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Hinton v. Donaldson (1773)

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Primary Sources on Copyright (1450-1900)

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Identifier: uk_1773

 

Commentary on Hinton v. Donaldson (1773)

Ronan Deazley

School of Law, University of Birmingham, UK

 

Please cite as:
Deazley, R. (2008) ‘Commentary on Hinton v. Donaldson (1773)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

 

1. Full title

2. Abstract

3. The Origins of Hinton v. Donaldson (1773)

4. Copyright Litigation in the Scottish Courts

5. The decision in Hinton

6. Scotland and England Divided

7. The Stage is set for Donaldson v. Becket (1774)

8. References

 

1. Full title

Hinton v. Donaldson (1773)

 

2. Abstract

The Scottish Court of Session, drawing upon principles of the civil law tradition, as well as arguments concerning broader national, social and cultural interests, reject the concept of copyright at common law - a decision that is in direct conflict with that of Millar v. Taylor (1769). Lord Monboddo provides the dissenting opinion, drawing upon the labour theory of property rights, and argues for a unified approach to the issue in relation to the common law of both England and Scotland.

 

Drawing upon Scottish Records Office archives the commentary explores the background to, and substance of, the decision. It suggests that, given the nature of the economic threat which the Scottish reprint industry posed to the London book trade, particularly in relation to an increasingly lucrative export market, Hinton undermined much of the value of the decision in Millar. The conflict between Millar and Hinton made it almost inevitable that the question of literary property would soon reach the House of Lords.

 

3. The origins of Hinton v. Donaldson (1773)

On 24 October 1770, only three months after Millar's executors had been granted their perpetual injunction following the decision in Millar v. Taylor (1769),[1] a summons was issued in Scotland by John Hinton and Alexander McKonochie against Alexander Donaldson (bap.1727, d.1794), John Wood and James Meuros, for printing, publishing and selling the Rev Thomas Stackhouse's (1681/82-1752) History of the Holy Bible. In the summons, Hinton set out how Stackhouse, having first published his History in 1738, sold "the Copy Right and Sole Privilege of printing reprinting and selling" the work to Stephen Austin, in January 1740. He then traced the ownership of the work through Austin's death in December 1750, to his wife Elizabeth, who had subsequently married Hinton in August 1752. John MacLaurin (1734-1796), acting for Donaldson, raised two initial objections upon which Lord Coalston, on 11 July 1771, ordained that both parties give in memorials for his consideration. The first set out that Austin's will had made reference only to his "wife" and that nothing had been produced to prove that at the time of the making of the will he was married to Elizabeth. Second, he argued that what property Elizabeth might have had, which took the form of a chose in action, did not automatically become Hinton's property upon marriage.[2] In response, Hinton stated that there was a difference between a personal chattel in action, and one in possession, and observed that:

"The copy Right belonging to authors in their own work, is understood in the law of England to be a right of property, transferable to assignees, and passing to executors; and where an author or his executor or assignee, is in possession of that right, and in the use of exercising it, what occasion has he for an action to recover it." [3]

He continued that he and his wife:

"[W]ere in the actual possession of the manuscript, they were in the daily use of printing editions of the work, of publishing it and receiving the produce, and ... they do not see what further they could do, unless they were to bring a declaratory action [against] the whole world to have it found and declared that they had right to a thing that the law already gave them a right to, that they were in full possession of." [4]

Lord Coalston considered that MacLaurin's objections involved specific issues of English law and directed the parties to take the advice of the English Bar. On 9 August 1771 Messrs Dalrymple and MacDonald provided their opinion upon both of the issues raised. On the first point, Elizabeth was found to be the wife in whose favour Austin had made his bequest. As to the second matter, they observed:

"Property in Copy rights stands now determined by the late judgment in the court in the case of Millar v Taylor to be perpetually vested in the author, his heirs and assigns, And it was admitted by the learned judge who differed in opinion from the court that this property could be no other than a personal chattel. Personal chattels are distinguished into, choses in action and choses in possession. The former arise from some contract express or implied; and require the interposition of legal judgment and execution to reduce them into possession; The latter, not requiring such interposition, but so called when the right and occupation are found to concur. Property in copyright can therefore not be called a chose in action, because it is a vested exclusive power of printing and publishing such copy; requiring no remedy of law to ascertain." [5]

As a result, on 16 November 1771, Lord Coalston ordained Donaldson to be ready to plead his defences in causa, against the next calling. Both parties submitted memorials upon the merits of the cause and on 5 August 1772, after which the matter was referred to the Lords of Session. Hinton and Donaldson were required to hand in printed Informations to the Lords' boxes;[6] on 12 January 1773, they were ‘inrolled' in the Innerhouse Rolls.

 

4. Copyright Litigation in the Scottish Courts

Between the time of both Hinton and Donaldson submitting their memorials for the consideration of Lord Coalston, and the final decision of the Lords of Session in July 1773, a number of other actions were brought before the Scottish court. In July 1772 Edward (1732-1779) and Charles Dilly (1739-1807), proprietors of Thomas Nugent's (c.1700-1772) A New Pocket Dictionary of the French and English Languages in two parts (corrected and improved by John Astrue), alleged that William Anderson and William Gordon had been importing Irish reprints of the work for sale in Scotland. As a consequence the London booksellers sought payment of the penalties detailed in the Importation Act 1739.[7] In December of the same year, William Johnston complained that John Reid and others[8] had printed an edition of Henry Brooke's (c.1703-1783) The Fool of Quality, or the History of the Earl of Moreland. Having purchased the work from Brooke, Johnston asserted that it was "secured" to him by "the common law of Great Britain" and "sundry Acts of Parliament made anent Literary Property and particularly by an Act made in the 8th year of Queen Anne".[9] Although making reference to the common law, it was clear that Johnston rested his claim firmly upon the Statute of Anne. After setting out in full those sections of the 1710 Act which he considered relevant, he gave an assurance that he had also registered his work in Stationers' Hall, in accordance with the requirements of the statute. The defenders, he continued, had printed and sold the work "in open defiance of the Laws and Acts of Parliament concerning Literary Property", as a result of which he sought delivery of the books remaining in their possession for the purpose of being damasked and made waste, the penalties provided in the 1710 Act, as well as "sufficient reparation" for the damages he had sustained "in his property".[10] In the same month as Johnston's action, William Griffin proceeded against Gilbert and Alexander McPherson, printers in Edinburgh, and John McLeish, Robert Clark and William Darling, booksellers in Edinburgh. Griffin did not even make reference to "the common law of Great Britain" but simply set out that "by sundry Acts of Parliament made anent Literary Property, and particularly by an Act made in the eight year of Queen Anne" he had "the sole right of printing and vending" a number of books, (The West Indian, a Comedy, The Brothers, a Comedy, The Fashionable Lover, a Comedy, and The Grecian Daughter, a Trajedy), all of which had been "regularly entered in Stationers-Hall as the Law directs". Several persons had printed these works, as a result of which Griffin sought delivery of the defenders remaining books that they may be damasked, payment of the penalties contained in the Act, as well as £500 "in the name of Damages" and a further £100 for the expense of taking the process.[11]

 

The language of these actions is illuminating. Despite the decree in Millar v. Taylor in favour of the perpetual common law right, all of these claims were positioned squarely within the terms of the existing legislation, both the Statute of Anne and the Importation Act 1739. That this should have been the case is in one sense not surprising, given that all the contested works fell within the time limits delineated in those statutes. However, an additional explanation for the London booksellers' legal temerity perhaps lies with the developments that were occurring in Hinton v. Donaldson. It was clear that the Scottish booksellers in general, and Donaldson in particular, were challenging the author's right as had been previously recognised in the English King's Bench. Even if the issue of perpetual copyright had been decided in England, it was still contestable in Scotland given that the Act of Union 1707 had specifically preserved the independence of the Scottish judiciary to decide upon questions of private law.[12] While the 1707 Act may have established a politically unitary state, it had also allowed for the existence of a unique system of legal pluralism.[13]

 

5. The decision in Hinton

Returning to Hinton v. Donaldson (1773), the arguments assembled for the benefit of the Lords of Session were, not surprisingly, remarkably similar to those that had already been amassed and developed over the past three decades, and finally expounded before Lord Mansfield's (1705-1793) court. Hinton maintained he had a property "at common law, and in the general principles of reason and justice"; Donaldson denied the claim. In addition, however, both did explicitly address the position of literary property within the law of Scotland. Hinton sought to refute any implication to be drawn from the fact that, prior to the Act of Union and the Statute of Anne, what protection works of literature had historically received in Scotland, was all by way of prerogative grant. Instead, he suggested, the common law right was not "affected by any municipal law or custom of Scotland" and, "without entering deeper into the nature and rise of patents for the printing of books", continued that "there is nothing in that practice repugnant to an author's having an inherent natural right in his own work". If there was nothing inconsistent with the laws of Scotland, then it remained the case that the common law right was "agreeable to, and warranted by it". Why must this be so? Because:

"[E]very right which is either deducable from natural principles, or from the laws of nations, and rules of found policy, must be considered as aided and supported by every system of laws and administration of justice, that have the good and happiness of mankind for their object."[14]

Donaldson, on the other hand, having examined "the civil law", "our own ancient customs", "acts of legislature", the "authorities of our lawyers", and the "judicial determinations of our Courts", discovered "not the least glimpse ... of literary exclusion, independent of special grant". On the contrary, there were "ample materials to show, that it is adverse to every notion of the common law of this country". Unlike the English common law system, the Scottish legal system had been strongly affected and influenced by the Romano-Germanic civilian tradition. Where the English legal system had remained largely isolated from the reception of Roman law, throughout the sixteenth century, the Scottish system had aligned itself, as did most of Europe, with the legal inheritance of Justinian's Corpus Iuris Civilis.[15] Donaldson was quick to point out that "[t]he only literary property acknowledged in the civil law, was that which was in the owner of the paper, or parchment". In short, Roman law did not admit of incorporeal properties.[16] Moreover, as to the practice of granting patents in literary works, these he maintained were "indulged from favour" and were understood to be part of the prerogative, upon which footing "stood the exclusive privileges of printing all over Europe". Asserting that they were "creative" and "not corroborative of the author's right", Donaldson listed a number of patents granted to some of the foremost eminent lawyers in Scottish history. Works by Sir Thomas Craig (1538?-1608), Alexander Gibson (d.1644), Sir John Nisbet (1610-1688), Sir John Gilmour (bap.1605, d.1671), Alexander Falconer (1593/94-1671), Sir George Mackenzie (1636/38-1691), Sir James Dalrymple of Stair (1619-1695) and Sir James Stuart (1635-1713) had all been protected by patent grant. This very fact, he argued, illustrated:

"[M]ore clearly what was understood to be the law of Scotland, than the most direct authorities from their books could have done. Their works are silent upon the subject, but the reason is plain, because the notion of literary property was not then conceived in Scotland. All that any of our authors ever looked for, was an exclusive right by patent, or by act of parliament, for a certain number of years."[17]

The hearing before the Court of Session began on 20 July 1773. David Rae (1729-1804), Alexander Murray (1736-1795) and Allan Maconnochie spoke on behalf of Hinton; John MacLaurin (1734-1796), Ilay Campbell (1734-1823) and James Boswell (1740-1795) represented Donaldson. After one week the Lords issued the following interlocutor: "On report of Lord Coalston, and having advised the Informations hinc inde, and heard parties procurators in the cause, the Lords sustain the defences, and assoilize and decern".[18] Their decision was contrary to Lord Mansfield's earlier decree and against the perpetual right. It was also by majority (with one dissenting voice, that of Lord Monboddo (bap.1714, d.1799)), thereby providing a neat reversal of the earlier decision in Millar (1769).

 

Of the thirteen judges present, eleven voted for Donaldson, eight of whom provided an opinion on the issue.[19] The Scottish judges were quick to draw a marked distinction between the law of England and the law of Scotland. Lord Hailes (1726-1792) commented that "English law, as to us, is foreign law"; Lord Kennet pronounced "it ought to have no influence in determining upon the law of Scotland".[20] The Lord Justice Clerk (Lord Glenlee (1717-1789)) set out that:

"The law and judicatures of Scotland will give their aid to an Englishman, and to every foreigner, for rendering effectual every property, and every right established in him by the right of his own country, not averse to the property and rights of the subjects of this country, established in them by the common law of Scotland."[21]

Only Monboddo, the dissenting voice, expressed the opinion that "the common law of Scotland and England, must, I think, be the same in this case" given that the common law of any nation "is founded upon common sense and the principles of natural justice". These principles required "that a man should enjoy the fruits of his labours".[22] For the majority however, this was solely a Scottish action, and as such, the decision in Millar (1769) had little relevance. Instead, three central tenets emerged, woven throughout the majority of the judicial opinions. A common law copyright was deemed to have no foundation either in the law of nature, or the law of nations, nor was any vestige of such a right to be found in the law of Scotland.

 

As to the first of these, property, as a concept, was fundamentally concerned with the tangible and corporeal. Lord Gardenstone (1721-1793) noted that "[t]he ordinary subjects of property are well known, and easily conceived ... lands and tenements, houses and gardens, fishings, and moveables of great variety". "But", he continued, "property, when applied to ideas, or literary and intellectual compositions, is perfectly new and surprising".[23] For Lord Kames (1696-1782), the meaning of property involved a right to "some corporeal subject, that can be possessed, that can be transferred from hand to hand, that goes to heirs, that may be stolen or robbed, and that may be demanded by a real action".[24] Property, in Lord Coalston's opinion had to be "descendible to heirs, affectable by creditors, and forfeitable for crimes", none of which characteristics were applicable to "abstract ideals".[25] While a man had an interest in "the productions of his own brain", if he should commit his thoughts to "paper, parchment, or any other material, he then has a res corporalis, which is a proper object for dominium, or property". If, however, he should sell or otherwise alienate his manuscript, Lord Alva (1722-1796) continued, "he therewith conveys his whole interest".[26] In regard to the law of other nations, Lord Gardenstone observed that "[t]he principles of reason and justice, as approved by all civilised nations, do support the author's claim to a temporary protection or privilege, [but] not to a property or perpetual right".[27] Lord Coalston considered it significant that:

"[T]hough supposed to be a common-law right, [it] has not been acknowledged in any country except England; and even then it appears to be a modern invention, always disputed, and never settled, till a late decision in the Court of King's Bench, which was not unanimous." [28]

Agreeing that "[n]o trace of it can be discovered in modern nations ... England only excepted", the Lord Justice Clerk noted that it was on account of "the love of knowledge, and the admiration of the works of learning and genius" that "mankind are prone to give to authors, not only the merit, but the reward that is due to them for their works". Moreover, it was upon this basis that "every civilised state in modern times has introduced exclusive privileges to authors".[29] With respect to the law of Scotland in particular, Lord Hailes pointed out that "[f]rom Lord Stair down to Forbes all our authors are silent concerning it: from Lord Stair down to Forbes all our authors have acted as if there had been no such right". Again, the Lord Justice Clerk concurred. Having examined "our statutes, the Roman law, the ancient customs of the kingdom, the doctrines of our lawyers, and the decisions of this court" he could find no trace "of this idea of a copy-right or property in an author".[30]

 

6. Scotland and England Divided

It is tempting to dismiss the stark contrast between the judicial reasoning displayed in Millar (1769) and that in Hinton (1773) as reflecting two divergent legal traditions: the common law and the civil law. However, the Lords of Session framed their opinions in such a way as to make it clear that, not only did Scottish law prevent recognition of the perpetual right, but that, in any case, they intrinsically disagreed with the position adopted by the English court. Ignoring obvious jurisprudential differences, the Scottish judiciary would have arrived at a decision that was contrary to the Court of King's Bench anyway. More than one judge considered the wording of the Statute of Anne "to be against the common law right",[31] in addition to which the Lord President considered the very passing of the Importation Act 1739 as "inconsistent with a common-law right".[32] Moreover, the Lord Justice Clerk, Lord Gardenston, Lord Kames and Lord Coalston all expressed difficulty in drawing any meaningful distinction between the author of a book, the inventor of a machine, or the engraver of a work of art. All were "equally the works of genius and industry, and in their publication may be useful to mankind".[33]

 

The Scottish judges, like Yates J. (1722-1770), were also fundamentally concerned with the social implications of holding in favour of a perpetual right. Lord Coalston indicated that, while this was not a question that would actually affect the position of the author very much, nevertheless it represented a question "in which the booksellers of London, on the one side, and the whole subjects of the country in general, and more particularly all the other booksellers in Britain, on the other side, are deeply concerned".[34] Lord Alva indicated his satisfaction in arriving at such a decision as "justice, and the encouragement of learning and industry, require", and concluded with the caustic observation that he did "not envy any other state or country, where either common or statute law may have carried it farther".[35] However, it was Henry Home, Lord Kames, who proved the most forthright. "So far from being founded on common law", he considered the right contended for as "contradictory to the first principles of society". Should such a right exist, "it would be a sad day for learning, and for the interest of learning in general" as a perpetual monopoly would "unavoidably raise the price of good books beyond the reach of ordinary readers" and leave "the commerce of books ... in a worse state than before printing was invented". "[A] perpetual monopoly of books", he considered, "would prove more destructive to learning, and even to authors, than a second irruption of Goths and Vandals". For Kames, God had planted "the branch of the common law" in the hearts of men for the good of society, and that common law was "too wisely contrived to be in any case productive of mischief".[36] Just as easily as Lord Mansfield could perpetually protect an author's work according to the "principle of right and wrong, the fitness of things, convenience [and] policy", Lord Kames was able to dismiss the claim for the perpetual right as "contrary to law, as ruinous to the public interest, and as prohibited by the statute". The common law in England might sanction such a state of affairs, but the common law of Scotland could never do so. "[I]t belongs to judges", he observed, "to look forward; and it deserves to be duly pondered whether the interest of literature in general ought to be sacrificed to the pecuniary interests of a few individuals".[37]

 

7. The Stage is set for Donaldson v. Becket (1774)

In the England of 1709, when the London booksellers petitioned the House of Commons for a legal protection of its property,[38] there existed little in the way of provincial printing. What printing did subsist outside of London was directed primarily towards the production of local newspapers, handbills, tickets and catalogues, rather than the book market.[39] At the beginning of, and indeed throughout, the eighteenth century, printing and publishing in England remained firmly metrocentric. As Feather remarks, "[t]he English book trade was unshakeably metropolitan in its organization".[40] One consequence of this was that, when the booksellers lobbied Parliament for legislative protection, they did so with a united voice, representing all those legitimately involved in the book trade. By the middle of the eighteenth century, however, the Scottish book trade began to provide an unwelcome challenge to the Londoners' stranglehold over book publishing. The Scottish booksellers were well able to supply many of the provincial booksellers in England with cheap imprints of London editions. Moreover, with ports in Glasgow, Greenock and Leith, Scotland was eminently well placed to capitalise upon the growing export trade in books to America, as well as establishing links with Norway, Russia, the Netherlands, Germany, France, Portugal and Spain.[41] As time moved by, it became apparent that the southern booksellers no longer spoke on behalf of what was now a truly British industry. Put simply, in McDougall's words, "[t]he Scots saw the copyright question differently".[42]

 

The period following Millar (1769) should perhaps have been a time in which the perpetual common law copyright dominated the publishing landscape within England. And yet, the reality of the decision's immediate impact upon the book trade was not as dynamic as one might expect. There were, initially, only two actions before the Court of Chancery in which perpetual injunctions were granted against piratical editions. The first of these was Millar (1770) itself,[43] and the second was Macklin v. Richardson (1770).[44] That there were only two injunctions is indicative of the fact that illegitimate printing in the capital was not the London book trade's main concern. Rather, it was the Scottish reprint industry. However, when a case was brought in Scotland, involving a work that fell outside the terms of the Statute of Anne, the argument in favour of the perpetual common law right was comprehensively rejected by the Scottish Lords of Session. This was a decision that did not sit easily with the earlier adjudication of Lord Mansfield and the Court of King's Bench, and in effect insulated the main threat to the predominance of the London book trade from legal challenge.

 

The legal plurality of a politically united British state allowed for the legitimization of two fundamentally opposed concepts of copyright: one in the north and one in the south. This tension was, in reality, almost inevitable. It seems unlikely that Lord Mansfield's court, given the centrality of his earlier participation in the development of the booksellers' position,[45] would ever have decided other than in favour of the London booksellers. By the same token, it is equally unlikely that the Lords of Session would ever have adjudicated other than against the perpetual right and the southern monopolists, in support of an indigenous industry that promised economic, social and cultural benefits for Scotland as a whole.[46] What was needed was a final and authoritative resolution to the question of literary property, the opportunity for which came sooner rather than later.

 

Just three months after Hinton had issued his summons in Scotland, on 24 January 1771, John Rivington (1720-1792) and a number of other booksellers entered a bill of complaint in the Court of Chancery against Donaldson and his brother John, for printing a one-volume edition of Henry Fielding's (1707-1754) The History of the Adventures of Joseph Andrews.[47] In Donaldson's answer to the charge, dated 25 June 1771, he pointed out that the right to print the work had been first assigned to Andrew Millar (1705-1768) in 1742, and, given that Henry Fielding (1707-1754) had died in 1754, this meant that Millar could not have become entitled to print the work beyond the first fourteen year term after publication. What right Millar had over the work had come to an end in April 1756. For the Donaldson brothers this meant that, when Rivington and his associates had purchased Fielding's work at the trade sale of Millar's literary estate, they, in effect, had not purchased anything at all. Barely a week and a half after Rivington had entered his bill of complaint, a second was entered against the Donaldson brothers, this time by Thomas Becket and others, objecting to an edition of Fielding's The History of Tom Jones.[48] Donaldson responded to them both continuing to assert the supremacy of the Statute of Anne and challenging the London booksellers' victory in Millar (1769). He admitted publishing the works, but on the terms of the "literal and true meaning" of the Statute of Anne wherein each had become "common property" and "a lawful subject of commerce to all printers and booksellers in the kingdom of Great Britain".[49] It was in relation to a third bill entered against Donaldson, once again by Becket and his associates, that the opportunity arose to re-examine Millar (1769), and resolve the difference that existed between the English and Scottish courts, one way or the other. The stage was set for a compelling and comprehensive finale in the guise of Donaldson v. Becket (1774).[50]

 

8. References

Governmental papers and legislation

Statute of Anne, 1709, 8 Anne, c.19

Importation Act, 1739, 12 Geo.II, c.36

An Act for an Union of the two Kingdoms of England and Scotland, 1707, 5&6 Anne, c.8

Cases

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

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

Millar v. Taylor (1769) 4 Burr. 2303

Macklin v. Richardson (1770) Amb. 694

Hinton v. Donaldson (1773)

Donaldson v. Becket (1774) 4 Burr. 2408

Books and Articles

Blackstone, W., Commentaries on the Laws of England, Book the Second (Oxford: Clarendon Press, 1766)

Feather, J., The Provincial Book Trade in Eighteenth Century England (Cambridge: Cambridge University Press)

Levack, B.P., The Formation of the British State: England, Scotland, and the Union 1603-1707 (Oxford: Clarendon Press, 1987)

MacLean, A.J., "The 1707 Union: Scots Law and the House of Lords", Journal of Legal History, 4 (1983): 50-75

Mann, A., The Scottish Book Trade 1500-1720, Print Commerce and Print Control in Early Modern Scotland (East Lothian: Tuckwell Press, 2000)

Meston, M.C., Sellar, W.D.H., and The Rt Hon Lord Cooper, The Scottish Legal Tradition, New Enlarged Edition (Edinburgh: The Saltire Society & The Stair Society, 1991)

Parks, S., ed., The Literary Property Debate: Six Tracts 1764-1774 (New York and London: Garland, 1975)

Temple, K., Scandal Nation: Law and Authorship in Britain, 1750-1832 (Ithaca and London: Cornell University Press, 2003)


[1] Millar v. Taylor (1769) 4 Burr. 2303; see: uk_1769.

[2] On the method of acquiring property in goods and chattels upon marriage at this time, see Blackstone, W., Commentaries on the Laws of England, Book the Second (Oxford: Clarendon Press, 1766), 433-35.

[3] Scottish Records Office (SRO), CS 231 42/4.

[4] Ibid.

[5] Ibid.

[6] Information for Mess. John Hinton of London, Bookseller, and Alexander Mackonochie, Writer in Edinburgh, his Attorney, Pursuers; against Mess. Alexander Donaldson and John Wood, Booksellers in edinburgh, and James Meurose, Bookseller in Kilmarnock, Defenders (January 2 1773), reprinted in S. Parks, ed., The Literary Property Debate: Six Tracts, 1764-1774 (New York and London: Garland, 1975); Information for Alexander Donaldson and John Wood, booksellers in Edinburgh, and James Meurose, Bookseller in Kilmarnock, defenders; against John Hinton, Bookseller in London, and Alexander McConochie, Writer in Edinburgh, his Attorney, Pursuers (January 2 1773), reprinted, ibid.

[7] SRO, CS 16 1/150, CS 237 D3/12, 15; on the Importation Act, 1739, 12 Geo.II, c.36 see: uk_1737.

[8] John Robertson, William Darling, Robert Clark, Alexander McCaslan, John Wood, James McLeish and William Anderson.

[9] SRO, CS 16 1/152, CS 229 J/55.

[10] Ibid. Two months later, in February 1773, Johnston, in conjunction with Benjamin Collins (the same Collins of Tonson v. Collins (1761, 1762) 1 Black W. 301, 321) complained, in essentially the same terms as his earlier libel, that Robert Mundell, William Darling, Robert Clark and John Wood, Alexander McCaslan, James McLeish, William Anderson, Charles Elliot and James Dickson, had printed and sold an edition of Tobias Smollett's The Expedition of Humphry Clinker; SRO, CS 16 1/154, CS 229 J/56.

[11] SRO, CS 16 1/154, CS 237 G2/31.

[12] Article 18 of the Act of Union stated "that the Laws which concern publick Right, Policy and Civil Government, may be made the same throughout the whole United Kingdom; but that no Alteration be made in Laws which concern private Right, except for evident Utility of the Subjects within Scotland"; An Act for an Union of the two Kingdoms of England and Scotland, 1707, 5&6 Anne, c.8.

[13] On the legal union of the two nations: B.P. Levack, The Formation of the British State: England, Scotland, and the Union 1603-1707 (Oxford: Clarendon Press, 1987), 68-101; A.J. MacLean, "The 1707 Union: Scots Law and the House of Lords", Journal of Legal History, 4 (1983): 50-75.

[14] Information for John Hinton, 19-24.

[15] M.C. Meston, W.D.H. Sellar, The Rt Hon Lord Cooper, The Scottish Legal Tradition, New Enlarged Edition (Edinburgh: The Saltire Society & The Stair Society, 1991), 29-64.

[16] Information for Alexander Donaldson, 25-38.

[17] Ibid. For a recent commentary on the manner in which literary works were granted legal protection in early modern Scotland, see A. Mann, The Scottish Book Trade 1500-1720, Print Commerce and Print Control in Early Modern Scotland (East Lothian: Tuckwell Press, 2000), 95-124.

[18] The Decision of the Court of Session, upon the Question of Literary Property; in the cause Hinton against Donaldson, &c., Published by James Boswell, Esq., Advocate, one of the Counsel in the cause; Printed by James Donaldson, for Alexander Donaldson (1774), in Parks, The Literary Property Debate: Six Tracts.

[19] Two of the Lords of Session, Lord Strichen and Lord Alemore, were absent. Of the thirteen that were present, that only twelve in total voted, is explained by the fact that the Lord President traditionally did not cast his vote, unless the rest of the Lords were equally divided upon the issue before them, in which case he exercised his casting vote. That the Lord President did not vote however, did not prevent him from delivering an opinion upon the case before him. He did so in Hinton, and it is clear that he agreed in principle with the majority of the Lords.

[20] See also Lord Coalston who dismissed the relevance of Millar (1769) commenting that "the decision in the present case ... must be determined, not according to the law of England, but by the law of Scotland"; in The Decision of the Court of Session, 30.

[21] Ibid., 16.

[22] Ibid., 11.

[23] Ibid., 25.

[24] Ibid., 18.

[25] Ibid., 28.

[26] Ibid., 32.

[27] Ibid., 22.

[28] Ibid., 27.

[29] Ibid., 14-15.

[30] Ibid., 16.

[31] Lord Kennet, The Decision of the Court of Session, 1.

[32] Ibid., 34.

[33] Lord Justice Clerk, ibid., 15.

[34] Ibid., 27.

[35] Ibid., 32.

[36] Ibid., 18-21.

[37] Ibid.

[38] See: uk_1710.

[39] J. Feather, The Provincial Book Trade in Eighteenth Century England (Cambridge: Cambridge University Press), 98-121.

[40] Ibid, 120.

[41] Ibid., 4, 14-22.

[42] Ibid., 3.

[43] Information for Alexander Donaldson, 2 January 1773, 71.

[44] Macklin v. Richardson (1770) Amb 694; see: uk_1833.

[45] See for example: uk_1762.

[46] Indeed, Temple writes that "Hinton clarifies what remains buried in other literary property cases: disputes over literary property are embedded in questions of national and cultural identity. However ‘non-national' such disputes may seem at times, they have serious consequences for the survival of national and cultural traditions and thus are construed through a national lens"; K. Temple, Scandal Nation: Law and Authorship in Britain, 1750-1832 (Ithaca and London: Cornell University Press, 2003), 118.

[47] John Rivington, Thomas Cadell, Thomas Beckett, Thomas Davies, Thomas Caslon, Thomas Longman, Stanley Crowder, Thomas Loundes, William Johnston, William Strahon, Robert Horsefield, George Robinson, and John Roberts; The National Archives (NA), c.12/1323/15.

[48] The other booksellers mentioned in the bill are Thomas Caslon, Thomas Cadell, Edward Dilly and Charles Dilly, Thomas Longan, John Rivington, Thomas Davies, Lacey Hawes, William Clark and Robert Collins, William Richardson and John Richardson, William Strahan, William Johnston, Thomas Lowndes, George Robinson, John Roberts, Stanley Crowder and Elizabeth Baldwin; NA, c.12/1321/9.

[49] NA, c.12/1323/15.

[50] See: uk_1774.


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