joined, whether it be long or short, is called the paper "book," or the demurrer "book." In the court of exchequer, a roll was anciently denominated a "book,' and so continues, in some instances, to this day. An oath as old as the time of Edward I. runs in this. form: "And you shall deliver into the court of exchequer a book fairly written," &c. But the book delivered into court, in fullfillment of this oath, has. always been a roll of manuscript.' The present familiar form of a book, or folio of two pages, was invented by Julius Cæsar, who adopted that form for his letters to the senate, instead of the ordinary roll in use among the Romans. But before the law the import of the term "manuscript" will doubtless be less derivatively exact, and the distinction disregarded, and by "manuscripts" the law will imply any unpublished work. 2 182. A literary composition may be a book entitled to copyright without being printed. Mr. Justice Yates, one of the jurists who rendered an opinion in the greatest case of literary property that English jurisprudence has ever seen, in a peculiarly felicitous. illustration compared the ideas of an author to birds. in a cage, “which none but he can have a right to let fly. For, till he thinks proper to emancipate them, they are under his own dominion. It is certain every man has a right to keep his own sentiments as he pleases. He has certainly a right to judge whether he will make them public, or commit them only to the sight of his friends. In that state, a manuscript is, in every sense, his own peculiar property; and no man can take it from him, or make any use of it which he has not authorized, without being guilty of a violation 3 1 Erskine for plaintiff in Hime v. Dale, 3 Camp. 27 (note). 'Millar v. Taylor, 4 Burr, 2378. Roberts v. Myers, 13 Month. Law. Rep. (N. S.) 396. 6 1 3 of this property." The cage is the manuscript, and the slightest public use, is an invasion. Its contents are sacred from notice, in whole or in part, or even from the publication of a resumé, synopsis, abridgment, description, or even a catalogue of its contents.3 This incorporeal right to publish will be most zealously guarded, nor can it be construed as belonging even to a creditor who has seized an author's manuscripts, or as passing to assignee in bankruptcy. He has a right to them as chattels, but he cannot publish their contents. Neither can an author be forced to publish his works for the benefit of his creditors. Even under such circumstances, the author's right of withholding the publication will continue till the very moment his book is actually given out to the public. Even the printer of the book will not be entitled to sell it for his payment, although there is not the smallest doubt that he has a complete lien over it till delivery, to prevent the author or his creditors from taking advantage of the publication till he shall be paid. When a book is published, the property of it forms a subject which creditors are entitled to attach and sell; and the price unpaid by the bookseller is as completely open to the diligence of creditors, as the price of any other commodity or piece of merchandise. And so, Per Yates, J. 4 Burr, 2378. 2 Wheaton v. Peters, 8 Pet. 657. Hoyt v. Mackenzie, 3 Bart. ch. 323. Bartlett v. Chittenden, 4 McLean, 301. Prince Albert v. Strange, 13 Jur. 112, 1 M. & G. 42. Maughan on Literary Webb v. Rose, 4 Burr, 2330. Pope v. Curl, 2 Atk. 342. Manly v. Owens, Burr, 2320. Southey v. Sherwood, 2 Meriv. 342. 2 Story on Eq. § 943. Property, 74, 137. 3 * Prince Albert v. Strange, 13 Jur. 112, 1 Mac. & T. 42. 4 I Bell's Com. 268. 5 Curtis on Copyright, 85. 1 Bell's Com. 68. 4 Burr, 2396, 2397. Curtis on Copyright, 218. Dodson on Patents and Copyright, 2nd ed. 430. в I Bell's Com. 68. where one had compiled an abstract of public records of title, with great labor and care, it was held, in a very recent case, that although a sheriff might seize them upon execution, he would have no right to publish them to satisfy the judgment.' 2 And a sculptor may distribute plaster casts of his model, among his friends, without losing a right to first publish it. The public exhibition of a picture, for the purpose of obtaining subscriptions to engravings of it, and even the publication of a representation of a picture, accompanied by a description in a periodical, has been held to abridge no author's rights therein.* The author may even limit the circulation of his manuscript to his own particular friends, guests, or pupils, and such private circulation will not be construed to license the appearance of either a catalogue description or a copy of it, for the benefit of any one else. 6 For the purposes of their regulation, the law will make no discrimination between the forms of unpublished works; so, whether in manuscript or in print (ie. privately printed), both will be controlled by the law relating to manuscripts. In either case, a mere possession will not imply a right to publish. The principles of the common law are mainly invoked in dealing with manuscripts. In this country, however, they are protected also by statute. The act of Congress of July, 1870, which was passed to revise, consolidate, and supersede all existing statutes of copyright, provides that any person who 'Banker v. Caldwell, 3 Min. 94. See this case discussed post, in chapter on Contracts, &c. " Turner v. Robinson, 10 W. ch. Rep. 3 Id. Bartlett v. Chittenden, 5 McLean, 32. 4 • Prince Albest v. Strange, 13 Jur. 112; 1 Mac. & T. 42. ช U. S. Stat. at large. shall print or publish any manuscrips whatever, without the consent1 of the author or proprietor first obtained (if such author or proprietor be a citizen of the United States, or resident therein), shall be liable to said author or proprietor, for all damages occasioned by such injury, to be recovered by action in any court of competent jurisdiction.--And this protection was held (in the similar enactment in the statute of 1831, to extend to any part of, as well as to the whole of a manuscript), but that it did not operate to take away the right of property which the auther possesses in his unpublished works by common law. This right of an author to his manuscripts is often alluded to as "copyright before publication," and is often so spoken of by writers upon literary property. This copyright before publication is the more ancient of the two. It is the exclusive privilege of first publishing any original material product of intellectual labor. Its basis is property, and it depends entirely on the common law.a The first question settled in the leading case of Donaldson v. Beckett was, that the author has the prior right to the publication of the contents of his own manuscript under all circumstances. Eleven judges, including Lords Mansfield and DeGray, and Messrs. Justices Blackstone and Yates, were unequivocal as to this point. The act of 1831 (now repealed) required this consent to be in writing, signed in the presence of two or more credible witnesses; but the provision is retained in section 4964 of the revision of 1873–74. 2 Wheaton v. Peters, 8 Pet. 657; Woolsey v. Judd, 4 Duer, 385; Bartlett v. Chittenden, 5 McLean, 301; Jones v. Thorne, 1 N. Y. Leg. Obs. 409; Hoyt v. Mackenzie, 3 Barb. ch. 320. Id. 183. The whole gist and substance of the law of literary property, as relating to unpublished works, consists solely in the right to first publish. And in this the law has a regard to the nature of the property itself. It assumes that the only value of an unpublished work is the power to publish,-either by oral delivery, exhibition, expression by gesture, pantomime, or by the multiplication of its contents by mechanical processes, such as transcribing, printing, engraving, and the like. There are exceptional cases, indeed, where the value of the unpublished work in the author's hands, seems to be insisted on, as apart from a right to publish. As, for instance, where men of culture and wealth have accumulated collections of their own sketches or descriptions, which they exhibit only to personal friends. But it is submitted that the principle is not affected by these exceptions. The right claimed here is in reality the same as in all other cases, differing in degree rather than in kind. It is still the right to a first publication; that is to say, if the matter is to be published at all, the author claims the right to publish it himself; the exhibition to personal friends being nothing more or less than a publication where the public or audience is chosen by the exhibitor. Of course, a manuscript, like any other chattel, may have a historical or sentimental value. It may be an antique or a curiosity, like a palimpsest or a parchment; it may be an heirloom, a souvenir, or an ornament. In such cases it will not be considered under the head of literary property, but rather of property personal, like any other. 184. The earliest case in which a court was called upon to adjudicate concerning the common-law rights of an author to his manuscript, was prob bly 'As in the case of Prince Albert v. Strange, 13 Jur. 112. 1 |