Argument for Appellants.

are not private property, and are not susceptible of private ownership, the right to their publication resting in the sovereign. See The Stationers v. The Patentees about the printing of Rolls' Abridgment, Carter, 89; S. C. Bac. Abridg. tit. Prerogative, F. 5; Millar v. Taylor, 4 Burrow, 2304, 2383; Basket v. University of Cambridge, 1 W. Bl. 105; Manners v. Blair, 3 Bligh (N. S.), 391.

Whether the theory of the royal prerogative, or of a private property in the crown be accepted, in either event the sole right of publication is recognized in the sovereign, and in either event the analogy is equally striking in the case at bar. If the right of publishing the laws in England pertained to the sovereign power, then a fortiori does it pertain to the sovereignty here; that is to the public, to the people, or to their government, and no element of private literary property can attach to such publications. And if, as in this case, appellants as private citizens are asserting the right to publish the laws of the State, the State alone can complain.

It is true that while publishing volumes 32 to 46 the reporter received no direct salary from the State. Under provisions of law, the State purchased of him a large number of copies of those volumes at a price affording a large profit on each, which was equivalent to a salary. But it is confidently submitted that the nature of the reporter's functions, and the question of copyright in his reports, are wholly independent of the method by which he receives compensation for his services, or whether, indeed, he is compensated at all. Private citizens are frequently designated to the performance of public duties, without compensation, and in the performance of such duties they may, and do, make written reports of their proceedings for the benefit of the State. It has never yet been asserted that such reports are the private literary property of the persons by whom they are made. The sole test in determining the right of private dominion and ownership in literary productions is, whether the writer is engaged in a private enterprise, and therefore an author within the meaning of the Constitution, or whether he is engaged in a public service, which dedicates the result of his labors to the public.

Argument for Appellants.

The doctrine of exclusive literary ownership in law reports contended for by appellee is also contrary to public policy. The decisions of the Supreme Court of Illinois are part of the law of the land. The reports of those decisions by the official reporter are made by statute evidence of the law. They are, therefore, publications of the laws of the State, in like manner as are the published statutes and acts of the legislature.

II. The appellee is not entitled to relief, because of noncompliance with the conditions of the act of February 3, 1831, 4 Stat. 436, which were in force when the original editions of volumes 32 to 46 were published. The second error assigned is based upon the entire failure of appellee to prove any date of publication of any of the volumes, the absence of any competent proof as to the date of depositing any of the volumes with the clerk of the District Court, the failure to prove that the printed title was filed with the clerk in advance of publication, and the failure to prove the deposit of the printed volumes within three months after publication. The third assignment of error specially challenges the proof admitted by the Circuit Court, as to the date of the deposit of the printed volumes with the clerk. The only proof offered by appellee upon this point consists of a mere memorandum at the bottom of each of the clerk's certificates concerning the filing of the printed title. The memorandum as to the alleged deposit of volume 32 may be taken as a sample of them all. It appears at the bottom of the certificate, following the signature and official seal of the clerk, certifying the transcript of his record as to the filing of the printed title, and is in these words: "Work deposited Jany. 17, 1866, Wm. H. Bradley, Clk." There is no certificate by the clerk that the book was deposited on that or any other day, and indeed, under the act of Congress of 1831, such a certificate by the clerk would have been wholly gratuitous, and would have afforded no competent proof as to the fact in question. The memorandum is not attested by the official seal of the clerk, nor was any proof offered as to the genuineness of the signature purporting to be · that of the clerk. Even if this signature had been proven to be that of the clerk, the memorandum would still have been

Argument for Appellants.

incompetent, being at the most a mere letter or written statement by the clerk, with no opportunity afforded to appellants for cross-examination. To the introduction of these memoranda we objected, upon the ground that they constituted no part of the clerk's certificates, but were merely anonymous statements, without proof as to when, or by whom they were made, and that they were, therefore, wholly incompetent to show the date of the deposit of the volumes. Our objection was overruled, and exception was duly taken.

The fourth and fifth assignments of error relate to the refusal of the Circuit Court to admit the testimony offered by appellants as to the date of the publication of these volumes, showing conclusively that, as to them, appellee failed to comply with the conditions of the act of Congress.

The sixth assignment of error pertains to the relief granted as to volumes 35 and 36. By the clerk's certificate, offered by appellee as to volume 35, it appears that the printed title was deposited with the clerk of the District Court, January 28, 1867. The act of Congress then in force, like the present statute, required a notice of the entry of the copyright to be printed, either on the title-page of the volume, when published, or on the succeeding page. The printed notice, which appears on the back of the title-page of volume 35 of the original edition as published, purports to show its entry in the year 1866, being in the following words: "Entered according to act of Congress in the year 1866." There is, therefore, a variance of a year in the filing of the title, as shown by the clerk's certificate, and in the announcement of the fact, as shown in the printed notice on the reverse of the title-page. As to volume 36, the clerk's certificate shows that the printed title was filed by E. B. Myers and Chandler, while the printed notice on the reverse of the title-page of the volume as published purports to show that the entry was made by E. B. Myers alone. These departures from a compliance with the requirements of the statute are fatal. The uniform current of authority, both English and American, is that the conditions imposed by the statute are indispensable to the creation of a copyright, and that a strict performance of these condi

Argument for Appellants.

tions is absolutely necessary to the existence of any literary property in the published work, and of any right of action for an infringement. Wheaton v. Peters, 8 Pet. 591; Merrell v. Tice, 104 U. S. 557; Murray v. Bogue, 1 Drewry, 353; Jollie v. Jaques, 1 Blatchford, 618; Baker v. Taylor, 2 Blatchford, 82; Struve v. Schwedler, 4 Blatchford, 23; Parkinson v. Laselle, 3 Sawyer, 330.

The learned judge of the Circuit Court, in passing upon these objections gave as his reason for refusing to follow the general current of authority on this point, that there was still an inherent or natural property right in the author. This theory no longer prevails in the courts, and the author must look only to the statute for his protection, and must show a strict compliance with all its requirements. Tested by ordinary rules of property, and by ordinary standards of right and wrong, the "natural property theory" is well founded and should receive the sanction of the courts. It was so held in the great case of Millar v. Taylor, 4 Burrow, 2303, in 1769, and the opinion of Lord Mansfield in that case remains as a most masterly exposition of the natural right of the author to his literary product, independent of the statute of Anne. But in the case of Donaldsons v. Becket, 4 Burrow, 2408, decided in 1774, the House of Lords overruled the doctrine of Millar v. Taylor, five of the law lords being of the opinion that the statute of Anne did not deprive the author of his common law right, while six held that the common law right, after publica tion, was taken away by the statute, and that the author must look to the statute alone for protection. It is a well-known historical fact that Lord Mansfield refrained from voting upon the question in the House of Lords from motives of delicacy, and that his vote, if given, would have left the law lords equally divided upon this question, thereby affirming the doctrine of Millar v. Taylor. Upon this slender margin, therefore, the doctrine was established by the House of Lords, that the natural property right of the author, after publication, is wholly lost, and that he must look to the statute alone for protection. This doctrine has ever since remained unshaken in England, and it received the express sanction of this court in

Argument for Appellants.

Wheaton v. Peters, and has ever since been followed in this country. We are, therefore, no longer dealing with abstract questions of literary property, or with any ethical considerations as to the dominion of the author over the product of his own brain. We are merely dealing with questions of statutory construction, which have long since been determined by the highest judicial tribunals of England and America. And because of the absolute failure of appellee to prove such compliance with the conditions prescribed by the act of 1831, the decree should be reversed.

III. Appellee wholly failed to prove title to any of the volumes, as averred in his bill.

IV. The decree should be reversed, because of appellee's acquiescence in the publication of the volumes, and because of his laches in seeking relief.

In view of the entire course of conduct on the part of Myers, embracing not merely a tacit acquiescence in the Callaghans' publication, but affirmative aid and active encouragement, until they had embarked a large amount of capital in their enterprise; and in view of his unpardonable and unaccountable laches and delay for a period of many months before invoking the aid of the court, it is submitted that he is estopped by his own conduct from the relief sought by his bill, and that the decree should be reversed. And in support of this proposition, the attention of the court is directed to the following authorities: Saunders v. Smith, 3 Myl. & Cr. 711; Beard v. Turner, 13 Law Times (N. S.), 746; Lewis v. Chapman, 3 Beavan, 133; Tinsley v. Lacy, 1 Hem. & Mil. 747; Rundell v. Murray, Jacobs, 311; Hill v. Epley, 31 Penn. St. 331; Webb v. Powers, 2 Woodb. & Min. 497, 523; Platt v. Button, 19 Ves. 447; Baily v. Taylor, 1 Tamlyn, 295.

V. The appellants' volumes did not infringe the copyrights of the original editions. The evidence shows that the syllabuses were prepared from the opinions by independent work. As regards the statements of fact preceding the opinions of the court, in the Callaghan edition, it is to be observed, first, that in very many cases they are wholly omitted, for the reason stated by Mr. Ewell, that the opinions of the court