Commentary on:
Milton's Contract (1667)

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Primary Sources on Copyright (1450-1900)
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Identifier: uk_1667

 

Commentary on Milton's Contract 1667
Ronan Deazley

School of Law, University of Birmingham, UK

 

Please cite as:
Deazley, R. (2008) ‘Commentary on Milton's Contract 1667', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

 

1. Full title

2. Abstract

3. Milton's contract with Samuel Simmons

4. Milton's contract and the Concept of the Author

5. Authors and Publishers

6. Milton and Authorial Copyright

7. Milton in the Courts: Part I

8. Milton in the Courts: Part II

9. Milton in the House of Commons

10. References

 

1. Full title
John Milton's contract with Samuel Simmons for the publication of Paradise Lost (1667)

 

2. Abstract
The contract between the poet John Milton and the stationer Samuel Simmons, concerning the publication of Paradise Lost, is the earliest agreement between an author and a publisher for which there exists documentary evidence. The commentary suggests that, while the terms of the contract do not necessarily reveal anything substantive about how authors in the mid-seventeenth century understood the nature of the rights they had in their manuscript work, it is nevertheless significant. Since the early eighteenth century, Milton, his work, and his contract with Simmons, were all co-opted, in a variety of ways, to service contemporary debates about the status of the author, about author-publisher relations, and about the nature of the relationship between an author and his work within the context of the emerging copyright regime.

 

3. Milton's contract with Samuel Simmons
When John Milton (1608-1674) entered into a contract with Samuel Simmons (1640-1687) on 27 April 1667 for the publication of Paradise Lost he did so for an immediate payment of £5, in addition to which, he was to receive £5 when 1300 copies of the first edition had been sold, £5 when 1300 copies of the second edition had been sold, and a final payment of £5 after the sale of 1300 copies of the third edition. Moreover, the contract provided that the print run for each of these first three editions was not to exceed 1500 copies, and also allowed Milton to require an account of sales from Simmons at reasonable intervals. In exchange for the sum of £20, Milton gave to Simmons "All that Booke, Copy, or Manuscript" of the poem together with "the full benefit, profit, and advantage thereof, or w[hic]hshall or may arise thereby".[1]

 

There is documentary evidence that Simmons paid Milton £5 for the first edition of the work on 26 April 1669; however, thereafter, the question of payment becomes less clear cut. The second edition was published in 1674, shortly before Milton himself died. A third edition followed in 1678, after which we do know that Milton's widow, Elizabeth, received £8 from Simmons on 21 December 1680. This money was accepted by Elizabeth "in full payment for all my right, title, or Interest, which I have, or ever had in the Coppy of a poem Intituled Paradise Lost".[2] Four months later, however, on 29 April 1681, Simmons nevertheless secured another formal release from Elizabeth. This, Lindenbaum suggests, may well have been "in return for the final two pounds owed from the original 1667 contract".[3]

 

While the contract is the earliest agreement between an author and a publisher for which there exists documentary evidence, it seems clear that it wasn't the first such contract ever drafted.[4] Whether the contract can reliably tell us anything about how authors in the mid-seventeenth century understood the nature of the rights they had in their work is, however, open to question. That the author had a property, the manuscript, which he might sell to a stationer, is certainly the case; that the existence of a contract about the same suggests anything as to whether an author considered he had a property right in anything other than the physical manuscript is less obvious.

 

For Patterson, while this, and other similar transactions, did not amount to "a conveyance of copyright", they did however involve "more than the sale of a manuscript".[5] The contract for Paradise Lost, for example, provided that Milton "shall not print or cause to be printed, or sell, dispose, or publish, the said Booke or Manuscript, or any other Booke or Manuscript of the same tenor or subject, without the consent" of Simmons. We might read this provision as a means by which Simmons could safeguard his title to the work, prior to his registration of the same at Stationers' Hall. We know, for example, that Simmons registered the work on 20 August 1667, four months after the execution of the contract. Between contract and registration, however, the only thing legally preventing Milton from selling another copy of his work to another stationer (who might of course register the work before Simmons) would have been the term in the contract preventing the same.

 

The contract, however, also provided that Simmons would "at all tymes hereafter have, hold, and enjoy the same, and all Impressions thereof accordingly, without the lett or hindrance of him, the said John Milton, his exrs or assns, or any pson or psons by his or their consent or privitie". This is certainly a more intriguing clause. It is difficult to understand, for example, on what basis Milton, or his estate, might "lett" or hinder Simmons in the publication of the work, after having sold him "All that Booke, Copy, or Manuscript" of the same. Patterson finds in this an implicit recognition "of the author's creative right",[6] an understanding on the part of the stationer that, regardless of his purchase of the manuscript, the author retained some form of control over the work, whether to amend, correct, or revise the same. This, for Patterson, provides the rationale for the stationers' need to secure an assurance on behalf of Milton, his executors, and his assigns, that they would in no way interfere (or try to compete) with Simmons' publication of the work. Whether Patterson is right to read this much into the contract, it is clear that what Simmons was buying was more than the physical manuscript; he was also buying peace of mind.[7]

 

In any event, what the poet understood by the contractual arrangement is arguably less important than the manner in which the transaction was subsequently interpreted. That is, since the early eighteenth century, Milton, his work, and his contract with Simmons, were all co-opted, in a variety of ways, to service contemporary debates about the status of the author, about author-publisher relations, and about the nature of the relationship between an author and his work within the context of the copyright regime.

 

4. Milton's Contract and the Concept of the Author
It is by and large true that, until the mid-eighteenth century, the emergence of professional authorship was neither economically feasible nor socially acceptable.[8] Michel Foucault, however, draws structural links between the emergence of a nation state that engages in ideological control and penal regulation of the press with the persona of the modern author.[9] Within the context of the British book trade, there is much about the regulation of the press during both the Interregnum and the Restoration to support his analysis.[10] For example, on 29 January 1642 the House of Commons issued an order providing that "the Master and Wardens of the Company of Stationers shall be required to take especiall Order, that the Printers doe neither print, nor reprint any thing without the name and consent of the Author".[11] Here, as Rose observes, we have "[t]he first English affirmation of any kind of authorial interest",[12] albeit one that was intended to hold authors and printers accountable for the content of their published work, rather than affirming any proprietary interest in the same.[13]

 

For Loewenstein, the parliamentary edict of 1642 provides "the single most important piece of evidence in support of Foucault's bibliographic hypothesis".[14] Loewenstein nonetheless challenges the notion that the penal or the censorial impulse provided the predominant driving force behind the constitution of the author prior to the eighteenth century. In exploring the manner in which the theatre and the print trade began to realise rival and competitive practices towards the end of the sixteenth century and in the early seventeenth century, he argues that this competition allowed for the appearance of "editorial authorship as a source of commercial value".[15] In Loewenstein's opinion, Ben Jonson (1572-1637) provides one of the forerunners and most skilful exponents of this emerging, commercially lucrative, bibliographic ego, with the 1616 folio edition of his works evidencing one of the earliest manifestations of author-centred publishing.[16] Other examples of this emergent independent authorial persona, detached from the construct of the author as the subject of punishment, are available. It is the case, for example, that James I (1566-1625) was the first monarch to regularly grant printing privileges not to stationers, but directly to authors.[17] For instance, in 1607 William Stallenge was granted a 21-year privilege for printing his book on Instructions for the Increasing of Mulberrie Trees;[18] in 1610 John Speed (1551/52-1629), the historian and cartographer, was granted a 10-year privilege to print his work on The Genealogies recorded in the Sacred Scriptures,[19] a privilege that was renewed for an additional seven years in 1617.[20] Similarly, privileges were also granted to John Minsheu (1559/60-1627) for his polyglot dictionary, Ductor in Linguas,[21] to the lawyer Thomas Powell (d. c.1635) in relation to his Directions for Search of Records,[22] and to Samuel Daniel (1562/63-1619) for his History of England.[23]

 

The most controversial of these author-centred Jacobean grants, from the stationers' perspective, was that to George Wither (1588-1667) in February 1623. James granted Wither, his assigns and his heirs, a 51-year patent in his Hymns and Songs of the Church; moreover, the grant provided that "no English Psalme-Booke in Meeter, shall be bound up alone, or with any other Booke or Bookes, unlesse the said Hymnes and Songs of the Church be annexed thereto".[24] As Loewenstein writes: "The stationers' outrage at the grant hardly needs explication: the psalter was one of the major texts of English devotional practice, perhaps the major text of private devotional practice. Along with the Primer and the Catechism, it was one of the crucial matrices of popular literacy - and, therefore, a mainstay of the English book trade".[25] The stationers responded by simply refusing to sell or print Wither's Hymns, and campaigned to have the grant revoked. They petitioned James in November 1623, and when that proved fruitless, turned to the Commons instead in 1624. Wither, was called before the Commons, but nothing appears to have come of their investigation into his patent. Thereafter, he presented himself before the Privy Council, who, unsurprisingly, upheld the patent. Nevertheless, his trouble with the stationers continued. This, in turn, led him to publish The Schollers Purgatory, a tract which Wither addressed to the Convocation of 1624, and in which he appealed to the bishops for support in his struggles with the stationers.[26] In The Schollars Purgatory Loewenstein finds the beginnings of "an intriguing new vocabulary, a rhetoric of authorial labour":[27]

"The Booke-sellers do peremptorily challenge an interest in every mans labour of this kind; and a worshipfull Lawyer was latelie pleased on their behalfe to say, that the benefit arising from the sale of bookes, was their ancient, and lawfull birthright. But ... unlesse he can prove, the Author hath sold them his birth-right (as often he doth, for lesse than a messe of pottage) he being the elder brother, the right first ... falleth unto him that clayme just title before the booke-seller."[28]

Wither's tract presents us with an important rhetorical step in the slow movement towards the realisation of the modern author. Moreover, as we have seen, it is one of a number of cultural and legal manifestations of ‘the author' to be traced in the centuries prior to the passing of the Statute of Anne 1710. Indeed, that the figure of the author had been socially and culturally reified to such a significant extent as to have an identifiable market presence by the beginning of the eighteenth century was of central importance in securing the Statute of Anne.[29] For Lindenbaum, Milton's contract with Simmons concerning the publication of Paradise Lost provides us with a similar significant moment in this process. In the contractual exchange, he sees: "an author who is fully acknowledging the condition of authorship, viewing himself as the possessor of property that gives him definite rights ... even as he lives and writes at a time when copyright is solely granted to stationers through entry in the Stationers' Company Register".[30]

 

5. Authors and Publishers
Milton's contract has additional significance within the history of authorship for Lindenbaum because of the "mistaken construction put upon it by Milton's eighteenth-century editors, biographers, and critics".[31] Elaborating upon this in a later article, he suggests that "the contract and its terms became in the course of the eighteenth and early nineteenth centuries a rhetorical weapon with which authors could bludgeon booksellers of their own period in their campaigns for higher payment and for greater respect generally from the reading public".[32] This is certainly the case. When, in 1749, Thomas Newton's (1704-1782) edition of Paradise Lost was published, it carried details about the impoverished circumstances in which Elizabeth Foster, Milton's granddaughter, lived.[33] The account gave rise to a performance of Milton's Comus at the Theatre Royal, Drury Lane, from which Elizabeth received £130, the profits of the evening. When aligned with the fact that Milton himself received only £20 from Simmons, the tale became a staple in subsequent accounts of neglected genius and avaricious publishers. Samuel Johnson (1709-1784), who was involved in arranging the benefit performance, recounted the story in his Lives of the Poets, lamenting that "[t]his was the greatest benefaction that Paradise Lost ever procured the author's descendants".[34] Similarly, in 1812 Isaac D'Israeli (1766-1848) published a collection of essays concerning the Calamities of Authors, in which he complained that "Authors continue poor, and Booksellers become opulent; an extraordinary result!" Whereas Milton received only £20, he continued, "Tonson and all his family and assignees rode in their carriages with the profits of the five thousand pound epic".[35]

 

In reality, however, Lindenbaum suggests that the relatively modest amount which Milton and his widow received for Paradise Lost is not representative of the sums of money that publishers were ordinarily willing to pay to authors for the purchase of their works. In the early eighteenth century, for example, a group of booksellers and printers petitioned the Commons about the inequity of the existing prerogative printing patents; in particular, they argued that it was "unreasonable, that when a Bookseller hath given an author 2 or 300 l for a Copy, he should be forced to pay near half as much more to the Patentees, for Liberty to publish it to the world".[36] That authors routinely received such sums is borne out, once again, by Lindenbaum's research on author-publisher relations in the latter part of the seventeenth century. Thomas Barrow, father to the theologian Isaac Barrow (1630-1677), was paid £400 in April 1681 for the publication of his son's sermons in six volumes; he also received an additional £70 for a seventh volume containing Isaac's Brief Exposition of the Lord's Prayer in October that year.[37] In June 1688, Brabazon Aylmer (bap. 1645, d. in or after 1719) (who purchased Paradise Lost from Simmons in October 1680 for £25) agreed to pay Samuel Clark (1626-1701) £139 15s. to publish one impression of his annotated works on the Old and New Testaments, in addition to which Clark was to receive 30 copies of the Old Testament volume, and 20 copies of the combined Old and New Testament edition; should Aylmer want to publish a second impression of the same, he was to pay Clark an additional £100.[38] In March 1699, Jacob Tonson (1655/6-1736) agreed to pay John Dryden (1631-1700) 250 guineas (£268 15s.) for his Fables, Ancient and Modern, which sum was to be increased to £300 upon the publication of a second edition.

 

These various examples do seem to bear out Lindenbaum's claim that, in general, authors in the mid to late seventeenth century were in a position to negotiate favourable terms and conditions when contracting with the stationers to publish their work. Moreover, they also suggest that, whereas the Statute of Anne 1710 is often read as a watershed moment in the history and development of the concept of authorship, in real terms, its passing seems to have had little impact upon author-publisher relations. As Lindenbaum puts it, the "immediate prospects for [authors] were not so different in 1720 from what they had been in 1700 or 1680".[39] How then to account for the figure of £20 for Paradise Lost? This, Lindenbaum suggests, is understandable in light of the fact that, given Milton's well-known republican politics, the poet was lucky to find anyone who was willing to publish his work. Indeed, one of the first acts upon Charles II's (1630-1685) return was to issue a proclamation requiring the suppression of two works by Milton as well as John Goodwin's (c.1594-1665) Obstructors of Justice.[40] Moreover, given Lindenbaum's biographical research on Simmons, who by all accounts cut a modest figure in the publishing trade at that time, he makes a convincing case that "when John Milton contracted with him for Paradise Lost, the poet was by no means in the hands of a sharper".[41]

 

6. Milton and Authorial Copyright
The modest figure that Milton and his widow received from Simmons, and the penurious circumstances in which his granddaughter found herself, were not just used as a weapon with which authors could berate the publishing industry. They were also co-opted in arguments concerning the author's relationship with his work, the nature of copyright, and the appropriate length of the copyright term. When Lord Camden (1714-1794) rejected the arguments in favour of a perpetual copyright at common law in the course of Donaldson v. Becket (1774),[42] he famously proclaimed that men such as Milton wrote not for money, but for glory:

"Glory is the reward of science, and those who deserve it, scorn all meaner views: I speak not of the scribblers for bread, who teaze the press with their wretched productions; fourteen years is too long a privilege for their perishable trash. It was not for gain, that Bacon, Newton, Milton, Locke,[43] instructed and enlightened the world; it would be unworthy [of] such men to traffic with a dirty bookseller for so much a sheet of a letter press. When the bookseller offered Milton five pound for his Paradise Lost, he did not reject it, and commit his poem to the flames, nor did he accept the miserable pittance as the reward of his labour; he knew that the real price of his work was immortality, and that posterity would pay it."[44]

The poet Robert Southey (1774-1843), in 1819, provided a counterblast to Camden's rhetorical flourish: "Is it possible that this declamation should impose upon any man?" He continued:

"The question is simply this: upon what principle, with what justice, or under what pretext of public good, are men of letters deprived of a perpetual property in the produce of their own labours, when all other persons enjoy it as their indefeasible right - a right beyond the power of any earthly authority to take away? Is it because their labour is so light,- the endowments which it requires so common,- the attainments so cheaply and easily acquired, and the present remuneration so adequate, so ample, and so certain?

The last descendants of Milton died in poverty. The descendants of Shakespeare are living in poverty and in the lowest rank of life. Is this just to the individuals? Is it grateful to the memory of those who are the pride and boast of their country? Is it honourable or becoming to us as a nation, holding (the better part of us assuredly, and the majority affecting to hold) the names of Shakespeare and Milton in veneration? To have placed the descendants of these men in respectability and comfort - in that sphere of life where, with a full provision for our natural wants, free scope is given for the growth of our intellectual and immortal part, simple justice was all that was required,- only that they should have possessed the perpetual copyright of their ancestors' works,- only that they should not have been deprived of their proper and natural inheritance."[45]

Seven years before Southey, D'Israeli made a similar claim. By securing to authors their "natural right", he suggested, "[l]iterature would acquire a permanent and a nobler reward". He continued:

"Where then is the Author to look ... for a provision for his family, or for his future existence? It would naturally arise from the work itself, were Authors not the most ill-treated and oppressed class of the community. The daughter of Milton need not have excited the alms of the admirers of her father, if the right of Authors had been better protected; his own Paradise Lost had then been her better portion, and her most honourable inheritance."[46]

That Milton was an appropriate cipher through which to advocate fuller and better copyright protection for authors was reinforced by the manner in which comments from Areopagitica, his essay on censorship and the freedom of the press, were read as an endorsement of, and argument for, authorial property. In Millar v. Taylor (1769), for example, Willes J (bap. 1723, d.1787) observed as follows:

"In November 1644, Milton published his famous Speech, for the Liberty of unlicensed printing, against this ordinance: and among the glosses which he says were used to colour this ordinance, and make it pass, he mentions, "the just retaining of each man his several copy; which God forbid he should be gain-said!"

So little did he, (though an enthusiast for liberty,) think that the liberty of unlicensed printing should extend to violate the property of copies! and yet, this copyright could, at that time, stand upon no other foundation, than natural justice and Common Law."[47]

In the same case, Lord Mansfield (1705-1793) suggested that the opinions of Milton on the natural rights of the author were of more relevance than any of Locke's philosophical musings on the origins of property, whether tangible or intangible: "The single opinion of such a man as Milton, speaking, after much consideration, upon the very point is stronger than any inferences from gathering acorns and seizing a vacant piece of ground".[48]

 

Curtis, in his influential treatise of 1847, similarly refers to Milton's essay on the press. A strong proponent of the natural rights of the author, he finds in Areopagitica "a contemporary testimony, which places this matter in a very clear light". Curtis continues:

"His vigorous and manly denunciation was directed solely against the system of licensing. He expressly excepts from his censure that part of the [1643 Ordinance][49] which was designed for the protection of the rights of property in authors, and distinctly affirms that one of the "glossing colours" used, to make the ordinance pass, was "the just retaining of each man his several copy, which God forbid should be gainsaid."[50]

Milton, he suggests, "must be allowed to have some weight upon this question. He knew the state of the literature in England, if any man knew it, and he cannot be supposed to have thus recorded the general recognition of the rights of authors ... without knowing of what he affirmed".[51]

 

For Loewenstein, those jurists and scholars who, in the tradition of Willes J, Mansfield, and Curtis, find in Milton's Areopagitica an affirmation of authorial property, are reading too much into the work. In his extended analysis of Milton's essay,[52] he suggests that it is "easy to misread the language of commodification in Areopagitica", and continues that Milton, rather than presenting a defence of authorial copyright, instead provides a "repeated and emphatic defense of stationer's copyright". That is, whereas Milton advocates the importance of the connection between an author and his work as a matter of attribution, he nevertheless tethers the published ‘copy' as a commodity to the stationer. In this manner, the real significance of Areopagitica in the history of copyright law lies in the way in which the work was misinterpreted and re-branded as an essay expounding the author's natural proprietary rights. In Loewenstein's words: "As lawyers and philosophers developed models of the political subject as a bearer of rights, historians and literary scholars would look back at Areopagitica and construe its celebration of attribution as an assertion of authorial rights over the circulation of books".[53]

 

7. Milton in the Courts: Part I
It was not just in Milton's Areopagitica that subsequent proponents of a natural authorial copyright found support for their claims; they also turned to Paradise Lost, or, to be more precise, they drew upon two decisions of the Court of Chancery concerning the right of the Tonson family to exclusively print and publish the same. On 27 October 1680 Simmons sold the rights to publish Paradise Lost to Brabazon Aylmer for £25, a transaction that Aylmer didn't record in the Stationer's Register until 24 July 1683. Aylmer, in turn, sold the publishing rights to Jacob Tonson in two stages: half on 17 August 1683 and half on 24 March 1691.[54] It is not known how much Tonson paid, however Newton, in his preface to his 1749 edition of Paradise Lost suggests that Aylmer realised a generous profit on the sale. The work proved to be very lucrative for Tonson,[55] and it remained a part of the Tonson family's publishing portfolio until the firm's copyrights were sold at auction on 18 April 1767; at that sale the poem's value was estimated at £900.[56]

 

When the Statute of Anne was passed, in addition to the fourteen year term for newly published works, it provided a 21-year protection for works that had already been published. In theory then, after 1731, printers and booksellers were free to publish works from the seventeenth century canon. In reality, the right to publish these works continued to be contested, first in Chancery, and then before the common law courts. Eyre v. Walker (1735), the first of these cases to be litigated, concerned The Whole Duty of Man, first published in 1657. The plaintiffs, in their bill to the court, set out the history of the ownership of the sale and resale of the work down to the present day, a history "now near 4 score years without any other person or persons invading or attempting to invade their right". Moreover, throughout their written submission they variously alluded to the "benefit of the copy of the book", the "right, privilege and property of printing the work", their "right and property", the "copy of the book ... and the sole and exclusive right, privilege and property of printing and vending the same", the "copy of the book ... and all and every the profits thereby arising and also all the estate, right, title, interest, property, claim and demand whatsoever", and finally the "right, title, interest, part or parts, share or shares, property claim and demand of in or to certain copies or proprieties of copies or books", without once making reference to the provisions of the 1710 Act.[57]

 

In reply, Robert Walker challenged the plaintiff's title in the work in a number of ways. First, referring to the Statute of Anne, he claimed to have "as good a right to print and publish ... as any other printer or publisher hath the works of any other ancient author", and argued that the plaintiffs "do not suggest by their said Bill that they have complyed with or that they are within the statute". Second, he continued that, just as the plaintiffs had no right protected under the legislation, similarly they could point to no prerogative grant to print the same. Finally, Walker attacked the existing provenance behind the publication of the work from the point of its first publication; because of the anonymity of the author, he suggested, the plaintiffs could establish no original authority from the same to print the said work.[58] Despite these arguments, the case proceeded no further than the pleadings stage, and the interlocutory injunction originally granted by Jekyll MR (bap. 1662, d. 1738) remained in place.

 

When James and Robert Tonson first defended their right to Paradise Lost in 1739, the defendant was, once again, Robert Walker, publishing under the pseudonym of James Stanton.[59] On 5 May 1739 William Murray, later Lord Mansfield, appeared before the court on behalf of the plaintiffs. Making no reference to the Statute of Anne, he asserted that his clients were "possessed of and intitled unto the copy" of the poem as well as a commentary by Elijah Fenton (1683-1730), The Life of John Milton, which had been written in 1727. He continued that the defendants, Robert Walker and James Abree, had printed their work, which "so far as the same goes is printed in the same words as the same poem and life printed by the said plaintiffs" and prayed for an injunction. An injunction was awarded against the defendants "from printing, publishing, selling or disposing of the said book or poem ... until the said defendants shall fully answer the plaintiffs bill and the Court take other order the contrary".[60] On this occasion, Walker didn't even bother to enter an answer in response, and, as in Eyre the interlocutory injunction remained.[61]

 

8. Milton in the Courts: Part II
When Paradise Lost was litigated for the second time, it was once again Walker who sought to challenge the Tonson's rights in the same. The initial bill of complaint of 26 November 1751 (see: uk_1751) set out the full history of the work as a commodity, from the original assignment by Milton, down to the present proprietors, including the details concerning the additional comments which had been annexed to the text by Elijah Fenton (1683-1730) (in 1727), Richard Bently (in 1732), and most recently, the Rev. Thomas Newton (in 1746). Again, omitting any reference to the Statute of Anne, the petitioners set out that they had hoped that:

"[W]hen their right and title to the said Book, Copy, Manuscript and Poem and to the several additional improvements had been established by such a length of uninterrupted possession, [they] should quietly have continued to enjoy the whole and sole right, benefit and advantage of printing [the same] And that no other person or persons would have invaded such Right by printing the same or any part thereof."[62]

In the earlier action, Walker had failed to enter an answer before the court; this time, along with John Marchant, the editor of his 1751 edition,[63] he submitted a response on 12 December 1751.

 

Walker and Marchant disputed the claim that the plaintiffs had enjoyed quiet possession of the work in the past noting that "several eminent and learned authors have wrote upon the said Poem" including the "Rev. Paterson, Mr. Addison, the two Richardsons and several others". The defendants' edition, whereby "persons unaquainted with the learned languages and polite literature" were to be introduced to "the various Beauties and Excellancies of this Masterpiece of Heroic Poetry", drew upon all these authors, as well as those named in the plaintiff's edition, correcting their "many errors and imperfections". They asserted that their work was designed to introduce "to the publick in a plain and easy way the true sense and meaning" of the work, and continued that "every man has a right of writing and publishing his thoughts and remarks upon any book exhibited to the public". Finally, they acknowledged that any author, whether Milton, Fenton, Bently, or Newton, had "a right and property in the fruits of their own genius, learning and application", but only "for such time as is allowed by the law".[64] The case, which was first reported by Swanston in 1827,[65] came before Lord Hardwicke (1690-1764) on 25 April 1752,[66] and once again it was William Murray, now the Solicitor-General, who appeared for the plaintiffs.

 

Murray grounded his client's exclusive right to publish the poem squarely upon the concept of a perpetual (and assignable) authorial common law copyright. The Statute of Anne, he suggested, was simply "declaratory of an Author's Property". He presented a pre-1710 historical sweep drawing upon the Licensing Act 1662, the bye-laws of the Stationers' Company, and a number of the printing patents cases of the mid to late seventeenth century. Throughout all of these, he insisted, there flowed the same notion: that there existed, prior to the Statute of Anne, a common law property in the reproduction of an author's work. As for the legislation itself, Murray argued that it had been secured at the request of a private petition, which petition asserted "as a thing uncontroverted, that they [the booksellers] had the right in the copies ... the provision by action on the case not being effectual"; moreover, he continued out that the preamble established that the Act was "to encourage authors" and that "taking away copyright would not do it".[67] Finally, he presented a mass of Chancery case law, focusing specifically on those cases concerning manuscript works,[68] as well as those, such as Eyre, which concerned works that no longer fell within the terms of protection set out in the Statute of Anne; these cases, he suggested, all proceeded upon the basis of the common law right.[69]

 

Having heard Murray's argument upon the common law right, Lord Hardwicke commented that, should the action proceed to a full hearing, he would "be inclined to send a case to the judges, that the point of law may be finally settled"; however, the question remained as to whether or not to grant an injunction in the meantime. On this point, the Lord Chancellor observed that "Dr. Newton's notes come within the statute of Anne", which notes the defendants had admitted making use of in their edition. Reiterating that he was not intending "to determine the general issue" at this stage, Lord Hardwicke invited Walker's counsel, Thomas Clarke (1703/04-1764), to explain how the defendants' use of Newton's notes was "not within the statute". In response, Clarke argued that his client's edition was a "fair abridgement", falling within the principle elaborated by Hardwicke himself in Gyles v. Wilcox (1741).[70] From this point, the action simply became another in the series of Chancery cases addressing the issue of abridging a text that fell within the protections of the Statute of Anne.[71] Noting that the important question to ask was "whether the alterations make it a new work, or are intended evasively to colour a new edition", the Lord Chancellor took some time to consider the various texts involved. Five days after the initial hearing, on 30 April 1752, despite reiterating that "a fair abridgement would be entitled to protection", he explained that he considered Marchant's work to be "a mere evasion". An injunction was granted "till Hearing", and Tonson was ordered "to speed his cause". Not surprisingly perhaps, Tonson never did; as a result, the broader question as to the common law right would remain uncontested before the courts for another decade.[72]

 

Murray, who had secured the interlocutory injunction on Tonson's behalf, would of course later preside over Millar v. Taylor (1769) as the Lord Chief Justice of the Court of King's Bench. In that decision, Willes J made specific reference to the injunctions that had been granted in Eyre and in Tonson (1739) noting that, in relation to the latter, the plaintiffs "derived their title under an assignment of the copy from the author in 1667"; as regards Tonson (1752), he continued that "the defendants acquiesced under the injunction, and so have made it perpetual; and would now be guilty of a breach, if they printed Milton".[73] About these injunctions, Mansfield himself would simply observe:

"The judicial opinions of those eminent lawyers and great men who granted or continued INJUNCTIONS, in cases after publication, not within 8 Queen Ann; uncontradicted by any book, judgment, or saying; must weigh in any question of law; much more, in a question of mere theory or speculation as to what is agreeable or repugnant to natural principles."[74]

That the Tonson decisions concerned interlocutory injunctions only, both failing to proceed to a full hearing, was considered irrelevant; for Mansfield they were to be regarded as conclusive: "I look upon these injunctions as equal to any final decree".[75]

 

9. Milton in the House of Commons
Just as Milton played a part in the debates over the nature of literary property in the mid to late eighteenth century, he was similarly regularly invoked in the House of Commons throughout the five years of parliamentary debates that led to the passing of the Copyright Amendment Act 1842.[76] Those in support of Thomas Noon Talfourd's (1795-1854) plans for copyright reform, and in particular the introduction of a post-mortem copyright term, relied upon familiar arguments about the manner in which an author's literary estate should provide for his or her descendants; not only Milton, but Shakespeare and Bacon were also pressed into service in this regard.[77] Although, in the mid-nineteenth century, Camden's exhortations in Donaldson against the concept of the professional, commercial author would have been regarded as largely anachronistic,[78] they did nevertheless find some contemporary echoes in the comments of the radical politician Thomas Wakley (1795-1862). Wakley, himself a publisher, sought to undermine the argument that longer copyright protection would incentivize authors to produce more and more literary works. Talfourd, he suggested, "had failed to show, that the effect of the present law had been to prevent the production or issue from the press of standard or excellent works". The works of Bacon, Shakespeare and Milton, he proffered, were all produced at a time when copyright "was of considerably less value than it was now". That Milton had received as little as £20 for his epic poem did not prevent the poet from publishing the same; such writers, he maintained, "had other incentives to write besides the remuneration they received".[79]

 

In general, however, those challenging Talfourd's proposals made use of Milton, his contract, and his work, in far more subtle ways than had been the case with Lord Camden. Wakley himself drew upon the example of Milton's contract for another purpose, relying upon the familiar trope of the avaricious publisher as an argument against extending the copyright term. He put it to the Commons that a longer copyright term would not necessarily financially benefit the author of any work. Paradise Lost, Wakley continued, was published at a time when copyright (that is, stationers' copyright) was understood to be perpetual in duration, and yet it was of course the publishers, and not Milton, who benefited from the same.[80] In his famous speech of 5 February 1841, Thomas Babbington Macaulay (1800-1859) elaborated upon Wakley's theme: "[F]rom the very nature of literary property, it will almost always pass away from an author's family". In the close proximity of the Garrick performance of Comus, and the injunction granted by Hardwicke against the Walker and Marchant edition of Paradise Lost, Macaulay found the "perfect illustration of what I conceive to be the effect of long copyright". He continued:

"Milton's works are the property of a single publisher. Everybody, who wants them, must buy them at Tonson's shop, and at Tonson's price. ... Thousands who would gladly possess a copy of Paradise Lost, must forgoe the great enjoyment. And what, in the meantime is the situation of the only person from whom we can suppose that the author, protected at such a cost to the public, was at all interested? She is reduced to utter destitution. Milton's works are under a monopoly. Milton's grand-daughter is starving. The reader is pillaged; but the writer's family is not enriched. Society is taxed doubly. It has to give an exorbitant price for the poems; and it has at the same time to give alms to the only surviving descendant of the poet."[81]

Macaulay's exploitation of the conceit of copyright as a tax upon popular education and the public at large was, of course, instrumental in having the 1841 draft of Talfourd's bill thrown out of the Commons before the Bill was even committed;[82] Milton, and his contract, provided one of a number of effective rhetorical weapons in Macaulay's arsenal.

 

Macaulay also made use of the works of Milton to illustrate his contention that a copyright term contingent upon the life of the author was both arbitrary and ill-conceived. When speaking to Mahon's compromise proposal that the copyright term should run for the life of the author plus twenty-five years, he observed: "Milton died in 1674. Now all Milton's copyrights would, by the proposition of his noble Friend, expire in 1699. Comus was written in 1634. To Comus, then, his noble friend gave sixty-five years of copyright, to Paradise Lost thirty-one years, and to Paradise Regained, and Samson Agonistes, twenty-eight years". In short, under Mahon's scheme, the worst of Milton's works would have been protected for "a very long time", whereas the best would be left "with scarcely any protection at all". The same, he continued, would have been true of the works of Dryden, Fielding and Pope.[83] Instead, he suggested, that the copyright term should last for the author's life, or for 42 years, whichever was longer; this, he considered, would be "more just and reasonable, a greater boon to men of letters, and much less inconvenient to the public than [Mahon's] proposal".[84] When Macaulay tabled an objection to Mahon's proposed copyright term, it was carried in the Commons by a vote of 68 to 56. In its place, Sir Robert Peel (1788-1850), the Prime Minister, suggested that the House adopt a modified version of Macaulay's proposal, in that the copyright term would run for a single forty-two year period, or for the life of the author plus seven years post-mortem, whichever was longer.[85] Macauley again objected to any form of post-mortem term on the basis that, with a forty-two year term, "a prudent man ought to be able to make some provison for his children, and to give a term after death was rather offering an encouragement to expenditure". Nevertheless, upon another division of the House, Peel's proposal was comprehensively carried by a vote of 91 to 33.[86]

 

In his speech to the Commons in February 1841, Macaulay had also made much of the fact that Talfourd's proposal of a 60 year post mortem copyright term might lead to "many valuable works [being] either totally suppressed or grievously mutilated". Samuel Richardson's grandson, for example, "was a most upright and excellent man; but he conceived a strong prejudice against works of fiction"; James Boswell's eldest son considered his father's Life of Johnson to be "a blot in the escutcheon of the family". Should the control of the copyright in such works have passed to these individuals "the finest prose work of fiction in the language, the finest biographical work in the language, would very probably have been suppressed". And these examples, he added, concerned works that were "singularly inoffensive"; imagine, he continued, the opportunities which an extended term might present for suppressing "books of a very different kind, - books which are the rallying points of great political and religious parties".[87] Similar objections had been previously raised by Sir John Russell (1792-1878), then the Home Secretary in Melbourne's (1779-1848) government, and by the radical politician, Henry Warburton (1784-1858). Both men had drawn upon Milton to that end. For example, in June 1838, Russell observed that:

"The heirs of an author might entertain opinions, political or religious, opposed to those maintained in his work, and might, in consequence, think it advisable that the work be suppressed, and in the result, the public would be deprived of the work altogether. He would suppose the case of the prose works of Milton coming into the hands of a person who differed with the writer's opinions respecting the royal cause during the civil war. Would any man contend, that the public would not have had great and just cause for complaint, had they been suppressed in consequence of such a circumstance?"[88]

This fear that the ownership of the copyright in a work might lead to the suppression of the same, was eventually addressed within the Copyright Amendment Act by the introduction of a system of compulsory licensing.[89] After an author's death, should the owner of the author's copyright refuse to publish his or her work, then the Judicial Committee of the Privy Council were authorized to grant a licence, "in such manner and subject to such conditions as they may think fit", to ensure the publication of the same.[90] The use of Milton and his work to substantiate claims about the natural proprietary rights of the author, while carrying considerable rhetorical weight, may not, as Loewenstein suggests, accurately reflect Milton's attitudes and thoughts upon the same. To draw upon the author of Areopagitica, however, to warn against the dangers of allowing any individual to determine, on the grounds of their religious or political conviction, whether another's work should be published or not, was arguably a more fitting and appropriate use of the poet's opinions and his work.

 

10. References

Government papers and legislation

Statute of Anne, 1710, 8 Anne, c.19

Licensing Act, 1662, 13 & 14 Car.II, c.33

Copyright Amendment Act, 1842, 5 & 6 Vict. c.45

 

Cases

Webb v. Rose (1732) TNA, c.11 1534/62

Eyre v. Walker (1735) NA, c.11 1520/29

Tonson v. Walker (1739) TNA, c.33 1753/208

Forrester v. Walker (1741), TNA, c.11 867/54

Pope v. Curl (1741) 2 Atk. 342

Gyles v. Wilcox (1741) 2 Atk. 141

Tonson v. Walker (1752), TNA, c.11 1106/18; (1752) 3 Swans 672

Millar v. Taylor (1769) 4 Burr. 2303

Donaldson v. Becket (1774) 4 Burr. 2408

 

Books and articles

Curtis, G.T., A Treatise on the Law of Copyright (Boston: Little and Brown; London: Maxwell and Son, 1847)

Daniel, S., The Collection of the Historie of England (London: Oakes, 1618)

Deazley, R., On the Origin of the Right to Copy: Charting the Movement of Copyright Law in Eighteenth Century Britain (1695-1775) (Oxford: Hart Publishing, 2004)

D'Israeli, I., Calamities of Authors, 2 vols. (London: Murray, 1812)

Kernan, A., Samuel Johnson and the Impact of Print (New Jersey, Princeton University Press, 1987)

Lindenbaum, P., "Milton's Contract", Cardozo Arts & Ent. L.J., 10 (1991-92): 439-54

Lindenbaum, P., "Authors and Publishers in the Late Seventeenth Century: New Evidence on their Relations", The Library, 6th ser., 17 (1995): 250-69

Lindenbaum, P., "Authors and Publishers in the Late Seventeenth Century, II: Brabazon Aylmer and the Mysteries of the Trade", The Library, (2002): 32-57

Lindenbaum, P., "Dispatches from the Archives", Milton Quarterly, 36 (2002): 45-54

Loewenstein, J., The Author's Due: Printing and the Prehistory of Copyright (Chicago and London: University of Chicago Press, 2002)

Loewenstein, J., Ben Jonson and Possessive Authorship (Cambridge: Cambridge University Press, 2002)

Marchant, J., Milton's Paradise Lost ... With notes, etymological, critical, classical, and explanatory. Collected from Dr Bentley, Dr Pearce ... Richardson and Son, Addison, Paterson, Newton, and other authors, 2 vols. (London: Walker, 1751)

Masson, D., The Life of John Milton and History of his Time, 7 vols. (London: MacMillan and Co., 1871-1894).

Newton, T., Paradise Lost: A New Edition, 2 vols. (London: J. and R. Tonson and S. Draper, 1749)

Patterson, L.R., Copyright in Historical Perspective (Nashville: Vanderbilt University, 1968)

Rose, M., Authors and Owners: The Invention of Copyright (Cambridge, Massachusetts and London: Harvard University Press, 1993)

Southey, R., "Inquiry into the Copyright Act", Quarterly Review, (1819): 196-213

Swanston, C.T., Reports of Cases argued and determined in the High Court of Chancery, Vol. 3 (London: 1827)


[1] British Library, Additional MS 18,861; see also D. Masson, The Life of John Milton and History of his Time, 7 vols. (London: MacMillan and Co., 1871-1894) 6: 509-11.

[2] Quoted in P. Lindenbaum, "Authors and Publishers in the Late Seventeenth Century: New Evidence on their Relations", The Library, 6th ser., 17 (1995): 250-69, 257.

[3] Ibid., 257.

[4] On this Lindenbaum writes as follows: "The contract is evidently the earliest known such literary agreement to have come down to us, although, to judge both from the relatively sophisticated and detailed nature of its stipulations and from what we know of the particular character of the two men entering into it, it is by no means necessarily the earliest such contract ever written"; P. Lindenbaum, "Milton's Contract", Cardozo Arts & Ent. L.J., 10 (1991-92): 439-54, 440.

[5] L.R. Patterson, Copyright in Historical Perspective (Nashville: Vanderbilt University, 1968), 73.

[6] Ibid., 72; see in general, ibid., 72-77.

[7] See also Mark Rose's comments upon the contract: M. Rose, Authors and Owners: The Invention of Copyright (Cambridge, Massachusetts and London: Harvard University Press, 1993), 27-30.

[8] Rose, 4. In general see also: A. Kernan, Samuel Johnson and the Impact of Print (New Jersey, Princeton University Press, 1987).

[9] He writes that, historically, the ownership of a text "has always been subsequent to what one might call penal appropriation. Texts, books, and discourses really began to have authors ... to the extent that authors became the subject of punishment, that is, to the extent that discourses could be transgressive"; M. Foucault, ‘What is an author?', in D. Lodge, ed., Modern Criticism and Theory: A Reader, Harlow, 2000, 202.

[10] On press censorship during the Restoration, see: uk_1662.

[11] Quoted in J. Loewenstein, The Author's Due: Printing and the Prehistory of Copyright (Chicago and London: University of Chicago Press, 2002), 162.

[12] Rose, 22.

[13] In the following year an Ordinance was passed to prohibit the printing of any book, pamphlet or paper, without licence; moreover, the Master and Wardens of the Stationers' Company were authorised to search for and seize the same, as well as to "apprehend all Authors, Printers, and other persons whatsoever, imployed in compiling, printing, stitching, binding, publishing and dispersing of the said scandalous, unlicensed, and unwarrantable" works; An Ordinance for the Regulating of Printing, June 1643 (see: uk_1643).

[14] Loewenstein, 162.

[15] J. Loewenstein, Ben Jonson and Possessive Authorship (Cambridge: Cambridge University Press, 2002), 135.

[16] In general see Loewenstein, Ben Jonson.

[17] Elizabeth did grant a privilege in 1563 to Thomas Cooper in relation to his work, Thesaurus Lingue Latine; this however appears to be the only time during Elizabeth's reign that such a privilege was granted to someone other than a stationer.

[18] Cal. St. P. Dom., James I, 1603-10, 344.

[19] Cal. St. P. Dom., James I, 1603-10, 639.

[20] Cal. St. P. Dom., James I, 1611-18, 431.

[21] Cal. St. P. Dom., James I, 1611-18, 10; Minsheu was granted a 21-year privilege in February 1611.

[22] Cal. St. P. Dom., James I, 1623-25, 78.

[23] While most of these works simply indicate that they were published "Cum Privilegio", the 1618 edition of Daniel's work sets out the nature of the privilege granted therein. It reads as follows: "A Speciall Priuiledge, Licence and Authority, is granted by the King's Maiesties Letters Patents, vnto the Author Samuel Daniel, one of the Groomes of the Queens Maiesties most Honourable priuy Chamber, for him and his Executors, Administrators, Assignes or Deputies, to Print, or cause to be Imprinted, and to sell, assigne, and dispose of, to his, or their benefit, This Booke intituled The Collection of the History of England, with an Appendix, to the same, hereafter to bee printed. Straightly forbidding any other to imprint or cause to be imprinted, to import, vtter or sell, or cause to be imported, vttered, or solde, the sayd Booke or Bookes, or any part thereof, within any of His Maiesties Dominions, vpon paine of His Maiesties high displeasure, and to forfeit five pounds lawfull English Monie for euery such Booke or Bookes, or any part thereof, printed, imported, vttered, or solde, contrary to the meaning of this Priuiledge, besides the forfeiture of the sayd Booke, Books, & c. as more at large appeareth by His Maiesties sayd Letters Patents, dated at Westminster, the 1 of March, in the Fifteenth yeare of his Raigne of England, and of Scotland the one and Fiftieth"; S. Daniel, The Collection of the Historie of England (London: Oakes, 1618).

[24] Quoted in Loewenstein, The Author's Due, 145; see also: Cal. St. P. Dom., James I., 1619-23, 502.

[25] Loewenstein, The Author's Due, 145.

[26] For a detailed account of this grant, and Wither's struggle with the stationers, see Loewenstein, The Author's Due, 138-51.

[27] Loewenstein, The Author's Due, 147.

[28] Quoted in Loewenstein, The Author's Due, 148. Loewenstein continues, however, that "[f]or all the force of this language of property", Wither's "ideological location lies somewhere in [the] no man's land between authorial right and royal prerogative"; ibid.

[29] See: uk_1710.

[30] Lindenbaum, "Milton's Contract", 444.

[31] Lindenbaum, "Milton's Contract", 453.

[32] P. Lindenbaum, "Authors and Publishers in the Late Seventeenth Century: New Evidence on their Relations", The Library, 6th ser., 17 (1995): 250-69.

[33] T. Newton, Paradise Lost: A New Edition, 2 vols. (London: J. and R. Tonson and S. Draper, 1749).

[34] Johnson, Lives of the Poets, Vol.1, 277.

[35] D'Israeli, 29.

[36] The Case of the Booksellers and Printers, relating to the Patentees for the sole Printing all Books of the Common-Law, 1704, Lincoln's Inn Library, MP102, Fol.308.

[37] Lindenbaum, "Authors and Publishers: New Evidence", 259.

[38] P. Lindenbaum, "Authors and Publishers: New Evidence", 258-59; see also P. Lindenbaum, "Authors and Publishers in the Late Seventeenth Century, II: Brabazon Aylmer and the Mysteries of the Trade", The Library, (2002): 32-57 (41).

[39] Lindenbaum, "Authors and Publishers, II", 49. He continues: "We might better view the Statute of Anne, then, not so much as the cause of any immediate change in the status and lives of authors, but as a mere symptom in the long-term rise in their status that came with the introduction of print and the concomitant changeover from reliance upon a wealthy patron to the freedom (as well as constraints) of writing much as they pleased on the open market for the public at large"; ibid., 50.

[40] Cal. St. P. Dom. Charles II., 1660-61, 189. The works by Milton included his book Angli Defensio pro populo Anglicano: contra Claudii Anonimi, alia%CC%80s Salmasii, Defensionem Regiam (London: Typis Neucombianis, 1658) and his rejoinder to Anthony Walker's The portraiture of his sacred Majesty in his solitude and sufferings.

[41] Lindenbaum, "Milton's Contract", 449.

[42] Donaldson v. Becket (1774) 4 Burr. 2408; see: uk_1774.

[43] On Locke's contractual arrangements with his publisher, see: Lindenbaum, "Authors and Publishers", 262.

[44] Hansard, 1st ser., 17 (1774): 953-1003 (1000).

[45] R. Southey, "Inquiry into the Copyright Act", Quarterly Review, (1819): 196-213 (211).

[46] I. D'Israeli, Calamities of Authors, 2 vols (London: Murray, 1812), 1: 25, 41-43.

[47] Millar v. Taylor (1769) 4 Burr. 2303, 2314-15.

[48] Ibid., 2400.

[49] See: uk_1643.

[50] G.T. Curtis, A Treatise on the Law of Copyright (Boston: Little and Brown; London: Maxwell and Son, 1847), 33.

[51] Ibid., 34.

[52] Loewenstein, The Author's Due, 152-91.

[53] Ibid., 182, 187-88.

[54] P. Lindenbaum, "Dispatches from the Archives", Milton Quarterly, 36 (2002): 45-54 (46-47).

[55] As Lindenbaum records: "When asked at the height of his published career what poem he had made the most money from, Tonson's immediate response was ‘Milton'"; Lindenbaum, "Dispatches from the Archives", 47.

[56] Ibid, 46-47.

[57] Eyre v. Walker (1735), TNA, c.11 1520/29; c.33 363/419, 480, 525.

[58] Ibid.

[59] Tonson v. Walker (1739), TNA, c.33 1753/208; the list of other plaintiffs referred to in the action included Aaron Ward, John Oswald, Samuel Birt, Edward Wickstead, Richard Chandler, James Hutton, Richard Wellington, Bethell Wellington, John Brindley and John Mew.

[60] Ibid.

[61] For more on these cases, see: R. Deazley, On the Origin of the Right to Copy: Charting the Movement of Copyright Law in Eighteenth Century Britain (1695-1775) (Oxford: Hart Publishing, 2004), 51-86.

[62] Tonson v. Walker (1752), TNA, c.11 1106/18.

[63] J. Marchant, Milton's Paradise Lost ... With notes, etymological, critical, classical, and explanatory. Collected from Dr Bentley, Dr Pearce ... Richardson and Son, Addison, Paterson, Newton, and other authors, 2 vols (London: Walker, 1751).

[64] Ibid.

[65] C.T. Swanston, Reports of Cases argued and determined in the High Court of Chancery, Vol. 3 (London: 1827).

[66] Tonson v. Walker (1752) 3 Swans 672.

[67] Murray was correct in setting out that the booksellers had indeed argued the existence of a right "enjoined by Common Law above 150 years"; what was more, the 1710 Act as originally drafted did appear to affirm such claim. However, what Murray failed to acknowledge was that the Bill as initially drafted, and the Act as it now stood, were, in emphasis and design, two fundamentally different texts; see: uk_1710.

[68] For example: Webb v. Rose (1732), TNA, c.11 1534/62; Forrester v. Walker (1741), TNA, c.11 867/54; Pope v. Curl (1741) 2 Atk. 342 (see: uk_1741a).

[69] For an analysis of these cases, as well as Murray's use of the same, see Deazley, 133-47.

[70] Gyles v. Wilcox (1741) 2 Atk. 141; see also: uk_1741.

[71] Ibid.

[72] See: uk_1762.

[73] Millar v. Taylor, 2326-27.

[74] Ibid., 2400.

[75] Ibid.

[76] See: uk_1842.

[77] See for example the comments of: Robert Inglis (1786-1855) on 25 April 1838 (Hansard, 3rd ser., 42 (1838): 572); Lord Mahon on 19 February 1840 (Hansard, 3rd ser., 52 (1840): 408); Charles Buller (1806-1848) on 19 February 1840 (Hansard, 3rd ser., 52 (1840): 418).

[78] They did however find echoes in some of the objections to Talfourd's proposals for copyright reform. Thomas Wakley, for example, sought to undermine the argument that greater copyright protection would incentivize the production of a greater number of works of cultural worth. The works of Bacon, Shakespeare and Milton, he proffered, were all produced when "when copyright was of considerably less value than it was now"

[79] Hansard, 3rd ser., 51 (1840): 1252.

[80] Hansard, 3rd ser., 52 (1840): 418.

[81] 352-53.

[82] See: uk_1842.

[83] Macaulay provided other examples to illustrate his point: "Take the instance of two contemporary authors, both ladies, and distinguished in the lighter walks of literature, Madame D'Arblay and Miss Austen. The most beautiful of the novels of Miss Austen would have only twenty-years of copyright, for the authoress died shortly after the composition, while the copyright of Madame D'Arblay's Evelina would last sixty-two years. Observe the contrast - twenty-eight years for one work, and sixty-two years for the other, each being of the same class of literature"; Hansard, 3rd ser., 61 (1842): 1365.

[84] Ibid., 1364-66.

[85] In general see: Seville, 60-67, 171-75.

[86] See in general: Hansard, 3rd ser., 61 (1842): 1393-94; Journal of the House of Commons, 97 (1842): 165.

[87] Hansard, 3rd ser., 56 (1841): 353-56.

[88] Hansard, 3rd ser., 43 (1838): 557. Similarly, Warburton warned that the extension of the copyright term might be attended with "effects injurious to authors themselves" in that "it would afford great facilities towards the suppression and mutilation of their works". He continued: "The bill would, therefore, enable the descendants of authors to prevent the public from reading works of genius ... Did they never know suppression might take place from political motives? An illustration of this was found in Mr Pepys's work, from which it appeared, that some religious works of Milton, which were in the hands of Elzevir, the printer at Amsterdam, were suppressed. The publication of any religious opinions of Milton was considered so likely to be dangerous to the interests of the crowned heads of that day, that the matter became the subject of a correspondence between Mr Secretary Williamson and Elzevir, and the result was that the works were then suppressed. ... if his Copyright Bill had existed years before, Milton's Paradise Lost, or Shakespeare's works might have been suppressed". Hansard, 3rd ser., 56 (1841): 151-52.

[89] See: uk_1842.

[90] 1842 Act, s.5; see in general: Seville, 230-232.


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