the case of the famous Dr. Priestley, already examined.1 On the trial of an action brought by him against a hundred, to recover damages sustained by him in consequence of the riotous proceedings of a mob at Birmingham, amongst other property alleged to have been destroyed, and for the loss of which he claimed compensation, were certain unpublished manuscripts. It was alleged, by way of defense, on behalf of the hundred, that the plaintiff was in the habit of publishing works injurious to the government of the state, but no evidence was produced in support of that allegation. Lord Chief Justice Eyre is stated to have observed, however, that if such evidence had been produced, he should have held it was fit to be received as against the claim made by the plaintiff. But we have taken the liberty to question if such a rule would be followed to-day. A man's manuscript is a chattel, and we doubt if a possible and prospective damage that its publication might do, would destroy its owner's property therein. If this case decided anything, it decided that there can be property in a manuscript.

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Another early enunciation upon the subject was in Webb v. Rose, in 1732, where equity granted an injunction to restrain the clerk of a deceased conveyancer from printing certain conveyancing drafts, which had been used by the latter. In 1741 an injunction was granted against the printing of plaintiff's notes surreptitiously abstracted from him; and in 1755, certain printers who had purchased, from the lord mayor of London, the copy of the sessions paper

Cited 2 Meriv. 437. Ante, pp. 25, 27.

4

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Ante, p. 25.

Cited 4 Burr, 2330.

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• Forrester & Walter, Id.

of trials, were granted an injunction restraining other parties from printing the same.1

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In 1820, Lord Eldon enjoined the performance of a comedy called "The Young Quaker," of the manuscript of which the plaintiffs were possessed. This decision is remarkable as foreshadowing the tendency of the law which resulted in the first English dramatic copyright act, coming many years later, which gave to authors of plays the sole right of representing them, and therefore could only have rested on the common-law ground of proprietorship in the manuscript, including the matter written thereupon.

The common law or statute right of an author in his manuscript being conceded, the whole question, then, in treating of this branch of the subject, will be: has the author relinquished his right to say when, how, and where his compositions shall be published; or, in legal language, has he dedicated it to the public; and what damage has he suffered by the publication against his will?

185. I. Such a dedication to the public as will overcome an author's right to first publish his own manuscript, must be positive and actual. It must be the sole and voluntary act of the author himself. An act which amounts to a publication, if it be entirely or partially the act of another than the author; or, if the author begin and the other complete the act which is construably a publication, it will not be the author's own act, nor amount to a dedication.

For instance: it will not matter how the unpub

1 Manley v. Owen, cited 4 Burr, 2329.

Morris v. Kelly, 1 Jac. & W. 481; vid. also Macklin v. Richardson, Amb. 694.

3 & 4 Will. 4, C. 15

lished work of any one who does not intend to publish, may have come into the hands of another person; that other person cannot publish it without the author's consent. "If any person takes it to the press without his consent, he is certainly a trespasser, though he came by it by legal means, as by a loan or by devolution; for he transgresses the bounds of his trust, and therefore is a trespasser."' And the law is the same whether the case be mechanical or literary; whether it be an epic poem or an orrery. The inventor of the one as well as the author of the other has a right to determine "whether the world shall see it or not." 2

The leading case of Southey v. Sherwood might at first appear to overrule this principle. In that case a motion was made on the part of the poet Southey to restrain the defendants from printing or publishing a poem called “Wat Tyler,” which had been composed by the plaintiff about twenty-three years previously; and had lain unpublished during the whole of that period in the hands of the bookseller, to whom Southey had first sent it for his perusal and consideration as to the advisability of publishing it. But the decision of Lord Eldon, in refusing the injunction, was expressly on the ground that the poem in question, from its libelous tendency, was of such a nature that there could be no copyright in it. Lord Eldon, in refusing the injunction, remarked, "that, in some cases, the refusal of the court to interfere by restraining such may operate so as to multiply copies of mischievous publications; but to this my answer is, that, sitting here as a judge, upon a mere question of property, I have nothing to do with the nature of the

property, nor with the conduct of the parties, except as relates to their civil interests; and if the publication be mischievous, either on the part of the author or of the bookseller, it is not my business to interfere with it."1

This decision of Lord Eldon's, however, has not commanded universal assent, and appears to have been somewhat hasty and ill-considered. A single glance at the case of Southey v. Sherwood, and its supposed precedent in Dr. Priestley's case, must be sufficient to disclose the difference.

In the latter case (the reports of which are principally traditionary, after all), we have said that the most that the court in that case actually ruled, was that, if Dr. Priestley's manuscripts were not innocent in their character, he could have had no property in their contents, had those contents been published, which the law would have recognized, and that it certainly could not be expected to award damages for presumptive profits, which, if they had accrued at all, would have accrued from a positive injury done to the morals of the community. Surely, this ruling does not justify the publication of the contents of a doubtful or non-innocent manuscript, against its author's and owner's will and protest. Mr. Curtis criticises this decision or dictum of Lord Eldon's with much reason, saying:

"There is, or ought to be, some difference between the publication of an author's manuscript, against his will and protest, and the case of Dr. Priestley's MSS., which was destroyed by the act of a mob. There are two kinds or degrees of property in a literary work,

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2 Meriv. 343. Lord Eldon expressly states that he followed the case of Dr. Priestley in this ruling. See Wolcot v. Walker, 7 Ves. 1. On Copyright, p. 157.

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one consisting in the right to take the profits of a book when published, the other in the right to the exclusive possession and control of a manuscript, or the right to publish or withhold from publication altogether. In no case has it been considered that the author's right depends on his intention to publish and to make a profit; but the cases proceed upon the ground of a right of property, by which seems to be intended, a right to the possession and control of the manuscript, and to publish or to withhold it from publication; and this holds equally in the case of a non-innocent and an innocent work. When, therefore, an author has not published, or does not intend to publish, a work existing in manuscript, but, on the contrary, desires and intends to withhold it from publication, the question as to its innocence does not arise, because that question affects only so much of his right of property as consists in the right to take the profits of the publication.”1

The mere parting with the possession of a manuscript, or intrusting its possession to another; or even a permission to another to take and hold a copy of the manuscript, will not amount to an authority to that other person to publish. All such acts will be construed strictly in favor of the author, and against the recipient, by the intention of the supposed licensor,. and the circumstances of the act; and unless it is the express intention and effect of the gift, to pass-with itself-permission to use the contents of the manuscript. for purposes of publication, profit, or gain, at the pleasure of the recipient, no such permission will be inferred by construction of law.

"To make a gift," said the court, in a leading case,

1 Curtis on Copyright, cited Shortt, 1 L. L. 7 (note).

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* Bartlett v. Crittenden, 4 McLean, 5 McLean, 301.

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