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Tonson v. Collins (1762)

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Primary Sources of Copyright (1450-1900)

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Identifier: uk_1762

 

Commentary on Tonson v. Collins (1762)

Ronan Deazley

School of Law, University of Birmingham, UK

 

Please cite as:
Deazley, R. (2008) ‘Commentary on Tonson v. Collins (1762)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

 

1. Full title

2. Abstract

3. The Battle of the Booksellers Begins

4. Lord Mansfield's Court

5. Tonson v. Collins (1761)

6. William Blackstone

7. Joseph Yates and Blackstone's Reply

8. A Collusive Action

9. References

 

1. Full title

Tonson v. Collins (1762) 1 Black W. 321

 

2. Abstract

Significant case in which the arguments for and against the existence of copyright at common law were extensively debated for the first time before the Court of King's Bench. Both William Blackstone (author of Commentaries Upon the Laws of England, and one of the judges to hold in favour of the common law right in Donaldson v. Becket (uk_1774)) and Joseph Yates (who would later provide the dissenting opinion in Millar v. Taylor (uk_1769)) appeared on behalf of the plaintiff and the defendant respectively.

 

3. The Battle of the Booksellers Begins

Having spent considerable time and effort trying to convince parliament to revise the provisions of the Statute of Anne 1710 throughout the late 1730s (without much success),[1] in the following decade the London book trade turned instead to the court of common law to better secure their interests. The case of Midwinter v. Hamilton (1743-48)[2] signaled the beginning of a thirty-year period, often referred to as 'the battle of the booksellers',[3] in which the metropolitan booksellers locked horns with a resurgent Scottish book trade over the right to reprint works for which the term of copyright protection provided by the 1710 Act had expired. In Midwinter, tentative arguments had been proffered concerning the nature of copyright at common law,[4] but they were never seriously developed.[5] When the case was appealed to the House of Lords, as Millar v. Kincaid (1751),[6] William Murray (1705-1793) and Alexander Lockhart, acting on behalf of the London booksellers, cultivated the common law argument. The Statute of Anne they suggested "admits a property in copies of books to have existed in authors before the making of it", which property: "[I]s grounded upon Principles of Common Right, and Publick good, and is not created to support the actions given by the statute; but on the contrary, those actions are given to fence and preserve that property, as their object and foundation".[7] When the Scottish booksellers responded they avoided engaging with the common law argument, instead relying upon objections of a more technical nature to derail the Londoners' appeal.[8] The Lords agreed and the appeal was rejected. The arguments for and against the existence of copyright at common law would not be extensively debated before the courts until the case of Tonson v. Collins (1762).[9]

 

4. Lord Mansfield's Court

When Tonson v. Collins was first heard before the court William Murray was no longer acting as counsel for the London booksellers; now he was presiding over the case in the guise of Lord Mansfield. Rose, writing about the timing of Tonson suggests that it was Murray's recent elevation to the King's Bench that prompted the booksellers to act. He continues:

"Also encouraging to them perhaps was the first decision in a literary-property matter handed down by Lord Mansfield's court, Baskett v. University of Cambridge (1758), in which the court considered that the crown held a perpetual prerogative copyright on certain works that, like any other copyright, could be assigned."[10]

In Baskett v. University of Cambridge (1758) Thomas Baskett (bap.1701, d.1761) and his brother Robert, sons to John Baskett (1664/65-1742), and executors of his estate, had complained about the University printing a work entitled An Exact Abridgment of all the Acts of Parliament Relating to excise on Beer, Ale, Brandy, Vinegar or other Liquors, with some few Notes and References. They claimed that they held the exclusive privilege of printing all Acts of Parliament, under the letters patent granted by Queen Anne (1665-1714) in October 1713; a grant that took effect on 10 January 1739. Joseph Bentham, the Cambridge University printer, argued on the other hand, that under a grant from Henry VIII (1491-1547) to the University in July 1534, the University had the privilege of printing omnes et omnimodos libros, all manner of books, approved by the Chancellor. This included books of statute law.[11] The Court of King's Bench, treading a fine diplomatic line between the two parties, found that the plaintiffs were "intitled to the right of printing Acts of Parliament and abridgments of Acts of Parliament, exclusive of all other persons not authorised to print the same by prior grants". They continued, however, that by virtue of the 1534 grant, the University had been "intrusted with a concurrent authority to print Acts of Parliament ... upon the terms in the said letters patent". While this vindicated the university's right to print the works, it was implicit that it was to exercise such rights for the public benefit, for the advancement of education, but not explicitly for profit. Foster J. (1689-1763), one of the members of Lord Mansfield's court, wrote to Oxford University following the conclusion of the case. Recounting the decision, he added that the court had considered "the powers given by the letters patent" as being ones entrusted "for public benefit, for the advancement of literature, and not to be transferred upon lucrative views to other hands". He continued by articulating his hope that "both the universities will always consider the Royal grants in that light".[12]

 

5. Tonson v. Collins (1761)

Tonson concerned a reprint of Joseph Addison (1672-1719) and Richard Steele's (bap. 1672, d. 1729) The Spectator, first published in 1711.[13] In setting out the plaintiff's case Alexander Wedderburn (1733-1805) relied upon three main threads.[14] In the first place, he presented the courts with the first extended pre-history of copyright, taking the judges back through the bye-laws of the Company of Stationers, the printing patent cases of the late seventeenth century, and the Licensing Act 1662; back through the various decrees of the Star Chamber, the incorporation of the Stationers, and the origins of the prerogative right to grant printing privileges; back to the very introduction of printing itself by Caxton in 1471. Second, he turned to the very nature of property itself, quoting from Selden, and relying upon Grotius for the maxim that "invention is one ground of property, occupancy another".[15] The right of the plaintiffs, he suggested, was an incorporeal one based upon invention; it was no more or less than the profits arising from the publication of a work:

"The right of authors is now to be determined; not of any particular bookseller. From the industry of the author, a profit must arise to somebody; I contend it belongs to the author; and when I speak of the right of property, I mean in the profits of his book, not in the sentiments, style, &c."

Third, Wedderburn drew upon earlier decisions of the Court of Chancery including the "ancient author" cases,[16] as well as Baller v. Watson (1737).[17] The latter he contended was of special significance due to the fact that the Lord Chancellor had decreed a perpetual injunction which, he argued, "he could not have done merely under the Act".

 

Edward Thurlow (1731-1806), acting for the defendant, set forth two main limbs to his counter-argument.[18] First, he insisted that the property argued for "does not exist naturally or flow from natural law". As to the existence such property in the "profits of a work", Thurlow argued:

"Property in the profits of publication must presuppose property in the thing itself. And the subject of this property, if any, must be in the abstracted, ideal, incorporeal composition. Now, the idea of the composition, as it lies in the author's mind, before it is substantiated by reducing it into writing, has no one idea of property annexed to it."

He denied any distinction between the author and the inventor stating that "[i]f the labour of the head gives the right, the property is just the same". For Thurlow, there were two species of property: the physical book, protected by the ordinary rules of common law; and the composition, the incorporeal "labour of the head", which existed, as was the case for inventions, only so far as it was protected by the state. Once the statutory protection of this second form of property came to an end, every man was free to do what he pleased with his book, which included the freedom to reprint the work. Secondly, Thrulow endeavoured to undermine Wedderburn's pre-history by establishing that "where this kind of property has been spoken of by learned men, or even by Courts of Justice", they were merely referring to "the extraordinary Acts of the State". Since the introduction of the printed word, he observed, "privilegeing and printing went hand in hand". Such privileges, or patents, were "totally foreign to any notion of copy-right" having been created solely for "reasons of State".

 

Lord Mansfield decreed that the case stand over for further argument, suggesting that both counsel look further into two types of Chancery case. The first, he commented, were those in which "there had been no printing or publication at all", citing Lord Hardwicke's (1690-1764) decision in the case of Pope v. Curl (1741).[19] The second were those cases where "the term given by Act of Parliament has been clearly expired". Of these Lord Mansfield noted that he could "remember no case" when the merits had been fully argued, or the injunction made perpetual upon the hearing of the cause. Despite these limitations, however, he thought fit to add: "[A]nd yet they have great authority". In directing counsel to those cases concerning unpublished manuscripts (Webb (1732),[20] Forrester (1741),[21] and Pope (1741)) and those texts for which the protection of the Statute of Anne had expired (Eyre (1735),[22] Motte (1735),[23] Walthoe (1737)[24]), Mansfield was in fact directing them to cases that he himself had presented before Lord Hardwicke in the earlier case of Tonson v. Walker (1752).[25] Ten years previously Mansfield (then Murray) had sought to convince Lord Hardwicke that in these cases lay evidence of the earlier Chancery judiciary proceeding upon "the original right" of the author. Thurlow had simply dismissed the decisions arguing that none of them were contrary to the doctrine he advanced. Wedderburn had made reference to these cases, but his emphasis lay with the decree of the perpetual injunction in Baller. Lord Mansfield, that "champion of the author's common law right",[26] with this direction, was encouraging a line of reasoning that would operate in the booksellers favour. It was an argument that he was more than familiar with as one that he had previously developed; the suggestion would not be ignored.

 

6. William Blackstone

The case was reheard in 1762, this time with William Blackstone (1723-1780) as plaintiff's counsel, and Joseph Yates (1722-1770) representing the defendants.[27] Blackstone, who would later provide one of the judicial opinions in the landmark decision of Donaldson v. Becket (1774),[28] took up what Wedderburn had previously begun. Commenting that "it is more satisfactory, first to convince by reason, than merely to silence by authority", he embarked upon an extensive discourse on the existence of common law copyright "[a]s founded in reason". The aim was "to sift right to the bottom, and to argue on principles". Blackstone's philosophical rock proved to be the writings of John Locke (1632-1704).[29] Asserting that the natural foundation of property was "invention and labour" he explained that an original composition exhibited both these qualities: its originality implied invention; the composition implied industry and labour. Of labour in particular, he argued that the "exertion of animal faculties" and "the exertion of the rational powers" should have "as fair a title to confer property" as each other. "Property" he declared "may with equal reason be acquired by mental, as by bodily labour".

 

In contradistinction to Thurlow, Blackstone maintained that "a literary composition, as it lies in the authors mind" had, before being reduced to writing, "the essential requisites to make it the subject of property", and proceeded by examining the nature of the property in question. Also rejecting Wedderburn's claim that the property lay not in the "sentiment" or "style" of a book, but simply in the profits to be made from the sale of the book, Blackstone substituted a tripartite understanding of the work. He suggested that there exists the physical book, the ideas conveyed in that book, and the composition, "those words in which an author has clothed his ideas". "Characters are but the signs of words, and words are but the vehicles of sentiments". For Blackstone it was the composition, or the sentiment, that proved the thing of value from which the profit should arise. It followed from this exposition, that the purchaser of a book, while he acquires certain rights over the book as property,[30] did not, however, acquire "a right to the sentiment, so as to multiply copies". Noting that printing was no more than an "art of speedily transcribing", Blackstone continued: "If an author has an exclusive property in his own composition, while it lies in his mind, when clothed in words, when reduced to writing; he still retains the sole right of multiplying the copies, when it is committed to the press".

 

Having exhausted the position from principle, Blackstone then turned to the law. After re-presenting Wedderburn's pre-history of copyright, he embarked upon a more in depth exposition of those cases that had come "out of Chancery": Webb (1732), Eyre (1735), Motte (1735), Walthoe (1737), Tonson (1739), and Pope (1741). Admitting that they were "not quite decisive", as few had proceeded to a final decree, he nevertheless continued that they showed "the uniform opinion of that Court, that a copy-right may, and does subsist, independent of the Statute of Queen Anne". The argument resonated with Mansfield's own stance in Tonson (1752) when he had argued that "at the common law, authors have a right to their productions, exclusive and independent" of the Statute of Anne, and that "subsequent determinations and expositions show that it has been so understood".[31] Having finished his examination of the Chancery authorities, Blackstone concluded his opening dialogue, by stating that the property argued for, was "founded on the principles of reason, universal justice, public convenience and private property".

 

7. Joseph Yates and Blackstone's Reply

Yates, who would later deliver the only dissenting opinion in the case of Millar v. Taylor (1769),[32] began by conceding the point that the faculties of the mind could give a property just as well as those of the body. He continued that such property as exists in an author's "sentiments", may "be rendered common by the act of the proprietor". The crucial event was that of publication. Until that time the author maintained dominion over his text; upon publication, however, the author's property was "thrown into a state of universal communion". While Blackstone stressed the concepts of invention and labour, Yates focused upon the importance of two fundamentals of property: possession, and indicia. As to the first he relied upon Pufendorf and Bynkershoek as authorities for the proposition that property "must be something susceptible of possession". Yet upon publication of one's ideas, the author could no longer claim to retain anything capable of "separate and exclusive enjoyment". For Yates, property was, above all, a physical rather than a metaphysical entity; it was something "that may be seen, felt, given, delivered, lost or stolen", something that one could lay one's hand upon. In the case of indicia, he asked what marks of appropriation existed to ascertain which "property" belonged to whom. Referring to Lord Kames (1696-1782) who, in his work, History of Property, laid down "visible possession ... as an essential condition of property", Yates asked, "[w]hat are the marks?", and "[h]ow is an author to be distinguished"? He continued that "the act of publication has thrown down all distinction, and made the work common to everybody; like land thrown into the highway it is become a gift to the public".

 

Moving on to consider "the local law of the kingdom", Yates elaborated upon Thurlow's earlier synopsis of the pre-history to the Statute of Anne. The stationers' bye-laws were characterised as "private regulations", the letters patent were "merely privileges", the King's prerogative had nothing to do with the present case, and the decrees of the Star Chamber were dismissed as being merely political in scope and intent. He re-examined the wording of the 1710 Act itself, as well dismissing the significance of the Chancery cases arguing that "whatever that Court prohibits" was not necessarily "actionable at law". Mansfield CJ interjected at this point observing that "[i]f the injunction be well founded, the same determination would be at law". Having stated Blackstone's position, in stronger terms than Blackstone himself had, the Lord Chief Justice continued by reminding Yates of his opposing counsel's argument that works outside the terms of the Act, as well as unpublished manuscripts, seemed to go "upon the original right". Yates replied that for those cases where the term was expired, the injunctions were only until answer, and as to unpublished manuscripts, that the author had dominion over the text, but only until the point of publication. Again, at the point of publication, he commented, the author "emancipates" his work "and makes it common". In Yates' consideration there could exist no natural common law right to literary property. Only the state, through legislative intervention could provide succour for the author. Agreeing with Thurlow, that there was no difference between the work of an author and that of an inventor, Yates observed: "Both are the productions of genius, both require labour and study, and both by publication become equally common to the world. The Legislature seems to have judged so".

 

Lord Mansfield did not restrict himself to the one comment during the course of the defendant's argument. When Yates had described property as something that had to be "seen, felt, given, delivered, lost or stolen", he interrupted once more, essentially dismissing counsel's position: "How would you steal an option, or the next turn of an advowson?" Yates' reliance upon the physical failed to take account of those incorporeal forms of property that had been acknowledged by the common law, and Blackstone was quick to capitalise upon this oversight. When responding to Yates' argument, Blackstone commenced by pointing out that his opponent's analysis had "omitted the distinction between corporeal and incorporeal rights". Both, he suggested, were considered a good basis for property. Then, capitalising upon Mansfield CJ's interjection, Blackstone made reference to numerous examples of incorporeal hereditaments, including options, advowsons, commons and ways, drawing parallels between grazing cattle on common land, between exercising a right of way over another's land, and the publishing of a book. Denying that the act of publication was fatal to the existence of a common law right and rejecting the opinion that "a book when published, is a gift to the public, like land thrown into a highway", Blackstone drew what he considered to be a more apposite analogy:

"[I]t is more like making a way through a man's own private grounds, which he may stop at pleasure; he may give out a number of keys, by publishing a number of copies; but no man who receives a key, has thereby a right to forge others, and sell them to other people."

8. A Collusive Action

The story of copyright in books had journeyed some considerable distance in little over fifteen years. Throughout Midwinter v. Hamilton (1743-1748) the London booksellers' strongest position came with a position which advocated that:

"[I]n Consequence of the Property declared by the Statute to belong to the Authors of Books, and their Assigns, there arises ... an Action founded, not upon the Express words of the Statute giving such Action, but by the Rules of common Law, as a necessary Consequence of the Property itself established by the Statute."[33]

That is, the Statute of Anne had created a property right, which, by definition, carried certain common law penalties for invasion. By the time of Tonson, however, the nature of the debate about literary property had shifted profoundly. Now, various interweaving strands of historical, legal and theoretical argument were being developed in the attempt to establish, or refute, the existence of copyright at common law. Lord Mansfield, commenting that the issue in question had never yet been finally determined, decided that it should be debated before all the twelve judges of the courts of common law, and so ordered that the case be adjourned, to stand over for further argument.[34] As before, he gave some indication of how he himself might decide the issue, in remarking that:

"[A] fair argument will arise from Sir Joseph Jekyll's, Lords Macclesfield's, Talbot's and Hardwicke's proceedings, that they thought there was a property in the author at common law: else they would not have granted the injunctions that have been cited."

Having been referred for the consideration of all twelve common law judges sitting en banc, it emerged that the action had been a collusive one, directed by Tonson, designed to obtain a judgment upon the existence of the common law right. The judges refused to continue with the case considering the precedent of a collusive action a dangerous one to set. Willes J, in Donaldson v. Becket (1774), who favoured the existence of copyright at common law, later recounted the incident in the following manner:

"After these two arguments, the case was adjourned into the Exchequer Chamber. I have been informed from the best authority [Lord Mansfield], that so far as the Court had formed an opinion, they all inclined to the plaintiff. But as they suspected that the action was brought by collusion; and a nominal defendant set up, in order to obtain a judgment, which might be a precedent against third persons; and that therefore a judgment in favour of the plaintiff would certainly have been acquiesced in; upon this suspicion, and because the Court inclined to the plaintiff, it was ordered to be heard before all the Judges. Afterwards upon certain information received by the Judges, ‘that the whole was a collusion, and that the defendant was nominal only and the whole expence paid by the plaintiff,' they refused to proceed in the cause though it had been argued bona fide, and very ably, by the counsel, who appeared for the defendant. The thought this contrivance to get a collusive judgment was an attempt of a dangerous example, and therefore to be discouraged."

 

9. References

 

Government Papers and legislation

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

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

Cases

Midwinter v. Hamilton (1743-48)

Millar v. Kincaid (1751) British Library, 18th century reel, 4065/03, 04.

Tonson v. Collins (1761) 1 Black W. 301

Tonson v. Collins (1762) 1 Black W. 321

Baskett v. University of Cambridge (1758) 2 Keny. 397, 1 Black W. 105, 2 Burr. 661

Baller v. Watson (1729-1737), NA, c.11 1739/34, 1272/7, 2427/24, 1272/17, 1272/18, 1727/16, 2433/14, 2434/18, 1738/35; c.33 351/305, 353/5, 353/38, 353/153, 353/202, 353/292, 353/401, 355/20, 355/27, 357/132, 357/249, 357/271, 357/272, 357/273, 357/419, 357/547, 359/378, 361/14, 361/17, 367/5, 367/23, 367/37, 367/83, 367/188, 369/315

Pope v. Curl (1741) 2 Atk. 342

Webb v. Rose (1732) NA, c.11 1881/156

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

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

Motte v. Faulkner (1735) NA, c.11 2249/4

Walthoe v. Walker (1737) NA, c.11 1534/62

Tonson v. Walker (1752).3 Swans. 672

Millar v. Taylor (1769) 4 Burr. 2303

Donaldson v. Becket (1774) 4 Burr. 2408, 2 Bro. P.C. 129.

Books and Articles

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)

Feather, J.,Publishing, Piracy and Politics: An Historical Study of Copyright in Britain (London, Mansell, 1994)

Locke, J., "Chapter V: Of Property". Reprinted in John Locke, The Second Treatise of Government, Gough, J.W., ed., (Oxford, Blackwell, 1966)

Parks, S. ed., The Literary Property Debate: Seven Tracts, 1747-1773 (London: Garland Publishing, 1974)

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

Simpson, A.W.B., ed., Biographical Dictionary of the Common Law (London, Butterworths, 1984)

Walters, G., "The Booksellers in 1759 and 1774: The Battle for Literary Property", Library, 29 (1974): 287-311


[1] See: uk_1737.

[2] There exist a number of documents relating to this action available in the Bodleian Library, the British Library, and the Advocate's Library, Edinburgh. See for example: Petition of the Booksellers of London against the Booksellers of Edinburgh and Glasgow, 15 July 1746; Answers for the Booksellers of Edinburgh and Glasgow to the petition of Andrew Millar and other Booksellers in London, July 29 1746; and, Answers for the Booksellers of Edinburgh and Glasgow to the Petition of Daniel Midwinter and other booksellers in London, 21 December 1746. See also S. Parks, ed., The Literary Property Debate: Seven Tracts, 1747-1773 (London: Garland Publishing, 1974).

[3] See for example Gwyn Walters, "The Booksellers in 1759 and 1774: The Battle for Literary Property", Library, 29 (1974): 287-311.

[4] Answers for Daniel Midwinter, William Innes, John KNapton, Andrew Millar and others, all of London, Booksellers, 27 February 1747.

[5] For an in depth discussion of the Midwinter decision, 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), 115-32.

[6] Millar v. Kincaid (1751), British Library, 18th century reel, 4065/03, 04.

[7] Ibid.

[8] In short, they argued that the plaintiffs had embarked upon an action that was "complicated", maintaining that it was inconsistent for the plaintiffs to bring a case for both common law damages and statutory penalties at the same time.

[9] Tonson v. Collins (1761) 1 Black W. 301; Tonson v. Collins (1762) 1 Black W. 321.

[10] M Rose, Authors and Owners: The Invention of Copyright (London, Harvard University Press, 1993), 74.

[11] Baskett v. University of Cambridge (1758) 2 Keny. 397, 1 Black W. 105, 2 Burr. 661.

[12] Baskett v. University of Cambridge (1758) 1 Black W. 105, 122.

[13] Feather writing about this case notes that "[i]n the lower courts, the jury had been unable to reach a verdict, and it was now for the King's Bench to resolve the issue"; J. Feather, Publishing, Piracy and Politics: An Historical Study of Copyright in Britain (London, Mansell, 1994), 84. The actual report of the jury's "special verdict" runs as follows: "That before the reign of Queen Anne, it was usual to purchase from authors the perpetual copy-right of their books, and to assign the same for valuable consideration, and to settle them in family settlements, for the provision of wives and children ... That the defendant, without licence of the plaintiffs, and knowing the said copy to have been purchased by said Jacob Tonson deceased, printed, published and sold several copies of the same in April and May 1759, whereby the plaintiffs were damnified; but whether the defendant is liable in law to answer damages, they are ignorant. But if the Court shall adjudge him liable, they find him guilty, damages 5l.; if otherwise, not guilty"; Tonson v. Collins (1761), 301-2, emphasis added.

[14] Wedderburn, later, Lord Loughborough, Earl of Rosslyn, was appointed King's Counsel in 1763, the Solicitor-General in 1771, the Attorney-General in 1778, the Chief Justice of Common Pleas in 1780, and held the office of Lord Chancellor between the years of 1793-1801. See in general, A. W. B. Simpson, ed., Biographical Dictionary of the Common Law (London, Butterworths, 1984).

[15] Hugo Grotius (de Groot), (1583-1645), the Dutch jurist, whose major work, De iure belli ac pacis (On the law of war and peace) (1625), sought to establish certain universal principles of law, which could be applied irrespective of time or place, deduced directly from man's nature, independent of theological considerations; ibid.

[16] See infra: n.22, 23, 24.

[17] (1729-1737), NA, c.11 1739/34, 1272/7, 2427/24, 1272/17, 1272/18, 1727/16, 2433/14, 2434/18, 1738/35; c.33 351/305, 353/5, 353/38, 353/153, 353/202, 353/292, 353/401, 355/20, 355/27, 357/132, 357/249, 357/271, 357/272, 357/273, 357/419, 357/547, 359/378, 361/14, 361/17, 367/5, 367/23, 367/37, 367/83, 367/188, 369/315 (see: uk_1737a).

[18] Thurlow, later Lord Thurlow of Ashfield was appointed first Solicitor-General then Attorney-General in 1770, and later Lord Chancellor in 1778; see: Simpson.

[19] Pope v. Curl (1741) 2 Atk. 342.

[20] Webb v. Rose (1732) NA, c.11 1881/156.

[21] Forrester v. Walker (1741) NA, c.11 867/54.

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

[23] Motte v. Faulkner (1735) NA, c.11 2249/4.

[24] Walthoe v. Walker (1737) NA, c.11 1534/62.

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

[26] Rose, 74.

[27] Tonson v. Collins (1762).

[28] Donaldson v. Becket (1774) 4 Burr. 2408, 2 Bro. P.C. 129.

[29] Blackstone made reference to Locke's Second Treatise of Government, "Chapter V: Of Property", reprinted in J. W. Gough, ed., John Locke, The Second Treatise of Government (Oxford, Blackwell, 1966); in particular see ss. 27-28.

[30] Blackstone commented: "The purchaser of a single book may make any use he pleases of it; but no man, without leave from the author, has the right of making new books, by multiplying copies of the old. If a man has an opera ticket, he may lend it to as many friends as he pleases; but he may not counterfeit the impression, and forge others."

[31] Tonson v. Walker (1752), 674.

[32] Millar v. Taylor (1769) 4 Burr. 2303.

[33] The Petition of Daniel Midwinter, 9 December 1747.

[34] Rose commenting upon Lord Mansfield's decision to refer the case to the twelve common law judges, writes: "Mansfield's unusual decision to have the case heard by all twelve common-law judges - the judges of King's bench, Common Pleas, and Exchequer assembled en banc - was evidently intended to give the decision the widest possible authority so that, even if no appeal were filed, the court's determination would stand"; Rose, 75.


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