's ingenuity. Well may the uſeful artiſt exclaim with the poet:
And well may theſe lines be thus paraphraſed:
[30]But perhaps I am unneceſſarily labouring to prove what is ſuffciently obvious; for, if I rightly recollect, it has been long ſince maintained, ‘That the author of a machine or uſeful invention, has, as well as the author of a book, an equitable right to inſiſt, that he ſhould have the excluſive right of ſelling his work for ſuch a length of time as ought to reimburſe him his expence, and recompence him for his trouble.’ *
How far this argument will hold good, reſpecting what the legiſlature hath already done, in placing inventors, and even mere practitioners of the polite arts on the footing of authors, I will not pretend to ſay: but if it hath done right with reſpect to the ornamental arts, the argument will hold a fortiori in favour of the uſeful. Either the legiſlature hath done too much for engravers, etchers, ſtipplers and ſcrapers, or it hath done too little for all other artiſts.
As it would ill become an individual, therefore, to impeach the wiſdom and juſtice of the legiſlature, I admit the pro⯑priety of what it has done for the former artiſts in particular, and thence infer the propriety of the application, for its ex⯑tending the like indulgence to artiſts in general.
I am not inſenſible that, in the contracted view of a narrow⯑minded politician, a thouſand imaginary difficulties will attend the adoption of the expedient propoſed: but things are not impracticable or improper merely becauſe they are difficult. If the uſeful arts have this claim on the juſtice of the com⯑munity, we may reſt aſſured that the adopting it will have a good effect on its public intereſts.
As general reflections, however, tend not to convince thoſe who can raiſe only particular exceptions, I ſhall examine into the validity of a few of the moſt ſtriking objections.
The firſt difficulty, that preſents itſelf againſt the granting an excluſive privilege to the authors of new inventions in the uſeful arts, is the general one of eſtabliſhing monopolies; which are ſuppoſed to have the pernicious effects of enrich⯑ing a few, and depriving a multitude of the means of ſub⯑ſiſtence; of enhancing the price of the manufactures monopolized; and thence of courſe proving injurious to domeſtic oeconomy and foreign commerce.
As to monopolies, it is an odious word without a determi⯑nate meaning. In its legal ſenſe, as deſined by Hawkins, Blackſtone and others, it has no proper reference to new in⯑ventions in the uſeful arts. ‘Monopolies, ſays Blackſtone, [32] are much the ſame offence in other branches of trade, that engroſſing is in proviſions; being a licence or privilege, allowed by the King, for the ſole buying and ſelling, making, working or uſing, of any thing whatſoever, whereby the ſubject in general is reſtrained from that liberty of manufacturing or trading which he had before. Theſe had been carried to an enormous height, during the reign of Queen Elizabeth; and were heavily complained of by Sir Edward Coke, in the begining of the reign of King James the firſt: but were in a great meaſure remedied by ſtatute 21. Jac. I. c. 3. which declares ſuch monopolies contrary to law and void; except as to patents, not exceed⯑ing the grant of fourteen years, to the authors of new inventions.’
It was owing (as that very eminent lawyer very juſtly ob⯑ſerves) to the enormous height to which thoſe royal grants were carried, in the time of Elizabeth and James, that the act of parliament paſſed againſt them. It was owing alſo to the juſt reſentment of the two houſes of parliament, againſt the violent ſtretch of the prerogative, by which they roſe to that height, that they loſt ſight of the real object of that reſent⯑ment; falling into the abſurdity of inſerting a clauſe, except⯑ing new inventions, in an act to reſtrain monopolies; with which new inventions had nothing to do.
For, if a monopoly be only a licence or privilege for the ſole buying, ſelling, making, working or uſing of a thing, whereby the ſubject in general is reſtrained from that liberty of manufacturing or trading he had before, it is plain that the ſubject is not ſo reſtrained by any exclusive privilege granted to [33] the author of a new diſcovery, produce, invention or ſpecies of manufacture, which the ſubject in general COULD NOT manufacture, and in which of courſe he DID NOT trade before.
In reſpect to the effects of excluſive privileges, in enriching a few perſons, impoveriſhing others, and keeping multitudes poor; the circumſtance is inſeparable from new inventions, diſcoveries and improvements. Till it be determined good policy, therefore, for a nation not to encourage ſuch inventions and improvements, the private intereſt of individuals muſt neceſſarily give way to that of the public.
Let us ſuppoſe that a ſcientific or even practical artiſt ſhould invent a machine, by means of which one man might be capable of doing the work of a thouſand; ſhould not his invention be encouraged becauſe a number of labourers would be to ſeek for employment? It is hard, no doubt, for poor men, who are as dull and uninventive as they are poor, to be obliged at an advanced period of life, to turn their hands to a ſpecies of labour to which they are not accuſtomed. But this plea might be urged againſt almoſt all uſeful improvements whatever; moſt of them tending to expedite mechanical operation and render manual labour cheap. Hence machines, to ſave or expedite ſuch labour, are encouraged in allwell-governed ſtates. What, indeed, would be the conſequence if in any one they were not? Would not the neglected inventors of ſuch machines repair to other ſtates, where they might meet with deſerved encouragement? And would not the ſtate, in which labour ſhould be cheapeſt and manufactures moſt expeditiouſly fabricated, have, caeteris paribus, the advantage of others at all foreign markets. About ſixty years ago, if I miſtake not, application was made [34] to parliament for encouragement to certain individuals for erecting mills for the ſawing of timber. It was oppoſed by the petition of a numerous body of ſawyers; compaſſion for whoſe families prevented ſuch encouragement then taking place. We have been contented ſince to pay to the Dutch and other nations, many hundred thouſand pounds, for the ſawing of timber; which they have earned by the ſame kind of mills, that might otherwiſe been erected in this kingdom.
The legiſlature indeed have, of late years, ſeen into this impolicy; but, tho' they indemnified Mr. Dingley, for what lie ſuffered by the indiſcretion of the populace in deſtroying his ſaw mill at Limehouſe, they have not as yet thought it expe⯑dient to give ſufficient encouragement for the erection of more.
It is certain that, upon every new-invention or eſſential improvement in any ſpecies of manufacture, the manufac⯑turers in the old-way, in that branch of buſineſs, will be cla⯑morous againſt an excluſive privilege being granted to the im⯑prover or inventor; but ſhould this have any weight with the legiſlature? The dulleſt and moſt uninventive artiſan in the world, bearing the name of the ſame profeſſion or occupa⯑tion, may thence claim aright to equal emoluments with the moſt expert and ingenious of his vocation; but would it be either juſt or politic to admit his claim? I have before hinted at the difference which nature itſelf hath made, and of con⯑ſequence ſound policy ſhould make, between thoſe who have ingenuity to contrive, and thoſe who have only ſtrength to labour. *
[35]The ſkillful cultivator, or the ingenious artificer, may be compared to the bee, that extracts from the flowers of the field, thoſe mellifluous ſweets, of which drones and waſps would gladly partake when ready-made. But, becauſe drones and waſps would live, like bees, on honey, are we therefore to rob the hives of the latter to give the former an equal ſhare of the ſweets of a manufacture they are not qualified to fabri⯑cate? As the mere retailers of commodities ought not to grow rich by the labour of others, ſo mere labourers ought to be kept poor that they may continue to be labourers.
That they may be capable of labour, alſo, they ſhould not be permitted to ſtarve; hence, on every temporary revolution, which new inventions in the mechanic arts neceſſarily occaſion among our labouring artiſans, their relief ſhould be provided for by the ſtate; either by giving a public reward to the authors of ſuch inventions, and making them common, or by providing a temporary ſubſiſtence for ſuch artiſans, till they can turn their hands to ſome other employment.
We have a recent inſtance of a numerous, induſtrious, and uſeful body of artiſans being hurt by a new, ingenious, and uſeful invention: this is the method of bending timber for carriage-wheels, ſo that the periphery or rim, which uſed to be compoſed of different ſellies, conſiſts of one piece.
The ingenious inventor hath, it ſeems, ſpent a conſiderable time, and been at prodigious expence and trouble to bring his ſcheme to perfection; and, as he has obtained a patent for the exerciſe of it, he may probably indemnify himſelf, [36] and even reap ſome profit by it adequate to its merit. In the mean time, however, the ſuperior ſtrength and lightneſs of the wheels of this manufacture, giving them a preference to all others, the common wheel-wrights, for the preſent, labour under a hardſhip, from which, tho' they have a right to aſk relief of the legiſlature, they have none to complain of the inventor, or of the excluſive privilege he enjoys by his patent. Many inſtances of a ſimilar nature might be pointed out amongſt the ingenious artificers of this kingdom.
I have indeed already obſerved, that the beſtowing of par⯑liamentary premiums, for diſcoveries and inventions, whoſe utility is problematical, is a very improper mode of encou⯑raging ingenuity, for the reaſons then aſſigned. * Thoſe rea⯑ſons do not oppoſe the giving ſuch premiums for inventions, whoſe utility is publicly experienced.
As to the pretext, that grants of excluſive property or privi⯑lege in the exerciſe of new inventions, tend to enhance the price of the newly-invented manufactures; it may be anſwered that, as ſuch grants do not compel any one to purchaſe theſe new manufactures, the public are left at liberty, at the lower price, to encourage the old: and this they will certainly do, neglecting the new, if their ſuperiority of merit be not adequate to the advance of price.
But it hath been ſaid, of patentees in particular, that their privileges tend to throw advantages into the hands of foreign⯑ers; who, not being reſtricted by our patents, can fabricate [37] and carry ſuch new and improved manufactures to market, cheapèr than our countrymen the patentees.—When they who advance this objection, can bring one ſingle inſtance to corro⯑borate their affection, I ſhall think it merits a reply. Till then I hold it ſufficient to ſay, in favour of patentees in ge⯑neral, that, as it is their intereſt to extend the uſe and ſale of their commodities as much us poſſible, it becomes their intereſt alſo, to vend them as cheap as they can well be afforded. At the ſame time, it may not be improper to add, that the ſooner their patent or excluſive privilege of property expires, the higher the price will they be induced to ſet on them: whereas the longer the term of their privilege, the cheaper can they afford and will therefore be induced to ſell them.
It will be objected perhaps (for every trifling difficulty will be made an objection) that, if Artiſts and Artificers in general, were put on the ſame footing as Authors and En⯑gravers, claiming an excluſive property in their new produc⯑tions, on the ſame eaſy terms of publication or entrance of their claim in ſome public office, the pretenders to ſuch claims would be ſo numerous, and the pretended inventions of many, ſo ſrivolous, that it would give riſe to endleſs vexa⯑tious ſuits and litigations. But to this it may be replied that, the increaſing number of pretenders to new inventions would be a proof that the encouragement offered, had anſwered the end of it, by awakening the ſpirit of ingenuity and induſtry; and would give ground to hope that, out of ſo many pre⯑tenders, ſome might deſerve encouragement.
As to thoſe whoſe inventions were really new, or whoſe improvements were eſſentially uſeful, the point of right [38] would be ſoon ſettled *: Whereas with ſuch contrivances as were futile and frivolous, the point of right would be ſoon found not worth contending for, either by the invader or defender: So that this kind of litigation would ſoon be at an end.
At the ſame time the curioſity of Genius would be awaken⯑ed, its induſtry rouſed, and the ſpirit of enterprize reviv⯑ed. The ingenious, though indigent artificer, would not then be deterred from proſecuting a favourite and uſeful purſuit. from the conſideration that he could not raiſe money to purchaſe a patent, ſhould he ſucceed in his endea⯑vours, and that he was only racking his brains for the emolu⯑ment of others. A proper diſtinction would be then made between the inventive artificer and the uninventive artiſan, thoſe who are qualified to employ others, and thoſe who are capable only to work themſelves. The reſpect due to each would be aſcertained, their due degree of encouragement pointed out, and every branch of the arts and ſciences flou⯑riſh, while the trunk would be nouriſhed by being properly watered at the root.
I AM not to learn that excluſive privileges, whether by par⯑liamentary grant or royal prerogative, are extremely unpopu⯑lar; or that they are particularly obnoxious to the penurious Great; who, inſtead of grudging the artificer the reward of his ingenuity, ſhould be the firſt moſt liberally to encourage it. Unhappily indeed, both for ingenuity and induſtry, the ſuperior privilege, of being born to do nothing, induces ſuch highly-favoured mortals to conceit that their inferiours were born to do, for nothing, every thing for them. Hence the ſituation of induſtrious ingenuity at preſent, reminds one of the ſtate of ſlavery under which the Egyptians held the Iſ⯑raelites of old; whom their inſolent taſk-maſters required to make brick, without furniſhing them with ſtraw.
It hath been before obſerved that ſuch privileges do not compel the public to purchaſe new manufactures; there is, therefore, leſs reaſon for wealthy individuals to complain againſt them, than artificers and traders whoſe private intereſt may be materially affected. At the ſame time if we reflect that, without the encouragement of ſuch excluſive privileges, no new inventions or improvements of any considerable con⯑ſequence can be expected, the oppoſing them is not leſs im⯑politic and abſurd, than illiberal and unjuſt.
[40]And yet, notwithſtanding all that may be both politically and equitably urged, in behalf of giving a general parliamen⯑tary encouragement to new inventions, and placing ingenious artiſts of all kinds on the ſame footing, I am not without ap⯑prehenſions, that the policy, of the times may be ſound too puſilanimous to carry ſo ſalutary a meaſure into execution.
But, though neither reaſon nor juſtice ſhould prevail ſo far as they ought, I flatter myſelf with the hope that a power, of properly and readily rewarding induſtrious ingenuity, may be lodged ſomewhere.
In other countries (as it was in this, before the paſſing the act againſt monopolies) a diſcretionary power is placed in the hands of Government, to give ſuch encouragement by ex⯑clusive privileges for a term of years; which may be renewed or extended according to the exigencies or peculiar merits of the caſe. In England this power, held univerſally elſewhere to be ſtill inherent to the dignity of the ſovereign, was abridged by the Statute before mentioned of the 21ſt of James I. It may not be improper, therefore, in this place to enquire a little into the motives and propriety of this abridgment of the Royal Prerogative. With this view I ſhall beg leave to cite the following paſſage from Blackſtone's Commentaries.
"On the acceſſion of King James I, no new degree of royal power was added to, or exerciſed by him; but ſuch a ſceptre was too weighty to be wielded by ſuch a hand. The unreaſonable and imprudent exertion of what was then deemed to be prerogative, upon trivial and. unworthy occaſions, and the claim of a more abſolute power inherent in the kingly-office than had ever been carried into practice, ſoon awakened [41] the ſleeping lion. The people heard with aſtoniſhment doc⯑trines preached from the throne and the pulpit, ſubverſive of liberty and property, and all the natural rights of humanity. They examined into the divinity of this claim, and found it weakly and fallaciouſly ſupported: and common reaſon aſſured them, that, if it were of human origin, no conſtitution could eſtabliſh it without power of revocation, no precedent could ſanctify, on length of time could confirm it. The leaders felt the pulſe of the nation, and found they had ability as well as inclination to reſiſt it: and accordingly reſiſted and oppoſed it, whenever the puſillanimous temper of the monarch had courage to put it to the trial; and they gained ſome little victories in the caſes of concealments, MONOPOLIES and the diſpenſing power."
It appears, from the above ſtate of the caſe, that this re⯑ſtraint on the king's prerogative was laid at a time, when the people, alarmed for their moſt eſſential and valuable pri⯑vileges, were in a ſtate of hoſtility with the Crown; of whoſe encroachments they were, to the higheſt degree jealous, and whoſe exertions of power they were determined on every oc⯑caſion to oppoſe. Their fears excited, their paſſions heated, and their reſentinent rouſed againſt real injuries, it is no wonder their diſcretion was not ſuffciently on its guard to prevent their encountering imaginary ones.
Not that many of the royal monopolies then eſtabliſhed were not injurious, oppreſſive and deſerving aboliſhment: but they might, and doubtleſs would at any other period, have been aboliſhed without depriving the prerogative of one of the brighteſt jewels of the Crown. For ſuch we may [42] juſtly term the power of patronizing ingenuity and promoting the arts of civil life.
But the rage of reformation, as I have before obſerved, ſtifled the reflection that the exerciſe of new inventions were not monopolies in that ſenſe, which had thrown on the word an odium, continued to this day. The times, however, are altered, and though new inventions remain deſtitute of proper encouragement, we ſee monopolies, of the moſt deſtructive ten⯑dency, eſtabliſhed by the combination, and ſometimes even the ſeparate influence, of opulent individuals, not only without being countenanced by the crown, but even directly contrary to the moſt expreſs and poſitive acts of the legiſlature.
Change of times will juſtify change of meaſures. So far is the nation at preſent from hearing any ‘doctrines preached from the throne or the pulpit ſubverſive of liberty, property and the natural rights of humanity’ as in the time of James I, that we have not the leaſt reaſon to apprehend an abuſe of any additional power, that may be reſtored to the crown reſpecting this part of its prerogative.
Should it be judged, therefore, at preſent inexpedient to grant, or be found through popular prejudice impracticable to obtain the general parliamentary encouragement above⯑mentioned; it is to be hoped the legiſlature will have no objec⯑tion to repeal the clauſe in the aforeſaid act of the 21ſt of James 1. reſtricting the grants of the crown by patent to the term of fourteen years.
[43]Certain, indeed, it is that there are ſome pretended im⯑provements and inventions ſo trivial and uſeleſs, that their authors do not merit an excluſive privilege to exerciſe or profit by them a ſingle day: but this is far from being the caſe with all. The term of fourteen years, however is ſo ſhort, that few inventors chuſe to aſk for leſs, and it is not at preſent in the power of the crown, if any deſerve it, to grant more. It is this circumſtance which eventually and in fact pre⯑vents any diſtinction being made between the encouragement given to the moſt difficult, expenſive and important of ſuch inventions, and the moſt obvious, inſignificant and trivial.
A number of inſtances might be particularized, in which the grant, of an excluſive right for fourteen years only, is greatly inadequate and diſproportional to the ingenuity, labour, expence and utility of ſuch inventions: but, the legiſlature itſelf having acknowledged it by particular grants of premiums to inventors, even after the expiration of the term of their patents, it is preſumed needleſs to inſiſt farther on what is ſo manifeſtly expedient and equitable *. How far what I have written may tend to excite uſeful artiſts to apply for redreſs, or [44] induce the legiſlature to grant it, time will determine: but, be the conſequences what they may, I lay down the pen well ſatisfied with having teſtified my inclination to promote the cauſe of induſtrious ingenuity, and in that the general intereſts of my country.
AFTER the copious and maſterly manner, in which the ſubject of literary property hath been lately treated, as well in the Court of Seſſions in Scotland, as in the Houſe of Lords, it may be deemed impertinent to think any farther animad⯑verſion neceſſary. But a circumſtance or two, to which it was not the immediate buſineſs of the ſpeakers to pay atten⯑tion, leading to conſequences that appear ſtrangely incon⯑ſiſtent with modern practice, I am induced to take the preſent opportunity of noticing them.
By the ſolemn deciſions in the courts abovementioned, de⯑nying the perpettuiy of ſuch property and reſting copy-right merely on the ſtatute, the practice of the Court of Chancery, in granting injunctions againſt pretended pirates and invaders of ſuch property, is materially affected.
If authors have no foundation for copy-right at common-law, the proceedings in equity muſt be founded ſolely and ſtrictly on the ſtatute; by which it does by no means appear that abſtracts, abridgements and compilations (of which the greater number of the new books now published conſiſt) are at all contrary to law.
It is to little purpoſe to determine whether literary pro⯑perty be temporary or perpetual,) unleſs the nature of that pro⯑perty [46] be alſo preciſely determined. In the works of original writers, ſuch as Shakeſpeare, Milton, &c. this property is ſufficiently aſcertained; but for one original writer that ap⯑pears in the republic of letters, there are five hundred copyiſts and compilers. Their number alſo of neceſſity encreaſes, as books are multiplied: nor can it well be otherwiſe, unleſs all improvements in literature be precluded. Nil dictum quod non dictum prius, was ſaid near two thouſand years ago. With how much more propriety therefore may it be ſaid at preſent? In hiſtorical writings and books of ſcience of any extent, ori⯑ginality cannot be pretended to; and, if compilations, ab⯑ſtracts and epitomes are to be no longer allowed, the paper-mills may ſtop, the printing-preſs ſtand ſtill, and its numerous retainers be obliged literally to ſtarve.
It hath been long the cuſtom in the Court of Chancery to grant-injunctions againſt the printers and publiſhers of hi⯑ſtorical and other compilations, under the pretence of ſtaying waſte; in conſequence of which, an injunction ex parte is granted; by which the publication is ſtopped, till, after every ſtudied delay of exception to the defendant's anſwer, the complainant's bill is on hearing diſmiſſed and the injunction diſſolved; when it is frequently impracticable to reſume the publication, and the author or bookſeller is reduced to the neceſſity of ſitting down with the loſs attending an imperfect work, with that of a procraſtinated and litigious law-ſuit into the bargain.
The practice of the Court of Chancery teems with ſuits of this kind; in which the complainant waves his right to ſuch [47] damages as he might claim under the act of parliament, al⯑though he often confeſſedly grounds his bill on that act; ap⯑plying in the firſt inſtance to the Chancellor, to whoſe hands the deciſion, of what is or is not ſecurable property in every book, is thus transferred.
Another inconvenience, ſtill leſs attended to and more ſin⯑gular than the above, ariſes from confining the right of li⯑terary property merely to the ſtatute; and this is, that in ſuch caſe this right itſelf, being conditional; viz. depending on the entry of the book or pamphlet in the hall book of the Company of Stationers; an author, who does not comply with this condition, the ſtatutory ſine qua non of his copy-right, can have no pretenſions to ſuch right at all. So that an au⯑thor hath in fact no copy-right in an unentered manuſcript; which any perſon may therefore, openly or ſurreptitiouſly copy publiſh for his own profit at pleaſure. Macklin, the player, ſome time ſince, obtained an injunction, and on a hearing got damages, of Richardſon the bookſeller, for printing and publiſhing part of the farce of Love A-la-Mode; which the latter employed Gurney to take down at the theatre in ſhort-hand. But ſince the late deciſion in the Houſe of Lords and the reference of copy-right only to the ſtatute, I preſume no ſuch injunction in Chancery can be granted. In what a predieament then ſtand the authors of unpubliſhed manuſcripts, particularly our Engliſh Ariſtophanes, Mr. Foote, ſeveral of whoſe performances are unpubliſhed, and it is neceſſary to the emoluments of his theatre that they ſhould remain ſo? Will it not be expedient for him, and every other profeſſor of unpubliſhed manuſcripts, to enter [48] them without delay in the hall-book of the Company Or will indeed ſuch entry without the actual printing and publi⯑cation of the work ſuffice? I cannot help thinking that ſome difficulty attends she ſolution of theſe queſtions.
It is for theſe reaſons hoped, that as the legiſlature will probably find it expedient to make ſome farther alteration in the laws relating to literary property, ſome farther regulation reſpecting the ſecurity of it will be deemed conſiſtent with it's wiſdom, more preciſely to determine the limits of its appro⯑priation, ſo that both writers and bookſellers may know how far they are authorized to abridge, copy or make quotations from the works of their predeceſſors; without which they cannot ſafely exerciſe their calling, and all improvements in works of hiſtory, philology and ſcience muſt ſpeedily have an end.