"Pirate" Publishing: The Battle Over Perpetual Copyright in Eighteenth-Century Britain

PIRATE PUBLISHING
THE BATTLE ovER PERPETUAL CoPyRIGHT

IN EIGHTEENTH-CENTURy BRITAIN
PIRATE PUBLISHING
THE BATTLE ovER PERPETUAL CoPyRIGHT
IN EIGHTEENTH-CENTURy BRITAIN
Yamada Shji
Translated by Lynne E. Riggs
International Research Center for Japanese Studies
Kyoto
NICHIBUNKEN MoNoGRAPH SERIES No. 13
First English edition published in December 2012
By the International Research Center for Japanese Studies
3-2 Oeyama-cho, Goryo, Nishikyo-ku, Kyoto 610-1192, Japan
Tel. 075-335-2222Fax. 075-335-2091
Website address: http://www.nichibun.ac.jp/
Layout by Shishikura Masashi
ISBN 978-4-901558-57-0 ISSN 1344-4972
Pirate Publishing: Te Battle over Perpetual Copyright in Eighteenth-Century Britain by
Yamada Shji (translated by Lynne E. Riggs and published by the International Research
Center for Japanese Studies) is licensed under a Creative Commons Attribution-
NonCommercial-NoDerivs 3.0 Unported License.
Originally published as Kaizokuban no shis: Jhasseiki Eikoku no eiky kopraito
ts : 18 by Misuzu Shob.
2007 Yamada Shji
Yamada Shji is a professor at the International Research Center for Japanese Studies
(Nichibunken). His specialties are the informatics and the history of cultural exchange. After
acquiring a B.A. and a M. Med. Sci. at Tsukuba University, he earned a Ph.D. from Kyoto
University. Yamada worked for four years at IBM-Japan, then took a position as research
assistant at Tsukuba College of Technology. He was appointed as an associate professor at
Nichibunken in 1996. Yamada is the author of fourteen books, the most recent of which
are Nihon no chosakuken wa naze konna ni kibishii no ka (Why Japanese Copyright Is So
Severe: Jinbun Shoin, 2011); Komonzu to bunka: Bunka wa dare no mono ka (Commons and
Culture: Who Owns Culture?: Tkyd Shuppan, 2010); Shots in the Dark: Japan, Zen, and
the West (Te University of Chicago Press and Nichibunken, 2009).
Lynne E. Riggs is a professional translator and editor based in Tokyo. With Takechi Manabu,
she translates mainly nonfction works through their company, the Center for Intercultural
Communication. She served as managing editor of Monumenta Nipponica 1997 to 2009
and coordinating editor of the Society for Writers, Editors, and Translators SWET Newsletter
from 2004 to 2012. She has taught Japanese-to-English translation at International Christian
University since 2000.
2012 by the International Research Center for Japanese Studies
v
CoNTENTS
Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Chapter 1 Monopoly and Piracy of Books . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Chapter 2 Rivals for the Treasures of Copyright . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Chapter 3 Nineteen Days in Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51
Chapter 4 Scotlands Network of Diabolical Knowledge . . . . . . . . . . . . . . . . . . . 89
Chapter 5 Te Donaldsons Legacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
Epilogue. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
Appendices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
vii
Tis book was frst published in Japanese under the title Kaizokuban no shis:
Jhasseiki Eikoku no eiky kopraito ts (Misuzu Shob, 2007). Te English edition
is its translation, incorporating original text from the works cited as well as some
revisions to refect sources newly obtained after publication of the Japanese edition and
correction of some errors.
Te book treats the courtroom battles over copyright in eighteenth-century Britain
from the viewpoint of the law, but also elucidates the process by which the practice of
limited copyright became established by taking into account the social, cultural, and
literary history of the times and looking at the interpersonal relations among lawyers and
other personalities involved. Te reader may well wonder why a book like this, written by
a Japanese author on the eastern edge of Asia and three centuries later, is needed?
I became intrigued by the subject of copyright after listening to my son, in fourth
grade at the time, tell about what happened to him at school. Children from the fourth
grade up in Japan are taught about copyright to the efect as follows: Writings or
pictures/images created by others may not be freely copied or imitated. Te content
of published CDs may not be copied without permission. All works are under what is
known as copyright, so it is wrong to imitate or copy them without obtaining permis-
sion from their creators.
So the children in my sons class took the instructions to heart, but one day, he told
me, a student in a creative arts class was stuck for an idea to fulfll the assignment on a
class project and appealed to the teacher for help. As is often the case, the teacher advised:
Why dont you have a look at what your classmates are doing, and see if you can get an
idea from them? So the student went to look at the projects of his classmates who are
good at creative arts, only to be told: You know, if you copy what Im doing, youll be
infringing on my copyright!
Tat was not long after Prime Minister Koizumi Junichir proposed in 2002 that
Japan should strengthen the foundations of its knowledge resources in order to become
an intellectual property-based nation (chizai rikkoku) like the United States. Since that
time, elementary school students have regularly been taught about copyright in this
vein, through a public education campaign orchestrated by the Ministry of Education,
Culture, Sports, Science and Technology and the Agency for Cultural Afairs. Tis is an
ideal educational policy, at least as far as the advocates of copyright are concerned, but
what troubled me was how such rules could adversely afect the school curriculum.
Copyright is a very self-serving right, a right artifcially created in order to protect
PREfACE
viii
Preface
the interests of specifc people. But is this something that we should be teaching young
children to boldly assert? Shouldnt we be teaching children about the importance of
reaching out a helping hand to classmates in need of support, the value of mutual infu-
ence and cooperation, and how good creative work and good interpersonal relations
can come about through helping and working with each other? Tis is the question that
has concerned me in the past few years and that motivated me to write about pirate
publishing, tracing it back to eighteenth-century England.
In terms of historical origins, Japanese copyright law derives from traditions of
German civil law and is distinct from copyright as found in Anglo-American law. Still,
both Anglo-American and Japanese copyright law basically set forth rights designed to
support the contents industry.
Let me introduce some examples of what I believe would be considered illegal under
copyright in Japan.
Copying all the pages of a book borrowed from a library.
Copying selected pieces from various music CDs to make a private collection
CD for distribution to a number of people.
Making an original manga story using a favorite manga character [created by
another artist], and putting it on sale at the Comic Market.
Using an animation-flm character or music from a mass-market CD on ones
personal website.
Streaming a program or commercial recorded from television on the Internet.
Translating the text of a recently published novel or the dialogue of a recently
released flm produced overseas and posting it on the Internet.
Can one say without qualifcation that all of these actions are bad? Are we sure?
How long does the copyright to works apply? In Japan today, for works published
under an individuals real name the period is ffty years from the death of the author; for
those published by an organization, ffty years from date of publication; and for flms,
seventy years from their frst release. Tese terms are quite long by comparison with
patents, which are protected for only twenty years.
Authors rights were not always protected for so long under Japanese copyright. Un-
der the old copyright law of 1899, authors rights were protected for thirty years following
the death of the author and for photographs, for ten years after publication. Under the
current law, which was enacted in 1971, protection for authors rights was extended to
ffty years. Te term of protection for flms and photographs was also extended, but for
ffty years after release/publication, which was rather shorter than the period extending
from the death of their author. Photographers organizations then called for the exten-
sion of copyright for photographs, and in response, under the copyright law that was
ix
revised again in 1996, it was extended to ffty years after the death of the photographer.
Te copyright to flms, too, was extended from ffty years to seventy years in 2004.
Behind the demand for the extension was, of course, the interests of the flm industry.
Te extension of flm copyright occurred in response to those wanting Japanese
copyright laws to conform to international standards. Te flm industry was able to
conveniently claim that, while United States law protects flms for ninety-fve years
after their release, Japan was behind the times in setting the term as only ffty years.
Supporting the movement were people who stood to lose if the term were set at ffty
years and the copyrights to many works of Japans golden age of cinema began to
expire, one after another.
Te copyright to the classic flm directed by Ozu Yasujir (19031963), Tokyo Story
(1953) expired in 2003 in Japan, but since the term of protection for flms was extended
in 2004, the copyrights to works like Kurosawa Akiras (19101998) Seven Samurai
(1954) and Honda Ishirs (19111993) Godzilla (1954) are now protected until 2024.
Te strongest advocate of the extension of Japanese flm copyright protection was
the United States government, and the greatest benefciaries of the extension were, it is
known, the Hollywood flm studios. For Disney flms as well, the copyrights for classics
like Cinderella (1950), Alice in Wonderland (1951), and Peter Pan (1953) had expired by
2003 under Japanese law, and if no change had been made, the same would soon be true
for popular works like Te Lady and the Tramp (1955), Sleeping Beauty (1959), and One
Hundred and One Dalmatians (1961).
What kinds of things happen when copyright expires? First, there is no longer any
restriction on reproduction of such works; anyone can copy and distribute them for their
own proft. For the flm companies, this is a problem because they are still profting from
the sale of such works. How about from the viewpoint of the consumer? From around
2000, we began to see copyright-expired movies becoming available on cheap DVDs
on sale for about 500 yen. Te older Disney movies are now being sold cheaply by non-
Disney companies as works currently in the public domain. Tanks to these versions,
many flms people had had few chances to see became easily available. For industry as
well, new markets are opening up for inexpensive DVDs of out-of-copyright movies.
Since they are cheap, they are more easily accessible for young people. Once available in
inexpensive DVD versions, Roman Holiday (1953) and Shane (1953) gained a new set
of fans. Scenes from Roman Holiday turn up in commercials on Japanese television and
more people learned about the admirable career of its leading lady, Audrey Hepburn.
In the United States, copyright protection has been extended over and over. Under
the frst American copyright law of 1790, protection was only for twenty-eight years
from the date of registration. In 1831 it was extended to forty-two years and in 1909 to
ffty-six years. Mickey Mouse frst appeared in the 1928 animation Plane Crazy. Since the
copyright law protected flm for at most ffty-six years under that new law, the copyright
x
Preface
to the Mickey Mouse flm was to have expired in 1984. However, in 1976, the law was
revised, making the copyright hold for individually authored works ffty years after the
death of the author and works by corporate authors for seventy-fve years after their
public release. Now the copyright to the Mickey Mouse flm would hold until 2003. In
1998, under the Copyright Term Extension Act (also called the Sonny Bono Copyright
Term Extension Act), protection was even further extended for general works to seventy
years after the death of the author and for corporate authors for ninety-fve years after
frst public release. As a result, the copyright to Plane Crazy was extended to 2023. Since
the protection of copyright has been extended whenever it looked as if the copyright to
the frst Mickey Mouse flm might expire, Americas copyright law is called the Mickey
Mouse Protection Act. Indeed, for the Walt Disney Company, copyright is a serious
matter. It would not be at all surprising if rumors of considerable lobbying eforts by
Disney in the U.S. Congress to seek revision of the act were true.
Once the copyright protection period has passed, of course, a work can be copied
freely. Tere will always be people who will make use of such copies in their contribu-
tions to culture. In Japan, the Aozora Bunko (Open-air Library) website makes avail-
able classics of literature for which the copyright has expired. Forming a digital archive
of Japanese literature, it is an important and valuable site. Te English site Project
Gutenberg is likewise well known. Using these sites, we now have a vast amount of
literature at our fngertips, available to read free of charge. Services like this are ones
that one would think should be supported by public funds, but both Aozora Bunko
and Project Gutenberg are sustained by volunteers. Projects like this could only have
gotten of the ground through the eforts of volunteers and the rule that copyright will
eventually expire.
Te value of out-of-copyright works notwithstanding, the voices on the side of
copyright holders arguing for the extension of Japans copyright protection period are
unbudging. Te arguments advanced by the advocates of extension are as follows:
Te longer a work is held in high esteem, the stronger will be the motivation for
creation of original works. Te ideas and inspiration an author invests in a work
deserve eternal protection.
Fifty years after the death of an author, his spouse or children may be still living,
and the expiration of the copyright taking away the revenue provided by the
works could threaten their livelihood.
Te length of protection is shorter in Japan than in other advanced nations;
Japan should bring itself into line with the international community.
Te rebuttals of opponents of copyright extension, on the other hand, are as follows:
xi
Will further extending the protection of copyright for more than ffty years after
the death of the author really inspire the creation of original works? On the
contrary, the extension of copyright will obstruct the broad distribution of a
work.
Fifty years after the death of an author, do members of the authors/creators
family really need the income from royalties?
In international comparison, Japans copyright protection period is by no means
short. Extension of copyright is not a general world trend, and by international
law there is no need to extend it.
Tese are not the only views, but those favoring extension tend to appeal to the emotions
based on a romantic notion of author. Being rather of the sentimental type, I tend to
be moved by such ideas, and yet, when you consider it objectively, that is a very strange
argument. Te arguments of the advocates of extension say nothing about the people
who hold the keys to the copyright business. Te holder of the keys is the contents
distribution industry.
Tose who beneft most from the extension of copyright are not the authors but
copyright holders and the companies that proft from the distribution of copyrighted
works. Te contents distribution industry simply exploits the idea of authorship to appeal
to the emotions on the issue. Ironically, it is the authors whose work is being exploited,
and nonetheless they are being used by the contents distribution industry to protect the
industrys proft-making structure. Incentive to do original work is more likely to come
from increasing royalties than from extending copyright. Te fact that none among the
authors who are seeking copyright extension dare to assert this idea is proof that they
have been reduced to mere defenders of the contents distribution industry.
Te debate on extension of copyright was carried out quite openly and extensively in
Japan between 2006 and 2009, involving rights holders, scholars, lawyers, government
ofcials, and users of copyrighted material. Te conclusion of an Agency for Cultural
Afairs advisory commission was that more public discussion was needed before exten-
sion of copyright should be acted upon. Until then, Japanese copyright law had been
gradually strengthened through lobbying pretty much exactly as the rights-holders side
wanted. Te fact that the doubts about extension on the user side fnally put a stop to
that trend was epoch-making in the history of Japanese copyright. Naturally, attempts by
rights holders aiming to secure extensions of the copyright protection period are bound
to return, so it is difcult to know how the issue will be settled in the long run.
One of the reasons that interest in copyright arose and the question of copyright
extension became a widespread topic of discussion was because such Japanese pop
culture as manga and anime gained increasing popularity overseas. Tose who became
xii
Preface
excited about the prospects for generating national wealth through Japanese manga and
animenot only in the industry but even in the prime ministers ofcial residence at
one pointbecame concerned about having a frm grip on the rights involved, and that
led to the emergence of measures of all sorts related to protection of so called intellectual
property rights.
Te immediate problem in international contents distribution is pirate publishing
of Japan-made contents in Asia. Pirate editions of television dramas and anime programs
and flms circulate widely in Asia, apparently to the detriment of Japanese industry.
Still, can it really be said that such pirate editions are as damaging as the government
and industry say they are? What copyright tries to do is to prohibit copying in order to
make the contents hard to obtain, using the rarity of the merchandise as the source of its
value. However, in the age of the Internet, which has created revolutionary changes in
content distribution, there must be other, quite diferent ways to generate value. My idea
is that new sources of value will be found not by making content hard to obtain but by
dispersing it very widely.
Te case of Japanese manga and anime is a good one illustrating how broad dispersal
achieved value. One can get a vivid image of just how many artists and supporters the
dispersal of contents has generated by attending the eye-opening, massive event that is
the Comic Market (Comiket) in Tokyo. Each of the biannually held Comiket events
provides a venue for more than 30,000 sellers (circles) to sell self-published works, draw-
ing more than half a million visitors over the three days it is held. Tere are probably few
such heavily attended indoor events held anywhere the world. Most of the self-published
works on sale at Comiket, moreover, are parodies of already published manga and anime,
or adaptations of them. At Comiket, characters and images are dispersed to the point of
virtual chaos. Some condemn the comic market as a corruption of public morals, but it
nevertheless attracts many people, and the fgure of half a million is evidence that it does
generate new cultural value.
Te process by which Japanese animation and manga spread to Europe and the
United States, too, testifes to the way dispersion generates value. It is safe to say that the
current popularity of Japanese-made anime in the West would not have happened if it
had not been for the many copies made without permission by fans in each country, the
illegal showings, and various other infringements of copyright.
Let us look at a specifc example. Te pirate editions of animewhat are known
as fan subbed flmsare often subtitled by fans conversant in the language of animated
flms, and, since they are done by people who love what they do, they are often of quite
high quality in terms of translation. As soon as an animated work is aired on television
in Japan, a video-recorded fle is sent overseas, and fans set to work adding subtitles in
their language. Often only one day passes before an anime is uploaded to a fans website,
complete with these fan subs. Fan-subbed anime have been around since the spread
xiii
of household video-recording devices in the 1980s. Such handmade versions were, of
course, bold infringements of copyright, but it was through such countless acts of piracy
that the popularity of Japanese anime in the West came about.
Pirate publishing, in fact, has been the driving force in spreading Japans pop
culture overseas, not just in Asia, Europe, and the United States, but elsewhere, and
represents an important distribution infrastructure in the world. But what makes pi-
rate publishing piracy is copyright. When people and information cross borders, and
the quantity grows, culture, too, seeps out, spilling over the borders of nations. Te
longer the term of rights protection is extended, the more likely it is to cause content
to be piratized.
Te impact of pirate publishing is three-fold: frst, it creates a market; second,
because prices are low it increases the ranks of younger fans; and third, it encourages
original work among those fans. It is easy to criticize pirate publishing, but to simply
dismiss it as illegal or unethical blinds us to the complex and fascinating dynamics
of culture.
Clearly there are many people even today who want to secure their rights in perpe-
tuity. Te extension of copyright appears to be set upon a vector aimed at protection in
perpetuity. Te theme of this book is that there seems to be much to be learned from the
history of the idea of perpetual copyright.
What my research for this book has confrmed for me is that the expiration date on
what we know of as copyright was not something endowed by heaven or the gods, but
was the prize that was won in an epochal struggle between pirates and the monopolists
of culture they dared to challenge. We can no longer believe in the simple dichotomy
of one side being good and the other side bad. Both sides were ultimately bent on the
pursuit of proft, those on one side citing the rights of the author and those on the
other appealing for the rights of the reader. I also want to present a view of history that
shows how the confrontation between the two sides was infuenced by the complexities
of the interpersonal relations among members of the legal profession involved in the
cases. To the scholar of law, for whom priority would no doubt be focused upon the
detailed analysis of the logical structure of the trial proceedings, this approach may seem
misguided. I am convinced, however, that the forces that move the currents of history
cannot be found simply by tracing the arguments presented in the trials.
Many books have been published about copyright, but I do not think there are any
others, including those in English, that portray Alexander Donaldson and his pirate
publishing business in Edinburgh and discuss the complexities of the interpersonal rela-
tionships among the people around him in a broad social and historical context. Lacking
much understanding of why there are limitations on the term of copyright and what led
to the establishment of such limitations, it is easy for the arguments in favor of copyright
extension, defending the prerogatives only of rights holders to hold sway. Te history
xiv
Preface
of copyright in Japan has been little more than the successive adoption of systems from
overseas. Te uncritical acceptance of international rules and practices may be attributed
to the nature of Japanese culture, but part of the reason I wanted to write this book was
because I cannot help thinking that both practitioners and researchers have failed to
consider sufciently what is really at the root of the debate.

* * *
Tis English edition has come about over several years, and I would like to explain a
few points of consideration in its making. I frst wrote, rather briefy, about Donaldson
in my 2002 book Nihon bunka no moh to sz [Imitation and Creation in Japanese
Culture] (Kadokawa Shoten). I was aware that the Edinburgh bookseller was a key fgure
in considering the matter of copyright, but at the time I had not been able to thoroughly
peruse the documents of his case, and I wanted to write something focused on him after
I had done adequate research. Soon after publishing Nihon bunka no moh to sz I was
given the opportunity to spend nine months doing research in England at Cambridge
University. Te Japanese edition of Pirate Publishing took shape based on the sources I
read in the library at Cambridge.
Te work of reading documents written in eighteenth-century English, especially
the complex language of the legal profession at that time was quite tortuous for me. I am,
moreover, not a specialist in the history of Britain. Indeed, in the process of translating
this book into English, we discovered a number of slight errors in the Japanese edition,
which have been corrected here. I have also referred to a few works that I had not been
aware of at the time of writing the Japanese edition. Among them, perhaps the most
important is Ronan Deazleys On the Origin of the Right to Copy: Charting the Move-
ment of Copyright Law in Eighteenth-Century Britain (2004). I found out about Deazleys
book while I was re-checking recent publications to prepare the English translation. His
discussion coincidentally overlapped with mine.
Apparently when writing about Britains parliament in the eighteenth century, it
is usual to frame the discussion in terms of confrontation between the Tories and the
Whigs. I have not attempted to follow that line of argument. From what I could see,
neither of the parties was monolithic, and if I tried to introduce the matter of political
parties, my discussion would become even more complex, making it difcult to give
readers a clear birds-eye view of the subject.
In writing, I tried to follow the primary documents I had read as closely as possible,
but of course I have also relied heavily on previous research. Indeed, I probably would
not have developed my interest in this subject if it had not been for such previous studies.
I was particularly stimulated by reading Shirata Hideakis Kopraito no shiteki tenkai [Te
xv
Historical Development of Copyright] (Shinzansha, 1998); probably there are few stud-
ies tracing the history of Anglo-American copyright as meticulously as Shiratas anywhere
in the world.
My own book is written for a general readership, so while striving to observe rig-
orous scholarly practice throughout, I have omitted major segments of the arguments
presented in the Donaldson v. Becket trial. If I had included it all, the book would have
been several times its current length and the story would have become so detailed that
readers would have lost interest before getting to the end. I refer readers interested in the
fner points to Deazleys work and the other titles listed in the bibliography.
My research for this book greatly benefted from the assistance of the librarians at the
International Research Center for Japanese Studies (Nichibunken) where I am employed,
who kindly helped me obtain numerous resources. Nichibunken selected this translation
project as one volume of the Nichibunken Monograph Series, edited by Patricia Fister,
and provided the funding. It was translated by Lynne E. Riggs of the Center for Inter-
cultural Communication. I also benefted greatly from the contents of the 1911 edition
of the Encyclopedia Britannica, which has many entries with detailed information about
historical fgures not famous enough to have been retained in more recent editions. Te
added bonus of the 1911 edition is that, thanks to its copyright having expired, it is
available via the Wikipedia (English) website, where I could access it even from home.
Tis has well confrmed for me the benefts of expired copyright. I am glad that this book
will also be published in digital format under a Creative Commons License. Tose who
wish to access this book online may fnd it using an Internet search engine.
I would like to thank Okaya Junko, Ogawa Naoko, Iwai Shigeki, Tsuneda Ritsuko,
Okada Aya, Wu Yongmei, and Chavelin Svetanant. Te pleasant unpretentious conversa-
tion of these people has been a great solace and encouragement to me in my studies.
I dedicate this book to my family, my wife Kazue and my boys Nariaki and Akiharu.
Kazue in particular provided candid comments on the dull and dry style of my drafts,
ofering valuable hints for improvement. If the reader has been able to maintain an
interest to the end of this book, it is surely thanks to her intercession. I am not the type
to talk much about my work to my family. I am content if they will someday read this
and learn what it was that I was toiling over with such anguish in the Cambridge Library.
Yamada Shji
September 2012
1
Of life impatient, into madness swells;
Or in dead silence wastes the weeping hours.
Tese, and a thousand mixed emotions more,
From ever-changing views of good and ill
Formed infnitely various, vex the mind
With endless storm; whence, deeply rankling, grows
Te partial thought, a listless unconcern,
Cold, and averting from our neighbors good;
Ten dark disgust, and hatred, winding wiles,
Coward deceit, and rufan violence:
At last, extinct each social feeling, fell
And joyless inhumanity pervades
And petrifes the heart.
(from James Tomsons Spring in Te Seasons)
Copyright is not perpetualthat was the historic decision handed down in the case
of Donaldson v. Becket on 22 February 1774 in the House of Lords in what is today
the Westminster Palace in London. Massive wooden beams soared over the ladies and
gentlemen wearing colorful hats and fne clothing in the vast medieval hall. Te galleries
were flled with prominent authors and cultural fgures. Tension and anticipation hung
in the air. On one side was Alexander Donaldson (?1794) and his son James Donaldson
(17511830) of Edinburghthe so-called pirate publishers. On the other was Tomas
Becket (d.u.) and fourteen other London booksellers determined to protect the monopo-
lies they believed they held on the books they sold.
Te case focused on the copyright of Te Seasons, a book by Scotland-born poet James
Tomson (17001748). Donaldson asserted that Te Seasons was out of copyright,
and that therefore anyone was free to publish it. Becket and his side declared that they
possessed the copyright in perpetuity.
Eighteenth-century England had the worlds frst copyright law, enacted in 1710 and
known ofcially as An Act for the Encouragement of Learning, by Vesting the Copies of
Printed Books in the Authors or Purchasers of Such Copies, During the Times Terein
INTRodUCTIoN
2
IntroductIon
Mentioned. Adopted during the reign of Queen Anne (16651714; r. 17021714), it
was more commonly known as the Statute of Anne.
Te Donaldson publishing house had built up a fair business by printing popularly
read books in Edinburgh, where costs were low, and selling them cheaply in London.
Te books they printed were those for which the period of protection of copyright
stipulated in the Statute of Anne had expired. Some of these books, however, were titles
that printers and booksellers of London believed were their exclusive right to sell. Te
London printers and booksellers had long kept the prices of books high through their
membership in the venerable guild called the Stationers Company and by respecting
each others copyrights. Tey denounced Donaldsons moderately priced books as
pirate editions.
Te Donaldson v. Becket case established the rule that copyright is not perpetual
but of limited duration. As this rule is now practiced throughout the world, the case is
signifcant to our concerns about copyright and fair use today. In 1774, the House of
Lords decided in favor of the pirate publishers; it declared that books for which the
copyright had expired could be freely copied/printed by others. Te right of anyone
to print and sell such books, without concern for the rights of the original printer or
publisher of the book, had been recognized. Te House of Lords was the highest court of
Great Britain until 2009. By rejecting perpetual copyright, did the judiciary recognize
the unjust act of piracy?
So what, we might ask, is piracy in publishing? In the true sense of the term
an act of piracy would be the publication, without permission by someone other
than the publisher holding the copyright, of a work that was protected by law. Rights
holders, however, have often been inclined to cast the stigma of pirate over anyone
who threatens their vested interests. Tey may not seriously consider whether the other
has truly committed an illegal act or not. Te claim of piracy has often been used as a
political slogan to protect vested interests.
Te London booksellers argued that books represented the eforts of high-minded
authors, and recognition of such authors perpetual publishing rights was equivalent
to protection of their human rights. Te Donaldsons, for their part, declared that to
monopolize the fruits of an authors god-given talent is, on the contrary, a violation of
his/her human rights. Te London booksellers assertions, of course, had their own artful
logic. Even today there are many who would say that copyright protection is protection
of human rights. Almost two hundred forty years after the Donaldson v. Becket case,
people still seek to defend their own interests by citing the rights of the author. But the
question of whether any sort of perpetual monopoly on the publishing of books is really
for the betterment of society is one that should be addressed.
Te Donaldsons rebuttal hit on some very important points. It observed that culture
is born anew through the development of the culture of the past. To claim that someone
3
holds exclusive possession of works that have spread and become thoroughly familiar in
society over many years is unnatural. Works that have circulated over a certain number of
years should be free for anyone to accesslike the air we breathe. If there is no common
and shared culture, how can creative endeavors freely develop and unfold?
Imagine that in the case of Donaldson v. Becket, the London booksellers had won
the day and copyright had been pronounced perpetual. How would our culture today
be diferent? Likely the contents of only a few books that could be sold proftably would
circulate and their prices would probably be quite high. Works for which the copyright
owner was unknown or older works for which sales were not promising would probably
be neglected and not again see the light of day. Collections of art, because of the high costs
of handling rights, would doubtless cost several times what they do today. Tere would
be no performances of classical drama. Countries where there is no tradition of citizen
support for the arts, as in Japan, would not be able to sustain orchestras specializing
in classical music. Tere would be no cheaply available DVDs of the old masterpieces
of flm. And there would be no ventures, like Project Gutenberg, that are making
available online the classics of literature in digital fles.
Te decision made by the English House of Lords in the eighteenth century carries
great signifcance. It denied perpetual monopoly over works and recognized the ruleso
distasteful to those concerned with their vested intereststhat after a certain number of
years had passed following the death of an author, anyone could copy his or her works
and sell them.
Was the decision not to recognize perpetual copyright damaging to the human
rights of authors? It is my belief that the decision worked, quite to the contrary, to their
beneft. Te linkage of the term of publishing rights to the life of the author has the efect
of stressing the identifcation of the author with the work. Te rule that copyright would
eventually expire helped to defend the vital link between the life and rights of the author
and his/her work, and it was the role of publishing that had been castigated as piracy
that ironically led to the adoption of that rule.
Why did Donaldson have to defend his case in court? What made this bookseller
based in Scotlandthen a place quite remote from Londondecide he had to take
a stand? What was going on in publishing in eighteenth-century Scotland? What can
we today learn from the Donaldson v. Becket case? Research about what lay behind the
scenes of the struggle over perpetual copyright reveals a complex and intertwined
human drama. Trough the events leading up to the case, we see the conficts arising
from the merging of the kingdoms of England and Scotland, the raw realities of the
exploitation of culture, the struggles between early versus late starters in the publishing
industry, rivalries for infuence among members of the nobility, and the pride and envy
that reigned among lawyers.
Today the idea that copyright eventually expiresthat works of literature and the
4
IntroductIon
arts can become the common property of allis gradually being eroded. Rights holders
have acted repeatedly to secure extensions of the term of copyright. Moves to strengthen
intellectual property rights as a means of invigorating industry have gotten underway
largely without criticism. How should we understand such realities? Tis book explores
the keys to answering this question.
5
Te Edinburgh bookseller Alexander Donaldson operated a bookshop in London from
around 1763 through 1788, in the frst ten years with his brother John (1730?1780?)
as partner and later on, by himself. In the Dictionary of the Printers and Booksellers Who
Were at Work in England, Scotland and Ireland from 1726 to 1775 (hereafter, Booksellers
Dictionary) his name was associated with cheap reprints of books which were in
his opinion out of copyright, disregarding the courtesy copyright observed between
members of the trade. His prices, he boasted, were 30 to 50 percent less than the
longer-established London booksellers.
1
Today the book industry displays considerable division of labor, with production,
printing, distribution, and retail sales taken care of by separate enterprises. In the
eighteenth century, booksellers did everything, from working with authors in the
planning of books, to their typesetting and printing, as well as their distribution and
sales. Booksellers were, therefore, much more than the bookshops of today; they were
the general producers of publishing culture.
Tere is no record of Alexander Donaldsons childhood. His father James (1694?
1754) was a linen manufacturer who the record says became a citizen of Edinburgh on
25 March 1724 and who served as treasurer for the city 17261727. Tat is about all
that is known about James, the elder. Alexander became a citizen of Edinburgh in 1750,
the year he became a bookseller. He married a woman named Anna Marshal (?1792) in
1751, with whom he had three sons. Te younger two sons, Marshal and Andrew, both
died of smallpox at age four.
2
His eldest son, who was named James after his grandfather,
was born that same year. James later accompanied his father in the court battle over
perpetual copyright and succeeded to the business after his fathers retirement.
Te Donaldson bookshop in Edinburgh stood on the south side of the high
street linking Edinburgh Castle and the Palace of Holyroodhouse. Nearby was the St.
Giles Cathedral, which was the headquarters of the Scotland Presbyterian church. Te
Donaldson printing workshop was located in a place called West Bow, down the hill
to the south of Edinburgh Castle. Alexander printed a newspaper called the Edinburgh
Advertiser in West Bow, and that is also where his son James was born. Even today the
1 Booksellers Dictionary, pp. 7778.
2 Skinner 1928, pp. 38.
Chapter 1
MoNoPoLy ANd PIRACy of BooKS
6
Chapter 1
area is called Donaldsons Close after these enterprising residents. Further down the hill
from where the printing workshop stood is the Grassmarket Square, where in those days
there was an execution ground. Te Donaldsons worked, therefore, not far from the
screams of the condemned and the bustle of the marketplace. Known to this day as a
place where ghosts and specters appear, West Bow was the home of infamous Tomas
Weir (15991670). Weir was a former army ofcer convicted of witchcraft and other
nefarious acts who was condemned to be strangled and burned at the stake. An ofcer
who moved into the former Weir house in the 1770s is said to have been so frightened
by phantoms of Weir riding Satans carriage that he moved out after one night.
3
Te place
the Donaldsons called home and the center of their enterprise was this rather spooky
corner of Edinburgh.
Virtually no record survives that might shed light on Alexander Donaldsons char-
acter or disposition. Based on the way he entered the legal fray against the London
booksellers, he seems at least to have been a man of determination. He had a chivalrous
side as well: he was unwilling to give in to the London booksellers, with their convenient
interpretations of the law and their duplicity, boasting of defending the rights of authors
while in actuality exploiting those rights for their own proft.
Donaldson appeared to be driven by the simple purpose of making useful books
widely available at reasonable prices. Above all a businessman, he was serious about the
court case precisely because there was proft to be had. His temperament reminds us of
the well-known merchants of the mi area (near Kyoto) famous in Japans mercantile
history. Te mi merchants were guided by the principles of good in three directions
(sanp yoshi), meaning good for the seller by afording a fair proft, good for the buyer
with products that make customers happy, and good for the world by business that
contributes to culture and society. By making the books in Edinburgh, where they could
be produced cheaply, Donaldson could increase the proft margin, which was good for
the seller. Te merits of his approach were further that books could be sold cheaply,
which was good for the buyer, and that, by allowing knowledge to spread widely, it was
good for the world as well.
In Edinburgh, Donaldson could sell books for which the London booksellers held
the copyright with impunity. Te laws of England and Scotland were separate and the
Statute of Anne, which represented English copyright law, was not in efect in Scotland.
Te books that the Donaldsons sold in London were all those for which the periods of
statutory protection had expired. Tey were not, in other words, breaking the law. Even
at that time, Donaldsons books could not accurately have been called pirate editions.
From 1751 to 1758, Donaldson had a tie-up with a well-known Edinburgh book-
seller named Alexander Kincaid (17111777) and together they published mainly books
3 Buchan 2003, p. 344.
7
MONOPOLY AND PIRACY OF BOOKS
of philosophy and medicine by Scottish authors. Donaldson is listed as the publisher for
important works of philosopher David Hume (17111776) that came out between 1753
and 1784. In 1763 Donaldson opened a shop in London between Norfolk and Arundel
Street in the bustling business district of the Strand. Te shop and printing house in
Edinburgh continued to operate even in the absence of the owner.
In London, while the business was at the Arundel Street address, Alexander re-
lied on his brother John for help with printing. Te record shows, however, that their
partnership was suddenly dissolved on 24 June 1773. Alexander moved to 48 St. Pauls
Churchyard, and John did not accompany him. Te breakup of the partnership took
place the year before the Donaldson v. Becket case in the House of Lords. We read the
cryptic account that, on 24th December that year John advertises the fact that he never
intended to remove, nor had he any concern in any other shop.
4
Te real intention of
this Christmas Eve advertisement is not known. But considering that Alexander chose to
move to a location in the very midst of the London booksellers and boldly proceeded to
sell books that had been branded with the term pirate edition, John, by declaring no
concern in any other shop, was perhaps making clear that he had nothing to do with
Alexanders reckless challenge to the establishment. But there is practically no record
about the brothers relationship and little more is known.
Donaldsons Catalogs
Te National Library of Scotland in Edinburgh preserves copies of the catalogs of Don-
aldsons Edinburgh shop. Tese copies for 1758, 1760, 1762, and 1765 are valuable
records of the books sold in Edinburgh around the time Donaldson left for London.
Te catalog indicates that his shop sold some 1,500 titles. In the year just prior to the
4 Skinner 1928, pp. 34.
2500
2000
1500
1000
N
u
m
b
e
r

o
f

B
o
o
k
s
duodecimo
octavo
quarto
folio
500
1758 1760 1762 1765
0
Figure 1. Breakdown of books in Donaldson shop catalog by size. Compiled by the author.
8
Chapter 1
opening of the London shop, however, the number rose to more than 2,000 titles. Tat
year (1762), the number of small-sized, cheap editions (octavos and duodecimo editions)
was large, raising the total number of titles (Figure 1).
Figure 2 shows the proportion of books sold in Donaldsons Edinburgh shop by the
location of their frst editions. Tis chart shows how the number of titles frst printed
in London increased between 1758 and 1762. Looking at the proportion of reprints of
books frst printed in London and Edinburgh, we can see that the bulk of Donaldsons
business was reprints of London frst editions. Te titles included under Other, I might
note, were those frst printed in Glasgow, Cambridge, Amsterdam, and Paris. Te four
catalogs were headed with the note: Te books are in good condition, all complete,
many of them new; and being priced very low, will be sold only for ready money. But
there was no way that Donaldson could purchase books from the London booksellers,
ship them to Edinburgh, and then sell them cheaply there. Presumably, the London frst
editions listed in Donaldsons Edinburgh shop catalog were almost all pirate editions.
Te crucial issue, however, is the titles of the books. Looking at the titles in the
catalog related to this study, we come across such titles as John Miltons (16081674)
Paradise Lost (1667), works by John Locke (16321704) and David Hume, a collection
of poetry by Allan Ramsay (1686?1758), Samuel Johnsons (17091784) Dictionary
of the English Language (1755), and the newspaper, Te Spectator. Te 1762 catalog
advertises 24 new books, among them the following:
Fingal, From the Gaulic of Ossian
Te Death of Abel, from the German
A New Treatise of Agriculture
2500
2000
1500
1000
N
u
m
b
e
r

o
f

B
o
o
k
s
Edinburgh rst
editions
Other
London rst
editions
500
1758 1760 1762 1765
0
Figure 2. Breakdown of books in Donaldson shop catalog by place of publication.
Compiled by the auther.
9
Te Practical Husbandman, Being a Collection of Miscellaneous Papers on Husbandry,
by Robert Maxwell of Arkland, Esq
Buchanans History of Scotland, a New Editon
Livys Roman History, from the Foundation of Rome
D. Humes History of England, from Julius Caesar to Henry VII
Dean Swifts Whole Works, a New and Complete Edition
Ramsays Ever-green, Being a Collection of Scottish Poems, Wrote by the Ingenious before
the Year 1600, with a Glossary, or Dictionary of Scots Words
Dr. Whitbys Paraphrase and Commentary on the New Testament, a New and Neat Edition
Dr. Doddridges Rise and Progress of Religion, a New Edition
Dr. Doddridges Sermons to Young People
Goguets Origin of Laws, Arts, and Sciences
Instructions for a Young Lady
Tomsons Seasons, a Neat Edition
Ramsays Tea-table Miscellany: a Collection of Choice Songs, Scots and English
M. DArnays Private Life of the Romans
A title like Instructions for a Young Lady is rather intriguing, but most are rather dry
books dealing with classics or religion. Signifcantly, we fnd in the list Tomsons Te
Seasons, the work regarding which the Donaldson v. Becket case was argued. Donaldsons
Te Seasons edition may already be found in his 1760 catalog. As we shall see below,
considering that the Millar v. Taylor case over the copyright to Te Seasons was in full
swing at that time, we can surmise that Donaldson had hatched his plan to challenge the
booksellers of London long before the case came to court.
Te 1765 catalog contents, with its advertisement below, attest to the fact that
booksellers also sold such scientifc equipment as globes and telescopes:

ALSO, at said SHOP of A. DONALDSON, May be had GLOBES, of Nine and
Twelve Inches Diameter, made by Benjamin Martin, Author of the Dictionary
of Arts and Sciences; with TELESCOPES made by the same Hand, from Seven
Shillings to Five Guineas Price, and of all Sizes.
In Scotland during the Enlightenment, the humanities and sciences were not as
clearly separated as they are today; booksellers sold various kinds of goods for people in
search of knowledge, and these things give us a good idea of the role played by booksell-
ers in those days. Te Edinburgh shop also sold tickets to university lectures. University
students were supposed to pay for classes on the frst day, but they could also pay for
separate lectures with tickets that could be procured at booksellers. University lecturers
made their living by the number of students who gathered at their lectures and there
10
Chapter 1
were arrangements for the booksellers to gather this tuition and pass it on to the lectur-
ers. Tese arrangements, too, give a sense of the diverse roles played by bookstores in
eighteenth-century Edinburgh.
On 3 January 1764, not long after setting up shop in London, Donaldson launched
the Edinburgh Advertiser newspaper. It was published semiweekly on Tuesdays and Fridays
in London and Edinburgh. Until 31 December 1773, just before the hearing of the case
against Becket began in the House of Lords, Alexander edited the newspaper himself. After
that his son James took over, and it continued to come out until James retired in 1820.
Overland transport in the British Isles was quite good by the eighteenth century. As
Adam Smith (17231790) wrote in 1776, A broad-wheeled waggon, attended by two
men, and drawn by eight horses, in about six weeks time, carries and brings back between
London and Edinburgh near four ton weight of goods.
5
A network of turnpikes (toll
roads) was built over ffty years starting in 1720 that lowered the travel time between
London and Edinburgh from 256 hours in 1700 to 150 hours in 1750 and 60 hours in
1800.
6
Heavy things like books were generally transported by ship. Two hundred tons
of goods could be shipped by sea from the port of Leith near Edinburgh to London in
about three weeks.
7
In other words, books printed in Edinburgh could be put on sale in
London shops within one month. Donaldsons shop in London sold books printed in
Edinburgh, most of them cheap reprints of books that had been frst printed in London.
Tese were what the London booksellers decried as pirate editions.
Now, let us consider this term pirate edition a little more carefully. Scotland had
been united with England in 1707. Tere was one king, one parliament, and their for-
eign afairs were handled together. Te laws of England and Scotland, however, remained
separate, and in Scotland at that time, there was no concept of copyright. Under the
laws of Scotland it was not a crime to reprint books that had been published in London
and then sell them in Scotland. Te Edinburgh editions of London-made books were
therefore not pirate editions per se. Te London booksellers did not really make much
of a fuss over these publications because Edinburgh was far away and the market there
was in any case quite small compared to London.
When Donaldson and others began to bring cheaply made Edinburgh editions and
sell them in London right under the noses of the London booksellers, however, the fap
was considerable. Te books were 30 to 50 percent lower in price. Among Donaldsons
reprints there were books that would have been quite literally pirate editions if sold
in London. Noting that the London booksellers sued Donaldson only for the out-of-
copyright title Te Seasons, we may surmise that he was scrupulous not to stock reprints
for which the copyright had yet to expire in his London shop.
5 Smith 2009 (1776), pp. 1415.
6 Porter 1991 (1982), p. 192.
7 Smith 2009 (1776), p. 15.
11
Printing technology in Edinburgh was as good as that in London, and Donaldson
was able to sell books for lower prices for two main reasons. One was that prices were
lower in Edinburgh, keeping his printing costs down. Te other was that the regulations
imposed by the Stationers Company, the venerable guild of printers and booksellers
in London, kept the price of books unnaturally high there. According to Donaldson,
London book prices were two to three times higher than they should have been because
of the Stationers Company grip on the industry. Donaldsons own prices, meanwhile,
were 30 to 50 percent lower than the usual London prices. What this means is that
Donaldson was selling books for prices higher than what he himself thought they should
be. He was clearly a shrewd businessman.
Te Reputation of the Monopolist Publisher Millar
To understand what was under contention in the House of Lords in 1774, let us look
at the background.
8
Te plaintifs in the case were Alexander Donaldson and his son
James and the defendants were ffteen London booksellers led by Tomas Becket. As
explained in the introduction above, the case between Donaldson and Becket et al. was
over the copyright to Scotland-born poet Tomsons Te Seasons. Te volume was made
up of previously published anthologies by Tomson, Winter (1726), Summer (1727),
Spring (1728), and Autumn (1730), as well as the previously unpublished Hymn to
Nature. A leading collection of English poetry in the eighteenth century, Te Seasons is
a work widely read and recognized even today. Tomson was born in the country town
of Ednam near the Scotland-England border. He studied at the University of Edinburgh
and, at the age of 25, went to London, where he worked as a tutor while writing poetry.
I would call your attention to the fact that Tomson was a Scotsman. Te feeling of
people in Scotland was no doubt that Tomsons work was part of our literature. On
16 January 1729, Tomson sold the publishing rights to Spring and his play Sophonisba
to Andrew Millar (17071768). Millar paid Tomson 137 pounds 10 shillings (1 pound
= 20 shillings) for the rights.
9
Tomas Becket worked for Millar. After Millars death,
Becket obtained the rights to Te Seasons by auction.
Millar was known for his publication of a number of major works of eighteenth-
century literature and he is a very important fgure in following the legal battles fought
over perpetual copyright, so I would like to introduce him here in detail.
10
Millar was a
kingpin in the aforementioned Stationers Company that had long established control
of the rights to copy books in England. Some researchers see Donaldson as having
8 Cases of the Appellants; Parliamentary History of England, vol. 17; English Reports, vol. 1, pp. 83749.
9 Te fact that this was a time when a young man of good family could live in London with a 200-pound
annual allowance from his parents gives us an idea of the value of 137 pounds. Picard 2001 (2000), p. 298.
12
Chapter 1
realized that bookselling could be a fresh and proftable business and deliberately chal-
lenged the monopolistic organization of the London booksellers.
11
But when we probe
a little deeper into Millars background, we cannot help but fnd such descriptions
inadequate. For one thing, Millar also turns out to have been born in Scotland. Tis
fact, which studies of publishing and copyright history thus far seem to have neglected
to note, suggests that there is more to the eighteenth-century struggles over copyright
than simply a clash between Edinburgh and London. It looks, rather, like a struggle
between Scotsmen who got into the bookselling business in London at an early stage
and their own countrymen, like Donaldson, who came along later in the gamethe
clash of those who had staked their claims early and newcomers aiming to get in on
the action.
In his youth, Millar had been apprenticed to the bookseller James McEuen (d.u.)
of Edinburgh. Te compilers of the Booksellers Dictionary conjecture that Millar was
acquainted with Tomson in Edinburgh. Tomson left the University of Edinburgh in
1725, and so his student days would just about coincide with the time Millar was a
booksellers apprentice. In those days, Edinburgh was a compact city centered on the
mile-long High Street stretching east and west between the castle and the Holyroodhouse
Palace. It would not be surprising if the student and the bookstore clerk, seven years apart
in age, had known each other.
Millar went to London at the age of 21 in 1728 and opened a shop on the Strand.
Te Strand at that time was a shopping district lined with shops selling goods in the
latest fashions; and of course there were many bookstores. It was the year after opening
the shop that Millar purchased the publishing rights to Spring and Sophonisba from
his compatriot Tomson. It was that purchase that transformed Millar into one of the
monopolistic booksellers. In the same 17291730 period when Tomson sold the rights
to Spring to Millar, he also sold the copyright to Summer, Autumn, Winter, and Hymn
to Nature to another London bookseller, John Millan (17041784), for 105 pounds.
Later, on 16 June 1738, Millar purchased those copyrights from Millan. Te price was
the same 105 pounds that Millan had paid to Tomson. Millar then held the rights to
the series of works and began to sell a volume including all of them entitled Te Seasons.
One source for learning more about Millar is Boswells Te Life of Samuel Johnson
(1791). Tis biography by the Edinburgh-born lawyer and diarist James Boswell (1740
1795) portrays not only Johnsons personality but a lively account of the society of his
times. We know that from the time Boswell was in his twenties he was a regular customer
at Donaldsons Edinburgh bookstore.
12
Te shop was a kind of salon where young men
could fully satisfy their intellectual appetites with cheaply priced pirate editions.
11 Rose 1993, p. 92.
12 Skinner 1928, pp. 3036; Rose 1993, p. 93.
13
Millar was the one who undertook to publish the Johnsons famous Dictionary of
the English Language, which went on to become the standard dictionary of the English
language for more than 100 years thereafter. Boswells biography incorporates various
passages of what is essentially gossip, but providing various pieces of information about
Millar. We learn, for example, how Johnsons repeated delays sorely tried the booksellers
patience, who had to constantly goad the lexicographer to hand over parts of his manu-
script, the work for which he had been paid in advance, and that
It is remarkable that those with whom Johnson chiefy contracted for his literary
labours were Scotchmen, Mr. Millar and Mr. Strahan. Millar, though himself no
great judge of literature, had good sense enough to have for his friends very able men
to give him their opinion and advice in the purchase of copy-right; the consequence
of which was his acquiring a very large fortune, with great liberality. Johnson said of
him, I respect Millar, Sir; he has raised the price of literature.
13
Tis passage tells us a great deal about the relationship between authors and book-
sellers in those days. Even before a book was completely written, the bookseller paid the
author for it in installments. It also demonstrates the booksellers attitude of being done
with an author once the manuscript is in hand. In other words, a bookseller appears to
have viewed a piece of writing, once bought, as his own property, to do with as he wished,
and no matter how much money the bookseller might make from that manuscript, there
was apparently no promise of any further recompense going to the author.
Te London booksellers invested generously in books they thought would sell,
including dictionaries and encyclopedias. Te copyright to Johnsons Dictionary did not
belong to its author, but to Millar and other booksellers, among them Tomas Longman
(16991755), founder of the well-known Longman company. Johnsons remark that
Millar has raised the price of literature refects the way Miller was involved in raising
the price of books by monopolistic business practices. In fact, Millar made massive proft
from the Dictionary. Te proft accrued by Longman, too, established the basis of the
company that is still a mainstay of the dictionary industry today. Johnson, meanwhile,
was not adequately paid, as we can gather from the following passage:
In 1756 Johnson found that the great fame of his Dictionary had not set him above
the necessity of making provision for the day that was passing over him. He
had spent, during the progress of the work, the money for which he had contracted
to write his Dictionary. We have seen that the reward of his labour was only ffteen
hundred and seventy-fve pounds; and when the expence [sic] of amanuenses and
13 Boswell 1998 (1791), pp. 205206.
14
Chapter 1
paper, and other articles are deducted, his clear proft was very inconsiderable. I
once said to him, I am sorry, Sir, you did not get more for your Dictionary. His
answer was, I am sorry, too. But it was very well. Te booksellers are generous,
liberal-minded men. He, upon all occasions, did ample justice to their character in
this respect. He considered them as the patrons of literature; and, indeed, although
they have eventually been considerable gainers by his Dictionary, it is to them that
we owe its having been undertaken and carried through at the risk of great expence,
for they were not absolutely sure of being indemnifed.
14

What a generous soul was Johnson. If Millar had not assumed the burden of risk
should the book not sell, it might never have been published. So, even if his reward was
not sufcient, he had the satisfaction of the work he had done. He is a classic example
of the man of literature. So what was the value of ffteen hundred and seventy-fve
pounds at the time? We know, for example, that the annual salary of the First Com-
missioner to the Admiralty was about 3,000 pounds, so the payment Johnson received
for the manuscript was about half of the annual salary of a high-ranking ofcial in the
government.
15
It might be fairly high for the annual income of an ordinary citizen then,
but considering the several years he spent compiling the dictionary, he must have been
somewhat dissatisfed.
Millar seems to have been fairly unscrupulous in his business dealings, and Johnson
was not his only prey. One example is the story of Te History of Great Britain.
Edinburgh booksellers not only made pirate editions of books sold in London
but sought to sell the outstanding books of Scotlands authors in London. For example,
Gavin Hamilton (d.u.), his son-in-law apprentice John Balfour (?1795), and Patric
Neill (d.u.), three Scotsmen who had themselves published David Humes Te History of
Great Britain, sought to put it in the London market. Tey asked their fellow Scotsman
Millar to sell it in 1754. Millar, however, made no efort to publicize or market the
book, waiting to see whether Hamilton and his cohorts would give up in their venture.
Volume one of Te History sold barely 45 copies in the frst year in London, and this
setback put Hamiltons and his cohorts business in the red. Te following year they were
forced to sell the copyright to Te History of Great Britain to Millar and withdraw from
the London market.
16
Devastated by the lack of interest in his work, Hume considered
changing his name and spending the rest of his life in France (only the outbreak of the
Seven Years War, 17561763, made him change his mind).
17

Te Millar edition of Te History of Great Britain, completed in 3 volumes in 1761,
14 Boswell 1998 (1791), pp. 21617.
15 Picard 2001 (2000), p. 298.
16 Shirata 1998, pp. 17374.
17 Knight 1865, p. 220.
15
however, sold extremely well. Hume did fne in the end, writing in later years, the
copy-money given me by the booksellers much exceeded anything formerly known in
England. I was become not only independent but opulent.
18
Millars approach ended
up very much to the proft of Hume as the author. Hamilton and other booksellers from
Scotland, meanwhile, sufered many hardships as Millar deftly defended his territory
against these latecomers from his native Scotland who might seek to carve out a share of
the London book-market pie.
Even when authors tried to hang on to their rights to a work, the London booksellers
had various methods for obtaining them. Bookseller James Lackingtons (17461815)
memoirs observe as follows:
. . . in general where authors keep their own copy-right they do not succeed,
and many books have been consigned to oblivion, through the inattention and
mismanagement of publishers, as most of them are envious of the success of such
works as do not turn to their own account; very many just complaints are made on
this head, so that I am fully of opinion that for authors to succeed well they should
sell their copy-rights, or be previously well acquainted with the characters of their
publishers.
19
Tus, it was apparently quite common for booksellers to conveniently neglect the
titles for which authors would not hand over the copyright, waiting until the author
became so discouraged about sales that he would sell the copyright; then, knowing the
sales would turn to their own account, they would begin to actively market the book
and rake in the resulting profts. Tis seems to have been a consistent pattern among the
London booksellers.
Te Eighteenth-Century English Judicial System
Now we have some idea of the background of the Donaldsons and of Beckets boss Mil-
lar, who had bought the rights to Te Seasons. Here, to better understand the Donaldson
v. Becket case, let us consider the legal system of the time. Te following provides a basic
background for understanding the judicial system of eighteenth-century England.
Common law, an essential part of Englands judicial system, is uncodifed rules.
While not part of written or statute law, such rules are nevertheless binding. Laws that
are fxed in the form of text are known as statute law. Common law existed from long
before statute law came into being. Practices that have always been decided that way
18 Knight 1865, p. 220.
19 Lackington 1762, p. 358.
16
Chapter 1
are common law, although no one knows when they were so decided in the beginning.
Very similar to common law is natural law. Tis is universal law that governs hu-
mankind, transcending time and national boundaries. Rights that are based on natural
law are called natural rightsrights that human beings possess inherently by birth. Te
ideas of natural law and natural right were developed by English thinkers such as
Tomas Hobbes (15881679) and John Locke and had become quite widely understood
in England by the eighteenth century. Te source of human rights is this principle of
natural right. In France, Germany, and Japan, it is often argued that because a work
of art or literature is an expression of the personality of the author, the protection of
copyright is equivalent to the protection of human rights. This refects the concept of
natural rights. In the series of court disputes discussed in this book, one of the important
points in debate was whether copyright could be interpreted as a natural right.
Disputes sometimes occur even though no one has broken the law. Settlement of the
dispute by examining the assertions of both sides and weighing the principles of fairness
and justice is called equities. Equities have the role of supplementing common law and
statute law. In England, the Court of Kings Bench would weigh complaints in light of
common law and make decisions. Common law cases were also handled by the Court
of Common Pleas, which was responsible for hearing civil suits, and the Court of the
Exchequer, which exercised judicial power regarding royal revenues.
Te Court of Chancery, meanwhile, dealt with complaints from the viewpoint of
equities. Te head of the Court of Chancery was the lord chancellor, a most honorable
post and the most eminent of all Englands lawyers. Te lord chancellor, moreover, was
the speaker of the House of Lords. In other words, the head of the judiciary also presided
over the House of Lords, which was Britains highest court. In the mid-eighteenth cen-
tury, examination of appeals and decisions on private cases of divorce, property, etc.
were entrusted to the House of Lords. Te business of the House of Lords was thus
largely concerned with judicial afairs, and when it was in session the chief justice of the
Court of Kings Bench and other judges were always present there and barristers were
frequently summoned to appear.
20
Another important post was attorney general. Te
attorney general was the adviser to the king and prime minister on matters of law, and
he was assisted by the solicitor general. Tose with the highest aspirations in the feld of
law sought to establish their credentials as barristers and win the post of solicitor general
and then the post of attorney general; their next target was the post of chief justice either
on the Court of the Kings Bench or the Court of Common Pleas. In the meantime they
would be made members of the aristocracy and obtain a seat in the House of Lords, and
within that body could maneuver to gain the post of lord chancellor.
21
20 Matsusono 1999, pp. 8586.
21 Matsusono 1999, pp. 102103.
17
In the eighteenth century, the Court of Kings Bench, the Court of Common Pleas,
and the Court of Chancery were convened in Westminster Hall, the edifce known
today for the Tower of Big Ben and Parliament. Most of what is now Westminster Palace
was built after a fre in 1834, but this hall is preserved exactly as it was in the middle
ages. A print from 1745 shows three courtrooms of around 25 square feet enclosed
by screens (Figure 3). Te Court of Chancery met in the southwest corner (the right
side at the far end), the Court of Kings Bench in the southeast corner (the left side at
the far end) and the Court of Common Pleas in a narrow space along the west (right)
wall. Along the side-walls were stalls selling books and other merchandise. On the foor
of the hall are depicted lawyers handing over cash to witnesses whose statements they
have procured. Intended perhaps as a satire on the customs of the times, it presents
quite a surprisingly diferent image from the rigidly formal features of the courts we are
familiar with today.
Figure 3. Westminster Hall in 1745. (Phillips 1964: 20)
18
Chapter 1
Both Sides Present Teir Case
Let us consider the cases presented by both sides in Donaldson v. Becket, starting with
Donaldsons assertions (for the original wording of the case presented, see Appendix A:
Donaldsons Assertions).
Donaldson began by explaining how he and his company had compiled the Poems,
called Te Seasons, and the said Hymn on the Succession of the Seasons, each Copy
being bound up in a single Volume, and entitled, Te Seasons, by James Tomson and
published it in Edinburgh. Complaints were then lodged, he alleges, by Becket and his
cohorts, who claimed to themselves the whole Proft arising from the Publication and
Sale of the same.
It is true, he admits, that he had published Te Seasons, but argues that twenty-eight
years have elapsed since the frst publication, so that, under the Statute of Anne, the
period during which any party can exercise monopoly on its copyright has passed. Can
those who only purchased some 100500 copies from the author fairly assert that they
have the right to possession of the work? Tis is the question Donaldson asks the court
to consider.
Donaldson then considers the tangible and intangible qualities of booksthe
material Part, namely, the Paper, Print, and Binding, which is a Manufacture; and
the immaterial Part, namely, the Doctrine contained in it, which is the Facture of the
Mindand argues that books in their material aspect may be debated and dealt with
under the law but that the immaterial aspect belongs to the author. As reasons for this,
he presents fve assertions for the consideration of the court, which may be explained in
plain language as follows:
I. Te object that Becket et al. claim to be theirs is too elusive to be defned, and yet it is
called property or, more precisely, literary property. Te word property has various
meanings. Philosophically, the qualities inherent in a subject or thing are called proper-
ties. In the ordinary, everyday sense, property is corporeal or incorporeal. Corporeal
property is the possession of some substance, and is accompanied by the power to enjoy
and dispose of it. Te matter in contention, however, is not corporeal property.
Incorporeal property is of two kinds. Te frst is the Right relating to some
Substance, such as the right to the profts of land, without having possession or title
to that land. Te second is the right to exercise some Faculty or do something in
order to obtain proft. Te word property is thus equivocal: it is sometimes used to
mean the right relating to a substance and at other times the proft resulting from
that right. Such use is equivalent to speaking of both land and of the right to the
land as property.
If the object that Becket et al. claimed is incorporeal right, it is merely the right
to do some particular thing for proft, namely multiplying of Copies of Books.
19
To claim the sole right to multiply copies is to claim the sole right to exercise a
natural faculty, which would obviously be a most extraordinary privilege. Becket et
al. claim that this privilege and sole right are their property according to the tenets
of common law. But such a privilege and sole right did not, and cannot exist, we
submit, in common law.
II. Rights in common law must be founded on the principles of conscience and
natural justice. Conscience and natural justice are not limited to England. Natural
justice is the same in Athens or Rome, in France, Spain, or Italy. Books have been
copied in all ages and have multiplied, but the exclusive privilege, or the sole right
of anyone to multiply copies, was never dictated by natural justice in any age or
country. Giving the sole right to distribute copies to one party cannot exist in com-
mon Right, which gives an equal Beneft to all.
III. Te attempt to monopolize the exercise of a natural faculty infringes human
rights. A natural faculty is diferent from the performance of an ofce. In the
work of an ofce, one does not encroach upon the domain of others but simply
performs a task. But if that which should be free to all is to be confned to any
one person or group of persons, then the natural liberty of the rest of society is
constrained. Constraint on the liberty of many for the sake of one person was never
established as justice based on conscience and reason.
IV. In common law, public utility is regarded as the mother of justice and equity.
Difusion of the products of the mind as widely as possible best serves the public
utility, so common law could not possibly limit the production of copies. When
common law emerged in England, literature stood at the same stage as that of
ancient Greece and Rome, when copying could only be done by writing by hand.
Every individual held the right to transcribe or copy out a book. Tere was no
other way to propagate knowledge. So common law never placed any checks on the
natural freedom to transcribe books.
V. Common law has been in use since time immemorial. If there was a time when
the privilege and monopoly asserted by Becket et al. existed, it was not according to
common law. Te time no privilege or monopoly existed by common law extends
from the beginning of our history down to the era of printing, and printing (which
is only a more efcient method of copying) could not change the principle of right
and wrong.
22
22 Cases of the Appellants, pp. 46.
20
Chapter 1
Te assertions presented by Becket et al., on the other hand, began by declaring
how Donaldson had ignored the fact that they had purchased the copyright to Tom-
sons poem anthology and gone ahead in compiling the poems called Spring, Summer,
Autumn, and Winter, and the said Hymn on the Succession of the Seasons, in a Volume
entitled, Te Seasons, by James Tomson; Edinburgh, printed by A. Donaldson, 1768, and
printing, publishing, and selling several thousand copies to great proft, causing them
(Becket et al.) great Loss and Prejudice.
23
Te complaint goes on to say that, although they tried to get Donaldson to stop sell-
ing the anthology and hymns and to get him to pay them for the number of copies sold,
Donaldson had not stopped the sales nor handed over any of the money they considered
due, so on 21 January 1771, they had fled suit with a Bill in Chancery, recording their
claims, demanding payment, and requesting an Injunction of the Court [restraining
him] from publishing the said Poems and Hymn, etc.
24
On 16 November 1772, the case was heard before the lord chancellor, who decreed
that the injunction supporting the claims of Becket et al. should be upheld and that
Donaldson should pay what was due to the booksellers. Te court allowed that the case
could be appealed, and Donaldson did petition the court for reconsideration, asking that
the decision be reversed. Becket et al. in turn claimed that the 1772 decree of the lord
chancellor was just and equitable and ought to be afrmed. Beckets side presented the
reasons their case should be supported.
25
It is only reasonable and natural, said Becket, that authors should wish to claim
the sole and exclusive rights to printing and publishing their own works. It is just and
equitable that those who are devoted to the advancement of knowledge, and who
communicate their ideas in written form intended for public consumption should be
compensated. In order to maintain a suitable livelihood, authors, upon publishing
their works, have the right to print copies of their own work. Considering the nature
of printing, there is an implied Agreement, on the Sale of each particular Copy, that the
Purchaser shall not invade the benefcial Right of multiplying Copies intended to be
reserved by the Author.
Becket et al. went on to argue that since the Introduction of the Art of Printing
into England, this peculiar Species of Property has been known by the expressive Name
of Copy-right and copyrights have always been protected by means of sale, gifts, and
inheritance.
Becket calls attention to the fact that the right to copy proclamations and other
documents of a public nature is held by the king on Account of his peculiar Interest
. . . in all Publications and Acts of State fowing from himself, or Parliament, showing
23 Cases of the Appellants, p. 15.
21
how an Interest or Property similar to that claimed by Authors, may subsist at Common
Law, etc.
Te Statute of Anne, declare Becket et al., in no way infringes on the authors interest
in his works or right to them as property. Its purpose was to keep Literary Property safe
from Piracy and Invasion by imposing penalties. Since the Statute of Anne, the Court of
Chancery has granted many injunctions to restrain copyright invasion notwithstanding
the Expiration of the Term during which only the Statute gives a Protection by Penalties.
Believing in the protections that have been provided to literary property
independently of the Statute of Anne, great sums of money have been invested in the
purchase of copies, so if such protection should be withdrawn, many families would lose
their estates and come to ruin.
26

Tere is no evidence that Donaldson and Becket directly confronted each other in
the courtroom, but there remains a record of questions anticipated with the answers to
be given that was prepared by the Donaldson side before the hearing.
27
Naturally, this
hypothetical debate is weighted in favor of the Donaldson side. If the two had argued
according to this scenario, no doubt the exchange would have been something like this,
here abridged from the original record:
Objection [Becket]. It is said on the Part of the Respondents, that the Name Copy
of a Book, has been a Term for Ages, to signify the sole Right of printing, publishing,
and selling, and that this Species of Property has existed in Usage as long as the Name.
Answer [Donaldson]. It is admitted on the Part of the Respondents, that there
is no Bye-Law or Ordinance relative to Copies till after the Year 1640. Te Usage,
whatever it be, is therefore not immemorial.
Objection. From the Erection of the Stationers Company, Copies were entered
as Property, and Pirating was punished.
Answer. Te Common Law, according to this, begins with the Stationers Company.
Objection. Te Stationers Company was empowered to make Bye-Laws.
Answer. Tey were; and those Bye-Laws might create a relative Right among
the Members of the Company. In 1681, a Bye-Law declares, that where a Book
was entered to any Member, such Person, by the antient Usage of the Company, was
reputed and taken to be the Proprietor. By antient Usage of the Realm had been more
conductive to the Point. But it was not competent to the Stationers Company to
make Laws for the rest of the Kingdom; and, if it had, it would not be Common Law.
Objection. Te Decrees of a Star Chamber have been cited as strong Authorities
in Support of the Bye-Laws and Customs of the Stationers Company.
22
Chapter 1
Answer. Te Star Chamber was a criminal Court, and had not constitutional
Authority to determine civil Rights. Te Court has been long since abolished,
without Regret, and it is the Happiness of the Subject, that the Common Law has
fowed through purer Channels.
Objection. It has been said, that in those Times Copies were protected by a much
speedier and more efectual Remedy than Actions at Law, or Bills in Equity.
Answer. One successful Action at Law would have been a better Proof of the
Right, than a thousand Instances of arbitrary Power.
Objection. Te Licensing Act has been called in Aid by the Respondents, and they
observe, that the printing of any Book without Consent of the Owner is forbid by that Act.
Answer. Te Ownership was created be Patent, Order, Bye-Laws of the Stationers,
&c. and if that Act recognized a Right so created, it was an Act of the Legislature; but
the Act, with all the other Encroachment upon Liberty, has long since gone to Rest,
to revive no more. Te Statute of Queen Anne was not declaratory of the Common
Law, but introductive of a new Law, to give learned Men a Property which they had
not before.
Objection. It has been contended on the Part of Respondents, that the Act of
Queen Anne is an accumulative Statute, declaring the Common Law, and giving
additional Penalties.
Answer. If the Right was antecedent to the Act, How did the Legislature vest the
Property in Authors?
If the Legislature had the faintest Idea of a pre-existing Property, why was the
sole Right of reprinting Books, which had been previously published, restrained to
twenty-one Years, and no more? A strange Way of encouraging Learning, by abridging
ancient Rights!
If the Act of Queen Anne intended merely to give additional Penalties, by Way
of new Fences to a common Law Right, Why give those Penalties for fourteen Years
only? If the Property is perpetual, Why should not the Remedy be coextensive?
If the Copy be understood a perpetual Property, the Author who sold his
Copy under the Idea of a Transfer for fourteen Years only, may be told by an artful
Bookseller, that more was meant than meets the Ear, and that a Sale of his Copy imports
a Sale for ever. Te Consequence will be, that, instead of encouraging Learning, a
Snare has been unwittingly spread for Men of Genius and Industry, and the Clause
of the Statute, which gives a Reversion to the Author at the End of fourteen Years, if
he live so long, will be eluded by the Craft, and, as Milton phrases it, by the Sophisms
of Merchandize.
If the Book, at the End of fourteen Years, reverts to the Author, his Interest is
served: If it does not, the Legislature, by such a Construction, has extended no Beneft
to learned Men.
23
Te Notion of a perpetual Privilege and Monopoly, hath been within these
few Years, hatched among the Booksellers; who now come with glossing Colours, and,
under a Pretence of serving the Cause of Literature, but mean really and only to get
the Fruits of Genius into their own Hands, for ever. Te Consequences of this new
Doctrine (were it established) would be fatal to the Interest of Letters, and the Fame of
every valuable Author.
Books may be held up at too high a Price. Notes and Illustrations may be
wanted, and generally are, in thirty or forty Years; not only the Manners, but even
Science itself changes in the Progress of Time. Moral Philosophy, and Mathematics
should keep pace with the Vicissitudes of the World. Useful Commentaries upon
valuable Works cannot be made without the Licence of the Bookseller, who has
purchased the Copy: His Avarice, his Tumidity, or his Want of Sense may tell even the
original Author, that he shall not re-print his own Book with further Improvements.
If the Author should happily be permitted to do it, it must be upon the Booksellers
Terms; but more probably the Frugality of the Bookseller will grudge an additional
Expence, and taking upon him to pronounce upon Wit, he may say, that he likes the
Book as it is.
In the Case of a perpetual Privilege and Monopoly, the Bookseller becomes the
Authors Leave-giver: Many a Jaunt may be made that his new Insertions may be
viewed, and at length he may sit down with the Melancholy and Vexation of leaving
his Book worse than he could make it.
Should the Work, pursuant to the Statute of Queen Anne, revert to the
Author in fourteen Years, he will become the Guardian of his own Fame; and,
in Consequence, learned and industrious Men will be enabled to reap not only the
Fame, but the Profts of their Labours, to the Honour and Advantage of themselves
and their Families.
Objection. It has been colourably said, that for a perpetual Property Authors
may raise in their Demand, and gain a much larger Sum for the Copy; or they may
publish upon their own Account, and feel the Pulse of the Public before they dispose
of the Copy.
Answer. Except one or two very modern Instances, a competent Price has not
been given. If Booksellers have hitherto been dealing under an Idea of a perpetual
Monopoly, they have not paid an adequate Compensation for it, and the same
Phlegm will govern their future Transactions. It is a melancholy Consideration,
that even a Writer or Mr. Tompsons Merit does not appear to have received one
Hundred Pounds for Poems of the Seasons.
A Period of fourteen Years is a sure Test of every Book. If, after that Time, it
be worth reprinting, the Authors accuratest Toughts may be interwoven, and the
Fame and Proft will accrue to the Man of Labour and Invention.
24
Chapter 1
But if a perpetual Privilege and Monopoly are to interrupt his Hopes, the
Purchasers of the Copy will be enriched.
While it is unfair to present such a story only for one side of the case, unfortunately the
Becket side left no such scenario. Since it was Donaldson who ultimately won the day,
it is quite likely that the line of reasoning the House of Lords accepted was something
like the above.
Now, having read through the assertions of both sides, we may summarize the points
at issue briefy as follows:
First, what is literary property? Becket claims that there are rights to literary prop-
erty, while Donaldson says that such is not the case.
Second, is copyright determined by common law? According to the Becket side,
copyright is a perpetual right based on common law that has existed since before the
Statute of Anne came into being. Te Donaldson side, meanwhile, argues that the notion
of copyright began with the appearance of printing technology and was developed
through the Statute of Anne, which established a period after which it expires.
Tird, what is the source of copyright? According to the Becket side, the source of
copyright is the frst owner of the literary work, namely the author. When booksellers
purchase the rights to that ownership from the authors, those rights are thereafter in
their sole ownership. Donaldson counters that even if there is such a thing as literary
property, how is it possible to determine that the bookseller has purchased it from the
author? Donaldson asserts that it is an infringement on human rights to monopolize the
fruits of the authors talent.
Donaldson and Becket were not the only ones engaged in this battle over the ques-
tion of perpetual copyright. Many booksellers and lawyers and judges were involved. Te
following chapter will look into the personalities connected with the case and how they
were related.
25
Donaldsons suit against the London booksellers took place against the backdrop of the
spread of moveable-type printing across the British Isles and the subsequent develop-
ment of the book publishing industry. Adding to the drama of the times was the increase
in the literacy rate and the literary ferment of the Scotland Renaissance. Te stage was
set also by the chartering, in 1557, of the Stationers Company, which served both to
control freedom of speech and resolve disputes among members of the book publishing
industry, and in response to calls from the Company, promulgation of the Statute of
Anne in 1710.
28
In the 1730s, after the fourteen or twenty-eight-year term of protection
provided for under the Statute of Anne came to an end, the Stationers Company was
active in demanding further protections for their business, and this led eventually to the
battle among booksellers over the question of perpetual copyright.
Up to that time, as Adam Smith later wrote in Te Wealth of Nations, the main
occupation of writers had been teaching or other ways of communicating to other
people the curious and useful knowledge they had acquired.
29
Major changes took place
for their profession after the emergence of printing technology. Smith observed that
[b]efore the invention of the art of printing, a scholar and a beggar seem to have been
terms very nearly synonymous. Te diferent governors of the universities, before that
time, appear to have often granted licenses to their scholars to beg.
30
Apparently it was thought that printing technology had to be controlled so that
writers and scholars would not be reduced to beggars, and that meant restricting the
copying of works by printing technology and preventing them from circulating too
freely. Restriction of the fow of information and the commercialization of knowledge,
meanwhile, qualitatively changed the work of writers engaged in making useful knowl-
edge widely available to others. Tey began to provide information not just to anyone
who might seek it, but only to those who would and could buy their books.
Te frst printing press was built at Westminster in 1476 by William Caxton
(14221491), a translator from French. Printing technology was free and unrestricted
for about ffty years until, in due course, it became technology made available by the king
28 Here I refer primarily to Ransom 1956; Patterson 1968; Rose 1993; Shirata 1998; and Deazley 2004
which provide detailed studies of the Statute of Anne.
29 Smith 2009 (1776), p. 100.
30 Smith 2009 (1776), p. 101.
Chapter 2
RIvALS foR THE TREASURES of CoPyRIGHT
26
Chapter 2
and certain others such as the governors of the universities, only to people privileged to
use it.
Te reason the ruling class restricted freedom of printing technology was quite
simple. If people are to be controlled, the media through which information is circulated
must be kept under restraint. Meanwhile, the need among those in the publishing in-
dustry themselves for a means of suppressing the activities of pirate publishers brought
them into a symbiotic relationship with the rulers of the country.
Associations of merchants or craftsmen in medieval Europe were called guilds.
England had its guild of stationers even before printing technology arrived from the
continent. At the time printing began in England, those who were doing the printing
were not members of the stationers guild. Most of them were foreign artisans living in
outlying areas.
31

In 1533, during the reign of Henry VIII (14911547, r. 15091547), the Act for
Printers and Binders of Books was issued and these printers were gathered together
in London. As the printers were absorbed into the stationers guild, printers in other
parts of the country were suppressed and gradually disappeared. At the time, however,
England and Scotland were diferent countries, so the printers of Edinburgh were not
controlled under this Act.
In 1557, during the reign of Mary I (15161558; r. 15531558), the stationers guild
was incorporated as the Stationers Company by royal charter under which it was endowed
with a monopoly on printing and the authority to police against pirate publishing.
Why was the guild accorded legal status and given strong powers during this period?
Te booksellers had ample economic motives for seeking such powers. Another factor was
Mary Is faith.
32
Her father, Henry VIII, had rejected the Catholic faith and created the
Church of England, motivated largely by his desire to remarry. Married at a young age to
Catherine of Aragon (daughter of the king of Spain and mother of Mary I; 14851536),
he had made up his mind to separate from her and wed Anne Boleyn (1507?1536).
Te Catholic Church under which his marriage had taken place, however, prohibited
divorce. So Henry, not one to allow such a rule to stand in his way, set about to separate
the Church of England from the Roman Catholic Church, and to make England a
Protestant nation. He was assisted in this endeavor, known as the English Reformation,
by Tomas Cranmer (14891556; Archbishop of Canterbury), who also engineered
Henry VIIIs legal separation from Catherine.
After Henry VIIIs death, the throne fell to his frst daughter, Mary I. A fervent
Catholic, Mary burned with resentment over the way her father had abandoned her
mother, and she is remembered as Bloody Mary for her vengeful imprisonment and
31 Feather 2006, pp. 1718.
32 Shirata 1998, pp. 22935.
27
RIVALS FOR THE TREASURES OF COPYRIGHT
execution of countless religious reformers. Cranmer was among those she had arrested
and burned at the stake. By granting a charter to the Stationers Company Mary I ac-
corded it tremendous power. Control of publishing was just part of her campaign to
suppress Protestantism.
And thus, fueled by economic motives and Mary Is support, the major booksellers
of London came to monopolize publishing. Medium and small booksellers continued to
challenge the monopoly with their own editions. Te Stationers Company then sought
even greater powers against what they called pirate editions, and the government, which
wanted to control publishing, responded in 1586 with a Star Chamber decree stating
that printing presses could not be set up without reporting to the authorities. Printing
shops could only be established in London and in the two university towns of Oxford
and Cambridge. Te prerogatives of the Stationers Company increased, allowing it
to confscate printing presses and printed books it deemed illegal. It also limited the
number of apprentices who were taught the printing trade in order to keep the number
of printers under control.
Tis rigid control by the Stationers Company continued into the early seventeenth
century. A second Star Chamber decree was issued in 1637, during the tyrannical rule
of Charles I (16001649; r. 16251649). Its purpose was to control freedom of speech,
prohibiting the printing, sale, or import of books opposing the kings rule. Concerning
the monopoly on printing, the decree included a prohibition against the printing or
import of books whose titles were registered with the Stationers Company.
Following the English Civil War (16421648) in which the Parliamentarians led by
the Cavaliers and Oliver Cromwell (15991658) fought the forces of Charles I, the king
was tried for high treason and executed. Control of publishing had been based on royal
prerogative, so for a time, the powers of the Stationers Company were without a legal
basis. Cromwell, himself, however, was quick to issue a law to control publishing, and at
this time even accorded the Company the power of search and seizure. After Cromwell
died, Charles II (16301685; r. 16601685) restored the authority of the throne (1660).
Te next landmark law for the publishing industry, issued in 1662, was the Licens-
ing Act. In large part an extension of the 1637 Star Chamber decree, this law provided
for the appointment of a new post of licenser to supervise publishing, thereby somewhat
weakening the censorship powers of the Stationers Company. Te law did separate
censorship and the book publishing monopoly but continued to support the Stationers
Company interests.
Becket and the other London booksellers, in their argument claiming the prerogative
to perpetual copyright, invoked John Lockes theory of property as a natural right. Locke
himself did not think his theory of natural right applied to their monopoly and was
deeply opposed to the Licensing Act, as we can see in a letter dated 2 January 1692[3] he
addressed to House of Lords member Edward Clarke (1649[51]1710):
28
Chapter 2
I wish you would have some care of book-buyers as well as all of booksellers and the
company of stationers, who having got a patent for all or most of the ancient Latin
authors (by what right or pretence I know not) claim the text to be theirs, and so
will not sufer fairer or more correct editions than any they print here, or with new
comments to be imported without compounding with them, whereby these most
useful books are excessively dear to scholars, and a monopoly is put into the hands
of ignorant and lazy stationers.
33

Locke expresses his ire at the grip the booksellers have placed on the content of
books. People have a natural right to property, he declared. Citing his ideas for their
own case, the booksellers asserted their natural right to the literary property they had
purchased from the authors. Apparently, however, Locke himself did not see authors
rights as a natural right, but as property rights provided for by law,
34
so he must have
been dismayed to see his own theory being used to validate something that he opposed.
Locke appealed to Clarke over and over, and no doubt partly as a result of their eforts,
in 1695, the Licensing Act went out of force, formally separating the book monopoly
from censorship under the law.
As the seventeenth century drew to a close, the powers the Stationers Company
had been accorded to monopolize the printing of books and as agent of government
censorship were taken away, forcing it to fnd a diferent cause with which to justify its
monopoly. Tat cause, the Company now asserted, was encouragement of learning.
To encourage learning, it held, authors must be allowed to proft from books. Rampant
book piracy would undermine the share due those with legal rights to proft from books,
and authors incentive to write would be lost. Terefore, their argument now went, the
property rights to content of books had to be defended. Tis reasoning, which continues
to be used today, frst emerged in the late seventeenth century.
As recorded in Boswells Life of Johnson, however, encouragement of learning
was a pretext, indeed merely a device, to preserve the monopoly of the Stationers
Company.
35
In practice, the bookseller would purchase from the author the manuscript
together with the rights to its use, and then, no matter how the bookseller might proft
from the sale of the work, there was no guarantee what share of the profts, if any, would
return to the author.
Nevertheless, the Stationers Company petitioned Parliament to create a law on
literary property. Its eforts resulted in the passage in 1710 of what has come to be
known as the worlds frst law on copyright, the Statute of Anne.
33 Rand 1975 (1927), p. 366.
34 Shirata 1998, p. 123.
35 Boswell 1998 (1791), pp. 205206.
29
Te Content of the Statute of Anne
Now let us look at the main items of interest among the eleven articles of the law.
36
Article 1
Te author of a book as well as the Assigns the author has permitted to publish the
book hold sole Liberty of Printing and Reprinting the book. Tat right to copy was to
be protected for twenty-one years from 10 April 1710 for books already published and
fourteen years from the time of publication for books henceforth to be published.
Article 2
Tose who sought protection under the act had to register a book prior to its publication
with the Stationers Company.
Article 5
Nine copies of all books published from the time this law came into force were to be
donated to designated libraries.
Article 6
Any party to incur the Penalties contained in this Act in Scotland, their justice would
be examined in Scotlands Court of Session.
Article 9
Provided, Tat nothing in this Act contained shall extend, or be construed to extend,
either to Prejudice or Confrm any Right that the said Universities, or any of them, or
any Person or Persons have, or claim to have, to the Printing or Re-printing any Book or
Copy already Printed, or hereafter to be Printed.
37

Article 11
If, upon the expiration of the fourteen-year period of protection of the right to print
copies, an author was still living, the sole printing rights would return to the author, and
another term of fourteen years (in total twenty-eight years).
In addition to the maximum limit of twenty-eight years for protection of copyright,
a number of other stipulations were notable in this law. Article 2 required that books be
registered with the Stationers Company in order for their copyright to be protected. In
other words, only those who were associated with the Stationers Company could expect
protection for their books.
In most cases, the publishing rights to a book were given over to the bookseller at
the time of publication. As determined in Article 11, after fourteen years had passed,
however, those rights would return to the author. At that time, it was up to the author
whether to change publishers or revise or update the book. Also, thanks to Article 5,
36 For the entire Statute of Anne, see Appendix B.
37 Original text quoted from Appendix B.
30
Chapter 2
copies of all books published from the eighteenth century onward are preserved in the
British Library and in Britains old university libraries, a tremendous boon to scholars of
later ages.
Tree years before the Statute of Anne was enacted, in 1707, England and Scotland
had become one country, but their legal systems had yet to be unifed. Article 6 refects
the situation that prevailed for a few years after the union of the two countries. Scotland,
however, did not have the history of struggle over publishing that occurred in England
and there was nothing resembling copyright. In other words, a dispute over copyright
might be brought into Scotland, but there was no tradition of debate on the subject.
As we shall see later, Donaldson made adroit use of this article to swing things to his
advantage in his suit against the London booksellers.
Article 9 is rather dangerously worded. It appears to have been designed to protect
certain vested interests, but depending on how it was interpreted, could have taken the
teeth out of the statute altogether. In fact, interpretation of this passage of the law did
become an issue in the Donaldson v. Becket case.
Te Statute of Anne was a law of England, and did not apply in Scotland or Ireland.
No matter how many pirate editions might be printed in Scotland, they could not be
seized and destroyed under the Statute of Anne. Donaldson entered the book trade from
Scotland, a region not covered by the statutes net.
It should be pointed out that the Statute of Anne does not use the word copyright.
According to the Oxford English Dictionary, copyright was frst used on 6 May 1735
in a record of the proceedings of the House of Lords. In that sense, it may be difcult
to speak of the Statute of Anne, as is so often done, as the worlds frst law on copyright.
What the Statute of Anne was actually protecting was the rights to the printing
of books. But printing is not something that has form; the feature of moveable type
was that the blocks of type formed to print a book could be taken apart and the type
reused. Tus, when using moveable type, the blocks of type for a particular book were
not preserved in exact form, as they would be in woodblock printing. Te difculty of
resolving the issue being argued was that it dealt with rights to something that did not
have durable physical form. Te monopolistic booksellers held that with the purchase of
a manuscript from the author came the right to print it. Tey claimed the right to go on
printing it, in perpetuity.
It was one thing if the printer/bookseller was working from an original manuscript
purchased from a living author, but in many cases they were printing classical works for
which there was no original manuscript. Many booksellers were thus selling books for
which they had not, in the strict sense, purchased anything in the way of printing rights.
Why should certain booksellers be able to monopolize the printing rights to such classi-
cal works? It was difcult to present a convincing argument because of the lackwhen
it came to moveable type printingof an enduring physical form of the type that had
31
been set. From 1731, when the twenty-one-year term of protection under the Statute of
Anne expired, this problem came to the surface.
From 1710 to 1731, Englands publishing world was comparatively quiet, with the
big booksellers of London supported by the Statute of Anne dominating the market. But
in the 1730s, that situation began to change dramatically. Tere were two reasons. One
was that protection of the Statute of Anne ended for many books, and the other was that,
as Scotland and Ireland began to gain strength economically, their publishing industries
advanced and books printed there began to fow into the London book market.
Te London booksellers could not stand idly by as cheaper books from outside
began to fow into their market. Claiming the great damages they were incurring because
of pirate publishing, they called for the extension of period of protection under the
Statute of Anne, petitioning Parliament over and over. Te House of Lords, however,
turned down all the booksellers demands. Documents setting forth their reasons have
not been found, but in any case the booksellers zeal appeared to have received only the
cold shoulder from the gentlemen of the House of Lords.
Te booksellers next recourse was to argue that the right to copy was a perpetual
right confrmed under common law. Such copyright was the authors right, they said,
and it was a right accorded to all people as a universal rule; the perpetual right to their
work was the inherent right of authors. Tis line of reasoning led to the confating of two
qualitatively diferent thingsthe natural right of authors to their works and copyright
as the right of the booksellers to monopolize the industry.
38
Te Donaldson v. Becket case
was to demonstrate the error of such confation, but as Lockes theory of natural right
became established, the misunderstanding that authors rights and copyright were the
same thing spread, and continues to be widespread even today.
Now let us look at the overall plot of the booksellers battles over perpetual copyright.
Te Battles of the Booksellers
Te Midwinter case. Te battles began in 1743. A group of London booksellers includ-
ing Daniel Midwinter (d.u.) appealed to the Court of Session in Scotland that Scottish
booksellers were putting out pirate editions of Cyclopaedia (1728) by Ephraim Cham-
bers (1680?1740) among other works. Te protection of the right to print Cyclopaedia
had expired in 1742, but Midwinter and his side declared that the term of protection
set by the Statute of Anne was merely the period under which violation of the copyright
could be fned and insisted that their right to print had not expired. Ultimately, the
Court of Session dismissed the complaint on the grounds that the Cyclopaedia had not
been entered in the Stationers Company registry. As noted above, the Statute of Anne
38 Shirata 1998, p. 156.
32
Chapter 2
stipulated that protection was to be aforded to only those who had previously registered
a work with the Company.
39
Te Chambers Cyclopaedia, needless to say, was the mother of all encyclopedias and
infuential in the creation of the famous LEncyclopdie of France. After the protection
expired, countless reprints were madewhat the monopolistic booksellers called pirate
editionsand it was widely sold throughout England by the end of the eighteenth
century. What this suggests is that pirate editions were contributing to the education
and enlightenment of the masses. Looking at just this one case demonstrates that pirate
editions played an important role in the formation of modern society.
Te Millar v. Kincaid case. Te frst book-publishing case to be brought to the House
of Lords was the Millar v. Kincaid case of 1750.
40
Millar and sixteen other London book-
sellers sued twenty Edinburgh-based and four Glasgow-based booksellers for publishing
pirate editions. All of the titles for which Millar et al. sued for damages resulting from
pirate publishing, however, were those for which protection under the Statute of Anne
had already expired and which had not been registered with the Stationers Company. In
other words, Millar et al. sought in this suit to monopolize the printing even of books
that did not fulfll the requirements for protection under the Statute of Anne.
Millar et al.s frst appeal to the Court of Session in Scotland over this issue took
place in the same year as the Midwinter case, 1743, making these the frst court cases
dealing with copyright in Scotland. Te decision, as in the Midwinter case, was ultimately
that for books not registered with the Stationers Company the London booksellers
monopoly could not be protected. Millar et al., unwilling to accept the Court of Session
decision, in 1750 appealed their case to the higher court of the House of Lords. Te
House of Lords, however, would not recognize the Millar et al. charges of damages from
the pirate editions. Still determined, the booksellers sought to have the case reviewed,
but the Lords would not be swayed, and the attempt to reassert the London monopoly
was ultimately defeated.
Curiously enough, in 1748, even though this case remained unsettled, Millar appears
to have been the London agent of the Kincaid bookstore. It is possible that, after the
defeat of the suit in Scotland and during the period before the appeal was presented in the
House of Lords, Millar and Kincaid sought to privately settle the matter between them.
It was in the same year the House of Lords decision was handed down, that Donaldson
and Alexander Kincaid joined forces in opening a bookstore in Edinburgh, a store that
presumably sold so-called pirate editions. Learning of the judgment in the Millar v.
Kincaid case, Donaldson was confdent that the business would be proftable.
39 Feather 1994, p. 81.
40 English Reports, vol. 98, pp. 21013.
33
Te Scheme to Wipe Out Pirate Publishing
Te monopolist booksellers of London, after their failed attempts to press their cause
against pirate publishing in the courts, undertook their own campaign aimed at forcing
the outsider publishers out of business. In his expos on this state of afairs published
in 1764, Some Toughts on the State of Literary Property (hereafter Toughts), Alexander
Donaldson printed three letters sent to booksellers in England, and condemned the
conspiracy of the London booksellers.
Te frst letter was sent 23 April 1759 by London bookseller John Whiston
(17111780) to John Merrill (1731?1801), a Cambridge bookseller who sold books
printed in Scotland. Te letter begins as follows,
We have a scheme now entered into, for totally preventing the sale of Scotch and Irish
books, which were frst printed in England; and near two thousand pounds is already
subscribed for carrying it into immediate execution. And every person in England,
selling such books, will be proceeded against in Chancery, with the utmost severity: and
after May 1, agents will be sent out to all parts of England, to detect such as have them in
their shops, except classics, (Greek and Latin books.)
41

What the London booksellers had determined to do was to either buy, at cost,
books printed in Scotland and Ireland being sold in England or replace them, at their
own cost, with the same books printed in England. A most generous scheme it was.
Whiston requested that Merrill send all the books printed in Scotland and Ireland in
his store to a specifed address, providing a list of twenty-four books and newspapers in
particular, including Te Spectator, Shakespeare, Swifts works, Tomsons Te Seasons,
Miltons poetical works, Hudibras, and othersand, he pressed in closingI beg you
would not fail sending the Scotch and Irish books this week.
42
Whiston sent the same letter to booksellers all over England selling pirated books.
Te booksellers campaign was aimed at halting the circulation of any editions produced
in Scotland or Ireland of the same titles they were publishing in London, and they were
prepared to pay substantially to achieve their aim. Regarding that frst letter, Donaldson
observed as follows:
We shall be glad to know what exclusive right the London booksellers have to these
articles, some of them printed above one hundred years ago. Milton indeed sold
his Paradise Lost to a London bookseller for ffteen pounds, from which purchase
they draw an inference of perpetual monopoly to the trade in London: and it matters
41 Donaldson 1764, p. 11.
34
Chapter 2
not whether there are now any descendents from that bookseller who paid Milton
ffteen pounds; he that possessed that shop, or the nearest bookseller to the spot of
ground where the shop stood, is now the proprietor of Miltons works, and he retails
this illustrious author amongst his brethren at many hundreds of pounds; the public
must purchase such editions only as they chuse to give, and pay whatever price is put
upon them, and this to the end of time.
43
As Donaldson states, the protection of the right to print aforded under the Statute
of Anne had long ago expired for such works as those by Shakespeare and Milton. Don-
aldson argued the injustice of any attempt by particular booksellers to monopolize the
publication of classical works.
Te second letter was also penned by Whiston. Dated six days after the frst letter,
on 26 April, and without a specifed addressee, it began as follows:
Yesterday was a general meeting of all the considerable booksellers, and indeed
almost the whole trade. Te scheme was read and approved of, and an agreement
was entered into, and signed by all present but one, (Worral in Bellyard). Wren
signed, and Pottinger, and both subscribed 25 pound. Only a ffth of the money will
be called for. Te substance of the article agreed to, and signed by above sixty, near
seventy booksellers present, are.
44

Te letter reconfrmed that the plan to suppress sales of books from Scotland and
Ireland would be carried out beginning 1 May 1759. It also called on booksellers and
printers learning of persons engaged in bringing pirated editions into England to
promptly report such to the committee. Tose who infringed on the monopoly would
be prosecuted and the costs of the litigation would be charged to the fund collected.
Notice of this agreement was circulated among booksellers throughout England.
Tose who did not sign the agreement and provide some donation would be barred from
selling books. Tey would be expelled from the Stationers Company. Tose who went
along with the plan were prohibited from doing business with violators. Violators would
be fned fve pounds and be banned from the book trade. Te worth of fve pounds
may be understood when we are told that six pounds in those days was worth the cost
of a night out including supper, a bath and a fashionable courtesan; a full dressed suit.
45

Te letter thus threatened the termination of dealings from London with both pirate
booksellers and those dealing with them.
One wonders what kind of person was Worral, the bookseller who apparently did
45 Picard 2001 (2000), p. 297.
35
not buy into this scheme. John Worral (d.u.) ran a bookstore specializing in books on
law in Bellyard from 17361763. In 1763 Worral published Introduction to the Laws
of England.
46
Although his reason for opposing the plan is not known, perhaps, as a
publisher of books on law, he thought there was nothing to be gained from it. It is also
possible that, because of his familiarity with law deriving from his business, he was able
to see how shaky was the legal basis for the monopolists plan and that, therefore, his
conscience did not allow him to accept it. Whatever the reason, Worral was excluded
from all book dealings because of his decision.
47
How that might be related to his going
out of business in 1763 is also unknown.
A committee had been formed to administer the scheme consisting of Richard
Tonson (d.u.), Andrew Millar, John Rivington (d.u.), William Johnston (d.u.), and
three others. Tese were all persons who fgured on the side of the rights holders in the
litigation over copyright that unfolded between 1760 and 1774. To fund the scheme to
wipe out the pirate publishers, a total of 3,150 pounds was collected, with Tonson con-
tributing 500 pounds and Millar 300 pounds. Regarding the second letter, Donaldson
observed as follows:
Here this generous and disinterested scheme is brought to maturity, the agreement
is now signed by near seventy of the brethren, and a sum of L. 3150 Sterling is
subscribed, to oppress all the booksellers out of London; no Scotch or Irish books must
be sold after the frst of May 1759; every opposer of this scheme will be prosecuted
out of the common fund, and penalties are also prepared for such as will not comply
with them in this their unlawful combination. . . . So that here the reader will see the
most tyrannical and barefaced combination that ever was set on foot in any country;
and because they think themselves strong enough, they fully resolve to overturn all
who stand in their way, in open defance both of law and justice. If this be allowed
in a free country, we will soon see many other branches of trade run away with, and
monopolized by the wealthy, and all smaller dealers must fall a sacrifce to them.
48
Whiston, the author of the frst and second letters, was a famous bookseller special-
izing in works on theology. According to the Booksellers Dictionary, in 1759, the year he
wrote these letters, someone had played a practical joke on him that apparently caused
him enough psychological anguish that he was forced to withdraw from the bookselling
business.
49
Te record does not make clear from what sort of prank he sufered, but it
may have been fallout from the London booksellers scheme.
46 Booksellers Dictionary, p. 272.
47 Walters 1974, p. 292.
36
Chapter 2
Te third letter was written by London bookseller John Wilkie (?1785) by order
of the committee and also sent to all the booksellers in England. It was dated about half
a year after the second letter, on 2 November 1759, and reconfrmed the plan that had
been put in motion six months earlier. It reiterated the call to hand over pirate editions
to the committee, stating that they would be replaced by English editions of equivalent
worth. It also stated that in accordance with the plan previously announced, a legal
complaint was lodged against a number of bookstores. Donaldsons assessment of this
letter was: Te style is a masterpiece of low cunning, interspersed with fatteries and
threats. It had the desired efect upon many unwary country-dealers; however, some
there were who still stood out, and refused to comply with these unjust demands.
50
Te tie-up of Donaldson and Kincaid had been dissolved the year prior to these
letters, in 1758. It is rather startling to fnd that, at the same time all this was going
on in 1759, Millar, and his former apprentice Tomas Cadell (17421802) had again
established a link with Kincaid for the publication frst of Adam Smiths Te Teory of
Moral Sentiments (1759), and continuing with the printing of other titles by authors of
books of enlightened thought such as Adam Ferguson (17231816) and David Hume.
Some of these were printed by Millars ally William Strahan (17151785). Millar seems
to have put his suit of nine years earlier against Kincaid behind him, deciding that
yesterdays foe was todays friend. In the late 1750s then, it appears that Millar and his ilk,
while carrying out their scheme to suppress the booksellers selling pirate books, were
at the same time building cooperative relationships with provincial booksellers willing
to follow their lead. Seen in a certain perspective, these kinds of activities represented
Millars moves to gather provincial booksellers under his own umbrella. Te provincial
booksellers, for their part, could not ignore the strengths and the market advantages
enjoyed by the big booksellers of London, so it was only natural that they would keep as
close to them as possible.
Tonson v. Collins First Trial
In their attempt to get perpetual copyright accepted as a common-law right, the mo-
nopolistic booksellers of Londonin addition to the scheme revealed by Donaldson
adopted the surprising method of staging what turned out to be a trumped-up case
against pirate publishing, the Tonson v. Collins case for which trials were held in 1760
and 1761.
51
Tonson had been publishing reprints of articles from the popular newspaper
Te Spectator launched in 17111712, and Donaldson had been selling pirate editions
of Te Spectator from Scotland.
52
But it was not Donaldson, but Benjamin Collins
51 English Reports, vol. 96, pp. 16974, 18092.
52 Walters 1974, p. 293.
37
(17171785), a bookseller of Salisbury, about eighty miles southwest of London, whom
Tonson sued, saying Collins had been selling copies of Spectator reprints from Scotland.
Te case was brought to the Court of Kings Bench, which, as the reader will
recall, was the court that reviewed cases in view of common law (see Chapter 1).
Tonsons strategy was to have the court recognize the sole right under common law to
publish books even when the period of protection provided under the Statute of Anne
had expired.
As it later came out, however, the whole case had been set up by Tonson, who had
even agreed to pay Collins court fees to induce him to cooperate in the plan. Te truth
came out toward the end of the trial, and ultimately no decision was handed down.
Te main point under dispute in the Tonson v. Collins case was whether the
authors right to a work was a common-law right or not. Te monopolists sought to
defend their prerogative to print books by declaring that the authors right to a work
was a common-law right (i.e., not limited by the terms of the Statute of Anne). Te
pirate printers argued that authors right was not a common-law right but had been
established only with the Statute. Te details of debate in the case have been studied
closely by Shirata Hideaki in his Kopraito no shiteki tenkai [Te Historical Development
of Copyright]
53
and by Ronan Deazley in On the Origin of the Right to Copy.
54
What I
would like to examine here is the interpersonal relations between various men in Britains
legal profession. Key fgures in the later Donaldson v. Becket case made their appearance
in the Tonson v. Collins proceedings.
Standing for Tonson for the frst trial in the case was Alexander Wedderburn (1733
1805), a Scotland-born lawyer. Collins attorney was Edward Turlow (17311806),
born in Norfolk in the eastern part of England. So, the monopolist bookseller of London
was being represented by a Scotland-born attorney and the Scottish marketer of so-called
pirate editions was represented by an England-born attorney. Studying the history of
eighteenth-century litigation over copyright, we come across many such ironies.
What kind of person was Wedderburn? Born into a family of lawyers of East
Lothian, a town about seventeen miles east of Edinburgh, he had entered the University
of Edinburgh at the age of fourteen. Later he polished his rhetorical skills by preaching
in a local church by day and matching wits by night with members of the Scotland
Renaissance in social gatherings in the city. By 1754, at the age of twenty-one, he appears
to have been a lawyer with an independent practice.
In 1755, Wedderburn was involved in the founding of the Edinburgh Review.
55

His career in law in Edinburgh came to a sudden end in 1757, however, after he was
53 Shirata 1998, pp. 16172.
54 Deazley 2004, pp. 14963.
55 Tis journal ceased publication after only two issues, but the same title, revived in 1802 continued until
1929 as one of Englands leading journals of literary criticism.
38
Chapter 2
subjected to groundless insults he could not tolerate from others in the legal profession
and decided to leave Edinburgh for London. Te Tonson v. Collins case came along three
years later, as Wedderburn was seeking to reestablish his career in London.
How did Wedderburn feel when he departed from Edinburgh? He was no doubt a great
patriot as far as Scotland was concerned. Te cultivation he received from his interchange with
other enlightened men of his time was doubtless an asset that nourished him throughout his
life. It would be understandable, however, if the resentment he felt toward the parochialism
of Scotland that would not recognize his talents overwhelmed the value of what he had
enjoyed there. Such mixed sentiments were probably related in some way to his reason for
standing for the London booksellers side in the litigation over copyright.
Soon after Wedderburn arrived in London, he resolved to get rid of his Scottish
accent, realizing that he could not expect success in London if he did not acquire the
smooth tones of accepted English speech. In this endeavor he studied under an Irish born
actor and speech instructor named Tomas Sheridan (17191788) and others. In Life of
Johnson, Boswell writes about this at some length:
Mr. Macklin, indeed, shared with Mr. Sheridan the honour of instructing Mr.
Wedderburn; and though it was too late in life for a Caledonian to acquire the
genuine English cadence, yet so successful were Mr. Wedderburns instructors,
and his own unabating endeavours, that he got rid of the coarse part of his Scotch
accent, retaining only as much of the native wood-note wild, as to mark his
country; which, if any Scotchman should afect to forget, I should heartily despise
him. Notwithstanding the difculties which are to be encountered by those who
have not had the advantage of an English education, he by degrees formed a mode
of speaking to which Englishmen do not deny the praise of elegance. Hence his
distinguished oratory, which he exerted in his own country as an advocate in the
Court of Session, and a ruling elder of the Kirk, has had its fame and ample reward,
in much higher spheres. When I look back on this noble person at Edinburgh,
in situations so unworthy of his brilliant powers, and behold Lord Loughborough
[Wedderburn] at London, the change seems almost like one of the metamorphoses
in Ovid; and as his two preceptors, by refning his utterance, gave currency to his
talents, we may say in the words of that poet, Nam vos mutastis.
56

After moving to London and while casting about in his attempt to make a living
there, the man upon whom Wedderburn depended was William Strahan, another Scots-
man from Edinburgh who had established himself in London by setting up a printing
56 Boswell 1998 (1791), pp. 27374. Pages later in Life of Johnson, we read of the elderly Sheridans
complaints that after Wedderburn had established himself in London society, he neglected the benefactors
who taught him how to speak, p. 718.
39
company. Wedderburn went to his countryman requesting to be allowed to be put in
charge of a lawsuit. Once again, Life of Johnson sheds light on the situation at the time.
When we had talked of the great consequence which a man acquired by being
employed in his profession, I suggested a doubt of the justice of the general opinion,
that it is improper in a lawyer to solicit employment; for why, I urged, should
it not be equally allowable to solicit that as the means of consequence, as it is to
solicit votes to be elected a member of Parliament? Mr. Strahan had told me that
a countryman of his and mine, who had risen to eminence in the law, had, when
frst making his way, solicited him to get employed in city causes. Johnson. Sir, it
is wrong to stir up law-suits; but when once it is certain that a law-suit is to go on,
there is nothing wrong in a lawyers endeavouring that he shall have the beneft,
rather than another. Boswell. You would not solicit employment, Sir, if you were
a lawyer. Johnson. No, Sir, but not because I should think it wrong, but because
I should disdain it. Tis was a good distinction, which will be felt by men of just
pride. He proceeded: However, I would not have a lawyer to be wanting to himself
in using fair means. I would have him to inject a little hint now and then, to prevent
his being overlooked.
57

Te reference to a countryman . . . who had risen to eminence in the law is to
Wedderburn. Strahan had helped the younger man fnd work when he had left Edin-
burgh without having a frm position in London to go to, and this Strahan was a friend
of Millars. By this path of horizontal connections among contemporaries, it seems
certain, Wedderburn ended up becoming attorney for the monopolist booksellers in
Tonson v. Collins.
Samuel Johnsons estimation of Wedderburn does not seem to have been very favor-
able, as we can observe in Boswells account quoted above. Te Edinburgh Review, in
the editing of which Wedderburn had been involved, had published a review critical of
Johnsons Dictionary by Adam Smith. Tat may have had something to do with Johnsons
irritation. He seems to have had more afnity for Turlow, who had taken up Collins
defense, than for Wedderburn, as the following account in Life of Johnson testifes.
It is wonderful, Sir, with how little real superiority of mind men can make an
eminent fgure in publick life. He expressed himself to the same purpose concerning
another law-Lord, who, it seems, once took a fancy to associate with the wits of
London; but with so little success, that Foote said, What can he mean by coming
among us? He is not only dull himself, but the cause of dullness in others. Trying
57 Boswell 1998 (1791), p. 683.
40
Chapter 2
him by the test of his colloquial powers, Johnson had found him very defective. He
once said to Sir Joshua Reynolds, Tis man now has been ten years about town,
and has made nothing of it; meaning as a companion. He said to me, I never
heard any thing from him in company that was at all striking; and depend upon it,
Sir, it is when you come close to a man in conversation, that you discover what his
real abilities are; to make a speech in a publick assembly is a knock. Now I honour
Turlow, Sir; Turlow is a fne fellow; he fairly puts his mind to yours.
58

Another law-Lord would be Wedderburn, and Johnson was not the only person
to have remarked on the Scotsmans lack of refnement. Alexander Carlyle (17221805),
too, described Wedderburns conversation as stif and pompous.
59

Wedderburn went on to be elected to the House of Commons from Yorkshire.
Figures like him, who became members of Parliament from parts of the country to which
they were not native, sharply increased from 1754 onward, until there were nearly sixty
of them by 1790.
60
We do not know if all of them had made a point of removing their
native accents or not, but it is likely that there were many Englishmen who took umbrage
at the large number of people from Scotland serving in Parliament.
And what about Edward Turlow? He attended Cambridge University, but left
in 1751 and became a barrister in 1754. In 1762 he became a member of the Kings
Council, and in 1765 a member of the House of Commons. One might think, as a
defender for the pirate publishers, he would have been a liberalist, but in fact, he
was quite the opposite. A conservative lawyer who supported George III (17381820;
r. 17601820), Turlow is known for having been a defender of the slave trade and
Britains control of the American colonies.
Physically, Turlow was rather dark-complexioned with handsome, if not particularly
refned, features. A man of great dignity, he had thick eyebrows and a piercing gaze. He
was known more for his eloquence than for his knowledge of law, and his intellect was
sharp enough to cause even Samuel Johnson to observe, I would prepare myself for no
man in England but Lord Turlow. When I am to meet with him I should wish to know
a day before.
61
So able and sharp could Turlow be, that everyone around him had to
be on guard.
Wedderburn and Turlow seem to have competed for the same posts throughout
their careers and to have been lifelong rivals. As it happened, Turlow ended up as-
suming the posts of solicitor general, attorney general, and lord chancellor frst, with
Wedderburn invariably taking them up later.
58 Boswell 1998 (1791), pp. 12041205.
59 Oxford Dictionary of National Biography.
60 Colley 2008, p. 126.
61 Boswell 1998 (1791), p. 1317.
41
Another key player in the Tonson v. Collins case who also fgured large in the
Donaldson v. Becket case was Lord Mansfeld (William Murray, 17051793). Scotland
born, he reigned supreme in Englands judiciary as chief justice of the Court of Kings
Bench for more than three decades between 1756 and 1788. Highly admired even to-
day as the leader of Britains eighteenth-century legal profession, he invariably assumed
a central role in the series of court cases involving the question of copyright. Lord
Mansfeld was described as a man with a silver tongue, not only eloquent but full of
passion, as so vividly portrayed by Johnson and Boswell: So many bellows have blown
the fre . . . And such bellows too. Lord Mansfeld with his cheeks like to burst.
62
Lord Mansfeld was born in Scone, Scotland.
63
Scotland in the early eighteenth cen-
tury was the scene of anti-England activism led by the Jacobites. Coming from a family
of Jacobites, he was involved in the movement from a young age. Despite the glories of
his later career, these beginnings were later to bring disaster. Apparently, after he became
successful in London, Lord Mansfeld was rarely in touch with his family in Scone. He
seems not even to have bothered to inform his brothers of the various posts he assumed.
He may have decided to give up ties to his family in order to distance himself from
the connection with the Jacobite cause. Although born in Scotland, he was educated
from high school at Westminster School and Oxford University, and the accents and
cultivation of England he acquired from an early stage of his youth stood him in good
stead. Te elite of Scotland were all at great pains to erase or dilute their strong accents.
64
In the course of his long career as chief justice of the Court of Kings Bench, Lord
Mansfeld established countless precedents relating to promissory notes, contracts, bills of
exchange, and other matters relating to mercantile afairs. He is famous in the history of law
as having established the foundations of commercial law in England. He also had a liberal
side, and was well known for his success in 1772 in preventing a slave from being detained
in England for sale overseas in a judgment that is said to have contributed to the abolition of
the slavery system.
Lord Mansfeld is said to have been requested to serve as lord chancellor several times,
but to have refused each time. He was apparently content to keep the relatively more stable
position on the Court of Kings Bench than take the loftier job of lord chancellor, from
which he might be easily removed at the will of higher authorities.
65
Indeed, during the
time he served on the Kings Bench, the post of lord chancellor changed hands fve times.
62 Boswell 1998 (1791), p. 520.
63 For the life of Lord Mansfeld, see Foss 1864; Fifoot 1936; Heward 1979; Oldham 1992; and Oldham
2004.
64 A remarkmade in 1772by Oxford University professor Robert Vansittart (17281789) about Mans-
feld set down by Boswell highlights the disdain the gentlemen of England felt toward men from Scotland:
He would not allow Scotland to derive any credit from Lord Mansfeld; for he was educated in England.
Much (said he,) may be made of a Scotchman, if he be caught young. Boswell 1998 (1791), p. 494.
65 Heward 1979, p. 89.
42
Chapter 2
Tonson v. Collins Second Trial
Chief Justice Mansfeld was known as a man who believed in the principle of common-
law copyright.
66
And yet he did not hand down a clear decision in the frst trial of the
Tonson v. Collins case. Te deliberation on this suit of dubious origins was resumed in
1761 when the second trial took up where the previous trial left of.
In this trial, Wedderburn was replaced as attorney for Tonson by the London-born
barrister William Blackstone (17231780). Immediately afterwards Blackstone pub-
lished his monumental work Commentaries on the Laws of England,
67
which was to have
a major infuence on the profession of law in Britain and the United States. Blackstones
Commentaries includes a discussion of copyright, and among works on law it is this book
that uses the term copyright for the frst time.
68
Blackstone is one of the leaders in
popularizing the concept.
As Shirata points out, Blackstone distinguished clearly between authors right and
copyright. Authors right, in Blackstones view, was the property rights to an entity
produced by an author through the exertion of his rational powers. Tis assertion was
based not on common law but on Lockes theory of natural right, while copyright,
which was grounded in common law, was a property right concerning publishing.
Collins attorney, too, changed from Turlow to Joseph Yates (17221770). While
Yates was willing to accept Blackstones idea of authors right, he objected to the notion
of copyright. Stating that to publish a work was to make it the common possession
of the world, Yates argued that it was impossible to assert property rights, by way of
copyright, to something that by its nature could not be monopolized.
Chief Justice Mansfeld did not hand down a judgment in this 1761 trial either, but
passed it on to the Court of Exchequer for further debate. It was there that suspicions
of collusion were revealed and the matter was shelved. Te revelation that the case was
contrived must have dealt quite a serious blow to the reputation of the leading booksell-
ers of London.
Donaldson Goes to London
Donaldson went to London and opened a store on the Strand in 1763, about two years
after the Tonson v. Collins case. His premises were only about 440 yards away from Mil-
lars store. To have a publisher from Edinburgh set up shop and start selling discount
copies of books in their very midst was intolerable to the London booksellers. No sooner
had he opened his doors than he became the target of the local booksellers enmity. But
Donaldson was not to be cowed. He sat down and wrote a book exposing the various
66 Deazley 2004, p. 130.
67 Blackstone 17651769.
68 Shirata 1998, p. 108.
43
ploys of the monopolist members of the trade. He prefaces Some Toughts on the State of
Literary Property with the following advertisement:
As the booksellers of London have endeavoured of late to monopolize books of all
kinds, to the hurt of all the other booksellers in England, Scotland, and Ireland in
particular, and, in general, to the prejudice of all his Majestys subjects in the three
kingdoms, as well as in the British colonies; the following short state of literary
property is made public, that the world may see how unjust their pretensions to an
exclusive right are, and how oppressive, in these lands of liberty their monopolising
schemes have been.
It is therefore expected, that as this is an afair of public concern, persons of all
ranks, into whose hands this short memorial falls, will take the trouble to read it
over, and then judge for themselves, Brevity has been designedly studied, that
the readers patience might not be incroached [sic] on.
69
Te London booksellers asserted that because they had purchased the rights from
the authors, they held a monopoly on the printing and publication of such books in
perpetuity. But Donaldson believed that their assertions violated the spirit of the Statute
of Anne. He was well informed of the many cases in which it was dubious as to whether
the bookseller had in fact purchased rights from authors. Reading the preface above, one
might conclude that his actions were inspired by righteous indignation. But Donaldson
was basically a newcomer seeking to make a proft in the London book trade, so altruistic
passions were surely not his only motive. Without the opportunity he saw for pecuniary
gain represented by as large a market as London ofered, would he really have committed
himself so seriously to challenging the monopoly of the big booksellers?
Toughts set forth two major questions. Te frst was: What is the law or logic upon
which an authors ownership of printed and published books is based? Te second was:
How long does that exclusive and absolute right of possession remain with the author,
his heir, or his assigns?
Donaldson recognized that authors needed to be encouraged, but he believed there
was no legal basis for the notion that an authors ownership of a book, once published,
lasted forever. An author was no diferent from the creator of a work of art or the discov-
erer of a secret of nature. Such a discovery was his own possession as long as he kept it
to himself, but once the work or discovery was made public, unless some measure were
instituted in the law, it was something from which all people should be able to freely
seek proft.
In the case of a discovery or an invention, the law provided for patents giving protec-
44
Chapter 2
tion for a certain period of time. Tat implied a popular recognition that monopolistic
rights were rightfully of limited term. Without that inventor or discoverer, someone else
would eventually discover or invent more or less the same thing. It is also most likely that
someone would produce something new using an older invention or discovery. In the
same way, Donaldson claimed, it did not make sense for an author to cling perpetually
to ownership of the content of a book once it was published.
One might think that, because a book is a direct refection of the character or
identity of its author, it is intrinsically diferent from an invention or a discovery. But
that is quite a modern idea. In England in the latter half of the eighteenth century, the
novel was a literary genre just in the process of being born. In that time at the dawn of
modernity, it seems unlikely that there was anything like the modern view of literature
as writing as the expression of identity. Moreover, literary property would consist not
only of so-called literary works, but would also encompass classical works of history
and philosophy as well as books of a pragmatic nature. Donaldson argued that perpetual
rights should not be allowed for the knowledge that is needed by society.
As Donaldson saw it, the Statute of Anne had been intended to prevent the monopoly
on printing and publishing of books by booksellers from being extended without limit.
During the time a book was protected, the Statute said that an author could demand
penalties for pirate editions. But once that period of protection was over, it was evident
that anyone should be free to reprint that book.
Te London booksellers appealed repeatedly to the Court of Chancery to prevent
other booksellers from reprinting books for which their rights had expired under the
Statute of Anne. Until the collusion among booksellers demonstrated by the Tonson v.
Collins case was exposed, the successive justices in the post of lord chancellor had been
sympathetic to the pleas of the booksellers and issued injunctions to stop the publishing
of the pirates. Donaldson and the other booksellers of Scotland were deeply dissatisfed
with such decisions.
In an appendix to Toughts, Donaldson quoted the critic William Warburton
(16981779) to support his ideas, as follows:
70
Tis author, after an inquiry into diferent kinds of property, puts a question,
Whether at common law an author and his assignees have a perpetual and exclusive
right of selling and vending his own works? Tis question he discusses with a great
deal of precision; and fnds, that copies are no more susceptible of property after
publication than the elements of air and water, a refreshing breeze, or a beautiful
prospect, which are for the common beneft of mankind. . . . After taking a view of
the Greek and Roman authors, some of whom wrote for honour, and others for gain,
70 Parks 1974a.
45
he [Warburton] says, It is evident that neither the authors of Greece and Rome ever
claimed an exclusive right in their copies after publication.
71

Donaldson holds that it was unthought of in Greek and Roman times for authors
to monopolize the copying of knowledge that had been made public. Since Greek and
Roman times came long before the invention of printing in the West, he probably meant
publication in the sense of the hand-copying of books.
Donaldson quotes the following section of Warburtons book:
Te property of an inventor in his machine, is in every respect similar to the exclusive
right claimed by the author, in his copy. It is admitted, that, at common law, the
inventor hath no property in the form of his machine; can the author claim any in
his copy?
72
Some explanation may be in order here. In the discourse leading up to the establish-
ment of the Statute of Anne, the booksellers argued that literary property and patents
for invention were similar. At a time when patents for inventions were recognized, they
declared, it was irregular that authors rights should not be. But what they overlooked
was that an inventors right to a patent on his invention was not one arising from
common law, but a right accorded artifcially under established law. Tus, patents had
stipulated limits of term. After that limit expired, anyone was free to use the invention
as he pleased. Te right to copy that was established under the Statute of Anne, too,
did not derive from common law but was an artifcial right established under statute law.
Tis is also the reason why the period of copyright protection was limited to fourteen
years from the time of publication.
If the right to literary property were guaranteed in perpetuity, the benefts would
overwhelmingly accrue only to the person holding the rights when it is published. A
business attempting to proft from the reprinting of books that had already become clas-
sics, as was Donaldsons, would not be viable. Herein lies Donaldsons real motive. Just
because a bookseller has made a copy of a book, does not mean that the original book has
disappeared. As distinct from, for example, the possession of land, exclusive ownership
of copying is difcult to establish. What Donaldson wanted to establish was that, even if
one had a right to copy, it would be an artifcial right, not an eternal right deriving from
common law or natural rights. His Toughts ends with a challenge:
71 Donaldson 1764, pp. 2122.
46
Chapter 2
To the PUBLIC.
Tis is to give notice, that Alex Donaldson, from Edinburgh, has now opened a shop
for cheap books, two doors east from Norfolk-street, in the Strand, where they are sold
from thirty to ffty per cent, under the usual London prices. Te London booksellers,
by the aforementioned combination, having prevented their brethren from dealing
with him, have forced him, in self-defence, to establish this shop. Good allowance
is made to merchants who buy for exportation, and to country booksellers.
Catalogues, with the prices annexed to each article, may be had gratis at said sho[p].
73
Now we know Donaldsons reason for establishing his shop in London. As observed
in the three letters introduced above, the London booksellers had launched a scheme
in 1759 calling on all members of the trade in England to boycott books published in
Scotland. Tey sought to prevent the collapse of the mechanism that supported their
monopoly on printing of specifc titles by certain bookstores, thereby keeping the price
of books high. Finding his eforts to export books from Edinburgh to London thwarted
by the English boycott, Donaldson was unable to sell his books. So he decided that in
order to defend his business he would go to London himself and there try to sell books
cheaply that he had printed in Edinburgh.
Donaldsons challenge was driven by the fghting spirit of a latecomers last-stand
efort to protect his enterprise. He was not at all some sort of shining knight fghting
bravely against the monopolization of knowledge.
Victory for the Perpetual Copyright Camp
Te London booksellers did not let Donaldsons challenge go unanswered. In 1765, they
launched two suits in the Court of Chancery against him, one led by Millar and the
other by Tomas Osborne (?1767).
Te Millar v. Donaldson and Osborne v. Donaldson cases. Te Booksellers Dictionary
describes Osborne as both coarse, dull, and uneducated and as a very respectable
man.
74
Perhaps he was the kind of man who had as many friends as he did foes.
75
In
any case, any designs these vengeful booksellers may have had to put Donaldson in his
place were thwarted. Ten Lord Chancellor, the Earl of Northington (Robert Henley:
75 At least Samuel Johnson was probably not among his friends, as suggested by Boswells account included
in Life of Johnson: It has been confdently related, with many embellishments, that Johnson one day
knocked Osborne down in his shop, with a folio, and put his foot upon his neck. Te simple truth I had
from Johnson himself. Sir, he was impertinent to me, and I beat him. But it was not in his shop: it was
in my own chamber. (Boswell 1998 [1791], p. 112)
47
1708?1772), rejected the suit brought by Millar and his cohorts to force Donaldson
to cease publishing and to recognize their perpetual ownership rights to the titles they
were publishing. Te Lord Chancellor went so far as to say that it might be dangerous
to determine that the author has a perpetual property in his books, for such a property
would give him not only a right to publish, but to suppress too.
76
Until that time, the
Court of Chancery had been generally favorable to the position of the London booksell-
ers and had frequently issued injunctions against the pirate publishers, so clearly the
prevailing trend of the times had changed. Perhaps the collusion revealed in the Tonson v.
Collins case had started to cast its shadow over the booksellers credibility.
Te Lord Chancellor went further to propose that the case be taken to the highest
court in the landthe House of Lords.
77
When the monopolist booksellers had sought
to have the term of protection given in the Statute of Anne extended, the House of Lords
had frmly turned down their plea; it had also rejected the assertions of the monopolists
when the Millar v. Kincaid case was appealed there in 1750 as well. Taking that record
of decisions into account, an appeal to the House of Lords was likely to have worked
to the advantage of Donaldson. Te monopolist booksellers, however, probably wanted
to avoid that option. Tey were then forced to shift strategies in order to fnd a way to
achieve their aim without directly targeting Donaldson, keeping their battle out of the
Court of Chancery and getting a favorable decision at the Court of Kings Bench, pre-
sided over by Lord Mansfeld, who supported the principle of common law copyright.
Te Millar v. Taylor case. Te monopolist booksellers chose as their next target Robert
Taylor (d.u.), suing him at the Court of Kings Bench in 1766 for publication and sale of
the book Te Seasons.
78
Te Seasons author James Tomson had sold his poetry to Millar
and Millan in 1729, and since the longest their rights to the title under the Statute of
Anne would be protected would have been twenty-eight years, that meant that at least
by 1758, their copyright to Te Seasons would have expired. Taylor published Te Seasons
because he believed the copyright had expired. It is interesting that Millar did not sue
Taylor regarding the printing of Te Seasons, only publication and sale. One theory goes
that the edition of Te Seasons that Taylor was selling was printed by none other than
Alexander Donaldson.
79
If that was a fact, then it would bring into view intriguing rela-
tions among the three persons.
In the frst trial of the Millar v. Taylor case, the lawyer representing Millar was John
Dunning (17311783), a native of Devon in the southeastern part of England. Dunning
was to be a key fgure in the Donaldson v. Becket case, serving as Beckets attorney.
76 English Reports, vol. 28, p. 924.
77 Rose 1993, p. 94.
79 Rose 1993, p. 94.
48
Chapter 2
Dunning spoke with a Devonshire accent, which, with its rolled rs, was said by some
to have a soothing efect. Dunnings name appears in Life of Johnson when the subject
of the accents of people from Scotland comes up. Johnson, who prided himself on his
ability to identify even subtle diferences of accent, said that he could tell from Dunnings
accent that he came from Devon,
80
suggesting that it was not a very heavy accent. And
thus we can form an image of this gentleman who had established himself in the high
society of London but could not completely conceal his country origins. Robert Gore-
Browne describes him as a man whose wit relieved the weary, calmed the resentful and
animated the drowsy. His oratory was remarkably elegant, known for its fne sense of
rhythm and unexpected climaxes. Unfortunately, he was not very good looking and his
voice was husky, so he may not have cut a particularly striking fgure in the courtroom.
81

Meanwhile the attorney for Taylor in the frst trial was the above-described Turlow.
In as much as Turlow was to be Donaldsons attorney later on, we can see that the
face-of between Dunning, standing for the monopolist side (Millar, Becket, etc.), and
Turlow, standing for the pirate side (Taylor, Donaldson, etc.), already began with this
Millar v. Taylor case. At the same time, we fnd that while they might cross swords in the
court room, Turlow and Dunning were in fact close friends going back to their days
together in the Inner Temple Law School.
82
Tese elements of interpersonal relations
aford some insight on history that does not emerge by simply looking at court records.
Te frst trial was held 30 June 1767, but no decision was made. Te second trial was
held on 7 June of the following year, with Blackstone taking over as attorney for Millar and an
Irish writer-cum-barrister named Arthur Murphy (17271805) representing the Taylor side.
Te morning after the second trial, however, Millar suddenly died; the cause of his death is
not known. Millars wife Jane, son William, the bookseller Longman II (17311797), and his
former apprentice Tomas Cadell, along with Becket, became the executors of Millars estate.
Cadell was a bookseller who had been trained as an apprentice with Millar and
became his business partner in 1765. Millar had retired from the business in 1767 and
handed over his shop to Cadell as his successor. Cadell joined forces with Strahan and went
on to put out numerous best-selling works including Edward Gibbons (17371794) Te
History of the Decline and Fall of the Roman Empire (published 17671789). Cadell also
put out works by Blackstone, leading Scotland poet Robert Burns (17591796), Hume,
Johnson, Adam Smith, and so on. Noting that he published books for Blackstone, who
had served as attorney for monopolist Tonson in the 1761 Tonson v. Collins case, we can
detect the behind-the-scenes connections linking Millar, Cadell, and Blackstone.
On 13 June 1768 the executors of Millars estate put the copyright to Te Seasons up
for sale in London. Donaldson tried to submit a bid but was prevented from participating
80 Boswell 1998 (1791), p. 469.
81 Gore-Browne 1953, p. 13.
82 Gore-Browne 1953, p. 11.
49
in the sale. As a result of the sale, a group of ffteen people including Becket, Longman,
and Cadell pooled their funds and purchased the copyright to Te Seasons.
After Millars death, Becket and others took over his role in the Millar v. Taylor case.
Te debate in the court focused on the issue of whether copyright was a matter of com-
mon law or notin other words whether copyright as authors right was something
that had existed from before the Statute of Anne, and whether that right continued after
publication. Te Millar side argued that their rights originated prior to the Statute while
the Taylor side asserted that no such thing existed.
Records of the case show that of the three justices in charge of the case, two of
themEdward Willes (?1787) and Richard Aston (?1778) gave opinions supporting
the Millar side both in terms of the historical aspect and the theory of ownership rights.
Te third justice, Joseph Yates, supported Taylor on the point that knowledge once made
public is not something that can be monopolized (as the reader will recall, Yates had
served as attorney for the defendants in the Tonson v. Collins case introduced above).
Justice Yates held forth with eloquence for three hours, but ultimately, since the other two
justices supported Millar, it appears that his arguments were not persuasive. It is said that
in the thirty-two years during which Lord Mansfeld served as chief justice on the Court of
Kings Bench, in fewer than twenty cases did the justices difer in this way over the decision.
83
Without pursuing the tremendous detail of the points debated, let us look at the
conclusion. Te judgment was handed down 20 April 1769. Te chief justice was, as
in the case of the Tonson v. Collins case, Lord Mansfeld. According to the judgment,
it was clear in terms of the principles of justice and fairness that the manuscript before
publication was protected under common law. If such protection should cease after pub-
lication and pirate editions appeared, the author would lose any profts to be gained
from his work and be unable to correct any mistakes in pirate editions. Te author,
moreover, would not be able to prevent having his name afxed to the work; therefore,
said Mansfeld, copyright needed to be protected after publication as well as before.
84

And he stated:
Te accurate and elaborate investigation of the matter, in this cause, and in the
former case of Tonson and Collins, has confrmed me in what I always inclined to
think, that the Court of Chancery did right, in giving relief upon the foundation
of a legal property in authors; independent of the entry, the term for years, and all
the other provisions annexed to the security given by the Act.
Terefore my opinion isthat judgment be for the plaintif.
85

83 Fifoot 1977, pp. 4647.
85 English Reports, vol. 98, p. 257.
50
Chapter 2
While he had not clearly committed himself in the Tonson v. Collins case, Lord
Mansfeld placed himself clearly on the side with the monopolist booksellers in stating
that authors held legal ownership of their works, which was separate from term of protec-
tion and other provisions of the Statute of Anne. Mansfeld handed down a decision
supporting the view that copyright existed in common law and that authors held the
rights to their manuscripts in perpetuity.
51
In April 1769, the Court of Kings Bench had recognized the plaintifs claim to their
perpetual copyright in the Millar v. Taylor case. Alexander Donaldson must have felt
that Millar and his cohorts had gotten the head start on him by taking Taylor as their
target.
86
As long as Lord Mansfelds judgment held, Donaldson knew his business would
be hobbled. Te only way to reverse this situation was to bring the House of Lords, which
had long resisted the demands of the monopolistic booksellers, into the fray, and fght out
his case at Westminster.
Tere was probably only one scenario for realizing this scheme: to provoke Tomas
Becket and the other monopolist booksellers who carried on Millars cause in such a way
that they would demand that Donaldson be penalized. Should Becket and his cohorts
appeal to the Court of Chancery, the court, inasmuch as Lord Mansfelds earlier decision
in favor of perpetual copyright prevailed, would no doubt place the blame on Donald-
son and hand him a penalty. Te case would then be moved from England to Scotland
because the Statute of Anne stated that persons in Scotland charged with violating the
Act should be brought before the Court of Session there, and Donaldson was a citizen of
Edinburgh. Although England and Scotland were one kingdom at the time, their social,
including legal, systems were completely diferent. Tere were no precedents in Scotland
recognizing copyright, a situation that well revealed the contrast in social conditions of the
two parts of the kingdom less than a century after Scotland and England had been united.
Donaldson could be assured of winning if the trial were held in Scotland, and once
having won in the local court, he could appeal against the Court of Chancery judgment
to the House of Lords. Such was the long and difcult scenario that Donaldson must
have envisioned. So, in order to provoke Becket and his cohorts, he carried on with the
publishing of Te Seasons even after the April 1769 decision in the Millar v. Taylor case.
Te monopolist booksellers promptly responded to the provocation. Tey appar-
ently underestimated him, concluding that suppressing Donaldson would be easily done
since perpetual copyright had been recognized. Tey appealed to the Court of Chancery
on 21 January 1771 demanding that Donaldson cease publication of Te Seasons and
hand over to them the profts accrued from its sale. Te then Lord Chancellor Lord
86 A pamphlet taking issue with the decision of the Court of Kings Bench and explaining the essence of
the Statute of Anne was published anonymously in Edinburgh on 8 May 1769. Deazley attributes the
pamphlet to Alexander Donaldson. (Deazley 2004, p. 163)
Chapter 3
NINETEEN dAyS IN CoURT
52
Chapter 3
Apsley (Henry Bathurst; 17141794) called Donaldson for hearings that year from 16
to 20 July, and it was the autumn of the following year, 16 November 1772, that the
Lord Chancellor decided, as in the case of Millar v. Taylor, that literary property was
protected in perpetuity, and that Donaldson must reimburse Becket et al. Based on Lord
Mansfelds earlier decision, the judgment fully supported the claims of the plaintifs.
Donaldson then, citing Article 6 of the Statute of Anne, wasted no time in appealing the
case in the Court of Session of Scotland.
It was only a little later, in 1773, incidentally, that another of the London mo-
nopolist booksellers, John Hinton (?1781) was suing Donaldson in the Scottish Court
of Session.
87
Hinton declared that the copyright to A New History of the Holy Bible by
Tomas Stackhouse (16771752), belonged to him and sought to stop Donaldson from
publishing the pirated edition. Hinton, who had married the widow of the bookseller
who had published Stackhouses book, had obtained the copyright. Donaldsons attorney
in this Hinton v. Donaldson case was Boswell, author of Life of Johnson. Te result of the
trial held in Edinburgh was eleven of the twelve judges in favor of Donaldson. It was an
overwhelming victory for the pirate side.
Te suit with Becket et al. proceeded in the same direction. Te conclusion of the
deliberations of Scotlands Court of Session on 27 July 1773 was, as Donaldson had
calculated, that in Scotland authors did not hold exclusive property rights to their work.
Tat victory in hand, Donaldson immediately appealed to the House of Lords: was
copyright indeed an eternal right? And was not the decision of the Court of Chancery
ordering him to be penalized a decision made in error?
Just at about that time, Donaldson moved his shop from the Strand to Londons
exclusive bookstore district, St. Pauls Churchyard, only 160 feet away from the ofce
of the Stationers Company. It was a location that suggests something of Donaldsons
alacrity for the showdown before him.
Taking the Battle to the House of Lords
Without adequate knowledge of the history of the West and the history of law, under-
standing the courts of eighteenth-century England is like trying to grasp hold of a cloud.
In her book Dr. Johnsons London, Liza Picard quotes sources of the time to give a vivid
image of the court of the House of Lords. She introduces a case that dealt with a member
of the House of Lords who had ended up killing a man in a duel. Te Lords were forced
to pass judgment on one of their own. Te court convened not in the hall of the House
of Lords but in Westminster Hall. To accommodate an audience, tiered seats as well as
boxes covered with crimson provided for members of the royal family and foreign envoys
87 Tompson 1992.
53
NiNeteeN Days iN Court
were installed in the hall. For the ladies in the audience, it was apparently something of
a fashion show, as they were decked in the fnest manner with brocades, diamonds and
lace, [and] had no other headdress but a riband tied to their hair over which they wore
a fat hat adorned with a variety of ornaments. Te gaily dressed audience having been
settled, the 250 members of the House of Lords entered the court, walking two by two,
in their long, red ermine-trimmed robes and hats of all shapes and sizes, which two
by two they took of to salute the throne with the appropriate bow, disclosing an equal
variety of hairstyles and wigs.
88
Te Donaldson v. Becket case was conducted in Westminster Hall as well, and the
same colorful atmosphere created by the presence of gaily dressed women presumably
characterized the proceedings. Tere is no ofcially accurate record of the number of
the audience, but inasmuch as the case was of deep concern to writers and authors, we
can be fairly sure that the audience included many eminent cultural fgures. We know,
for example, that political theorist Edmund Burke (17291797) and author Oliver
Goldsmith (17301774) were there.
89

Lord Mansfeld, whose decision had recognized perpetual copyright and who was
chief of the Court of Kings Bench, was present. Tose attending the sessions were well
aware that although the case concerned publishing, it was also one that would indirectly
examine whether Lord Mansfelds decision concerning perpetual copyright should stand
or be reversed.
Te presence of one other man in the audience was notable, and that was Lord
Mansfelds greatest rival, Lord Camden (Charles Pratt, 17141794), who had served as
lord chancellor until four years previously. Te product of a family of men who served at
the bar, Lord Camdens father had been chief justice of the Court of Kings Bench. Lord
Camden was also a close friend of William Pitt (the Elder Pitt, 17081778), who was a
schoolmate at Eton and would later become acting prime minister. Tey continued to
support each other even after Pitt entered politics.
Seemingly born rivals, Lord Mansfeld and Lord Camden had sparred in many
diferent court cases. Since their relationship is well illustrated by the 1763 Wilkes case,
which dealt with freedom to publish, let me introduce it briefy here. An article was
published in the newspaper Te North Briton, number 45, in 1763 criticizing George
III for his favoritism towards members of the Scottish nobility. Progressive politician
John Wilkes (17251797) was suspected to be the publisher of Te North Briton and the
author of the piece itself.
Tis was the era in England of the infamous general warrants, often used to suppress
freedom of speech, under which a person could be taken into custody without specifying
88 As quoted in Picard 2001 (2000), pp. 28485.
89 Skinner 1928, p. 6.
54
Chapter 3
the name of the person to be arrested. Wilkes was arrested under the general warrant and
put on trial for seditious libel. It was later confrmed that Wilkes had indeed written the
ofending article, but the suspicion was not clarifed before his arrest. Support for Wilkes
spread widely among London citizens, sparking a popular movement demanding not
just freedom to publish but greater political freedom. George III was the scion of the
Scottish royal house of Stewart, and during his reign the nobility of Scotland was indeed
ascendant. Te Earl of Bute (John Stuart, 17131792), who served as British prime
minister in 17621763, was also a Scotland-born politician.
Wilkes launched political attacks on the policies of George III and Prime Minister
Bute in the pages of Te North Briton. His criticism of Scotland-born Lord Mansfeld
also fanned the embers of anti-Scotland sentiment smoldering among the citizens of
London. Wilkes gained a wide popular following under the cry of Wilkes and Liberty!
In the 1763 Wilkes case, it was Charles Prattthe later Lord Camdenwho, as
chief justice of the Court of Common Pleas, ordered Wilkess release, declaring the
general warrant illegal and citing his privilege of immunity as a member of Parliament.
Pratt had the stalwart support of the masses, but Lord Mansfeld, deeply displeased with
the decision, is said to have told George III that [n]o man ever behaved so shamefully
as Lord Chief Justice Pratt.
90

Wilkes fed to France for a time, but consistently enjoyed popular support as people
rallied to the call Pratt, Wilkes and Liberty! Immediately after Wilkes fed to France, he
was expelled from the House of Commons in his absence and Lord Mansfeld announced
that he had been pronounced guilty in the Court of Kings Bench. When Wilkes returned
to England in 1768, Lord Mansfeld ordered him placed in the Court of Kings Bench
jail, where he remained for a year and ten months. In the meantime Wilkes was reelected
to Parliament from Middlesex; later he was again expelled, and again elected. He was
elected to the House of Commons a total of four times. Te masses applauded Wilkess
dauntless courage, and these events contributed to the tradition of popular rights as
holding greater power than parliamentary decisions in the history of the British Isles.
Lord Camden, thus, was a populist, also known for a speech he gave in the House
of Lords opposing the 1765 Stamp Act. Tis law, requiring that the publication of legal
documents, newspapers, and pamphlets in the North American colonies carry a stamp
and be printed on paper issued by the Crown, was the frst to be passed unilaterally in
the British Parliament without the consent of the American colonies themselves; the
protests against it under the slogan no taxation without representation led not long
after to the American Revolution. Even after he became lord chancellor in 1766, Lord
Camden consistently opposed unreasonable taxation of the colonies, although it led to
his dismissal from the post of lord chancellor in 1770.
90 Cash 2006, p. 119.
55
Lord Mansfeld was a royalist and, as we saw in the Wilkes case, was concerned
mainly with limiting the powers of publishing. Lord Camden, by contrast, was a populist
and a liberal on the matter of publishing. From the viewpoint of Londonites, both Lord
Mansfeld and King George III were upstarts from the Scottish aristocracy. Lord Cam-
den would have had mixed feelings about the way rule of England was passing into the
hands of the nobility of Scotland. In particular, he must have harbored the impulse, if the
opportunity presented itself, to deal a telling blow to his political rival Lord Mansfeld.
In the end, it was this personal rivalry between Lord Mansfeld and Lord Camden that
appears to have determined the direction of the Donaldson v. Becket case.
Court Convenes
Lord Camden attended the proceedings of the Donaldson v. Becket case from a strong
position as a prominent member of the House of Lords. He, at age ffty-nine, and Lord
Mansfeld at age sixty-eight, were both men of great maturity and experience as they
faced each other quietly in the hall. With the trial closely related to Lord Mansfeld, Lord
Camden could not possibly remain disinterested. Tose present in the galleries would
have recalled their rivalry in the Wilkes case of 1763, and there must have been great
interest to see how and when these two senior members of the House of Lords would
take a stand on the case.
Speaking for Donaldson were three barristers, Edward Turlow, who by then had
been promoted to attorney general; John Dalrymple (17261810), from Scotland; and
Arthur Murphy, who had stood for Taylor in the second trial of the Millar v. Taylor
case. Facing them, for the Becket side, were Alexander Wedderburn, John Dunning,
and Francis Hergrave (d.u.). Most of these names were familiar ones from earlier trials
dealing with copyright issues.
Te case in the House of Lords was brought directly to determine whether the
decision made by Lord Chancellor Apsley in 1772 demanding that Donaldson cease
publication and that he pay compensation to the monopolist booksellers was appropriate.
Lord Apsley, a Westminster-born member of the nobility, did not leave a particularly
distinguished record as lord chancellor and seems to have had a reputation as second-rate
among high ofcials of the government. He apparently had not expected to be appointed
lord chancellor and was in fact not someone suited to the position.
91
Perhaps precisely
because of that, Donaldson calculated that he could win his case.
Te proceedings began on 4 February 1774 and continued until 22 February in-
cluding some days of recess. Tey are recorded in a number of documents, including Te
Cases of the Appellants and Respondents in the Cause of Literary Property, Before the House
91 Oxford Dictionary of National Biography.
56
Chapter 3
of Lords (1774); Te Parliamentary History of England, from the Earliest Period to the Year
1803 (18061820); and Te English Reports (19001932), but, as with many old sources,
there are discrepancies among them, and the views of scholars about them difer on some
points.
92
For the layperson today, moreover, there will be much that remains puzzling.
Nevertheless, after having compared all these diferent sources, I would like to try to
reconstruct how the case unfolded. Te record of the actual statements made is extremely
lengthy, so I will quote only sections that will give highlights of the debate as a whole.
Te reader should be aware that this is by no means a complete account.
4 February 1774 (Friday): Te parties to the appellant and the respondent, along with
the members of the House of Lords gathered in the hall. Te audience flling the galler-
ies was extraordinarily large. Lord Chancellor Apsley began by reading out in sonorous
tones the outlines of the case.
Te frst to take the stand for Donaldson was Attorney General Turlow. I shall
endeavour, he began, to shew that the Decree of the Court of Chancery, pronounced on
the 16th Day of November, 1772, in Favour of the Respondents, to be highly injurious
to the Appellants, my Clients. He sought to show that literary property was not secured
under common law. Property of any kind is begun by Occupancy, and continued by
Possession. Is literary property corporeal or incorporeal? If corporeal, it is descendible,
like any other Chattel; if incorporeal, how is its Incorporeality to be ascertained? (Cases
of the Appellants: 19)
Ten, in blistering words, Turlow proceeded to lay bare the hypocrisy of the
booksellers: Te Booksellers, my Lords, have not, till lately, ever concerned themselves
about Authors. Tey had generally turned to the legislature for the security of their own
property, he continued, and would probably not have included authors as parties in their
claims to the common-law exclusive copyright had they not found that necessary to give
a colorful Face to their Monopoly. Te Statute of Anne was not merely an accumulative
Act giving additional penalties, but a new Law to give learned Men a Property which
they had not before.
Te idea of an exclusive copyright, he said, did not prevail prior to or for a long
time after the invention of printing. Authors complained only when their works were
inaccurately printed, not because of violation of their property rights. Literary property
exists only in the imagination, he declared, and it never entered into the heads of booksellers
to claim it until they found it advantageous. Authors never conceived the Notion of any
Property vesting in them, but what was given by Statute, by Patent, the licencing Acts[,]
the royal Privilege, or in Virtue of the Institution of the Stationers Company.
92 Tere are also other records of the Donaldson v. Becket case, the diferences among which Deazley ana-
lyzes in detail. Deazley 2004, pp. 191210.
57
So-called literary property, Turlow argued, led to a scandalous monopoly im-
posed by ignorant booksellers. Feeding on other peoples ingenuity, they grew fat
by exploiting the fruits of authors labors. Turlow concluded by saying, As the Lords
of Session have freed Scotland from such a Monopoly, I sincerely hope your Lordships,
following so praise-worthy an Example, will emancipate this Kingdom from such an
odious Oppression.
93
Mincing no words, he wasted no time exposing the true motive behind the London
booksellers claim to rights, and declared that while they might claim to be defending
the rights of authors they are in fact only using authors to protect their own monopoly.
When we think that it was Donaldson who won his case, we must conclude that this
frst statement by Turlow, its caustic tone notwithstanding, must have won the agree-
ment of those assembled. When Turlows remarks were concluded, the court adjourned
for the weekend, to reconvene on Monday.
7 February 1774 (Monday): Te second to speak for Donaldson was Dalrymple, also
from Scotland. Dalrymple had studied at the University of Edinburgh as well as Cam-
bridge and practiced law in Scotland. He himself had had the experience of putting out
a book with Millars bookstore, one titled Te Essay towards a General History of Feudal
Property in Great Britain (1757). From this we may assume that he had some frsthand
familiarity with the ways Millar and the other London booksellers sought to monopolize
culture through control of copyright.
Historical sources reveal very little about Dalrymples character or personality, but
we get some hint from Boswell, who mentions the barristers writing style in Life of
Samuel Johnson, referring to a passage in Dalrymples Memories of Great-Britain and
Ireland (1771) about the secret deal between Charles II and Louis XIV (16381715;
93 Original: Te Booksellers, my Lords, have not, till lately, ever concerned themselves about Authors, but
have generally confned the Substance of their Prayers to the Legislature, for the Security of their own
Property; nor would they probably have, of late Years, introduced the Authors as Parties in their Claims
to the Common Law Right of exclusively multiplying Copies, had they not found that necessary to give
a colorable Face to their Monopoly. . . . Te Statute of Queen Anne is not merely an accumulative Act,
declaratory of the Common Law, and giving additional Penalties, but a new Law to give learned Men a
Property which they had not before . . .
No such Idea, my Lords, as that of an exclusive Right to multiply Copies prevailed previous to, or indeed
long after, the Invention of Printing. Tis is instanced in several Cases, adduced for that Purpose, by the
Appellants, in their said printed Case, where on Writer complains of another for printing his Works, not
on account of any Violation of Property, but merely because the Party complained of had printed them
inaccurately. Literary Property consists only in the Imagination; it never, till it was found advantageous,
entered into the Head, of Booksellers themselves; Authors never conceived the Notion of any Property
vesting in them, but what was given by Statute, by Patent, the licencing Acts[,] the royal Priviledge, or
in Virtue of the Institution of the Stationers Company. What is called Literary Property gave rise to a
scandalous Monopoly of ignorant booksellers, who, fattened at the Expence of other Mens Ingenuity,
grew opulent by Oppression. As the Lords of Session have freed Scotland from such a Monopoly, I
sincerely hope your Lordships, following so praise-worthy an Example, will emancipate this Kingdom
from such an odious Oppression. (Cases of the Appellants, pp. 2021)
58
Chapter 3
r. 16431715) at the time of the third Anglo-Dutch war. Boswell writes that, Johnson
[said] . . . Tis Dalrymple seems to be an honest fellow; for he tells equally what makes
against both sides. But nothing can be poorer than his mode of writing: it is the mere
bouncing of a school-boy. Great He! but greater She! and such stuf. I could not agree
with him in this criticism; for though Sir John Dalrymples style is not regularly formed
in any respect, and one cannot help smiling sometimes at his afected grandiloquence,
there is in his writing a pointed vivacity, and much of a gentlemanly spirit.
94

Calling attention to history, Dalrymple declared that there is no such thing as
common law copyright. While maintaining the gentlemanly demeanor of a well-bred
aristocrat of Scotland, his remarks now-and-then carried the sting of sarcasm.
It should be considered, my Lords, that this pretended Property, which is supposed
to have a Foundation in Common Law, cannot in the Records of the Common Law
Courts any where be found: If you speak of the Subject before the Act of Queen
Anne, you hear of nothing but licencing Acts, and the Company of Stationers . . .
My Lords, the History of the Act of Queen Anne deserves your Lordships
Attention: What was the View of the Booksellers? Absurdity on the very Face of it.
Tey applied for an Act, vesting in them a Property for fourteen Years which they
pretend to have derived from the Common Law, for Futurity. Can it be supposed
that Men who were any Ways clear in their perpetual Right, would apply for a fresh
Right for fourteen Years only? It could not be. Tey knew their own Situation: they
knew the Rottenness of their pretended Right, and wanted a new real one, instead
of the old imaginary one . . .
But, my Lords, this Act of Queen Anne, which was ushered in under the Idea
of encouraging Literature, was every far from having such a Tendency. It was to
encourage Booksellers, but not Authors; however, supposing both interests the same,
What did they gain? Why, a Perpetuity was changed to a Term of fourteen
years only. A Price was fxed, and a Clause inserted to force them to send Copies to
public Libraries What Encouragements are these? Tey, on the contrary,
were Disencouragements. All which is sufcient to shew that the Booksellers
never dreamed of a serious Property at Common Law for Perpetuity; had they such
a Notion they would have petitioned against the Act.
Observe, My Lords, the Title of the Act: To vest the Copy-rights: that is, my
Lords, to give them a Right they had not before; a marked Expression which could
not be mistaken . . .
What could be more absurd, my Lords, that an Act to vest a perpetual Right to a set
of Persons for a limited Term, and inficting Penalties? (Cases of the Appellants : 2122)
94 Boswell 1998 (1791), p. 508.
59
And here Dalrymple gives a small performance to draw the interest of the judges
and the audience. Referring to the ofcial title of the Statute of Anne (An Act for the
Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or
Purchasers of such Copies, during the Times therein mentioned), he concocts a parody:
An Act for the Encouragement of Planting, by Vesting the Shoots of Hedges and
Branches of Trees, in the Planters, during the Times therein mentioned and presents
its provisions. Tose who plant trees and hedges shall be given the right to the plants
for fourteen years and a fne be placed on anyone who might cut them down. By plant-
ing trees, the landscape is beautifed. Publishing books, like planting trees and hedges,
has a public service qualityso, he asks, is it acceptable to make something that by
nature belongs to the public domain, the province of specifed persons in perpetuity?
95

Dalrymple goes on:
My Lords, this perpetual Right which they want would, instead of being benefcial
to the Interests of Literature, be pernicious to it. It would encourage the Spirit
of writing for Money; which is a Disgrace to the Writer, and to his very Age. My
Lords, why should not Honour and Reputation be powerful Inducements enough
for Authors, without that mean one of Proft? Foreigners know no such exorbitant
pecuniary Rewards as have disgraced this Country. Te Germans get nothing by
writing. Te Italian States are so small that no Literary Property can exist, as the
Booksellers of one State would immediately print upon those of another. In
France the Sums given to Authors are too small to have this Efect. My Lords, Mr.
Hume, has told me that Rousseau assured him he had but fourscore Lewis dors
for the Copy of his Emile. Such Sums as we hear of in England, are merely an
Encouragement to the mercenary Spirit of Writing, not to the Merits of it. (Cases of
the Appellants: 2425)
Dalrymple also said that twelve or thirteen booksellers were hovering, like eagles over
a carcass, about the remains of poor Tomson.
96
He made two points: one, that copyright
was not proven to exist in common law, and two, that the Statute of Anne had given authors
rights that they had not previously been entitled to. For two and half hours, Dalrymple held
forth on these subjects with great eloquence. Perhaps because he marshaled all his broad
knowledge from the felds of metaphysics, law, science, and politics, he was apparently
exhausted by the time he concluded his speech.
97
Turlow and Dalrymple having spoken,
Donaldsons side had completed its frst round of assertions; the counterarguments from
Becket and other London booksellers would be presented the following day.
95 Tis anecdote is not recorded in Parliamentary History of England.
96 Parliamentary History of England, vol. 17, p. 962.
60
Chapter 3
8 February 1774 (Tuesday): Te court was convened. From this day, the Becket side
presented its argument. It was only the third day of the case, but the galleries were packed
with visitors. Te frst to take the stand was Attorney General Alexander Wedderburn.
All concerned had waited with bated breath in the expectation that Wedderburn would
have carefully scrutinized the statements by Turlow and Dalrymple and would present
a tightly formulated counterargument. As he spoke, however, it became clear that he was
simply repeating, in more or less the same way, the arguments presented for Tonson in
the frst Tonson v. Collins case in 1760. Both the judges and the gallery felt betrayedwas
the Becket side only going to repeat the stale statements of fourteen years earlier? Here let
us look at key passages of the main body of Wedderburns speech:
Literary Property, my Lords, hath, by those who have spoke before me, been said
to be so abstruse and chimerical, that it is not possible to defne it. . . . any Idea,
although it is incorporeal in itself, yet, if it promises future Proft to the Inventor
of it, is a Property. And the latter Word hath, through Inaccuracy, been used as
describing that, over which a Possessor holds an absolute Reign, Dominion, or
Power of Disposal. Te subject Matter may be immaterial, and yet liable to be
appropriated. Property changes its Nature with its Place: In England, Portions of
Land are private Property, among the Arabs and Tartars no such Idea prevails; they
look upon Cattle and Chattels as the only private Property. Among the Americans,
in certain Districts, Land is considered as Property, but not as the Property of
Individuals; as the Inhabitants live upon the Gains of hunting, a Circumference of
Land, sufcient for them to hunt on, is considered as the general Property of one
Tribe or Nation.
Te Lawyers Mode of describing Property, my Lords, is exceedingly trite and
familiar; they generally divide it into corporeal and incorporeal, and in the present
Case it hath been said to commence by Occupation, and continue by Possession.
Tis is a narrow Scale of Argument. In the Courts of Law it is universally admitted,
that Matters incorporeal are nevertheless Matters of Property . . .
Authors, my Lords, both from Principles of natural Justice, and the Interest of
Society, have the best Right to the Profts accruing from a Publication of their own
Ideas; and as it hath been admitted on all Hands that an Author hath an Interest
or Property in his own Manuscript, previous to Publication, . . . It is an Authors
Dominion over his Ideas, that gives him Property in his Manuscript originally, and
nothing but a Transfer of that Dominion or Right of Disposal can take it away.
It is absurd to imagine that either a Sale, a Loan, or a Gift of a Book, carries with
it an implied Right of multiplying Copies; . . . it cannot be conceived, that when
fve Shillings is paid for a Book, the Seller means to transfer a Right of gaining one
hundred Pounds . . .
61
Licenses in general prove not that Common Law Right did not inherently
exist, but were the universal Fetters of the Press at the Times in which Authors were
obliged to obtain them.
With Regard to the Statute of Queen Anne, my Lords, I am very willing to let
that rest on the same Grounds the Attorney General hath placed it, viz. that if it
gives no Right, it takes none away. . . . it contains a positive Clause, to let the Matter
respecting a Common Law Right, remain precisely in the State in which it was,
when that Act passed: and that the Court of Chancery considers that such a Right
does exist, is evident from the several Injunctions that Court hath granted since the
enacting of the Statute . . . ,
I hope, my Lords, Sir John Dalrymples Memoirs of Great Britain, will not be
suppressed, as I have Reason to lament its Author intends. . . . I therefore earnestly
invoke your Lordships to sanctify the fnal Determination of a Question, founded
on natural Justice, and the Interest of Society, by afrming the Decree. (Cases of the
Appellants: 2628)
As the argument is rather difcult to understand, I might add, Wedderburn noted
that the previous Friday, Turlow had stated, [Te Statute of Anne is] a new Law to give
learned Men a Property which they had not before. Admitting this, he goes on, if it gives
no Right, it takes none away. If the Statute of Anne accorded authors new rights, does
that not mean that the Act took away some kind of right that existed in common law? As
proof for that, Wedderburn pointed out that the Statute of Anne had a provision that took
into account common law. Te inclusion of this provision, he declared, testifes to the fact
that authors had common law rights. Te provision he referred to was the ninth section
of the Statute of Anne, which states that nothing in this Act contained shall extend, or be
construed to extend, either to Prejudice or Confrm any Right that the said Universities,
or any of them, or any Person or Persons have, or claim to have, to the Printing or Re-
printing any Book or Copy already Printed, or hereafter to be Printed. If this provision
were taken literally, it would be read that printers had some kind of rights from before the
Statute of Anne. And that was what Wedderburn called common law copyright. But this
provision is saying that the Act does not nullify the rights to printing recognized by royal
decree thus far; it does not claim that there is such a thing as common law copyright.
98

Te fact that Wedderburns statement did not contain any new assertions was wel-
come as far as Donaldsons side was concerned. Once they discovered that the opponent
was simply presenting old arguments, they began to think that the outcome would be in
their favor and became convinced they would win. Next, Dunning stood for Beckets side:
98 Shirata 1998, p. 139.
62
Chapter 3
Attempts, my Lords, have been made to prove that the Establishment of this Right
[to perpetual copyright] would be injurious to Literature; a strange Assertion surely.
It is as much as to say, that rewarding Authors in proportion to their Merit, is the
way to discourage their productions; an Argument too weak to make an impression
on your Lordships. . . . it is evident the Money given for Copy-Right has increased
with the Increase of Security that has been given to the Property. Go back to Miltons
Time, and from thence advance gradually to Queen Ann[e]s Reign, when the Act of
fourt[e]en Years Right was one Encouragement to the Booksellers, followed by some
considerable emoluments in their Way to Authors. . . .
In no way is this to be accounted for, but by supposing the Booksellers Liberty
to fow from the additional Security, thus given to their Property; and if this is not
an Encouragement to Literature, my Lords, I should be glad to be informed what is
an Encouragement. It might as reasonably be asserted, that Pensions and Rewards
given by a Sovereign to learned Men, did not advance the Interests of Learning.
My Lords, the very Act of Queen Anne has been brought to prove, that there
could not be a previous Common Law Right in the Copies of Books; but, my
Lords, nothing can be more futile than such an Idea: let me illustrate this by a
simila[r] case; there passed an Act last Sessions to make Turnips, Potatoes, Cabbages,
Parsnips, Pease, and Carrots Property; now, my Lords, might it not be urged with
as much Justice, that Turnips and so forth were not Property at common Law?
Such an Idea would be ridiculous. Acts may pass to regulate Property, and to infict
Penalties on the Invasion of it, without in the least derogating from the Principles
and Foundation of such Property.
We have been farther told, my Lords, that giving the Property of Copies will be
giving the Right of Suppression; but this I conceive is a groundless Idea; we are not
to suppose that Books of Instruction, Entertainment, or Amusement, will ever be
suppressed, and as to Books neither instructive nor entertaining, the sooner they are
suppressed the better. Certain, however, it is, that on some Subjects they are read in
Proportion to their meriting Neglect. . . .
One Part of the Argument, my Lords, used for the Appellants, is that it would
beneft Authors, if no exclusive Right of multiplying Copies existed; that is a very
strange Assertion, and very extraordinary that Authors in general should think
otherwise. It is customary for Booksellers, as Buyers, to buy as cheap as they can,
and it is customary for Authors to sell as dear as they can; this cannot be the case if
the Moment a Book is published every Man hath a Right to print it.
Authors formerly, my Lords, when there were but few Readers, might get but
small Prices for their Labours, but the Books above-mentioned have been paid
enormous Sums for, especially the last. If the Purchasers of these Copies have not
the sole Right of multiplying Copies, how is the diference to be accounted for? . . .
63
Te Appellants, my Lords, want to sanctify the Importation of Scotch Books
into England, in the same manner as the Importation of Scotch Cattle. Te Book
on which the present Cause is grounded, was written, indeed, by a Scotchman, but
it was written in English, and originally printed in England. Te Appellants had
invaded the legal Purchaser, by printing a Copy in Scotland, and ofering it to Sale
in London; I hope, therefore, that your Lordships will teach them that Literary
Property is sacred, by afrming the Decree. (Cases of the Appellants: 2931)
Te days deliberations ended with Dunnings words. On Donaldsons side, the as-
sertions of Turlow and Dalrymple could be summed up as charging that to recognize
common law copyright would allow individual booksellers to monopolize the printing
of particular books. Te counterarguments of Wedderburn and Dunning, for Beckets
side, were that the profts of booksellers need to be protected in order to support the
livelihood of authors.
In comparing the arguments of both sides, we come across some curious facets
of the assertions on the Becket side. Te rights of publishers (printers) were already
protected under the Statute of Anne, yet the booksellers called for the authors perpetual
ownership of their sacred literary property, linking the need to protect booksellers
and the authors ownership of the incorporeal. At the time, it was still customary for
booksellers to purchase the manuscripts for books outright, and the amount paid to
the author in most cases did not change no matter how well the book might sell. If, in
addition to this practice, the publishers were given the right to print a manuscript thus
obtained in perpetuity, then they would go on profting indefnitely without ever having
to pay the authors any more.
99
Te wise members of the House of Lords were apparently
quite well aware of the Becket-side deceit.
Five Questions
9 February 1774 (Wednesday): Again, Attorney General Turlow stood for Donaldson.
He held forth for nearly two hours, but mainly to repeat the position of his client. It was
clear to all concerned that the discussion was getting nowhere.
Observing the situation, Lord Chancellor Apsley presented a proposal to break the
deadlock. He proposed to ask questions of twelve judges of Englands three courts of com-
mon lawthe Court of Kings Bench, the Court of Common Pleas, and the Court of Ex-
chequerto learn their views on the case. Tese judges were, for the Court of Kings Bench,
Chief Justice Lord Mansfeld, Richard Aston, William Henry Ashurst (17251807), and
Edward Willes; for Court of Common Pleas, Chief Justice William De Grey (17191781),
99 Shirata 1998, p. 187.
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Chapter 3
William Blackstone, George Nares (17161786), and Henry Gould (1710?1794); and
for the Court of Exchequer, Chief Justice Sydney Staford Smythe (?1778), James Eyre
(17331799), Richard Adams (17101773), and Geroge Perrot (d.u.).
Of these, Blackstone had been Tonsons defense attorney in the 1761 Tonson v.
Collins case and Willes, Aston, and Lord Mansfeld were the justices who had accepted
Millars assertions in the Millar v. Taylor case. All of these were barristers inclined to side
with the monopolist booksellers. As far as Donaldson was concerned, these were four
votes out of twelve against him from the outset. For his part, on the other hand, Lord
Chancellor Apsleyin order to survive the trial questioning his earlier judgment against
Donaldsonmust have wanted to hear the opinions of individuals who might present
his side in a good light. Apsley narrowed down the questions to the following:
1. Whether, at common law, an author of any book or literary composition, had
the sole right of frst printing and publishing the same for sale, and might bring
an action against any person who printed, published, and sold the same, without
his consent?
2. If the author had such sole right originally, did the law take it away upon his
printing and publishing such book or literary composition, and might any person
afterward reprint and sell, for his own beneft, such book or literary composition,
against the will of the author?
3. If such action would have lain at common law, is it taken away by the statute of
8th Anne: and is an author, by the said statute, precluded from every remedy except
on the foundation of the said statute, and on the terms and conditions prescribed
thereby? (Parliamentary History of England, vol. 17: 97071)
Translated into our contemporary idiom, the frst question asks: Did the monopoly
on printing and publishing of books traditionally belong to authors in common lawin
other words had that monopoly belonged to authors since time immemorial? Te second
question is, if authors did hold such a monopoly, did that monopoly end the moment
a book was printed and published? Te third question is: if the right to bring such suits
over the rights to print and publish books was handled under common law, did the
Statute of Anne take away that right?
Lord Chancellor Apsley read out these questions twice. Te questions focused
on how common lawunder which, as the Becket side asserted, authors rights had
existed even before the Statute of Annewas related to the Statute of Anne. If authors
rights were accepted as having existed since before the Statute of Anne, it suggested that
booksellers could ignore the fourteen-year limitation on their copyright and monopolize
printing and publication for as long as they wanted. Surely everyone in the hall must
have thought that these questions would set of the debate.
65
And then, the gaze of the audience was drawn to the fgure of an elderly member
of the House of Lords who rose to be recognized. Lord Camden made his move. Lord
Chancellor Apsley, Lord Mansfeld, and all in the audience were all ears to learn what
he would say. To Lord Apsleys three questions, Lord Camden added the following two:
4. Whether the author of any literary composition, and his assigns, had the sole
right of printing and publishing the same, in perpetuity, by the common law?
5. Whether this right is any way impeached, restrained, or taken away, by the statute
8th Anne? (Parliamentary History of England, vol. 17: 971)
His questions probe even deeper into the matter under debate than those of Lord
Apsley, who addressed the matter of the rights of the author. Lord Camdens added to the
matter of the rights of the author, the rights of his assigns. If Apsleys questions threw
the House of Lords a curve ball, Camdens were straight and undisguised. Not only that,
his questions called into open question the judgment made in the 1769 Millar v. Taylor
case. Lord Camdens intention was obvious. Te chief justice presiding at the Millar v.
Taylor case was his rival Lord Mansfeld. Camden was determined to have the House of
Lords examine Mansfelds judgment on perpetual copyright, and if all went well, have
the decision reversed.
One man must have listened to Lord Camdens statement with mixed feelings: the
Becket-side lawyer John Dunning. Dunning had worked with Lord Camden at the time
of the Wilkes case and, arguing that the general warrant under which Wilkes had been
arrested was illegal, had been able to protect Wilkes from indictment. It must have been
Camden who, as lord chancellor, had promoted Dunning to solicitor general in 1768.
And so, here we have Lord Camdenchampion of the masses and great rival of
Lord Mansfeld, as well as having infuence over Dunning, one of the barristers on the
Becket side. Dunning thus could be counted as essentially on the Donaldson side.
Te positions of the Donaldson and Becket sides regarding on these fve questions
are listed below:
Donaldson side Becket side
Question 1 Author did not have sole rights Author did have sole rights
Question 2 Tose rights were removed Rights were not removed
Question 3 Rights removed by Statute of Anne Rights not removed
Question 4 Common law does not give sole rights Common law gives sole rights
Question 5 Rights impeached by Statute of Anne Rights not impeached
Te fve questions posed by Lord Chancellor Apsley and Lord Camden were handed over
to the judges and the court was adjourned for six days until 15 February.
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Chapter 3
15 February 1774 (Tuesday): After the court re-convened, the judges presented their
opinions on the fve questions assigned. As they did so, it became clear that their views
were divided. Tese men, though all specialists on common law, were not of one mind
on this issue. Lord Chancellor Apsley had hoped that the judges would present a very
clear and unanimous support for perpetual copyright. His plan, however, was shattered.
He was apparently informed of this prior to the convening of the proceedings, and thus
began by saying as the learned Judges might entertain dissimilar Opinions upon the
Subject, their Lordships Attendance was required to hear the Opinion of each Judge
delivered seriatim.
100
All the Lord Chancellor could do was to let each judge present his
view to the court and then leave the matter in the hands of the members of the House.
Te frst to present his views was James Eyre.
Eyre argued that the contents of a book, by its very nature, is incapable of being
the object of common law property. Unlike every other kind of property that is subject
to legal controls, for the content of books nothing can be predicated of them, which
is predicable of every other Species of Property subject to the Controul, and within the
Limits of Protection under Common Law. Ideas are too ethereal, he observes, to be
defned, and too intellectual to be described with acceptable accuracy by the limited
powers of the human mind. Ideas, if convertible into Objects of Property, should bear
some feint Similitude to other objects of Property; they do not bear any such Similitude,
[so] they are altogether anomalous.
Next Eyre called attention to another insuperable Difculty: if one holds that ideas
can be monopolized, how will they be classifed or organized? Would they be categorized
as simple, complex, combined, or multifarious? Tey are not subject to Alienation,
Transmission, Grant, or Delivery; and yet they are Objects of Property, to the exclusive
Right of appropriating which, Men are clearly entitled by the Common Law, and by
every Principle of natural Justice.
If ideas are the product of the commonly held human faculty of thought, he then
asked, does it conform to the principles of natural justice to limit access to such ideas,
which were presented as a common gift to be made available to all, to the exclusive
beneft of one or a few?
If one rejected the notion that authors had a right under common law to the distribu-
tion of their works, such a rejection would essentially mean, observes Eyre, that authors
could not sue anyone for publishing literary work without their consent. Te question
of a common law right had not even come up, he says, before the invention of this
useful Art of printing, because authors did not imagine that anyone might appropriate
their work to exclusive use. Only once the Stationers Company was established did the
notion of such exclusive proprietorship over a work emerge, and those who sought to
67
appropriate a literary composition secured their right by entering it in the records of the
Company, regardless of who the author was.
Eyre posed the question what happens if a book and a mechanical invention were
the same sort of thing. In a mechanical invention, ideas take concrete, material form, but
a Book is no more than a Transcript of Ideas; and, whether Ideas are rendered cognizable
to any of the Senses, by the Means of this or that Art, of this or that Contrivance,
is altogether immaterial: Yet every mechanical Invention is common, whilst a Book is
contended to be the Object of exclusive Property!
So, concluded Eyre, a book and a mechanical device share various similarities,
both being distillations of intellect and unity of spirit: [i]n a mechanic[al] Invention
the Corporation of Parts, the Junction of Powers, tend to produce some one End. A
literary Composition is an Assemblage of Ideas so judiciously arranged, as to enforce
some one Truth, lay open some one Discovery, or exhibit some one Species of mental
Improvement. And he concluded his remarks by saying that he was of the opinion
that authors do not hold the right under common law to monopolize sales of their own
books, because the inventor of a mechanical device did not possess such a right.
101
101 Original: From the very nature of the Contents of a Book, they are incapable of being made Objects of
Common Law Property; nothing can be predicated of them, which is predicable of every other Species
of Property subject to the Controul, and within the Limits of the Protection of the Common Law. A
Right to appropriate Ideas, is a Right to appropriate something so ethereal as to elude Defnition; so
intellectual as not to fall within the Limits of the human Mind to describe with any tolerable Degree
of Accuracy. Ideas, if convertible into Objects of Property, should bear some feint Similitude to other
objects of Property; they do not bear any such Similitude, they are altogether anomalous. . . .
But here, my Lords, lies another insuperable Difculty. Admitting ideas liable to exclusive Appropriations,
and thus to become Objects of Property; in treating of them as such, how would you class, how arrange
them? Would you recount them as simple, complex, combined, or multifarious? . . . or would you resort
to Truth and common Sense, and say they are not to be classed, arranged, defned, or ascertained? Tey
are not subject to Alienation, Transmission, Grant, or Delivery; and yet they are Objects of Property, to
the exclusive Right of appropriating which, Men are clearly entitled by the Common Law, and by every
Principle of natural Justice.
For, my Lords, upon a Supposition that Ideas are produced by a thinking Faculty, common to all Men, it
becomes a Question whether it is consonant to the Principles of natural Justice, to appropriate that to
the exclusive Beneft of one or a few, which was designed as a common Gift distributed to all.
If, my Lords, the Notion of a Common Law Right should be reprobated, such Reprobation carried with
it an explicit Answer to the latter Part of the frst and to the second Question: Tere being no Common
Law Right, An Author could not bring his Action against any Person for publishing his literary Composition
without his Consent.
Previous, my Lords, to the Invention of Printing, the Idea of a Common Law Right, has not been
suggested; and subsequent to the Invention of this useful Art, so little Notion had Authors of a Right at
Common Law to exclusive Appropriation, that before the Institution of the Stationers Company, they
had Recourse to the Legislature for a License, Grant, Patent, or Privilege; after the Institution of the
Stationers Company the only Mode thought of to secure the Appropriation of a Literary Composition
was, by an Entry in the Records of that Company, and the Person in whose Name the Book was entered,
let him come by it how he would, was deemed the Proprietor, the Author never being so much as
mentioned on these Occasions. . . .
Consider, my Lords, a Book precisely upon the same Footing with any other mechanical Invention. In the
Case of mechanic Invention, Ideas are in a manner embodied, so as to render them tangible and visible;
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Chapter 3
We may summarize Eyres view as follows:
Question 1: Does an author have a monopoly right under common law?
A: No.
Question 2: Is the authors right terminated upon printing and publishing?
A: Yes; terminated.
Question 3: Was the right to sue for rights under common law taken away by the
Statute of Anne? A: Conditional, yes.
Question 4: Does common law give the author and his assigns sole rights to his works?
A: No; does not give sole rights.
Question 5: Were those sole rights taken away by the Statute of Anne?
A: Yes; taken away.
As we can see, Eyre almost entirely supports the assertions of the Donaldson side.
His view is that a book is a Transcript of Ideas and therefore that the two cannot be
distinguished from one another; ideas cannot be monopolized, so therefore there can be
no right of possession to a book.
Te next judge to present his ideas was George Nares. Nares asserted that literary
property existed in common law, and that the Statute of Anne did not take the right to
that property away from authors. Tis view was favorable to Dunnings defense of the
Becket side. Authors held the right to proft from their own manuscripts before publica-
tion, he declared, and it did not make sense to argue that such rights disappeared as soon
as a manuscript was published. He holds that the Statute of Anne did not take away all
a Book is no more than a Transcript of Ideas; and, whether Ideas are rendered cognizable to any of the
Senses, by the Means of this or that Art, of this or that Contrivance, is altogether immaterial: Yet every
mechanical Invention is common, whilst a Book is contended to be the Object of exclusive Property! . . .
Te Exactitude, my Lords, of the Resemblance between a Book and any other mechanical Invention,
form various Instances of Agreement. Tere is the same Identity of intellectual Substance; the same
spiritual Unity. In a mechanic[al] Invention the Corporation of Parts, the Junction of Powers, tend
to produce some one End. A literary Composition is an Assemblage of Ideas so judiciously arranged,
as to enforce some one Truth, lay open some one Discovery, or exhibit some one Species of mental
Improvement. A mechanic Invention, and a literary Composition, exactly agree in Point of Similarity;
the one therefore is no more entitled to be the Object of Common Law Property than the other; and
as the Common Law is entirely silent with respect to what is called Literary Property, as antient [sic]
Usage is against the Supposition of such a Property; and as no exclusive Right of appropriating those
other Operations of the Mind, which pass under the Denomination of mechanical Inventions, is vested
in the Inventor by Common Law; for these Reasons, I declare myself against the Principle of admitting
the Author of a Book, any more that the Inventor of a Piece of Mechanism, to have a Right at Common
Law to the exclusive Appropriation and Sale of the same.
I am of Opinion, my Lords, in Answer to the third Question, ... and in Answer to the ffth Question, I
am of Opinion, ... for every Principle of a Common Law Right is efectually exploded, by the Adoption
of the Word vest in the Title, the Words taken the Liberty in the Preamble, and the Mode of
Expression used in the frst Clause of the Act, of giving an Author an exclusive Property for fourteen
Years, and no longer. (Cases of the Appellants, pp. 3234)
69
the rights aforded under common law but merely supplemented them. Speaking for
nearly an hour, Nares presented his views, which may be summarized as follows:
A: Yes.
A: No; not terminated.
Statute of Anne?
A: Yes; taken away.
A: Yes, it does.
A: Yes; taken away.
In his support of common law copyright, Nares difers from Eyre, but he is in
agreement on the ffth question, believing that the Statute of Anne did take away the
perpetuity of common law copyright.
102

Te next to take the stand was Judge William Henry Ashurst, who confrmed the
precedent of the Millar v. Taylor case and supported the Becket side. Ashursts points
were as follows:
Te Claim of Literary Property, my Lords, is warranted by the Principles of natural
Justice and solid Reason. Making an Authors intellectual Ideas common, means
only to give the Purchaser an Opportunity of using those Ideas, and profting by
them, while they instruct and entertain him; but I cannot conceive that the Vendor,
for the Price of Five Shillings, sells the Purchaser a Right to multiply Copies, and so
get Five Hundred Pounds.
Literary Property, my Lords, is to be defned and described as well as other
Matters, which are tangible. Every Ting is Property that is capable of being known
or defned, capable of a separate Enjoyment, and of Value to the Owner. Literary
Property falls within the Terms of this Defnition. According to the Appellants, if a
Man lends his Manuscript to his Friend, and his Friend prints it, or if he loses it, and
the Finder prints it, yet an Action would lie (as Mr. Justice Yates admitted) which
shews that there was a Property beyond the Materials, the Paper and Print. A Man,
by publishing his Book, gives the Public nothing more than the Use of it. A Man
102 Deazley notes a discrepancy in the records of Naress opinion on Question 3 and Question 5. See
Deazley 2004, p. 199.
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Chapter 3
may give the Public a Highway through his Field, and if there is a Mine under that
Highway, it is nevertheless his Property. It hath been said, that when the Bird is once
out of the Hand, it becomes common, and the Property of whoever catches it; this
is not wholly true, for there is a Case upon the Law Books, where a Hawk with Bells
about its Neck had fown away; a Person detained it, and an Action was brought at
Common Law against the Person who did detain it; a Book, with an Authors Name
to it is the Hawk, with the Bells about its Neck, and an Action might be brought
against whoever pirated it. (Cases of the Appellants: 3536)
Upon summarizing Ashursts judgment, we fnd that it was virtually the opposite of
Eyre, who supported the Donaldson side:
A: Yes.
A: No; not terminated.
Statute of Anne?
A: No; not taken away.
A: Yes; does give sole rights.
A: No; not taken away.
Te next to speak was to have been Blackstone, but he was sufering from a bad spell
of gout and could not appear in court. A document presenting his opinion was read out
to the court. Blackstone, of course, believed in the existence of common law copyright;
his answers were exactly the same as Ashursts.
Tus far, four judges had presented their views, andputting aside the details for
the momentthree of them were in favor of the booksellers prerogative to perpetual
copyright and one was opposed. All could see that the deliberations were leaning in favor
of the Becket side. It was decided that the other judges would be heard from two days
hence, on the 17th.
17 February 1774 (Tursday): On this day, the views of fve of the justices were presented.
Te frst to stand was Edward Willes. In the Millar v. Taylor case, Willes had been a member
of the Millar camp; he was among the advocates of perpetual copyright. Judge Willes frst
explained that copyright is the asset of individuals; a right of possession obvious to anyone.
Te content of a book belongs to its author, he declared, and even if it is published, that
71
ownership is not lost. An author has the right to make copies precisely because his right to
a book falls under common law. Although it is said that the assertion of such rights only
began with the advent of printing technology, without printing technology, copies could
not be easily made. To label such assertions monopoly was odious, Willes said.
Willess argument continued: in common law, he said, a books frst printing/pub-
lishing and sales are the monopoly of the author. Even after publication, an author holds
exclusive and perpetual right to the production of copies of his book. Since this right is
his according to common law, it is not removed by criticism, by restrictions, or by the
Statute of Anne. Trough this law, authors would not be excluded from legal recourse.
Willess judgment came down, as for Ashurst, on the side for Becket, giving the same
responses as Ashurst regarding the fve questions.
Te next judge to speak was Richard Aston. Aston had been Millars ally, along with
Willes, in the Millar v. Taylor case. His speech is as follows:
I agree with the three Judges who have spoke before me, that it is a Property, and that
it belongs to an Author independent of any statutary Security. It is not necessary, for
any Man to advert either to the Grecians or Romans to discover the Principles of the
Common Law of England. Every Country hath some certain general Rules which
govern its Law; our Common Law hath its Foundation in private Justice, moral
Fitness, and public Convenience; the natural Rights of every Subject are protected
by it, and there does not exist an Argument amounting to Conviction, that an
Author hath not a natural Right to the Produce of his mental Labor. If this Right
originally existed, what but an Act of his own can take it away? By Production he
only exercises his Power over it in one Sense; when one Book is sold it never can
be thought that the Purchaser hath possessed himself of that Property which the
Author held before he published his Work. A real Abandonment on the Part of the
frst Owner must take Place, before his original Right becomes common.
In all Abandonments, [barrister for Taylor in the Millar v. Taylor case] Judge
Yates hath defned, my Lords, that two Circumstances are necessary; an actual
relinquishing the Possession, and an Intention to relinquish it; in the present Case
neither can be proved. Many Manuscripts have not been committed to the Press
till Years after they were written, the Possession of them for a Century does not
invalidate the Claim of the Author or his Assigns. With Regard to mechanical
Instruments, because the Act against Monopolies hath rendered it necessary for the
Inventors of them to seek Security under a Patent, it can be no Argument that in
Literary Property there should be no Common Law Right. I think it would be more
liberal to conclude, that previous to the Monopoly Statute, there existed a Common
Law Right, equally to the Inventor of a Machine, as to the Author of a Book. . . .
With Regard to the Statute of Queen Anne, my Lords, it is no more that a
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Chapter 3
temporary Security, given by the Legislature to the Author, enabling him to recover
Penalties, and bring a Matter of Complaint against any Person who printed upon him
to a more certain issue than by an Action at Common Law. (Cases of the Appellants: 39)
So Astons view was similar to that of Ashurst except on Question 2.
103
Comparing
the speeches of Willes and Aston, we fnd that Willess argument from the viewpoint of
history and Astons from the viewpoint of ownership rights supported the Becket side,
respectively. In the scheme in which Willes took up history and Aston ownership, their
presentations were the same as in the Millar v. Taylor case. It may have been that they
argued for common law copyright in this way by pre-arrangement.
When the six justices through Aston had fnished their arguments, the only one
of them supporting the Donaldson side was Eyre, and the fve others stood behind the
Becket side. Everyone thought that the matter was virtually settled, but then Justice
George Perrot stood to express his view. Perrot stated views in support of Donaldson,
turning against the tide of the arguments thus far presented; he spoke forcefully, at
length, and with great care.
Te Argument for the Existence of a Common Law Right, and the Defnition of
Literary Property, as chattel Property, is, my Lords, in my Idea exceedingly ill-founded and
absurd, Perrot began. An author certainly has a right to his manuscript, but after publica-
tion, anyone can publish it. In the past, he said, no Idea was entertained of an Authors
having any Claim to the exclusive Right of printing, what he had once published.
An author, like the inventor of a machine, Perrot observed, makes his ideas available
to the public, but it has never been heard that the purchaser of one of his machines does
not have a right to make another after its mode. Te Right of exclusively making any
Mechanical Invention is taken away from the Author or Inventor by the Act against
Monopolies of the 21st of James the First, stated Perrot. When a book is published
and sold, it cannot be said that there is an implied contract between the author and
purchaser. Te Purchaser buys the Paper and Print, the corporeal Part of his Purchase;
and he buys a Right to use the Ideas, the incorporeal Part of it.
Perrot continued, Respecting the Statute of Queen Anne, my Lords, I am perfectly
convinced that it is the only Security that Authors or Booksellers have. Tat it gives a Right
for fourteen Years to the Holders of Copies, and after that Period the Right reverts to the
Authors for fourteen Years longer. I declare that all the metaphysical Subtlety or Defnition
which the ablest Logician can muster, cannot give any other Sense to the Words for the
Encouragement of Learning, and for vesting a Right in Authors, in the Title to the Act,
than a Creation of a Property, not a further Security for one. (Cases of the Appellants: 4041)
Tereupon, Perrot read out the entire text of the Statute of Anne and following
103 Deazley points out that three of fve records show yes to Question 2. Deazley 2004, pp. 200201.
73
each paragraph, discoursed upon its meaning. He fercely criticized the booksellers for
asserting that their rights to books were perpetual, and, citing numerous precedents,
concluded his argument saying, there was no Right at Common Law previous to the 8th
of Queen Anne, and that if there was, that Statute entirely and efectually took it away.
(Cases of the Appellants: 42)
Perrots answers to the questions, thus, were not much diferent fromnearly the
same asthose of Eyre.
A: No.
A: No.
Statute of Anne?
A: Yes.
A: Yes; taken away.
Tere having been few opinions favorable to Donaldson up to that point, Perrots
speech injected new heat into the discussion.
104
Te next up was Gould. His responses were roughly the same as Nares. Although
basically favorable to the Becket side, he took the position that the Statute of Anne had
removed the perpetuity of common law copyright. Goulds speech is notable for his ideas
about monopoly on books, stating that,
[A]n author had a right at common law to his manuscript previous to publication, and he
thought that right should continue to him under certain restrictions after publication; as
public convenience was one of the elements of the common law, that should be consulted
by an author or printer after publication; he was glad therefore to hear it stated, that the
respondents always kept a certain number of the book upon which the present appeal
was grounded, ready for those who chose to purchase. . . . [I]f this was not the case, it
might be urged that the claim was a monopoly detrimental to the public.... if a book was
kept out of print for an unreasonable time, it was a kind of abandonment of property in
the original possessor. (Parliamentary History of England, vol. 17: 98485)
104 According to Deazley, some accounts of the discussion say that Perrot answered with Yes to Questions
1 and 2. After comparing numerous records, he concludes that Perrot did reject the idea of common law
copyright. Deazley 2004, pp. 201202.
74
Chapter 3
Gould thus argued that bookstores always had to keep copies in stock of a book they
had an exclusive right to print in order to respond to the demands of readersto let books
fall out of print for a long period of time would therefore be detrimental to the public,
and in violation of common law. No doubt he wanted to say that those who monopolized
the cultural assets of books had to fulfll the responsibilities that went with that monopoly.
Te available record does not preserve much of the statements made by Gould and
Richard Adams, who spoke next. Five judges spoke on this day, so the remarks of these
two might indeed have been brief. Alternatively, if their opinions had already been more
or less expressed by others and were repetitions of what had been said before, the record
may have been abbreviated.
Adams gave an academic explanation of the distinctions between patents, privileges,
and grant of the Crown. Citing numerous examples going back into the early history of
books, he made it clear that the right to literary property was not a right under common
law and that prior to the Statute of Anne, authors and booksellers had no guarantees of
anything but for patents. His answers to the questions were as follows:
A: No.
A: No.
Statute of Anne?
A: No.
Question 4: Does common law give the author and his assigns sole rights to his
works?
A: No.
Adams was thus in favor of Donaldson.
105
At this point in the proceedings, the
score was three for the Donaldson side and six for the Becket side, with the Becket
side still holding the advantage. Te judges who had yet to speak were the chiefs of the
three courts: Sydney Staford Smythe (Court of Exchequer), William De Grey (Court of
Common Pleas), and Lord Mansfeld (Court of Kings Bench). Teir arguments were to
be presented from the following Monday.
105 Deazley writes that, although some the accounts state that Adams responded No to all the questions,
he is convinced from his detailed study of the evidence that Adams was opposed to common law copy-
right. See Deazley 2004, pp. 202203.
75
21 February 1774 (Monday): According to custom, the schedule of the days delibera-
tions was read out. On this day and the next, the chief justices of the three courts, who
had not yet given their opinions on the fve questions, would state their cases.
First up was Chief Justice Smythe, whose position turned out to be just the same
as that of Judge Aston. He stated that publishing meant selling books to buyers and did
not involve giving over the right to copy books to the person who purchased such books.
In his view the Statute of Anne neither limited nor took away common law copyright.
Taking up again the example given by Aston of the mine found under a public highway,
arguing vigorously that it is perfectly possible for there to be private ownership behind
things in the public sphere. It is unreasonable, Smythe also argued, that even if an author
found misprints in a pirate edition he would be unable to have them corrected. Giving
the exact same answers as Aston, Smythe was entirely on the Becket side.
Next, Chief Justice De Grey gave his opinion. De Grey was inclined to favor the
Donaldson side. According to the Parliamentary History of England record, De Grey,
diverging from the views of the other judges who stood behind Donaldson, judged that
authors held sole rights to their books in common law. However, he reported that, upon
studying the records of common law cases, he had found no precedents recognizing
literary property. Te Statute of Anne gave general rights to the authors and their as-
signs, and those rights were to be protected under the purview of the Court of Chancery.
Successive lord chancellors, however, had believed that all cases of this kind of suit have
been left unsettled. De Grey said it should be treated as an entirely new issue. De Greys
responses to the questions were as follows:
106
A: Yes.
A: No.
Statute of Anne?
A: Yes.
A: Yes; taken away.
106 According to Deazley, some of the recorded responses were Yes to Question 2. Deazley 2004, pp.
204205.
76
Chapter 3
Silence and a Momentous Speech
22 February 1774 (Tuesday): Now the only justice whose opinion had not been heard
was Chief Justice of the Court of Kings Bench Lord Mansfeld. All the members of the
House of Lords and the members of the audience waited with great anticipation to hear
what he would say.
But, as the record shows, Lord Mansfeld did not express an opinion. Not only did
he refuse to speak on the matter; he left his position on the fve questions unanswered.
Te reason remains unexplained. Lord Mansfeld had been closely involved with
countless copyright-related cases, including the Millar v. Taylor case, in the course of his
long career. He could have given an even more expert view of the issues than any of the
other justices. If he had cared to speak, no doubt he would have supported the Becket
side, consistent with the decision he had handed down in the Millar v. Taylor case.
Lord Mansfelds silence must have startled the barristers on the Donaldson side.
Turlow had frmly stood behind Donaldson, but privately he must certainly have been
quite anxious about how Lord Mansfeld would counter his defense. Turlow later
expressed his respect for Lord Mansfeld as follows:
Lord Mansfeld was a surprising man; ninety-nine times out of a hundred he was
right in his opinions and decisions; and when once in a hundred times he was wrong,
ninety-nine men out of a hundred would not discover it. He was a wonderful man.
107

Turlow must have considered himself that one person in one hundred who would
know when Lord Mansfeld made a mistake. Whatever the case, it was then clear that
the majority of the other justices supported the Becket side. Seeing that, perhaps Lord
Mansfeld thought that all was well; he need say no more. His decision in the Millar v.
Taylor case had been placed on the table for discussion; at this juncture when his own
judgment was to be deliberated, perhaps his silence was an expression of his deference to
the discretion of his peers. Or perhaps he simply did not want to reply to the questions
of his long-time rival Lord Camden. Or, perhaps, he was beginning to feel regret that his
decision had in fact been in error.
Te reason, in any case, is not known, and Lord Mansfeld remained silent. Te
result, then, was that four of the justices supported Donaldson and seven supported
Becket. Looked at in terms of the three courts, three justices from the Court of Kings
Bench (excluding Lord Mansfeld) supported Becket, three justices of the Court of Com-
mon Pleas other than Chief Justice De Grey supported the Becket side, and three justices
of the Court of Exchequer other than Chief Justice Smythe supported the Donaldson
side. Te responses can be organized as follows:
107 Foss 1864, p. 343.
77
Question For Donaldson For Becket
Q1 3 8
Q2 3 8
Q3 5 6
Q4 4 7
Q5 5 6
Counted in terms of individual questions, the Becket side came out ahead on all
questions. In some records there are discrepancies in the accounts given. John Feathers
analysis gives the tally for Question 4 as 5 to 5 with one unclear and for Question 5 as
7 to 4.
108
Richard Tompson, who analyzed the Burrows Reports
109
gives 10 answers in
support of Becket for Question 1, stating that of these, 8 responses recognized even the
right to sue.
110
If Lord Mansfeld were to have come out in support of Becket, the results
would have changed, and might have afected the decision.
111
Still, the proceedings in the
court were in favor of the Becket side at this stage. Tere was a good possibility that the
House of Lords would confrm the booksellers claim to perpetual copyright.
Ten Lord Camden, who had until then had sat quietly listening to the discussion,
stood and, one eye on the silent Lord Mansfeld, delivered his historic speech that would
pulverize all the preceding arguments in favor of perpetual copyright.
Lord Camden began by commending the Lord Chief Justice (De Grey) for his able
supervision of the debate, declaring that the Duty I owe to this House, will not sufer
me to remain silent
112
on so important a Question [as] is to be determined. He was
quick to castigate the arguments presented by Beckets side, which he called founded on
Patents, Privileges, Star-chamber Decrees, and the Bye Laws of the Stationers Company;
all of them the Efects of the grossest Tyranny and Usurpation; the very last Places in which
I should have dreamt of fnding the least Trace of the Common Law of this Kingdom.
He dismissed the eforts of the Becket side to establish something like a Common Law
Principle and its other arguments as that heterogeneous Heap of Rubbish, which is
only calculated to confound your Lordships, and mislead the Argument.
Lord Camden then set forth the background:
108 Feather 1994, p. 91.
110 Tompson 1992, p. 35.
111 Shirata 1998, p. 191.
112 We may assume that he made this remark pointedly before the silent Lord Mansfeld.
78
Chapter 3
After the frst Invention of Printing, the Art continued free for about ffty Years; . . .
but as soon as its Efects in Politics and Religion were felt, all the crowned Heads in
Europe at once seized on it, and appropriated it to themselves. Certain it is, that in
England, the Crown claimed both the Power of licensing what should be printed,
and the Monopoly of Printing. Two Licences were granted to those who petitioned
for them. An Author not only was obliged to sue for a Licence to print at all, but he
was also obliged to sue for a second Licence that he might print his own Work.
113

Te King, once having laid claim to the right of printing, secured those rights under
various patents and charters, and then, said Lord Camden,
. . . to secure his Monopoly, he combined the Printers, and formed them into a
Company, then called the Stationers Company, by whose Laws, none but Members
could print any Book at all. Tey assumed Power of Seizure, Confscation and
Imprisonment, and the Decrees of the Star-chamber confrmed their Proceedings.
Tese Transactions, I presume, have no Relation to the Common Law; and when
they were established, where could an Author, independent of the Company, print
his Works, or try his Right to it? Who could make head against this arbitrary
Prerogative, which stifed and suppressed the Common Law of the Land? Every
Man who printed a Book, no matter how he obtained it, entered his Name in their
113 Original: AFTER, my Lords, what the Lord Chief Justice hath so ably enforced, there will be little
Occasion for me to trouble your Lordships; nor will the present State of my Health, and the Weakness
of my Voice, allow me to exert myself, were I ever so much inclined; but the Nature of my Profession,
and the Duty I owe to this House, will not sufer me to remain silent, when so important a Question is
to be determined. Te fair Ground of the Argument has been very truly stated to you by the Lord Chief
Justice; I hope what was Yesterday so learnedly told your Lordships, will remain deeply impressed on
your Minds.
Te Arguments, my Lords, attempted to be maintained on the Side of the Respondents are founded on
Patents, Privileges, Star-chamber Decrees, and the Bye Laws of the Stationers Company; all of them the
Efects of the grossest Tyranny and Usurpation; the very last Places in which I should have dreamt of
fnding the least Trace of the Common Law of this Kingdom: and yet, by a Variety of subtle Reasoning
and metaphysical Refnements, have they endeavoured to squeeze out the Spirit of the Common Law
from Premises, in which it could not possibly have Existance.
Tey began, my Lords, with their pretended Precedents and Authorities, which they endeavoured to
model in such a Manner, as to extract from them something like a Common Law Principle, upon
which their Argument might rest. I shall invert the Order, and frst of all lay out of my Way the
whole Bede-role of Citations and Precedents which they have produced; that heterogeneous Heap of
Rubbish, which is only calculated to confound your Lordships, and mislead the Argument. After the
frst Invention of Printing, the Art continued free for about ffty Years; I mean to lay no Stress upon
this; I mention it only historically, not argumentatively; for as the Use of it was little known, and not
very extensive, its want of Importance might protect it from Invasion; but as soon as its Efects in
Politics and Religion were felt, all the crowned Heads in Europe at once seized on it, and appropriated
it to themselves. Certain it is, that in England, the Crown claimed both the Power of licensing what
should be printed, and the Monopoly of Printing. Two Licences were granted to those who petitioned
for them. An Author not only was obliged to sue for a Licence to print at all, but he was also obliged to
sue for a second Licence that he might print his own Work. (Cases of the Appellants, p. 48)
79
Books, and became a Member of their Company: then he was complete Owner of
the Book. Owner was the Term applied to every Holder of Copies; and the word
Author does not occur once in all their Entries. All Societies, good or bad, arbitrary or
illegal, must have some Laws to regulate them. When an Author died, his Executors
naturally became his successors. Te Manner in which Copy-Right was held, was a
kind of Copy-hold Tenure, in which the Owner has a Title by Custom only, at the
Will and Pleasure of the Lord. Two sole Titles by which a Man secured his Right
was the royal Patent and the License of the Stationers Company; I challenge any
Man alive to shew me any other Right or Title; Where is it to be found? some of the
learned Judges say the Words or otherwise in the Statute of Queen Anne relate to a
prior Common Law Right; To what Common Law Right could these Words refer?
At all the Periods I have mentioned, the Common law Rights were held under the
Law of Prerogative. It was the general Opinion that there was no other Right, and
the corrupt Judges of the Times submitted to the arbitrary Law of Prerogative. In
the Case of the Stationers Company against Seymour, all the Judges declared that
Printing was under the Direction of the Crown, and that the Court of Kings Bench
could seize all Printers of News, true or false, lawful or illicit. But if it was made Use
of to protect Authors, what was this Protection? a Right derived under a Bye Law
of a private Company; a Protection similar to that which we give the great Mogul;
when we want any Grant from him, we talk submissively, and pay him Homage,
but it is to serve our own Purpose, and to feast him with a Shadow that we may
attain the Substance. In short, the more your Lordships examine the Matter, the
more you will fnd that these Rights are founded upon the Charter of the Stationers
Company and the royal Prerogative; but what has this to do with the Common Law
Right? never, my Lords, forget the Import of that Term. Remember always that the
Common Law Right now claimed at your Bar, is the Right of a private Man, to print
his Works for ever, independent of the Crown, the Company, and all Mankind. In
the Year 1681 we fnd a Bye Law for the Protection of their own Company and their
Copy Rights, which then consisted of all the Literature of the Kingdom; for they
had contrived to get all the Copies into their own Hands. In a few Years afterwards
the Revolution was established, then vanished Prerogative, then all the Bye Laws of
the Stationers Company were at an End; every Restraint fall from of the Press, and
the old Common Law of England walked at large. During the succeeding fourteen
Years, no Action was brought, no Injunction obtained, although no illegal Force
prevented it; a strong Proof, that at that Time there was no Idea of a Common Law
Claim. So little did they then dream of establishing a Perpetuity in their Copies,
that the Holders of them fnding no Prerogative Security, no Privilege, no licensing
Act, no Star-chamber Decree to protect their Claim, in the Year 1708 came up
to Parliament in the Form of Petitioners, with Tears in their Eyes, hopeless and
80
Chapter 3
forlorn; they brought with them their Wives and Children to excite Compassion,
and induce Parliament to grant them a statutary Security. Tey obtained the Act.
And again and again fought for a further legislative Security . . .
What are the Foundations of this Claim in the English Common Law? Why,
in the frst Place, say the Respondents [Beckets side], every Man has a Right to his
Ideas.Most certainly every Man who thinks, has a Right to his Toughts, while
they continue his; but here the Question again returns; when does he part with
them? When do they become publici Juris? While they are in his Brain no one indeed
can purloin them; but what if he speaks, and lets them fy out in private or public
Discourse? Will he claim the Breath, the Air, the Words in which his Toughts are
cloathed? Where does this fanciful Property begin, or end, or continue? Oh! say they,
the Ideas are marked in black and white, on Paper or Parchmentnow, then, we get
at something; and an Action, I allow, will lie for Ink and Paper: but what says the
Common Law about the incorporeal Ideas, and where does it prescribe a Remedy
for the Recovery of them, independent of the Materials to which they are afxed?
I see nothing about the Matter in all my Books; nor were I to admit Ideas to be
ever so distinguishable and defnable, should I therefore infer they must be Matters
of private Property, and Objects of the Common Law? But granting this general
Position, we get Footing but upon one single Step, and new Doubts and Difculties
arise whenever we attempt to proceed. Is this Property descendible, transferrable, or
assignable? When published, can the Purchaser lend his Book to his Friend? Can
he let it out for Hire as the circulating Libraries do? Can he enter it as common
Stock in a literary Club, as is done in the Country? (Every Ting of this Kind, in a
Degree, prejudices the Authors Sale of the Impression.) May he transcribe it for a
Charity? Ten what Part of the Work is exempt from this desultory Claim? Does it
lie in the Sentiments, the Language, and Style, or the Paper? If in the Sentiments, or
Language, no one can translate or abridge them. . . .
If there be any thing in the World, my Lords, common to all Mankind, Science
and Learning are in their Nature publici Juris, and they ought to be as free and
general as Air or Water. Tey forget their Creator, as well as their Fellow-Creatures,
who wish to monopolize his noblest Gifts and greatest Benefts. Why did we enter
into Society at all, but to enlighten one anothers Minds, and improve our Faculties,
for the common Welfare of the Species? Tose great Men, those favoured Mortals,
those sublime Spirits, who share that Ray of Divinity which we call Genius, are
intrusted by Providence with the delegated Power of imparting to their Fellow
creatures that Instruction which Heaven meant for universal Beneft; they must not
be Niggards to the World, or hoard up for themselves the common Stock. We know
what was the Punishment of him who hid his Talent, and Providence has taken Care
that there shall not be wanting the noble Motives and Incentives for Men for Genius
81
to communicate to the World those Truths and Discoveries which are nothing if
uncommunicated. Knowledge has no Value or Use for the solitary Owner; To be
enjoyed it must be communicated. Scire tuum nihil est, nisi te scire, hoc sciat alter.
114

Glory is the Reward of Science, and those who deserve it, scorn all meaner Views;
I speak not of the Scribblers for bread, who teize the Press with their wretched
Productions; fourteen Years is too long a Privilege for their perishable Trash. It
was not for Gain, that Bacon, Newton, Milton, Locke, instructed and delighted the
World; it would be unworthy such Men to trafc with a dirty Bookseller for so
much a Sheet of letter-press. When the Bookseller ofered Milton Five Pounds for
his Paradise Lost, he did not reject it, and commit his Poem to the Flames, nor did
he accept the miserable Pittance as the Reward of his Labor; he knew that the real
price of his Work was Immortality, and that Posterity would pay it.
Some Authors, my Lords, are as careless about Proft as others are rapacious of
it, and what a Situation would the Public be in with-regard to Literature, if there
were no Means of compelling a second Impression of a useful Work to be put forth,
or wait till a Wife or Children are to be provided for by the Sale of an Edition. All
our Learning would be locked up in the Hands of the Tonsons and the Lintots [Lin-
tons] of the Age, who would set what Price upon in their Avarice chose to demand,
till the Public became as much their Slaves, as their own Hackney Compilers are.
Instead of Salesmen, the Booksellers of late Years have forestalled the Market,
and become Engrossers. If therefore the Monopoly is sanctifed by your Lordships
Judgement, exorbitant Prices must be the Consequence; for every valuable Author
will be as much monopolized by them as Shakespeare is at present, whose Works
which he left carelessly behind him in Town, when he retired from it, were surely
given to the Public if ever Authors were; but two Prompters or Players behind the
Scenes laid hold of them, and the present Proprietors pretend to derive that Copy
from them, for which the Author himself never received a Farthing.
I pass over the flimsy Supposition of an implied Contract between the Bookseller
who sells, and the Public which buys the printed Copy; it is a Notion as unmeaning
in itself as it is void of a legal Foundation. Tis Perpetuity now contended for is as
odious and as selfsh as any other; it deserves as much Reprobation, and is become
as intolerable. Knowledge and Science are not Tings to be bound in such Cobweb
Chains; when once the Bird is out of the Cagevolat irrevocabileIreland,
Scotland, America will aford her Shelter, and what then becomes of your Action? If
the Legislature had intended to make the Right in Question perpetual, they would
have taken Care that the Remedy should be so too. (Cases of the Appellants: 4855)
114 Your knowledge is nothing when no one else knows that you know it.
82
Chapter 3
Te Reversal
Weak of voice though he might claim to be, Lord Camden did exert himself in an
extended speech replete with the force of his convictions. Tose listening could not but
be moved by the clarity of his argument and the passion of his words. Te hall fell quiet,
and then, a leading fgure in this controversy, Lord Chancellor Apsley, spoke:
I declare, I made the Decree entirely as of Course, in Pursuance of the [Lord
Mansfelds] Decision upon the Right in the Court of Kings Bench, and as what I
decreed, as a Chancellor, was merely a Step in the Gradation to a fnal and determinate
Issue in the House of Peers, I am totally unbiased upon the Question, and therefore
can speak to it as fairly from my own Sense of it, as any one of the Judges, or any of
the Lords present. (Cases of the Appellants: 55)
Te Lord Chancellor went on to admit, in detailed terms, that the prerogatives
claimed by the Stationers Company were implausible, concluding I am therefore
clearly of Opinion with the Appellants [Donaldsons side].
115
It was as clear a declaration
overturning the decision of the previous court as could have been made.
Ten Lord Tomas Lyttelton (17441779) stood to object. Admitting that he
was not knowledgeable in law, he nevertheless was opposed to Lord Camdens view.
Authors rights of ownership were sacred and deserving of Protection. He agreed on
the infnite Importance to every Country of the cultivation and encouragement of
the arts and sciences; in places where Men of Letters are best protected, the People in
general will be most enlightened, and where the Minds of Men are enlarged, where their
Understandings are equally matured in Perception and in Judgment, there, he declared,
the arts and sciences would become well established. If authors have rights to their work
in perpetuity it is a lasting Encouragement, but making the right of copying common
to all would be like widening the bed of a river so much as to fnally dry up its sources.
116
Lord Lyttelton stated, I am of Opinion, that the [Lord Chancellor Apsleys] Decree
should be afrmed.
117
Lyttelton was only thirty years of age at that time, having only
116 Original: I own I have no great Acquaintance with the Quirks and Quibbles of the Law. I speak to the
Matter merely as a Question of Equity; I cannot enter into a delusive, refned, metaphysical Argument about
Tangibility, the Materiality, or the corporeal Substance of Literary Property; it is sufcient for me, that it is
allowed such a Property exists. Authors, I presume, will not be denied a free Participation of the common
Rights of Mankind, and their Property is surely as sacred, and as deserving of Protection, as that of any other
Subjects. It is of infnite Importance to every Country, that the Arts and Sciences should be cultivated and
encouraged; where Men of Letters are best protected, the People in general will be most enlightened, and
where the Minds of Men are enlarged, where their Understandings are equally matured in Perception and in
Judgment, there the Arts and Sciences will take their Residence. . . . If Authors are allowed a Perpetuity, it is a
lasting Encouragement; making the Right of multiplying Copies common to all, is like extending the Course
of a River so greatly, as fnally to dry up its Sources. (Cases of the Appellants, pp. 5556)
83
the previous year succeeded to his late fathers seat in the House of Lords. We cannot
but think that, perhaps by virtue of his youth and inexperience, he spoke spontane-
ously, not really reading the general direction of the discussion. Te backdrop for his
statement, coming just as the discussion had nearly reached a conclusion, cannot be
understood simply by following the record of the discussion. It is to be found, rather, in
the text of Tomsons Te Seasons, where the romance between Lyttletons own parents is
mentioned, giving their names, in one of the verses in Spring. Tis anthology is a book
that has very special meaning to this young member of the House of Lords. In any case,
his remarks may have generated some ripples in the House, but they did not have the
power to really change the direction of the debate.
Finally, Edmund Law (Bishop Carlisle, 17031787) and Lord Howard of Efngton
(d.u.) took the stand, both of them strongly opposed to giving the booksellers perpetual
access to copyright.
Lord Mansfeld, ultimately, did not say anything to the very end. Although like
Lord Chancellor Apsley, his decision was being questioned, and although he knew the
background of the discussion on copyright better than anyone else, this man puzzlingly
made no efort to exercise his famous silver tongue throughout the entire proceedings.
Te trial was then concluded and a vote was held among the members of the House
of Lords. Te Parliamentary History records the vote at 23 members for the Donaldson
side to 11 for the Becket side. However, there are other accounts stating that 84 members
cast votes that day and that the vote was 22 to 11, so the evidence is not conclusive. Some
scholars believe that the vote was taken by a voice vote.
118
Whatever the case, Donaldson
and his son won and the booksellers claim to perpetual copyright was withdrawn. For
Lord Mansfeld, it was one of only six cases overturned in a higher court from among the
countless decisions he had made during his career.
119
With this decision, the booksellers dreams of inexhaustible profts were dashed once
and for all. It is said that the people of Edinburgh celebrated in the streets, playing music
and waving fags, at news of the decision.
120
Te 1 March 1774 edition of the Edinburgh
Advertiser recorded the joy of the court victory and the passions of the debates as follows:
Tis question, which has been litigated for more than thirty years, is now hap-
pily determined, both in England and Scotland, and authors are now in a better
situation in Great Britain, than in any other country. In other countries they are
obliged to take out patents for fourteen years, at a considerable expence; whereas,
in Britain, they have a standing patent (the statute of Queen Anne) for 14 and 28
years, without any expence.
118 Rose 1993, p. 102.
119 Fifoot 1977, pp. 4647.
120 Skinner 1928, p. 16.
84
Chapter 3
No private case has so much engrossed the attention of the public, and none has
been tried before the House of Lords, in the decision of which so many individuals
were interested. During the whole time of its duration in the House of Lords, (three
weeks including adjournments, and eight days debate) a great number of peers were
present, and paid the greatest attention. (Edinburgh Advertiser, 1 March 1774)
Although expressed in a somewhat roundabout manner, according to this article,
the Donaldson v. Becket decision had clarifed that a patent for up to twenty-eight years
was granted to authors free of chargein other words, their patent would expire in
twenty-eight years.
Where Donaldson and his son were when they heard of the decision is not known,
but there is a good possibility that James was in Edinburgh since he published the extra-
edition announcement in the Edinburgh Advertiser. Alexander Donaldson was living in
London at the time, so he was no doubt present in the court itself and heard the decision
frsthand, where he would have been able to celebrate with Turlow and Dalrymple.
One can also speculate that the modest publisher and the noble Lord Camden exchanged
satisfed glances across the chamber, communicating their shared pleasure in having
achieved their common objective, but that remains in the realm of the imagination.
Te London booksellers found their proud arguments, which had held sway for so
many years, crushed by the House of Lords. Tey were not the type, however, to be easily
cowed. Within six days, on 28 February, they had already presented a petition for a new
copyright protection law, with 87 signatures, to the House of Commons.
121
A committee
was formed by the House of Commons to consider the petition and Turlow, Dunning,
and Wedderburn presented opinions. A new Bill for the Relief of the Booksellers was
drawn up and presented in the House. Te actual content of the new bill is not recorded.
Te booksellers of Edinburgh, Glasgow, York and elsewhere countered with their own
petition opposing such a bill. On 10 May at the Second Reading of the bill in the
House of Commons, Dalrymple spoke, representing those opposed to the bill.
At the 13 May Hearing of Council, a barrister named William Mansfeld spoke.
122

Taking the side of the monopolist booksellers, he argued that the booksellers copyright
should be longer than that specifed in the Statute of Anne, and he criticized Donaldson
and his lawyers. Stating that the Donaldson edition of Homer as translated by Alexander
Pope (16881744) removed 23,851 lines of notes from the original book, he found fault
with the quality of pirate editions. He decried the House of Lords, calling the decision
121 Parliamentary History of England, vol. 17, pp. 10781110; Walters 1974.
122 Tis is not the Lord William Mansfeld who fgured in the copyright cases discussed above but another
person of the same name. Shirata believes they are the same person (Shirata 1998, p. 194), but Tompson
states that they are diferent (Tompson 1992, p. 41). Te Parliamentary History of England records the
name of the man who spoke on 13 May 1774 as Mr. Mansfeld, rather than Lord Mansfeld, so I
will follow the thesis that they are diferent individuals.
85
of that highest court of law in Westminster misconceived.
123
Ten, judging from the
fact that Donaldson had apparently sought to sell out his pirate editions before the Court
of Chancery impounded his merchandise, he said it is evident he [Donaldson] thought,
as well as the petitioners, that there did exist a common law right.
124
Tis William
Mansfelds argument seeming to have had its efect, the new bill was passed in the
House of Commons. Upon being presented in the House of Lords, however, it faced the
thoroughgoing critique of Lord Camden and Lord Chancellor Apsley as before, and it
was thrown out. Tis confrmed that the booksellers claim to a perpetual copyright to
the works they had published, based on the notion that it had existed in common law,
would not be recognized.
Impact of the Decision on Authors and Booksellers: Samuel Johnsons View
Already by the eighteenth century, a complex distribution system made up of several levels
of intermediaries had taken shape. Tanks to this system, local bookstores could obtain
books popular in London, but the more intermediaries were involved, the more costly
the book. For example, Life of Johnson records the distribution routes and intermediary
margins for Johnsons Dictionary in a letter of 1776. Te retail price was 20 shillings,
while the original cost of the Dictionary was 7 to 8 shillings. Te printer, looking to make
a proft of 6 to 7 shillings, sold the books to a primary agent in London, Mr. Cadell
for 14 shillings. He also added one free copy for each 25 Cadell ordered. Cadell kept 1
shillings margin for himself and sold the books to wholesale bookseller Edward Dilly
(17321779) for 15 shillings. Dilly, in turn, sold the books for 16 shillings and six pence
to local booksellers. Te price on the Dictionary was 20 shillings.
125
Looking at this example of book distribution we can see that Cadell is clearly an
extra link in the distribution chain. Cadell was Millars successor and executor of his
estate. Big booksellers like Cadell not only profted by monopolizing the printing of
books but also from their distribution. Johnsons description of Cadell was as one who
runs no hazard, and gives no credit.
126
He was no doubt a very savvy businessman.
What did Johnson think of Donaldson? It appears that Johnson took an interest in
Donaldson from the time the latter set up shop in London. While Johnson was rather
critical of Donaldsons strategy, he was opposed from the outset to the claims to per-
petual copyright advanced by Millar and his cohorts. Boswell records a conversation
between Johnson and the lawyer George Dempster (17321818) on 20 July 1763.
123 Parliamentary History of England, vol. 17, pp. 10971098.
125 Boswell 1998 (1791), pp. 67980.
126 Boswell 1998 (1791), p. 679.
86
Chapter 3
Johnson, though he concurred in the opinion which was afterwards sanctioned by
a judgement of the House of Lords, that there was no such right, was at this time
very angry that the Booksellers of London, for whom he uniformly professed much
regard, should sufer from an invasion of what they had ever considered to be secure:
and he was loud and violent against Mr. Donaldson. . . . Now Donaldson, I say,
takes advantage here, of people who have really an equitable title from usage; and
if we consider how few of the books, of which they buy the property, succeed so
well as to bring proft, we should be of opinion that the term of fourteen years is
too short; it should be sixty years. DEMPSTER. Donaldson, Sir, is anxious for the
encouragement of literature. He reduces the price of books, so that poor students
may buy them. JOHNSON, (laughing) Well, Sir, allowing that to be his motive,
he is no better than Robin Hood, who robbed the rich in order to give to the poor.
It is remarkable, that when the great question concerning Literary Property came
to be ultimately tried before the supreme tribunal of this country, . . . Dr. Johnson
was zealous against a perpetuity; but he thought that the term of the exclusive right
of authors should be considerably lengthened. He was then for granting a hundred
years. (Boswell 1998 [1791]: 309310)
When Donaldson and Becket were battling it out in the Scotland Court of Session,
Samuel Johnson was doubtless discussing the case with his friends. On 8 May 1773, he
is recorded as saying:
Tere seems (said he,) to be in authours a stronger right of property than that
by occupancy; a metaphysical right, a right, as it were, of creation, which should
from its nature be perpetual; but the consent of nations is against it, and indeed
reason and the interests of learning are against it; for were it to be perpetual, no
book, however useful, could be universally difused amongst mankind, should the
proprietor take it into his head to restrain its circulation. No book could have the
advantage of being edited with notes, however necessary to its elucidation, should
the proprietor perversely oppose it. For the general good of the world, therefore,
whatever valuable work has once been created by an authour, and issued out by him,
should be understood as no longer in his power, but as belonging to the publick; at
the same time the authour is entitled to an adequate reward. Tis he should have
by an exclusive right to his work for a considerable number of years. (Boswell 1998
[1791]: 54647)
He is in favor, therefore, of a good balance between security of public access to work
and the handing over of adequate reward to the author. Every author who had the experi-
ence of being exploited by big booksellers as Johnson did was careful thereafter to defend
87
his own profts. We can only admire Johnson for his faithful pursuit of the general
good. Johnsons interest in copyright was not only out of his interest in economic proft.
He believed that the author should retain the copyright in order to be able to correct its
misprints and errors and to revise it according to the advance of scholarship. If the text
became the property of someone else, it might not be possible for an author to ever put
out a revised or expanded edition.
But if the right to copy had been diferent from that determined in the Statute
of Anne, Johnson might have been able to publish more frequent revisions of his Dic-
tionary.
127
Te frst edition of the Dictionary came out in 1755 and the copyright was
held by booksellers until 1783, the year before Johnson died. Te fnal revised edition
prepared by Johnson himself was the fourth edition published in 1773. If the copyright
had belonged to Johnson himself, readers of his day might have been able to obtain a
more perfected dictionaryat least we may be allowed to speculate.
Like other men of culture and members of the nobility, Boswell and Johnson took
a close interest in the Donaldson v. Becket case. Boswell, who had defended Donaldson
in the 1773 Hinton v. Donaldson case in Scotlands Court of Session, was naturally on
Donaldsons side. Just before the Donaldsons case was heard in the House of Lords,
Boswell had published through the Donaldson bookstore a 37-page booklet detailing the
points at issue in the Hinton v. Donaldson case. It was an open efort to appeal to public
opinion in support of Donaldson.
128
In a letter by Johnson dated 7 February 1774, we fnd: Te question of Literary
Property is this day before the Lords. Murphy drew up the Appellants case, that is, the
plea against the perpetual right. I have not seen it, nor heard the decision. I would not
have the right perpetual.
129
Te case had begun in the House of Lords on February 4, so
Johnsons information is slightly delayed, but in those days a three-day lag was actually
quite short.
According to the 20 July 1763 conversation with Dempster quoted above, Johnson
concurred with the decision of the House of Lords. He continued to maintain interest in
issues of copyright after the decision, which Boswell records in several places. In 1775,
mentioning a case in which an author received only one third of the profts from the sale
of his book and had been forced to sign over the copyright for 99 years in the contract
with the bookseller, Johnson is said to have remarked: I wish I had thought of giving
this to Turlow, in the case about Literary Property. What an excellent instance would
127 Reddick 1996, pp. 17273.
128 Deazley assumes that Donaldson petitioned the House of Lords to adjourn the session for a month in
order to make sure that Boswells book would come out in the meantime. Deazley 2004, pp. 19495;
Rose 1993, pp. 9596.
129 Boswell 1998 (1791), p. 557.
88
Chapter 3
it have been of the oppression of booksellers towards poor authours!
130
He also notes
how even in 1779, the work of a famous poet was still under the control of the several
booksellers who had the honorary copy right [sic], which is still preserved among them
by mutual compact, notwithstanding the decision of the House of Lords against the
perpetuity of Literary Property.
131
In other words, there was apparently some skepticism
about the efectiveness of the House of Lords decision stating that copyright was not
perpetual. Indeed, at least in book distribution in London, the role of the monopolist
booksellers must have been quite dominant. Regardless of the House of Lords decision,
it was unlikely that the business practices that the London booksellers had agreed upon
among themselves would suddenly be changed.
Te 1774 decision opened up a place for what had been called pirate publishing, but
I do not think it fundamentally changed the practices of the publishing world of England.
After all, the copies that would no longer be called pirate editions were only of those
works that had been in print for more than the number of years stipulated in the Statute
of Anne; recently written works in fashion were securely under the protection of the
Statute. What this suggests is that as far as societys understanding went, copyright only
needed to be protected during the times therein mentioned in order to serve the
encouragement of learning as enshrined in the Statute of Anne.
130 Boswell 1998 (1791), p. 613.
131 Boswell 1998 (1791), pp. 10081009.
89
How did it happen that Alexander Donaldson ended up as a pirate publisher in the
frst place? In answering that question, it helps to know something about the history of
Scotland and the society, economy, and publishing conditions of the eighteenth century,
an important era in copyright history. To give a sense of the atmosphere of the times and
the reasons for the upsurge of literature in Scotland, I introduce the poet and booklender
Allan Ramsay (16861758).
Scotland has preserved its distinctive culture over the centuriesoften stereotypi-
cally portrayed by such things as bagpipes, tartan-weave textiles, the kilt traditionally
worn by men, and Scotch whisky. Today the northern part of Great Britain, Scotland was
a separate kingdom until 1603, and for another century had a separate parliament and
legal system. In 1707 it was made part of the kingdom of England. It is difcult to fully
understand the Donaldson v. Becket case without being aware of the disparities that this
union brought to the publishing industry of the two countries.
Here is a puzzle to consider frst: Why did the publishing industry fourish in a
remote northern city like Edinburgh? Eighteenth-century Scotland produced a wealth of
brilliant fguresamong them father of modern economics and capitalism Adam Smith,
key fgure in Western philosophy David Hume, inventor of the steam engine James Watt
(17351819), father of modern sociology Adam Fergusonall men who led the way in
the development of Englands modern civilization. Such fgures active in Edinburgh or
Glasgow were closely interconnected. Te philosophical and intellectual trends advanced
by these and others came together in what is known as the Scotland Enlightenment or
Scotland Renaissance. Scholars today are increasingly pointing to this ferment as the
cradle of modern civilization itselfcalling Edinburgh the Athens of the North. To
appreciate what was achieved in eighteenth-century Scotland, however, we need some
further background. Let me trace briefy how Scotland came into being and the fow of
its history until the late eighteenth century that is the setting of this book.
Scotlands Stone of Destiny
Te complex history that ties together England and Scotland is well symbolized by what
is known as the Stone of Destiny, or the Stone of Scone from the locale associated
with the type of stone from which it was cut. (By pure coincidence, Lord Mansfeld was
Chapter 4
SCoTLANdS NETwoRK of
dIABoLICAL KNowLEdGE
90
Chapter 4
a native of Scone.) I saw the stone in 1992, when it was still at Westminster Abbey, a very
ordinary sort of stone, built into a by-then rather shabby-looking throne of wood. Te
Stone of Destiny had been used for the coronation of the kings of Scotland until 1296
when it was taken to England as booty of war. It came to be used for the coronations
of the sovereigns of the British Isles and he or she who was crowned on that stone was
recognized as the legitimate sovereign of the land. Te stone thus became the symbol of
the monarchy. In 2002, I found the stone inside Edinburgh Castle, to which it had been
moved in 1996, after an interval of 700 years, when England returned it in response to
Scotlands demands.
Te Stone of Destiny provides a glimpse into the complex histories of the two
countries. Te kingdom of Scotland is believed to have been established in 843 by a
man named Kenneth MacAlpin (?858). Under the reign of the famed eleventh-century
Duncan I (?1040; r. 10341040), the entire territory of Scotland was united. Gen-
erations of Scotlands kings swore fealty to the kings of England. In 1290, when the
Canmore family line of kings extending from Duncan I died out, Scotlands nobles asked
the English king Edward I (12391307; r. 12721307) to intercede in the succession.
Edward chose a member of nobility named John Balliol (12501313; r. 12921296),
and though Balliol owed his kingship to Edward, the two did not get on well. Edward
had just fnished conquering Wales and was waiting for a chance to take over Scotland
as well. Claiming that Balliol had formed an alliance with France, Edward I invaded
Scotland and his army was invincible. Scotland was soon defeated and Edward took the
Stone of Destiny back to England.
Te patriot to take up Balliols banner was William Wallace (1270?1305). Trough
his exploits, the army of England was temporarily defeated, but it was only a matter of
time until Wallace was captured by the English army, and later executed in London.
Robert the Bruce (12741329), one of the claimants to the Scottish throne who had
sided with Wallace, defed Edward Is rule, proclaiming himself Robert I (r. 13061329)
of an independent Scotland. Edward naturally sent out an army against him, but Robert
managed to elude capture. When, not long after, Edward I died, his successor, Edward
II (12841327; r. 13071327) showed no interest in Scotland. So Robert I lived out his
life as king of Scotland, and it was his grandson, Robert II (13161390; r. 13711390)
who was to found the Stewart (Stuart) family line, which united the royal houses of the
two countries.
Te ffteenth and early sixteenth centuries were a time of repeated and bloody wars,
as England sought to force Scotland into submission. With the reign of Elizabeth I
(15331603; r. 15581603), cultural exchange was encouraged between the two countries,
and as she did not marry and at her death in 1603 left no direct heir, her cousin James VI
of Scotland (15661625; r. 15671625) was crowned James I of England (r. 16031625).
Te royal house of England and the Stewarts had strengthened their blood ties from the
91
SCOTLANDS NETWORK OF DIABOLICAL KNOWLEDGE
time of Elizabeth Is grandfather, Henry VII (14571509; r. 14851509), and James was
the closest in line to Elizabeth I. In this way, the royal houses of England and Scotland
were united and the two countries were brought together by the personal union of their
monarch. At this time, the Stone of Destiny at Westminster Abbey changed its nature
from emblem of the conquest of Scotland to a symbol of the united royal house.

Te Union with England
Te language of Scotland is a dialect of English, although to those from other countries
it may sound like another language altogether. People who speak the same language
quickly band together, and not surprisingly, people of Scotland living in England were
quick to embrace their common heritage and loyalty to their homeland. Apparently, that
tendency was famous among people from Scotland, as Samuel Johnson observed with
some irony, referring to Boswell:
Te Irish mix better with the English than the Scotch do; their language is nearer to
English; as a proof of which, they succeed very well as players, which Scotchmen do
not. Ten, Sir, they have not that extreme nationality to say, that you are the most
unscottifed of your countrymen. You are almost the only instance of a Scotchman that
I have known, who did not at every other sentence bring in some other Scotchman.
132
Scotland is divided geographically into two regions, the Lowlands and the High-
lands. Te Lowlands, the region closer to England, includes the cities of Edinburgh and
Glasgow. Commerce, industry, and culture fourished in this region where the climate
was relatively moderate and England not far away. In the Highlands, by contrast, the
land was less fertile and the climate cold; no major industry developed and life was
very hard. Scotland is also a country of strong ties among members of the same clan, or
extended family, and these blood relations are especially strong in the Highland region.
Te diferences between the Lowlands and the Highlands, in addition to these clans, are
what make Scotlands culture complex.
After Scotlands James VI went to London to become James I of England, he did not
return to Edinburgh save for very short visits. Te nobility of Scotland he left behind was
divided in two: those seeking to gain favor with the king and success in London and those
advocating reliance on the Catholic state France. Te confict between these two camps
often led to political deadlock. James II (grandson of James I; 16331701; r. 16851688)
came to the throne of Britain in 1685, but misgivings about his Catholic leanings led to
the Glorious Revolution of 1688, and he was driven into exile. Anti-Catholic forces con-
132 Boswell 1998 (1791), p. 531.
92
Chapter 4
trived for the throne of Scotland to pass jointly to Dutch born William III (16501702;
r. 16891702) and his wife James IIs daughter Mary II (16621694; r. 16891694),
who was a Protestant. Forces loyal to James II, declaring that he and his male descendants
were the real kings of England, were known as Jacobites. Te Catholic James II received
support from France, so the connotation of Jacobite is Catholic and pro-France.
Particularly in Scotland, Jacobites were connected with anti-England activism, and there
were periodic Jacobite-led rebellions in the Highlands during the eighteenth century.
In 1695 the population of England was around six million and that of Scotland
around one million. Te annual revenue of Scotland was about one-fortieth that of Eng-
land and the value of the pound was about one-twelfth. Scotland was one of the poorest
countries in all Europe.
133
Natural disasters and poverty added sufering to continual
political turmoil. Famine struck Scotland following unstable weather from 1695 through
1699, and it is said that more than one hundred thousand people13 percent of the
populationstarved to death.
134
Te income gap with England only grew wider, with
conditions in the Highlands region particularly cruel. Even in Edinburgh, Scotlands
capital, the situation was not good, causing Adam Smith to write in Te Wealth of Na-
tions: Tere was little trade or industry in Edinburgh before the Union. When the
Scotch parliament was no longer to be assembled in it, when it ceased to be the necessary
residence of the principal nobility and gentry of Scotland, it became a city of some trade
and industry.
135

Te poverty of Scotland was the result not only of climate but of misjudgments.
England and Spain had established colonies in the New World, but Scotland did
not have such sources of supply. It had no trade routes such as the English East India
Company. Ten a plan was proposed, known as the Darien Scheme, by which it was
hoped Scotland would be able to obtain both a colony and money-making trade routes
in the New World at one stroke. Te plan was to establish a colony in Darien, a place in
Spanish territory near the Panama Canal today. At Darien, a slender stretch of land only
thirty miles wide separated the Atlantic and Pacifc Oceans. A colony established there
would command a key center of trade between the two great oceans. Everyone thought
it was a wonderful idea. Te nobility of Scotland placed the nations fate in this plan and
invested vast fortunes in it. It is said that half of Scotlands wealth was invested in the
Darien Scheme.
In 1696, three ships carrying 1,200 settlers sailed forth on this mission to Darien.
Tey reached the New World on 3 November the same year. Tey were met, however, with
unimaginable misery as malaria ravaged their ranks. An average of twelve people died every
day from the malaise. Many also lost their lives in the assault by the Spanish forces. English
133 Ross 1998, p. 209.
134 Allan 2002, p. 87.
135 Smith 2009 (1776), p. 244.
93
forces were not far away, but they did nothing. Tey simply watched while the Scotland
scheme failed. Te desolate survivors drowned their sorrows in drink
136
and the Darien
Scheme ended in complete failure within half a year. In July 1699, the remnants of the mis-
sion left Darien by ship, but only a handful of the settlers were able to return home. With
this failure, Scotlands economy completely collapsed. Some people in Scotland believed
that England was at fault, but even if England had done nothing culpable, few people in
Scotland thought well of Englands stance, treating Scotland as a vassal kingdom.
Englandin its need to placate Scotland as part of its eforts to be on the winning
side the War of the Spanish Succession (17011714)found union to be its most expe-
dient option. One of many people mobilized as part of the propaganda efort in support
of union was Robinson Crusoe (1719) author Daniel Defoe (1660?1731). Traveling
around Scotland on observation tours, he wrote political tracts designed to guide public
opinion in favor of bringing the countries together.
Te nobility of Scotland were favorably disposed to union. Some, by currying favor
in Westminster, hoped to recoup the losses incurred in the Darien Scheme, and this was
the motive of all the Scottish nobles who participated in the debates on union in 1706.
Te debates focused on two issues: funds that would be paid to Scotland as incentives and
the treatment of Scotlands nobility in England. Prior to union, the House of Lords of
England was composed of 170 members of the peerage and 26 members of the clergy. In
Scotland all 130 of its nobles held seats in its parliament. As a result of the negotiations,
it was decided that 16 of Scotlands peers would be chosen by election and given seats in
the House of Lords at Westminster.
137
When the negotiations were concluded, the Treaty
of Union was ratifed, and Scotland became part of the United Kingdom of Great Britain
in 1707. Under the provisions of the treaty, private law and the courts of Scotland were
to remain as they were, and as mentioned earlier, Alexander Donaldson used the result-
ing institutional mismatch to his advantage in his battle with the monopolist booksellers.
Among the populace of Scotland, however, the highhanded maneuverings of the
nobility in pushing for the union were unpopular. Te discontent, linked to Jacobite sen-
timent that continued to brew in the Highlands region, was at the root of the frequent
revolts against the crown that occurred in the eighteenth century. Te uprisings of 1715
and 1745 were among the largest. Te attempt to reassert Scotlands sovereignty in 1745
collapsed of its own weakness, but London launched policies aimed to weaken Scotlands
cultural identity, among which was the prohibition on the use of the clans distinctive
tartan dress (kilts). Te national anthem of Great Britain at the time included a sixth
stanzatoday no longer sungthat went as follows:
136 Herman 2002, pp. 2829.
137 Aoki 1997, pp. 2436.
94
Chapter 4
Lord grant that Marshal Wade,
138
May by thy mighty aid,
Victory bring.
May he sedition hush,
And like a torrent rush,
Rebellious Scots to crush.
God save the King (Queen)!
Tese lines vividly evoke the way the nation that is Great Britain came into being, but no
Scot would be happy to see such words. In a sense, the embers of popular dissatisfaction
with the union continue to glow, stirring independence-movement sentiment even today.
Te Church and Literacy
Also essential to an understanding of Scotlands history and culture are the religious
reformer John Knox (1514?1572) and the Presbyterian Church. Religious reform paved
the way for increased literacy and the advancement of printing and publishing.
Until the reign of Queen Mary Stewart (15421587; r. 15421567), Scotland had
been a Catholic country. Mary Stewart is not to be confused with her more vengeful
contemporary, Mary I, Queen of England (also a Catholic; known as Bloody Mary),
introduced earlier in Chapter 2. Knox was originally a member of the Catholic clergy,
but under the infuence of religious reformer George Wishart (1513?1546) he had
converted to Protestantism. He went to England and continued to propagate his reform-
ist ideas, but as the suppression of Protestantism under Englands Mary I grew violent,
he escaped to Geneva, where he met and studied under John Calvin (15091564). In
1559, when a Protestant monarch again came to the throne in England, Knox returned
to Edinburgh. He led an upsurge of support for Protestantism in Scotland and became
a minister at St. Giles Cathedral. Knox stridently criticized Catholicism in his sermons
and destroyed icons of Catholic worship. His reforms and teachings spread throughout
most of Scotland, with Catholicism lingering only in fringe areas.
Knox had been successful in spreading Protestantism in part because of the ab-
sence of Queen Mary Stewart, who left Scotland at the age of fve (1548) following her
engagement to the heir apparent to the throne of France. She returned after the death
of her husband in 1561, but by that time Knoxs teachings had already spread quite
widely. Still the queen regnant of Scotland, Mary sought to rein in Knoxs infuence. She
ordered him to appear at the palace four times, and their interviews were the scene of
138 George Wade (16731748). Commander of the English army who put down the Jacobite uprising of
1715.
95
ferce religious debates. Ultimately, however, she was forced to recognize the support he
enjoyed and compromise with him. Scotlands nobility was divided between Catholics
and Protestants, and she herself perpetrated a scandal by her second marriage and was
ultimately forced to fee to England. Te queen of England, by then the Protestant
monarch Elizabeth I, imprisoned Mary Stewart for eighteen years before fnally execut-
ing her for treason. After Mary Stewarts departure, Protestant nobles in Scotland made
sure that the infant son she had left behind was raised a Protestant, and from that time
onward, Scotland has been predominantly Protestant. Scotlands Protestantism is of the
Presbyterian persuasion, in which each church is managed jointly by its minister and
presbyters elected from among the members of the congregation.
One of the main teachings of the Presbyterian Church is that the Bible is the sole
authority for all things. Tis absolute faith in the Bible had two important ramifcations:
one was that the Bible needed to be printed and widely distributed and the other was that
the faithful had to acquire the ability to read the Bible for themselves.
Te strategy of spreading the content of the Bible through printing technology was
very good for the propagation of knowledge in general. In attempting to spread the teach-
ings of the faith, the impact of sermons was necessarily limited, since people had to be
physically present in church to hear their message. By relying on printed matter, it was
possible to take the teachings of the Presbyterian Church into every home. Te Catechism,
Bible, and the hymns were brought in from England and pirate editions mass-produced.
And thus were laid the foundations of the publishing industry of Scotland.
Te Presbyterian Church also emphasized literacy education in order to enable
people to read the Holy Scripture, and by the beginning of the eighteenth century
Scotland had a better primary education system in place than did England. Te Act for
Setting Schools was issued in 1696, providing for a school to be established in every
parish throughout Scotland, the purpose of which was to teach children to read Holy
Scripture.
139
Te basic curriculum of these parish schools consisted of the Catechism,
hymns, reading, writing, arithmetic, and a little Latin.
140
So what was literacy like in Scotland in those days? Of course, it is probably impos-
sible to fnd out for sure how well people of long ago could really read. Te literacy
rate will difer depending on what they could read. A common index that is used to
measure literacy is whether a person could write his or her own name, and that can be
determined by studying documents showing people signing their own names. Robert
Allan Houstons Scottish Literacy and the Scottish Identity (1985) gives the results of his
survey of signatures found in old records. His fgures for literacy by occupation in the
seventeenth and eighteenth centuries are shown below.
141

139 Herman 2002, p. 19.
140 Herman 2002, p. 97.
141 Houston 1985, p. 33 (fgure revised for this publication).
96
Chapter 4
England Scotland
164099 170070 164099 170070
Professional 97 100 97 99
Gentry/Laird 100 100 99 97
Craft & Trade 57 74 75 82
Yeoman/Tenant 51 74 74 68
Husbandman 25 58 not applicable
Laborer 15 37 18 32
Servant 27 50 42 45
Soldier 45 54 35 61
Unknown 38 70 49 53
Comparing the lower strata of society in the seventeenth century, literacy in Scotland
is higher than that of England. By the eighteenth century, the gap had nearly closed.
Tese fgures, however, are for the Lowland region of Scotland only, and literacy in the
Highlands region of the north was said to be the lowest in Europe. As mentioned above,
the reason literacy was high in the Lowlands of Scotland was because of the teachings
of the Presbyterian Church. Followers of the Presbyterian Church believed that children
had to be taught to read the Bible. Knox, too, in his First Book of Discipline (1560),
appealed for a country-wide efort to advance education.
To fulfll the demands of the Presbyterian Church for Bibles, therefore, the printing
industry became established, and it was on that groundwork that the publishing industry
of eighteenth-century Scotland fourished. Books, pamphlets and sermons were exported
to the European continent and to the American colonies from Edinburgh, making it an
important center of publishing culture.
142

Te Heyday of the Publishing Industry
Te growing prosperity of Scotlands publishing culture is refected in a number of
statistics. In 1763, there were 6 printing companies in Edinburgh; by 1790 there were
16. Another record indicates that 4 printing companies in 1739 had increased to 27
by 1779.
143
One record shows that there were about 300 bookstores in Scotland before
1775.
144
Te population of Edinburgh in 1763 was about 60,000 and in 1779 it was
142 Colley 2008 (1992), p. 40.
143 Chitnis 1976, p. 18.
144 Kaufman 1965, p. 247.
Figure 4. Literacy by occupation in England and Scotland.
(Houston 1985: 33, revised)
97
about 80,000.
145
It is believed that the population of Scotland in around 1775 was about
1.4 million.
146
Tat means that around the end of the eighteenth century, there was
about one bookstore for every 4,0005,000 people in all of Scotland, and in Edinburgh
about one printing company and bookseller for every 3,000 people.
Other fgures are available that ofer insight into the level of culture in eighteenth-
century Scotland. Of the population of 1.5 million in 1795, some 5,000 families, about
20,000 people made their livelihood from work relating to literature. Te numbers for
those who supported themselves from teaching were 3,500 families and 10,500 persons.
147
Samuel Johnsons observation on Scotlands learning, too, suggests something about
the level of learning there in his time: Teir learning is like bread in a besieged town:
every man gets a little, but no man gets a full meal. Tere is (said he,) in Scotland, a
difusion of learning, a certain portion of it widely and thinly spread. A merchant there
has as much learning as one of their clergy.
148
Informed discussion on literature, philosophy, and science seems to have been part
of daily life in post-Union Scotland, spreading widely among students, lawyers, clergy-
men, merchants, lairds, noblemen and, in some cases, women.
149
Te reason for this
can easily be attributed to the high level of literacy and the prosperity of publishing. Te
culture of the so-called Scotland Renaissance emerged from the learning and cultivation
achieved even among the general population.
Poet Allan Ramsay
Now that we have a general grasp of conditions in Scotland after union with England,
I would like to introduce the story of the poet and book lender Allan Ramsay. As a
member of Edinburghs cultural circle in the frst half of the eighteenth century, his
life and career provide valuable insights into the way people lived in those days and the
nature of Scotlands publishing culture.
150

Ramsay was born 15 October 1686 (although there is some debate about whether
it might have been more accurately 1684 or 1685) in the village of Leadhills, in South
Lanarkshire, forty miles southwest of Edinburgh. Located at a height 1,500 feet above sea
level, it was known for its lead and gold mines. Te neighboring village of Wanockhead
was called the highest village in Scotland. Leadhills fell within the lands of the Earl
145 Longman Companion to Britain, p. 290.
146 Smout 1998 (1969), p. 242.
147 Chitnis 1976, p. 16. Chitnis does not explain what occupations are included in the scope of literature,
however.
148 Boswell 1998 (1791), p. 627.
149 Allan 2002, p. 132.
150 For more on the life of Allan Ramsay, see Chalmers and Woodhouselee 1851, vol. 1; Smeaton 1896;
Gibson 1927; Martin 1931a, 1931b; and Brown 1984.
98
Chapter 4
of Hopeton, and lead had been mined there since the thirteenth century. Gold mined
in the village had been used for the crown of Scotlands King James IV (14731513; r.
14881513) and rings for Queen Mary Stewart.
We can get an image of what the village of Leadhills was like at the time from the
Statistical Account of Scotland, published in the late eighteenth century:
Te external appearance of Leadhills is ugly beyond description: rock, short heath,
and barren till. Every sort of vegetable is with difculty raised, and seldom comes
to perfection. Spring water there, is perhaps as fne as any in the world: but, the
water below the smelting-milns, the most dangerous. Te lead before smelting is
broke very small and washed from extraneous matter. It contains frequently arsenic,
sulphur, zinc, &c. which poisons the water in which it is washed. Fowls of any
kind will not live many days at Leadhills. Tey pick up arsenical particles with their
food, which soon kills them. Horses, cows, dogs, cats, are liable to the lead-brash.
A cat, when seized with that distemper, springs like lightning through every corner
of the house, falls into convulsions, and dies. A dog falls into strong convulsions
also, but sometimes recovers. A cow grows perfectly mad in an instant, and must be
immediately killed. Fortunately this distemper does not afect the human species.
About 30 years ago, most of the smelters died either madmen or idiots. Now
they retain their senses as well as other people. Te reason given is: formerly spirits
were cheap, and the smelters partook liberally of them at their work. For many years
past they drink nothing at their work, but pure spring water; they now live as long
and as rationally as others.
151

Tis account describes Leadhills about 100 years after the time Ramsay would have
lived there. Tat was not the environment, however, in which Ramsay spent his child-
hood. Born at the end of the seventeenth century, Ramsay grew up before the onset of
the Industrial Revolution, and demand for lead was much smaller than it was at the end
of the eighteenth century. In a time before the invention of the steam engine, mining
would have been done entirely by hand, and the amount of lead mined would have been
quite limited. Judging from the world of the works Ramsay wrote, we imagine a much
more beautiful and rich landscape than that portrayed in the above account, although
this must remain largely conjecture.
Work in the eighteenth-century lead mines was hard. Women did not work in the
mines, but boys began to work at an early age. Boys who had turned eight years old were
put to work helping with the smelting and with the loading of ore onto the sledges to
be carried out of the mines. At age ten they would become apprentices in the mines and
151 Sinclair 1973 (1799), pp. 21516.
99
learn to excavate the lead. Lead was mined by raw manpower, breaking through rock
deep in the darkness of the mines, with only candles for illumination. Te heavy ore was
hauled through mine shafts to the surface by manpower as well, the wooden barrels piled
high with ore pulled up on a winch rotated by powerfully built men. Te men worked
six-hour days and had one day of per week. Te homes of the miners were cottages where
families of eight often lived in one room serving as kitchen, living, bath, and bedroom.
Te foor was covered with straw and a freplace in the center fueled with peat from the
moors provided heat and the cooking fre. Lead poisoning and tuberculosis were common
afictions and men lived to an average age of ffty-fve. Te wages of the lead miners were
better than for ordinary laborers, but were not paid until the lead that had been mined
was sold, which usually took about a year. Te miners bought necessities at the mining
company store on credit, which was subtracted from their wages upon payment.
Allan Ramsays father was John Ramsay (d.u.), described as overseer to the Hopes
of Hopeton and superintendent of the Earl of Hopetons lead mines. His mother was
named Alison Bower (?1701?) and the daughter of a mine engineer. His grandfather
Robert (d.u.) was in the employ of a lawyer who was also an overseer to the Hopes of
Hopeton. Tus Allan and his older brother Robert were born to a family that had served
the Hopeton family for two generations. But John died in his mid-twenties, leaving
behind his wife and two young sons. Te cause of his death is unknown, but is easy to
imagine, given the dangers of the lead-mine environment. Allan Ramsay was born either
just before or after his father died.
His mother remarried a local small-holder named Andrew Crichton (d.u.), and had
several other children by her second husband. Allan was still very young when his mother
remarried and he had no memory of his real father. Tanks to his mothers remarriage,
the young Ramsay was saved from the fearsome fate of the lead mines. Instead, he was
assigned to tend his stepfathers sheep, a task that suited him fortuitously. Spending his
days watching over sheep on the endlessly rolling hills, he developed into a sensitive and
thoughtful young man. Te experiences of his boyhood can be seen refected in one of the
works for which he is best known, Te Gentle Shepherd. He attended a local school until the
age of ffteen. Since Leadhills did not have a school until 1715, he probably attended the
parish school in Crawfordmoor, which was 7.5 miles away. Tus, it was at one of the parish
schools where literacy education under the Presbyterian Church fourished that Ramsay got
his grounding in poetry reading works in Latin by the Roman poet Horace (b.c. 6568).
To Edinburgh
Allan Ramsays mother Alison died around 1701, and his stepfather appears to have
remarried by 1703. Although the great famine that ravaged Scotland six years earlier had
more or less passed, Andrew Crichton had many young mouths to feed, so life cannot
100
Chapter 4
have been easy. No doubt Andrew was eager to have his frst wifes ffteen-year-old son
become independent. Ramsay himself wanted to become a painter, and he had shown
talent not only as a writer but as an artist. Andrew seems not to have had the power to
grasp and encourage his stepsons exceptional talents or aspirations. Still, Ramsays writ-
ing records no unhappiness about his boyhood, and no resentment toward his stepfather,
even though he was virtually sent away from home at age ffteen.
Ramsay became an apprentice to a wigmaker in Edinburgh named Jerome Robert-
son (d.u.) around 1704. Allans older brother Robert had been apprenticed to Robertson
in 1695, and had probably set up his own business by the time his brother arrived in the
city. Apprenticeship to the same frm where his brother had served assured the young
Allan could earn a living in Edinburgh, and in the eighteenth century, wigs were part
of formal dress, symbols of elite status, in Europe and the British Isles. A wigmakers
customers, then, were wealthy and of high social standing. No doubt Ramsays expand-
ing acquaintance among the well to do greatly benefted from his training in the wig
trade. In that sense, for a young man from the country, the work of a wigmaker was quite
a fortuitous choice.
Ramsay served Robertson for seven years, learning the wig-making trade, and then
set up his own shop in Grassmarket, southeast of Edinburgh Castle. On 14 December
1712, at the age of twenty-six, he married Christian Ross (?1743). Te eldest daughter
of Robert Ross (d.u.), who worked in the ofce of a lawyer, and Elizabeth Archibald
(d.u.), Christian was two years Ramsays senior. Tey were happily married and had
numerous children. Teir eldest son was named Allan (17131784) after his father, and
later became a central fgure in the Scotland Renaissance and a well-known portrait
painter. Several other childrenChristy, Susanna, Niell, Robert, and Agnesall died
young. It is believed that three of his daughtersJanet, Anne, and Catherineworked
in his shop, but how many children he had in all is not clearly known.
On 12 May 1712, seven months prior to the marriage, Ramsay formed a Jacobite
literary group with a number of friends called the Easy Club. Te club was active until
1715 and was known as a gathering place of the more refned followers of the Jacobite
persuasion. Members of the club wrote poetry, polished their skills at conversation while
commenting on each others works, and read Te Spectator, a single sheet daily newspaper
then published in London with observations and opinions on current events, cultural
issues, and moral behavior. Ramsay was no monarchist, nor was he anti-England, but he
was discontented with the state of Scotland. As Jacobites went, he was more emotional
than political, so he did not participate in the uprising of 1715. All the club members had
pen names, and Ramsays was Isaac Bickerstaf. At the end of 1713, he adopted the pen
name Gawin Douglas. Both these names have the ring of both Scotland and England,
suggesting Ramsays aspiration to revive Scotlands literary arts and seek a new literature
merged with the culture of England. His talents nurtured in the critical atmosphere of
101
the Easy Club, Ramsays poetry blossomed. He earned a reputation as a poet who knew
how to use the language of both Scotland and England. Indeed, while most of his works
are composed in classical meter, they brim with a good Scots humor and satire.
Within a few years after becoming independent, Ramsay gave up the wig-making
trade. Ramsays frst collection of poetry was published in 1721, and its introduction
began with the foppish salutationTo the most Beautiful the Scots Ladies.
152
Te
printing of the anthology was funded by subscriptions from people requesting copies
beforehand. Te subscription method seems to have been quite the common practice in
the publishing culture of the time. It was customary to list the names of the subscribers
in the acknowledgement, and people contributed funds with the expectation that their
names would be listed in the printed book. In some cases, persons interested in support-
ing a book would be invited by placing an advertisement in the newspaper.
153
Not only was he an active poet but a folklorist and student of literature who collected
the old poetry, essays, and songs of Scotland, which he edited and made into books.
Te frst product of these eforts was Te Tea Table Miscellany, published between 1724
and 1737. But Ramsay was apparently not the rigorous scholar type of collector, and
he freely revised the works he selected into a neo-classic style of English and added his
own touches before printing. In 1724 he also published an anthology called Te Ever
Green, a collection of late-medieval period Scottish poems chosen from old hand-copied
books. Ramsay changed the spelling and order of the words given in the original poems
and even the style of the poems, sometimes completely rewriting verses. His editing was
apparently motivated by the desire to have the poems accepted by his contemporaries, but
later scholars have tended to decry his eforts as excessive distortion. He also published A
Collection of Scots Proverbs (1737). Including not only proverbs, but folk songs and poems,
this work represented a valuable efort to rediscover and record Scotlands culture. Te
standard proverb collections of today invariably include those gathered by Ramsay.
Ramsays eforts to bring old Scotlands literature to light were of course a product of
his times. About twenty years had passed since the union of Scotland and England, but
the gap in the economies of the two countries had not narrowed. Infuential members of
the nobility were drawn to London. Information and culture from London poured into
Scotland, driving its rapid Anglicization. Ramsays eforts to fnd and preserve the literary
heritage of Scotland must have arisen from his sense of crisisthat English culture might
completely overwhelm and wipe out the culture of the Scotland that he loved. Tese
activities were both part of, and moving forces in a renaissance of regional culture that
was embraced by the people of Scotland.
152 Martin and Oliver [1945]1974, vol. 1, p. xv.
153 Chitnis 1976, p. 38.
102
Chapter 4
Te Gentle Shepherd
One of Allan Ramsays major poetic works was the comedy Te Gentle Shepherd (1725),
set in rural Scotland. Told in verse, the story goes as follows: In the period of the restora-
tion of monarchial rule (around 16601685) a gentle shepherd named Patie and Peggy,
the daughter of another shepherd of the neighborhood he has known since childhood,
are in love. Paties close friend, also a shepherd, named Roger, loves a lovely, clever girl
named Jenny, but Jenny is attracted to another man named Bauldy and does not respond
to Rogers overtures. Patie and Peggy, hoping to get Roger and Jenny together, ofer both
of them advice.
Bauldy, meanwhile, who was once betrothed to a woman named Neps, is attracted
to Peggy and seeks the advice of another woman named Mause in capturing Peggys
afections. Bauldy frmly believes that Mause is a witch. He asks Mause to cast a spell
so that Peggy will fall in love with him and that Peggys lover Patie, will fall in love with
his current fanc, Neps. Mause, however, scolds Bauldy, declaring that she is no witch
and that the so-called powers she possesses are the result of the education she received.
Now a local landowner named Sir Worthy appears on the scene, announcing that
he is Paties real father. Sir Worthy recounts how he was driven from the land under the
regime of Oliver Cromwell and left his son Patie in the care of the shepherd. Patie is
happy to be reunited with his father, but when forbidden to marry Peggy because she is
of lesser birth, he is plunged into misery.
Jenny, meanwhile, is persuaded to accept Rogers love, but Bauldy is tormented by
ghosts, and he appeals to Sir Worthy, declaring that his torments are the work of Mause.
Observing this, Sir Worthy realizes the importance of education in preventing people
from coming under the infuence of superstition.
In the end, Bauldy returns to Neps. It turns out that Peggy is in fact the daughter of
Sir Worthys younger sister. Like Patie, she had been left in the care of a shepherd when
she was small. And so in the end, Patie and Peggy are happily married.
Tis romantic pastoral comedy is written in a mixture of English and Scottish, with
numerous folksongs of Scotland included. Drawing on the experiences of his boyhood
in Leadhills, Ramsay himself is no doubt the model for the shepherd Patie. Having lost
his father early in life and spent years in the countryside tending his stepfathers sheep,
Ramsays imagination spread its wings wide in that pastoral setting. Tere was likely a
model for Peggy as welland the authors dreams of how he would have been united
with such a girl if only his father were the Earl of Hopeton.
What was Ramsays message in Te Gentle Shepherd ? Te story portrays people who
are swayed by ancient superstitions about witches and ghosts. Te Witchcraft Act had
yet to be abolished, and for the common people, witches may have seemed very real.
Indeed, until 1727, witches were regularly sentenced to death in England. Bauldy is a
character symbolic of the popular belief in superstition. He relies on magic to achieve his
103
wish and is tormented by ghosts. Te story ofers an instructional tale on the importance
of education so as not to be misled by superstition. Certainly Ramsay wanted to send a
message of the power of education in defeating medieval irrationality and building a new
era. Tat conviction was what inspired his circulating library business.
Te Gentle Shepherd won acclaim as a leading example of the pastoral comedy of
Scotland. James Boswell, a man of Scotland, was among those impressed by the work,
which he mentions in Life of Johnson in a 1773 passage, as follows:
I spoke of Allan Ramsays Gentle Shepherd, in the Scottish dialect, as the best pastoral
that had ever been written; not only abounding with beautiful rural imagery, and
just and pleasing sentiments, but being a real picture of manners; and I ofered to
teach Dr. Johnson to understand it. No, Sir, (said he,) I wont learn it. You shall
retain your superiority by my not knowing it.
154
Johnsons reaction, refecting his slight disdain for Scotlands world of letters, may
have been typical of the reviews of Ramsays work in England.
In 1729, Ramsay created an opera version of Te Gentle Shepherd. He was probably
infuenced by John Gays (16851732) Te Beggars Opera, which had been a big hit
in London the year before. Te opera of Te Gentle Shepherd was performed widely
throughout the eighteenth and nineteenth centuries, in Edinburgh, London, Birth, and
New York. Recently revived, it was included on the program of the Edinburgh Festival
in the summers of 1986 and 2001, and is frmly established as a classic of Scotlands
performing arts.
Ramsays Circulating Library
In 1725, the year Ramsay published the frst edition of Te Gentle Shepherd, he moved
to the center of guild trade in the city of Edinburgh called the Luckenbooths, where he
started a circulating library, said to be the frst shop of its kind in Great Britain. Te li-
brary also sold books. Some sources say that the books for sale were lent out to fee-paying
members of the library for one- to two-week periods. Others say that the bookshop and
circulating library were separate.
155
It is difcult to corroborate either claim.
Ramsays shop fourished. It was a popular gathering place in Edinburgh regularly
used by young people as a meeting place. It drew not only young people but the literary
elite of the town, as well as travelers. Unfortunately, the Luckenbooths was demolished
when the neighborhood was redeveloped in 1817, and no trace remains today to sug-
154 Boswell 1998 (1791), p. 515.
104
Chapter 4
gest the atmosphere of Ramsays shop. As of 2005, only a single souvenir shop called
Luckenbooth remained as testimony to that interlude of local history.
Ramsays shop enjoyed overwhelming popular support, but his business was cause
for furrowed brows among some in positions of authority. Leaders of the church and
conservative government condemned his circulation of obscene books, as testifed in
one mid-nineteenth century document referring to Ramsays circulating library in 1728.
Besides this, profaneness is come to a great height; all the villainous, profane, and
obscene books and playes, printed at London by Curle and others, are gote down
from London by Allan Ramsay, and lent out, for an easy price to young boyes,
servant women of the better sort, and gentlemen, and vice and obscenity dreadfully
propagated. Ramsay has a book in his shop, wherein all the names of those that
borrow his playes and books for two-pence a-night or some such rate are set down,
and by these wickednes of all kinds are dreadfully propagated among the youth of all
sorts. My informer, my Lord Grange, tells me he complained to the magistrates of
this, and they scrupled at meddling in it, till he mooved that his book of borrowers
should be inspected, which was done, and they were alarmed at it, and sent some of
their number to his shope to look through some of his books; but he had notice an
hour before, and had withdrawn a great many of the worst, and nothing was done
to purpose.
156
Ramsay did indeed make it his business to bring to Edinburgh before anyone else
all sorts of diabolical books as soon as they had been published in London and make
them available to young people at cheap prices. His shop was flled with irreverent and
enjoyable books of all kinds and the church tried to get the authorities to close it down.
Teir alarm was not surprising, as Ramsays store stood just to the left of the St. Giles
Cathedral, the very headquarters of the Presbyterian Church of Scotland. No doubt it
appeared to them a direct challenge to have such a provocative establishment in that
particular place. Alerted by the church authorities, the magistrates went to inspect the
circulating library, but Ramsay was warned in advance and removed the most danger-
ous books before they arrived. When the magistrates got there, and found only row
upon row of books on theology and philosophy, they had no choice but to reluctantly
withdraw. Some say there is no evidence of such dramatic moments in the history of
Ramsays shop,
157
but given Ramsays overall activities, it would not be surprising if there
had been, for he was engaged in a guerilla-like strategy against the authorities. What he
was doing was certainly considered diabolical from the viewpoint of so-called upright
156 Literary Gazette, p. 455.
157 Kaufman 1965, p. 244.
105
people of the time. Tat which was considered diabolical, however, ended up fostering
the endeavors of young people in developing new values, and these young people did in
fact give rise to the Scotland Renaissance.
Te business of a circulating library could only have been successful in Edinburgh
because the popular literacy rate was quite high. Te Presbyterian Church policy of
furthering elementary education succeeded in pushing up the literacy rate, so Ramsay
simply took advantage of the cultural momentum set in motion by the church itself, and
ultimately contributed to the overturn of the very values the church had sought to put in
place. Te play Te Rivals (1775) written by Ireland-born author Richard Brinsley Sheri-
dan (17511816), includes the line, a circulating library in a town is, as an ever-green
tree of, diabolical knowledge!
158
Although this depiction of London was made about
ffty years after Ramsays day, it expresses an interesting view of the circulating library in
the eighteenth century. Diabolical knowledge means knowledge considered wicked or
ungodly from the viewpoint of Christian values. Te tree that Ramsay tended spread
branches quite unlikely ever to wither from the very center of Edinburgh, and in the
shadow of its boughs, the youth of a new civilization gathered.
Now let us take a somewhat closer look at the circulating library business. Until
their position was ousted by public libraries under the Public Libraries Act of 1850,
there were all sorts of circulating libraries in England. Some operated for proft, some as
a non-proft service; some were managed by individuals, others by local communities;
some were membership-based, some not, and so on. Whatever their form, they all played
a major role in the increased literacy of the populace and the fowering of culture. In
an account of London in the 1780s in a book entitled Travels Chiefy on Foot, Trough
Several Parts of England in 1782, a German named Karl Philipp Moritz (d.u.) wrote of
his surprise to fnd that his landlady, the widow of a tailor, was entertaining herself with
literature by reading borrowed books. My landlady, who is only a taylors widow, reads
her Milton; . . . I have conversed with several people of the lower class, who all knew
their national authors, and who all have read many, if not all of them.
159
Booklending
was clearly helping to improve the literacy of the common people.
Ordinary people were not the only users of the circulating libraries. Historian De-
vendra P. Varma (19231994) writes that well-known authors like Walter Scott (1771
1832) and Robert Burns, as well as Romantic-movement authors such as the following
were regular users:
160
William Shenstone (17141763)
William Cowper (17311800)
158 Sheridan 1775, p. 27.
159 Moritz 1797 (1795), p. 38.
160 Varma 1972, p. 81.
106
Chapter 4
Tomas Chatterton (17521770)
Fanny Burney (17521840)
William Wordsworth (17701850)
Taylor Coleridge (17721834)
Jane Austen (17751817)
Henry Crabb Robinson (17751867)
Leigh Hunt (17841859)
John Keats (17951821)
According to Ephraim Chambers Cyclopaedia, 75 percent of popular fction was
purchased by circulating libraries.
161
So at this stage, the circulating libraries were welcome
not only to ordinary readers and educated people but booksellers and writers as well.
So how many circulating libraries were there in eighteenth-century England? Paul
Kaufman, who has done a detailed study of booklending in modern England, says
evidence shows that there were already at least six booklenders in London as of the year
1700, rejecting the popular belief that Ramsays was the frst in Great Britain.
162
Accord-
ing to a study by Hilda M. Hamlyn, there were at least nine booklenders in London in
the 17401750 period. Between 1770 and 1780, the number had risen to nineteen,
and stood at twenty-six in the following decade. Some sources indicate that there were
more than 1,000 lending libraries throughout England in 1800. In 1802, John Feltham
writes that every intelligent village throughout the nation now possesses its Circulating
library.
163
Tis afords a glimpse of how these circulating libraries supported English
literature in Great Britain.
In Allan Ramsays native town of Leadhills, in fact, the Leadhills Miners Library
stands even today, calling itself the oldest subscription library in Great Britain. Founded
in 1741, it boasts a sign reading Instituted by Allan Ramsay. Te year 1741 was forty
years after Ramsay moved to Edinburgh, however, and it seems unlikely that he had
retained his connection with Leadhills. Te guidebook published by the library admits
that there is no evidence that Ramsay founded the library, so the sign is no doubt an
expression of wishful thinking. Te Statistical Account of Scotland, published toward the
end of the eighteenth century, includes a passage about this library:
Te Leadhills library contains some trash, but as many valuable books as might be
expected to be chosen by promiscuous readers. Tey are the best informed, and
therefore the most reasonable common people that I know.
164

161 Varma 1972, p. 79.
162 Kaufman 1965, p. 244.
163 Feltham 1802, p. 238.
164 Sinclair 1973 (1799), p. 216.
107
I myself visited this library. Neither the building nor its contents were of the eighteenth
century, but its collection was extremely interesting. It was full of weightyboth physically
and content-wisebooks on subjects like theology and philosophy. Leadhills was a village of
miners, however, and I just could not imaginethough I have no intention to belittlemen
exhausted from work in the mines sitting down to read books of theology in the dim light
of their poor homes. I even asked the librariandid the miners read difcult books like
this?and was told that they did.
In any case, what kind of books did Ramsays circulating library actually provide?
Kaufman has studied the composition of the collection of the circulating library that
James Sibbald (17471803) managed, after taking over Ramsays original shop. Accord-
ing to Kaufmans study, the inventory of the collection published 1780 and before was
as follows:
165

Classes No. of Titles
History and Antiquities of Great Britain, Ireland, and Foreign
Nations; Geography, Voyages and Travels; Lives, Trials, Peerages, &c. 832
Arts and Sciences, Natural History & Philosophy, Metaphysics,
Trade, Husbandry &c. 544
Anatomy, Physics, Surgery, Midwifery, Materia Medica 326
Divinity & Ecclesiastical History 346
PoetryPlaysEssaysLetters &c Entertaining & Critica
Translations of the Greek and Roman Poets and Orators 829
Novels and Romances 888
It is difcult to draw a line between what is serious and what profane, but if we
compare the top four categories with the bottom two categories, we see that the ratio is
about 1:0.84. Before the middle of the eighteenth century, we should note, the novel
as a genre was as yet not established, so it is likely that the proportion of popular books
in Ramsays time was lower than the fgures shown here. Studies of extant catalogs of
booklenders in England from the late eighteenth century indicate that the proportion of
fction in the collections was around 10 to 15 percent.
166
A report of the composition in
1791 of the collection of the Hamilton booklender of London indicates that of a total
1,500 titles, 1,050 were novels.
167
Perhaps more important than the composition of the collections, however, was what
books people actually borrowed and read. What people were reading can be learned
by careful examination of the lending records of these libraries. In general, the main
165 Kaufman 1965, p. 239.
166 Shimizu 1994, p. 114.
167 Varma 1972, p. 198.
108
Chapter 4
strength of the circulating libraries would appear to be popular fction, but some studies
indicate that that was not necessarily so, at least with regard to Scotland. In the country
town of Innerpefray, about forty miles northwest of Edinburgh is Scotlands Oldest
Lending Library, established around 1680. Kaufman, who examined 1,483 records of
books borrowed between 1747 and 1800, reports on 370 titles lent in the following
categories.
168
Religion 171
History, Law and Politics 85
General Secular Literature 37
Agriculture 18
Travel 11
Mathematics and Science 8
Miscellaneous 40
He gives the most frequently borrowed books, with number of times borrowed
during that period, as follows:
169
Robertson, History of Charles V 46
Clark, Sermons 37
Tillotson, Sermons 34
Sherlock, Sermons 30
Bufon, Natural History 27
Monthly Review 26
Mosheim, Ecclesiastical History 26
Abernethy, Discourses (Sermons) 24
Universal History 23
Atterbury, Sermons 20
Locke, Works 20
Te occupations of the people who borrowed the books were extremely diverse,
as Kaufman notes, barber, bookseller, army captain, cooper, dyer, dyer apprentice,
factor, farmer, faxdresser, gardner, glover, mason, merchant, miller, minister, quarrier,
schoolmaster, servant, shoemaker, student (of humanity, divinity, philosophy), smith,
surgeon, surgeon apprentice, tailor, watchmaker, weaver, wright
170
obviously includ-
ing many ordinary folk.
168 Kaufman 1964, p. 228.
169 Kaufman 1964, p. 229.
170 Kaufman 1964, p. 231.
109
Another example may be found in the library of Haddington, a town about twenty miles
east of Edinburgh, where of 2,837 lending records from the 17321796 period have been
preserved. Kaufman notes that works like Universal History; Rolin, Ancient History; Henry
Fielding (17071754), Works; Callender, Collection of Voyages; Sully, Memoirs; Rollin, Roman
History; and William Robertson (17211793), History of Charles V were frequently borrowed.
171
Kaufmans reports on these libraries is quite detailed butgiven the rather extended
time period for both librariesthe number of records studied seems strangely small. It
would suggest, calculated by simple arithmetic, that Innerpefray lent out only 27 books
per year and Haddington only 43 books per year. Whether Kaufmans fgures are based
on only records that happened to survive or whether the study examined only part of the
available records is not clear. Although it would be risky to draw any conclusions about
the average level of education of country readers in Scotland from these records alone,
they do ofer convincing evidence that ordinary folk were reading quite difcult books.
Confrming in the above how signifcant was the cultural role of circulating libraries,
let us return to the story of Allan Ramsays career. It seems that by around 1730, Ramsay
had ceased publishing collections of poetry, although he left numerous unpublished poems
written after 1730.
172
Perhaps he found he could not write poetry he thought worth
publishing. Instead he became active in
various venues of the performing arts.
Ramsay also left his mark on the
history of art education in Scotland. La-
menting that although he had had artistic
talent but had been unable to realize his
dream of becoming a painter, he seems to
have decided to entrust his dream in the
next generation by participating in the
founding of an art school. Te Academy
of St. Luke, Edinburghs frst art school,
was founded 29 October 1729, providing
instruction in painting, sculpture, and
architecture. Ramsay sent his sixteen-
year-old eldest son to this schoolor
perhaps it was more accurate to say that
he participated in its founding so that he
could send his son to art school to fulfll
his own unrealized dream of becoming
171 Kaufman 1965, pp. 26566.
172 Martin 1931a, p. 36.
Figure 5. Portrait of poet Allan Ramsay (16861758)
by his son Allan. (Smart 1992a: 17)
110
Chapter 4
a painter. In actuality, the academy served the function of art school for only a short
period, until 1733, but that was enough for Ramsay to educate his son, who drew the
portrait of his father (see Figure 5). Drawn in 1729, the year the Academy of St. Luke
was founded, the sketch is the oldest work of its kind among the extant works of the
younger Ramsay. Vividly capturing his fathers piercing gaze at something far away, the
work foreshadows the genius that would make him one of the most successful portrait
painters of his time.
Ramsays nurturing of the evergreen tree of diabolical knowledge extended to the
theater as well, with his creation of Carrubbers Close, a theater located just of High
Street in Edinburgh. In the period of the Glorious Revolution of 1688, this was the loca-
tion of a safe house for Jacobites. Te theaters formal opening, held 8 November 1736,
included a performance of Henry Fieldings Te Virgin Unmasked. With a provocative
title that might have seemed controversial, in fact it was more of a moral tale. A merchant
who has grown very wealthy decides to marry of his daughter to one of three bachelors
who are related to him by blood, as a means of protecting his fortune. Te three men, one
a druggist, another a ballroom dancer, and another a lyricist, vie to display their talents,
but in the end the daughter marries a servant. Te publisher of Te Virgin Unmasked was
the London bookseller John Clark (d.u.). Ramsay purchased the publishing rights to the
book from Clark in July 1732, suggesting that he had been preparing to open the theater
from four years earlier. His enthusiasm for the theater was not just a passing whim.
Ramsay sold year-long tickets to his theater to collect funds, but he probably had
no idea of what its destiny would be. Te youth of Edinburgh, eager for new forms of
culture, were strong supporters. Te Presbyterian Church, however, was not pleased,
attacking the theater as a corruptive infuence among youth. By unhappy coincidence,
the Licencing Act, a law designed to control playhouses (which were likely to become the
basis of anti-establishment activity in outlying parts of the country) went into efect on
24 June 1737. Under the Act, it became impossible to run a theater for proft anywhere
outside of London. Caught by surprise by the law, Ramsay wrote to a friend in London,
asking for a copy of the text of the law and any advice about getting around it, saying:
I am particularly attacked by a certain act against our publick Teatres having a set of
players under my management I should be sory to see them driven to Beggary now, when
I had last year got a braw new House for them.
173
Since the laws of England and Scotland continued to be diferent in principle at
that time, one wonders whether the Licencing Act would have applied in Edinburgh, yet
Ramsays alarm indicates that in fact it was fairly infuential in the capital of Scotland as
well. Clever as he had been at circumventing the law in his circulating library, it was to
prove difcult for his theater to elude the long arm of the law. No longer able to present
173 Kinghorn and Law 19511961, vol. 4, p. 207.
111
plays, Ramsay sought to get through his difculties by giving performances of music and
dance in the theater. Te Presbyterian Church kept up its attacks on Ramsay under the
terms of the Licencing Act, until he was fnally forced to close it down. Only three years
had passed since the theater had frst raised its curtain.
Whereabouts of Ramsays Library
In 1738, Ramsay built a house on land he had obtained fve years earlier north of
Edinburgh Castle. Standing on high ground with a spectacular view, the area today is
called Ramsay Garden. In the early twentieth century, the area was redeveloped into a
complex of homes for educated people, inspired by the idea of recreating the intellectual
ferment of the eighteenth century.
174
Today, there are luxury apartments and tourist ac-
commodations standing there.
Ramsays original house is preserved today, featuring an octagonal structure evoking
the architecture of Naples, familiarly known as a goose pie house, from the resemblance
of its shape to the pie tin used to make the goose pie that is a traditional Christmas-
season dish in Scotland.
Te year after his theater was closed, in 1740, Ramsay retired to his goose-pie house,
where he remained for the last seventeen years of his life, in imitation, it is said of the poet
of the Roman empire, Horace, who escaped Rome to live in the quiet of the countryside.
Enjoying conversation with his friends, reading, tending his garden, he frequently wrote
to friends and penned poetry, living out his life without further rabble-rousing. His wife,
Christian, died 28 March 1743 at the age of sixty. Ramsay survived her for ffteen years,
but he sufered from scurvy in his later years and died 7 January 1758. An elegy written
by a friend upon his death goes as follows:
How sweet his Voice when of Content he sings,
Soft as the Musick of Angelick strings;
No sour Philosophy disturbs his Rules,
Free from the faults, and pedantry of Schools
No severe Moral interrupts his Song,
But all is Native Innocence along,
Pleasd with his Precepts, which so just appear,
We view the Road of blest Contentment near.
175

174 Takahashi 2004, p. 185.
175 Kinghorn and Law 19511961, vol. 4, p. 312.
112
Chapter 4
Ramsay was a man of middle stature, of a cheerful and kind disposition. Blessed
with a rich imagination, he treated people of all levels of society on an equal basis.
He devoted tremendous efort to gathering and publishing the poetry and songs of old
Scotland in danger of being lost in the midst of the union with England. Te texts that
he published were perhaps not strictly faithful to the originals, but his eforts pioneered
many other projects of similar vein. Although he came under the pressure of church
authority, he imported progressive culture from London and made it available to the
youth of Edinburgh. By operating a bookshop, circulating library, as well as theater,
he acted as a kind of producer of culture, setting the stage upon which the Scotland
Enlightenment of the eighteenth century was to fourish. His projects may have been
called diabolical, but they may have been the sort of necessary evil that made it possible
to break away from long-entrenched conventions and forge a new culture.
What happened to Ramsays circulating library? After Ramsays death, the shop
passed to a man named James Macewan (d.u.), who subsequently turned it over to the
large bookseller Alexander Kincaid
176
the same Kincaid who was a business partner
with Alexander Donaldson and who was both friend and foe to Millar. Later the circulat-
ing library passed to a man named William Creech (17451815).
177
Creech went on
to work jointly with Cadell, who was the successor to Millars bookstore, and Millars
close associate Strahan, and to publish the frst Edinburgh edition of Poems (1787) by
Scotlands leading poet, Robert Burns.
In 1757, a man named John Yair (d.u.), who had operated a bookseller in Edinburghs
Parliament Close since 1742, purchased the circulating library from Creech. After Yairs
death, his widow Margaret continued the circulating librarys business until 1780 after
which it was purchased by Sibbald, as mentioned earlier.
178
Sibbalds circulating library
was to be the stage of an important encounter in the history of English literature: the
meeting there in 1786 of Robert Burns and the young Walter Scott, two fgures who
became the champions of the Romantic movement of English literature.
John Gibson Lockhart (17941854), who was Scotts son-in-law and his biographer
writes in Te Life of Sir Walter Scott (18371838) that Scott was a regular customer at
Sibbalds circulating library. It recounts how, having been granted the freedom to freely
search for books in the librarys shelves, Scott thus came in contact with the classics of
France and Italy. It seems certain that many of the books that Romantics like Scott and
Burns read were those that had formerly been collected by Ramsay. Lockhart writes:
I fastened also, like a tiger, upon every collection of old songs or romances which
chance threw in my way, or which my scrutiny was able to discover on the dusty
176 Chalmers and Woodhouselee 1851, vol. 3, p. 221.
177 Chalmers and Woodhouselee 1851, vol. 3, p. 222.
113
shelves of James Sibbalds circulating library in the Parliament Square. Tis collection,
now dismantled and dispersed, contained at that time many rare and curious works,
seldom found in such a collection. Mr. Sibbald himself, a man of rough manners
but of some taste and judgment, cultivated music and poetry, and in his shop I had a
distant view of some literary characters, besides the privilege of ransacking the stores
of old French and Italian books, which were in little demand among the bulk of his
subscribers. Here I saw the unfortunate Andrew Macdonald, author of Vimonda;
and here, too, I saw at a distance the boast of Scotland, Robert Burns.
179
In the year Sibbald died (1803), the circulating library was purchased by a man
named Alexander Mackay (d.u.).
180
Records state that Mackay owned books that have the
bookplate of Ramsays circulating library,
181
but in 1805, the shop that had stood on the
site where Ramsay had his original library was torn town and the collection was auctioned
of in 1832. A large proportion of the collection was purchased by William Wilson (d.u.),
who ran his bookstore until 1851.
182
What happened to the books after that is not known.
Representations of Allan Ramsay, the elder, have changed with the times. Having
been described as diabolical, his reputation until around the mid-1780s was pitiably low.
Burns and Scott, however, had tremendous respect for Ramsay, who greatly infuenced
them. Tanks to the success of Burns and Scott, Ramsay was applauded throughout most
of the nineteenth century as a pioneer of Scotlands arts and letters. Toward the end of the
nineteenth century, Ramsays reputation again declined, but since research on Scotlands
Enlightenment began to fourish from the 1960s, it has again risen.
Regardless of the ups and downs of his reputation over the centuries, his importance
as an infuential fgure in the Romantic movement of English literature is undeniable.
Sir Walter Scott recalled the infuence of Ramsays poetry collections on him as follows:
Two or three old books which lay in the window-seat were explored for my amusement
in the tedious winter days. Automathes, and Ramsays Tea-table Miscellany, were my
favourites, . . . My kind and afectionate aunt, Miss Janet Scott, whose memory will
ever be dear to me, used to read these works to me with admirable patience, until I
could repeat long passages by heart.
183
Active in the frst half of the eighteenth century, Ramsay helped revive Scotlands
native culture in the tumultuous era following the union with England and contributed
179 Lockhart 1969 (18371838), p. 35.
180 Kaufman 1965, p. 239.
181 Varma 1972, p. 31.
182 Kaufman 1965, p. 239.
183 Lockhart 1969 (18371838), p. 16.
114
Chapter 4
to the gradual incorporation of up-to-date culture from London. After the middle of the
century, the demands of the times changed radically.
Te Younger Allan Ramsay
Just down the hill from Edinburgh Castle, on a rocky clif rise the walls of the goose-pie
house where the poet and book lender Allan Ramsay spent the later years of his life. In
the days of the Donaldson v. Becket case, its main resident was his son, also named Allan
Ramsay, the well-known portrait painter.
Te younger Ramsay took as his second wife a cousin of Lord Mansfeld, and by
marrying a woman of good birth, he expanded his links with the upper echelons of Brit-
ish society. By then he had established his reputation as a portrait painter. Based mainly
in London, he also resided in Edinburgh for certain periods.
Te Ramsay houses in London and Edinburgh were gathering places of prominent
fgures of the times. According to Te Life of Johnson, both Johnson himself and Boswell,
his biographer, lunched there together at least twice in 17781779. Te 29 April 1778
luncheon at the Ramsay house was attended also by Scottish historian William Robertson.
Te account says that Robertson related to Ramsay, Johnson, and Boswell his experiences
publishing Te History of Scotland, during the Reigns of Queen Mary and of King James VI
(1759) as follows:
I sold my History of Scotland at a moderate price, as a work by which the booksellers
might either gain or not; and Cadell has told me that Millar and he have got six
thousand pounds by it. I afterwards received a much higher price for my writings.
An authour should sell his frst work for what the booksellers will give, till it shall
appear whether he is an authour of merit, or, which is the same thing as to purchase-
money, an authour who pleases the publick.
184
His advice was, thus, that those who wished to make a living by their writing should
take what the market (the booksellers) ofered at the beginning, with the expectation that
once they had established themselves, they could then ask for more. Most writers must
have had to accept this situation, and yet not everyone could come out ahead. Te vast
majority of writers were simply taken advantage of by the booksellers. In 1778, even four
years after the decision in the Donaldson v. Becket case, there appears to have been little
change in the ways that booksellers exploited authors; authors for their part seemed to
mostly put up with the situation.
184 Boswell 1998 (1791), p. 980.
115
Boswells account of the luncheon on that day describes an argument between Adam
Smith and the bookseller and printer William Strahan and relates an exchange that took
place about the work of Alexander Pope. Te following day, Johnson remarked to Boswell
Well, Sir, Ramsay gave us a splendid dinner. I love Ramsay. You will not fnd a man
in whose conversation there is more instruction, more information, and more elegance,
than in Ramsays.
185

Te painter had some memories about the publishing world. When he was still
only nineteen years of age, his father had sent him to negotiate for the publication of
the fathers Te Tea Table Miscellany with bookseller Andrew Millar. In 1732, the young
man paid a visit to Millar in London, carrying a letter from his father. Te father had
told his son, If you do not like the proposal tell Mr Millar so. In the postscript to his
letter to Millar, moreover, he wrote, My son brings you this, if he approves it.
186
We
can tell from this account that the father already had full confdence in the judgment of
his teenage son. Doubtless the latter had cultivated considerable learning from exposure
to his fathers library. Ramsay did go on, though he made his living as a painter, to be
a man who could converse intelligently about the London publishing business and the
issues of copyright.
After graduating from the Academy of St. Luke, which his father had been involved
in founding, the younger Ramsay studied painting in London for about a year. In 1733
he returned to Edinburgh and began working as a portrait painter while living in his
fathers house. In the summer of 1736, just before the father opened the theater on
Carrubbers Close, the son traveled to Paris, Florence, and Rome to study art. In 1738 he
returned to London and took up residence in Covent Garden. He lived there until 1751
and his fame as a portrait painter grew.
In 1739 Ramsay married Anne Bayne (?1743). Tey had two sons and a daughter
but none survived, and his wife too, died in childbirth. In 1752, he married the above-
mentioned cousin of Lord Mansfeld, Margaret Lindsay (?1782), with whom he had
two sons (John and Allan) and two daughters.
During late 1753 to July 1754, the younger Ramsay moved back to Edinburgh
and was involved in the founding of the Select Society, a kind of salon frequented by
scholars such as Adam Smith and David Hume, writers, members of the clergy, and other
prominent intellectuals. Donaldsons counsel, Sir John Dalrymple was also a member of
this society. Alexander Wedderburn, who would serve as co-counsel to Becket, was at the
young age of twenty-two a central member. Social scientist and historian Adam Ferguson
and Boswell as a young man, too, were later members. Indeed, it was a society of all the
leading lights of the Scotland Renaissance.
187
185 Boswell 1998 (1791), p. 982.
186 Smart 1992a, p. 7.
187 Smart 1992a; Chitnis 1976, p. 201.
116
Chapter 4
Te Select Society met almost weekly from summer into winter beginning in 1754
and until around 1763, its purpose mainly being to pursue philosophical subjects and
refne the arts of conversation. Te arts, science, industry, agriculture, and conversational
skills were regular topics. Te group was similar to the Easy Club founded earlier by
the senior Ramsay. Among the numerous private clubs of eighteenth-century Scotland,
the Select Society is one that historians believe had an especially great infuence on the
Scotland Enlightenment and the later modernization of Britain. I think it is worth em-
phasizing that the painter Ramsay was a member of this network of fgures who built the
foundations of modern society.
Ramsay made a second trip to study in Italy from 1754 to 1757 and when he
returned, he took up residence in the Soho district of London. He painted a portrait
of King George III and went on to solidify his status as a royal portrait painter. He
also did portraits for many of the philosophers of the Enlightenment, including two
for David Hume (in 1754 and 1766), and one of Jean-Jacques Rousseau (17121778)
in 1766. Rousseau was staying in London with Humes support, his writings having
gotten him into trouble in his native Switzerland. It must have been through Humes
introduction that Ramsay did the portrait. We also know that Ramsay associated with
Denis Diderot (17131784), editor of the famous LEncyclopdie, when he was in Paris
in 1765, although he did not paint Diderots portrait.
In 1773, after seriously injuring his right shoulder in a fall from a ladder, Ramsay
was forced to retire as a painter. He spent the rest of his life writing essays and traveling in
Italy. While residing in Edinburgh in the famous goose-pie house he lunched often with
friends. In March 1782 his wife Margaret died. Grief stricken, he left half a year later for
his fourth trip to Italy with his son John. He died at the port of Dover in August 1784,
just after having returned to England.
Ramsay was closely associated with the people of the Enlightenment. Tese men
created loose networks within which they inspired and edifed each other, and Ramsay
was part of these networks. Although he was not a central fgure, one gets the impression
that if he had not been among them, the interrelations among these men might have
been rather diferent.
Te younger Allan Ramsay was not only talented as a painter; he also inherited his
fathers literary gifts. He wrote a number of social tracts that reveal the cultivation of his
close association with the great minds of his day. His Essay on Ridicule (1753) and Te
Investigator (1755) were published by Millars bookstore and his Essay on the Constitution
of England (1765) was published by Becket. What we can tell from this is that both
the elder Ramsay and his son associated with Millar and that the painter Ramsay and
Becket, Wedderburn, and Dalrymple were connected via the same human networks. It
was not as if the network of Enlightenment fgures of which Ramsay was a part was a
separate and rival network to that in which Donaldson moved. Tere is no doubt that
117
the elder Ramsays circulating library contributed to Edinburgh culture and that both the
Donaldson bookshop and Ramsays network emerged in the setting of that cultural fer-
ment. One of the reasons for the blossoming of Scotlands Enlightenment was defnitely
the ready availability of pirate editionsbooks available more cheaply than in London.
Te relationship between pirate publishers like Donaldson and the leaders of culture
may seem at odds, but was in fact one of coexistence.
With the rise of the Scotland Renaissance and against the backdrop of developing trans-
port networks, it became necessary to both challenge London and quickly and actively
import its culture. It would be Alexander Donaldson who carried on Ramsays legacy.
119
Now let us look at what happened to the main players in the Donaldson v. Becket case in
the ensuing years.
188
Turlow, Wedderburn, and Lord Mansfeld all ended up patrons of
the arts, albeit representing diferences in stance. Both Wedderburn and Lord Mansfeld
were at pains to support writers, and even Turlow is said to have assisted writers who
had yet to establish themselves.
189
Te Statute of Anne only protected the booksellers;
writers had to rely as always on the support of patrons to get their start. Tese three men
shared a desire to foster the leaders of their culture, and their fates were diverse.
Lord Mansfelds later years were not happy ones, mainly because of his connections
to the Catholic Relief Bill (1778). From the time of Elizabeth I, Catholics had been
discriminated against in England. Tey were prohibited from holding masses and barred
from holding public ofce or purchasing land. Te 1778 law had fnally allowed them to
own land and to enter the army.
One of the most virulent opponents of the Catholic Relief Bill was House of Lords
member George Gordon (17511793). He organized Protestants to oppose the bill
and on 2 June 1780 held a mass demonstration at Parliament in Westminster. Some
40,00060,000 people took part in the demonstration. When Gordon entered the
House of Commons to submit his petition, the crowd grew violent, resulting in what is
known as the Gordon Riots.
Te crowd then moved elsewhere, headed for symbols of Catholic institutions and
state power. Tey attacked and destroyed Newgate Prison, and, joined by the prisoners
thus released, turned their fury on Catholic churches and the Bank of England. Te
rioters moved to Bloomsbury Square, near the British Museum, and then fastened their
attention on the home of Lord Mansfeld, who had long served on the Court of Kings
Bench and as chief justice. To them he was a fgure of state authority. He had, moreover,
tried to infuence the justices of the court in releasing a Catholic priest who had held
mass in violation of the law. Mansfelds Scotland origins also irritated the crowd, and
his past connections with the Jacobite cause only added to their anger. It is said that they
carried a rope with them, intending a lynching.
Apparently Lord Mansfeld had made the mistake of refusing a protective guard
188 Skinner 1928; Fifoot 1936; Heward 1979; Eeles 1934; and Gore-Browne 1953.
189 Collins 1973 (1927), pp. 207208.
Chapter 5
THE doNALdSoNS LEGACy
120
Chapter 5
for his house, thinking that the sight of soldiers would further infame the crowd. He
was wrong, however, and when the crowd found no guard they quickly attacked the
house. Upon seeing the crowd assembled in front, Mansfeld and his wife fed out the
back, barely escaping with their lives. Te house was destroyed along with its massive
and priceless collection of books and legal documents and records; the mob burned
everything, along with all the household furnishings, in the square.
Te rioters then proceeded toward Turlows house on Great Ormond Street, for
Turlow had been promoted at this time to lord chancellor. Unlike Mansfeld, Turlows
house was guarded by thirty-one soldiers and therefore escaped destruction.
190
Boswells Life of Johnson quotes a letter to a certain woman in which Johnson gives a
vivid account of the riots, which I quote despite its length:
On Friday, the good Protestants met in Saint Georges-Fields, at the summons
of Lord George Gordon, and marching to Westminster, insulted the Lords and
Commons, who all bore it with great tameness. At night the outrages began by the
demolition of the mass-house
191
by Lincolns-Inn.
An exact journal of a weeks defance of government I cannot give you. On
Monday, Mr. Strahan, who had been insulted, spoke to Lord Mansfeld, who had I
think been insulted too, of the licentiousness of the populace; and his Lordship treated
it as a very slight irregularity. . . . On Tuesday evening, leaving Fieldings ruins, they
went to Newgate to demand their companions who had been seized demolishing the
chapel. Te keeper could not release them but by the Mayors permission, which he
went to ask; at his return he found all the prisoners released, and Newgate in a blaze.
Tey then went to Bloomsbury, and fastened upon Lord Mansfelds house, which
they pulled down; and as for his goods, they totally burnt them. Tey have since gone
to Caen-wood,
192
but a guard was there before them. Tey plundered some Papists, I
think, and burnt a mass-house in Moorfelds the same night.
On Wednesday I walked with Dr. Scot to look at Newgate, and found it in
ruins, with the fre yet glowing. As I went by, the Protestants were plundering the
Sessions-house at the Old-Bailey. Tey were not, I believe, a hundred; but they did
their work at leisure, in full security, without sentinels, without trepidation, as men
lawfully employed, in full day. Such is the cowardice of a commercial place. On
Wednesday they broke open the Fleet, and the Kings-Bench, and the Marshalsea,
and Wood-street Compter, and Clerkenwell Bridewell, and released all the prisoners.
At night they set fre to the Fleet, and to the Kings-Bench, and I know not
how many other places; and one might see the glare of confagration fll the sky
190 Gore-Browne 1953, pp. 15960.
191 A Roman Catholic house of worship.
192 Kenwood, where Lord Mansfelds villa stood.
121
THE DONALDSONS LEGACY
from many parts. Te sight was dreadful. Some people were threatened: Mr. Strahan
advised me to take care of myself. Such a time of terrour you have been happy in
not seeing.
193
After the ordeal in Bloomsbury Square, Lord Mansfeld took up residence in the
London suburb of Kenwood in Kenwood House on an estate he owned near the
upscale residential suburb of Hampstead, now an English Heritage site. Te 112-acre
gardens and lake on the grounds and the beautiful paintings that decorate the ceiling and
walls of his magnifcent study transmit something of the atmosphere of his later years.
Mansfeld served as chief justice at the Court of Kings Bench until 1788 at the age
of eighty-three, and thereafter lived a quiet life in Kenwood. It is said that he never once
lodged elsewhere in the last fve years of his life. He had no children of his own, but four
nieces whom he was supporting resided with him. His health took a turn for the worse
on 10 March 1793. After breakfast he lay down, saying he was sleepy, and two days later,
saying let me sleeplet me sleep, he lost consciousness and died on the 20th of the
month.
194
He was eighty-eight. Lord Mansfeld was buried in Westminster Abbey, well
known as the place where all the royal ceremonies are held. Tere he is remembered
with a monument of him over ten feet tall, seated comfortably in a chair. In his boy-
hood Mansfeld attended Westminster School, next door to the Abbey; the inscription
on the monument mentions his wish that he would be buried in Westminster, a place
full of memories.
Lord Camden, Mansfelds rival, had already retired from the position of lord
chancellor at the time of the Donaldson v. Becket case. In fact, from about two years ear-
lier than that, he had had almost no involvement in public afairs, and thereafter as well,
he engaged in little work of special note.
195
He seems to be best known for his opposition
during this period to taxing the American colonies. He became increasingly mindful of
his health as he grew older and enjoyed relaxing at the famous resort at Bath.
196
Camden owned land north of London, and in 1788 he obtained permission from
Parliament to develop the land. He died six years later on 18 April 1794 at the age of
seventy-nine and is buried in a small chapel in the country town of Seal (some eighteen
miles southeast of London), in the District of Kent, where he had had a house from the
time of his father, in a striking contrast with Mansfelds burial at Westminster Abbey.
Lord Camdens lands north of London eventually grew into a town that came to be
called Camden Town, and is today known as a mecca of punk rock and fashion. Te
streets are lined with shops selling clothing and metallic accessories, and evenquite
193 Boswell 1998 (1791), pp. 10531054.
194 Heward 1979, p. 169.
195 Eeles 1934, p. 117.
196 Eeles 1934, p. 180.
122
Chapter 5
openlymagic mushrooms, and is always crowded with people on the weekends. It
is an extremely lively town, where young people stride down the streets in sometimes
bizarre fashions that would have made good Lord Camden stare. Te liveliness of the
town might be thanks to the fact that he was very popular with the masses. Kenwood,
the location of Lord Mansfelds retirement residence, is only 2.5 miles away from Cam-
den Town, and the elegance of the former and colorful bustle of the latter make for an
interesting contrast. Te diferent styles of the two men seem to be vying with each other
even today.
Lord Apsley, who had been lord chancellor from 1771 to 1778, became embroiled in
the political struggles surrounding the American War for Independence, and was forced
to resign because of his position on the matter. Tat was 1778. His successor as lord
chancellor was Edward Turlow, who had served as Donaldsons lawyer. Turlow retained
this position at the pinnacle of Englands juridical system for fourteen years, only to be
pushed out of the position of lord chancellor because of his opposition to the policies of
the current prime minister William Pitt the Younger (17591806). Te man selected to
replace Turlow as lord chancellor was Wedderburn, Lord Apsleys lifelong rival.
Wedderburn, who had been solicitor general at the time of the Donaldson v. Becket
case, became attorney general in 1778. Later, after serving as chief justice in the Court
of Common Pleas, he became lord chancellor in 1793. Comparing his career with that
of Turlow, who was two years his senior, he seems to have followed roughly the same
path. Wedderburn, too, became embroiled in the disagreement between William Pitt
the Younger and George III over emancipation of the Catholics in Ireland following the
1800 Act of Union, and resigned as lord chancellor in 1801. He rarely appeared in public
after that time.
After leaving the post of lord chancellor, Wedderburn became the frst Earl of
Rosslyn, taking the name of a place not far from his birthplace in Scotland. It may have
been because he held lands in Rosslyn, the place known for the Rosslyn Chapel built in
1446. On 2 January 1805, Wedderburn sufered a sudden attack of abdominal pain and
died in his chair at his home in Windsor. George III, though he was sufering mental
problems at the time, wryly commented: He has not left a greater rogue behind in my
dominions. Turlow, despite his rivalry with Wedderburn, is said to have paid tribute to
his life-long rival on this occasion, saying that, His Majesty is quite sane at present.
197

A justice who divided his time between Edinburgh and London, Wedderburn is interred
in a crypt in the middle of St. Pauls Cathedral in London.
On 12 September the following year, Edward Turlow, too, passed away. Te
anecdote passed down from his death is that as a servant carried him to his deathbed,
Turlows foot struck the handrail, and the servant heard him mutter a curse. According
197 Gore-Browne 1953, p. 357.
123
to another person, he blurted out the cryptic words, Im shot if I dont think I am
dying. Turlow was a man who fought for what he believed to be the interests of
the people.
198
He seems to have never married, but mistresses bore him a son and two
daughters. His son died at the age of twenty-eight, so Turlows baronage passed on to
his nephew Edward (17811829). Turlow is buried at the Temple Church near the
Royal Courts of Justice.
Te Donaldson Bookshop after the Trial
Alexander Donaldson remained in London after the decision. He continued to operate
his bookshop until around 1788 and returned to Edinburgh a year or so later. About
three years before that he had obtained land at Broughton Hall on the northern outskirts
of Edinburgh where he would spend the rest of his life. Two years after his wife Anna
died in 1792, Alexander also passed away, on 11 March 1794. He is buried in Greyfriars
Kirk in the central part of Edinburgh.
Alexanders son James took over the editorship of the Edinburgh Advertiser in Janu-
ary 1774 just before the Donaldson v. Becket case, and kept it going steadily until 1820.
While the American War of Independence was being waged during the 17751783
period, people would mass in front of Donaldsons printing shop and vie to obtain copies
of the news as it was printed. In 1782, James became a citizen of Edinburgh as a book-
seller. He was assiduous in keeping the enterprise and newspaper his father had founded
going, taking time of from his work only once. Tat was for a honeymoon in 1792.
He married a woman named Jean Gillespie (17701828), the daughter of a doctor. Te
story goes that after they returned from their honeymoon, James brought his new wife
to the ofce. Tere she gave some small change to the employees of the shop, saying she
hoped they would buy strawberries or some other treat. Jeans gesture was to become a
regular custom on Wednesdays during the period of the Leith Races. Te summer horse
races were among the entertainments Edinburgh citizens most enjoyed, and the people
working at the Donaldson bookshop were no exception. Te races were also the occasion
for feasting the servants and workers. Te Donaldsons attended the races every year, and
the treats handed out at the time of the Leith Races continued without fail except on one
occasion, when there was an accident. In the midst of the festivities a boy in the cavalcade
fell of his horse and broke his leg. James was much aggrieved at the accident and made
sure that the boy received good care at the Royal Infrmary.
James was an afable person who ably carried out the responsibilities of his job.
He looked after the needs of his employees and they worked enthusiastically and hard.
People who visited on business or errands were invariably served beer with bread and
198 Gore-Browne 1953, pp. 36061.
124
Chapter 5
meat. But James kept regular hours and would always be in his ofce at the appointed
times. He was meticulous and trustworthy. Waking early, he would be in his chair at the
ofce a little after 6 oclock a.m., waiting for the errand-boy from the post ofce to bring
the mail. He always asked the boy if he had any troubles and gave him some breakfast.
Te readers of the Edinburgh Advertiser increased again at the time of the French
Revolution in 1789. Advertising revenues rose, making James a wealthy man. As he
neared the age of seventy, he was increasingly laid up with gout and publication of the
newspaper became difcult. His name as publisher appeared in the paper for the last
time on 7 March 1820. In addition to his work as a bookseller and newspaper editor,
James held various public ofces. From 1790 to 1819 he was director of the Chamber of
Commerce of Edinburgh. From 1799 through 1818 he served as manager of the Public
Dispensary. In 1807 he was chosen as an ordinary director of the Bank of Scotland, and,
except for a two-year period, served continuously in that position until 1830.
James and Jean Donaldson had fve children, but none of them lived to adulthood.
Jean died in 1828 and James passed away on 19 October 1830. He was buried alongside
Jean in the cemetery at St. Johns Chapel. Te Donaldson bookshop on High Street
sufered a major fre in 1824 and the original building no longer stands.
Te Legacy of the Case
What did the eighteenth-century litigation over literary property produce? Liter-
ary property was often conceived in much the same way as land ownership. And in
eighteenth-century England, the handling of land itself was undergoing change by the
process of enclosure, the assertion of new property rights by building fences around
specifc tracts of land.
Members of the nobility were particularly keen on this kind of privatization, assert-
ing new ownership rights to land that had once been held in common. Until the frst half
of the eighteenth century, land had been enclosed and its private ownership recognized
through acts of Parliament in only sporadic cases; between 1719 and 1743, only 87 cases
were passed. Ten, from 1770 the number sharply increased. In 17701794 as many as
1058 cases were passed. As seen from the cases taken up in Parliament in 1773, the year
prior to the Donaldson v. Becket case, the enclosure of land was progressing actively.
199

According to historian Roy Porter, Parliament passed 64 cases in the 1740s, 87 cases in
the 1750s, 304 cases in the 1760s, and 472 cases in the 1770s.
200
No doubt the mood of the enclosure era infuenced litigation over copyright
among the big booksellers. Te House of Lords decision in the Donaldson v. Becket case,
199 Matsusono 1999, pp. 11213.
200 Porter 1991 (1982), p. 209.
125
however, was made by a wide margin to stop the movement to enclose ownership
of book content based on the idea of perpetual copyright. Even the aristocrats of the
House of Lords, who were so eager to encourage when it came to the enclosure of land,
recognized that the cultural property contained in books could not be possessed in the
same economic terms as land. Te lords were all landowners themselves and could readily
grasp the fundamental distinction between the ownership of land and possession of the
content of books.
Te members of the House of Lords were all very highly educated people and they
were themselves readers of books; often they were authors as well. Tey were, indeed,
the central fgures of literary culture. To recognize perpetual copyright, they knew full
well, might be to the proft of a few large booksellers, but they deemed it would not serve
the interests of readers. Tey were quick to see that the copyrights to books were cultural
assets frst and economic property only secondarily.
Te vast majority of the knowledge or information written in books comes from that
which has already been written about before in some way. It consists of recompositions of
what has already been said elsewhere. If knowledge is something to which property rights
are attached, people would not be able to express anything without using knowledge in
the possession of someone either now or in the past. No bookor any other product of
culture, for that matteris made starting entirely from scratch, from completely original
content. Culture, by its nature, consists of the rearrangement or adding on of something
new to culture that already exists.
Encyclopedias and dictionaries are easily recognizable examples of works created
by the cut-and-paste method. Ephraim Chambers Cyclopaedia, introduced in earlier
chapters, was compiled by excerpting text and illustrations from all manner of existing
books. Te compilation of dictionaries takes full advantage of the limits of copyright.
Te frst edition of the Encyclopedia Britannica, which was published in Edinburgh in
17681771, was made up of a notable number of such excerpts from other works. It may
have been no accident that the encyclopedia that came to be the most highly respected in
the world was created in Scotland thanks to the relatively scant restrictions on copyright
there. Johnsons Dictionary, too, was of course a collection of already existing English
words, not words he came up with himself. Te Dictionary contains much that derives
from more than just his own admittedly monumental labors. One can perhaps think of
the Dictionary as Johnsons cultivation of the wild feld of the English language that had
been opened up and abundantly seeded by generations before him. By the same logic, it
was unnatural that a handful of booksellers like Millar should monopolize the right to
print the Dictionaryor any other workand go on monopolizing the profts from its
sale in perpetuity.
Now let us shift to the perspective of today. We can get a sense of what was achieved
from the enclosure of culture by comparing it with the results of enclosing land. For one
126
Chapter 5
thing, one of the results of the enclosure of land was that agriculture became a kind of
business. Te owners of land began to pursue greater profts by using the labor of farm
workers. One other outcome was that as the places that had originally been commons
were subject to enclosure, the people who had benefted from their use were kept out,
resulting in widening disparities between rich and poor. Enclosure also took away the
places where people could freely hold festivals and engage in recreation.
Culture that was enclosed, too, became subject to commerce. Tose who pos-
sessed the land of copyright, so to speak, acted like big plantation owners. In the case of
the large-scale culture enterprises, the owners of the copyrights are not the actual people
clearing and tilling the soil of culture through their creative toil; the creators and the
rights holders are diferent people. Te rights holders hire the creators, as one might hire
farm workers, buying up on contract from them rights that they are inherently entitled
to, and using those rights to run their commercial concerns. Te rights holders assert that
this arrangement serves the advancement of culture, but this may be a point that deserves
careful scrutiny.
Over the years, these culture enterprises have worked to infuence the government
and expanded the scope of copyright protections from literature to the arts, music, pho-
tography, flm, and computer programs and extended the period of protection. Tey have
engaged in enclosure of the commons of culture. By this means, the powerful culture
businesses have grown increasingly large, and creators who had tilled the common felds
of culture in hopes of obtaining something from their toil fnd the scope of their activity
increasingly confned. Obsession with the need to assert ones copyright has become so
entrenched that it has caused all cultural activity to shrink in fear of infringing upon
someones rights.
What one should not do is excessive possessionespecially far beyond what is
needed to subsist. Te monopoly practiced by the big booksellers was clearly not simply
in order to make a living but for the excessive expansion and reproduction of individual
assets and capital. An even greater problem was that while exploiting the horizons of
knowledge cultivated by authors, these booksellers asserted that they held perpetual
copyright to the works in the name of the author.
Donaldsons idea in a sense followed the principles of the market economy. Keeping
restrictions imposed by law to a minimum, and allowing books for which the copyright
had expired to be handled according to the free enterprise of the marketplace would lead
to the best situation for society, as if guided by the invisible hand of the market, as
Adam Smith had observed. Donaldson was infuenced by Smithor, it may be more ac-
curate to say that in the midst of the intellectual ferment of eighteenth-century Scotland,
it was Smith whose theories were infuenced by Donaldson-style commercial activity
going on around him.
Te Donaldson v. Becket case led to changes in the publishing world in England.
127
To begin with, the classics were made freely available. Once books published before the
Statute of Anne had been adopted could be freely printed and sold, publishing the clas-
sics became a viable business and one that would go on to provide strong underpinnings
for the publishing world for a long time. A second change was that publishers began to
invest in new writers and new writing. Since rights to a work would only be protected
for twenty-eight years, booksellers found they needed to encourage new writers and
encourage them to create new works. Te heyday of English literature that began at the
end of the eighteenth century unfolded on the momentum of that need.
201
As it turned
out, limiting access to copyright was what best served the advancement of culture.
201 Feather 2006, pp. 7374.
129
In September 2003 I boarded a limousine bus from Edinburgh airport bound for the
city. Te summers Edinburgh Festival had just ended and quiet was beginning to return
to the streets. I was headed for Donaldsons College, a splendid building designed by
William Henry Playfair (17901857) that lay just outside the city, facing the bus route.
Surrounded by lawns and looking like some sort of castle, it presided over a spacious site
of 1.58 acres (Figure 6).
202
Until 1992, the school was known as Donaldsons Hospital. Founded by James
Donaldson, it is a school for children with special needs. Children aged three to eighteen
board at the school, which is among the worlds leading institutions for the hearing
impaired. My visit fell just during the break between school years, so there were no
children in sight as most had returned to their families for the holidays.
Dr. George Montgomery, a gentleman of about sixty thoroughly conversant with
the history of the school, showed me around the building. As one sees in many old
schools in England, the courtyards and corridors were spacious. Te rooms were not
much decorated but all the ceilings were high. When I remarked on the pleasantly open
feeling the high ceilings gave the rooms, my guide remarked wryly that in winter all the
heat was likely to rise to the ceiling, so one could feel quite cold sitting there.
When I explained that I was studying James Donaldson and his father Alexander,
202 Donaldsons College was moved to the suburbs of Edinburgh in 2008.
EPILoGUE
Figure 6. Former Donaldsons College. Photograph by Yamada Shji.
130
EpiloguE
my guide said Matters of literary property? and looked a bit uncomfortable. It seemed
clear he did not want to hear the founder called a pirate publisher, but he showed me
into the library-cum-gallery of the school. Among the many items on display I saw James
Donaldsons will. Apparently it had been found in his safe the day after he died. It wasnt
the original, but had been written in a fowing cursive hand giving an authentic feel of
history copied into a notebook. It read as follows:
At Broughton Hall the 4th of July eighteen hundred and twenty-eight, I, James
Donaldson, of Broughton Hall and Broughton Park, declare this to be my last Will
and Testament, with liberty to add, eik, pare, and alter at any time, even on [my]
death-bed (cancelling and annulling all my former Wills, Codicils, etc.).
I leave all my property, heritable and personal, viz.:
My Stock 3 per cent. Consols, 100,000;
Bank of England Stock; Stock New 4 per Cents.;
Bank of Scotland Stock; Royal Bank Stock;
Deposit Money, Bank of Scotland;
Property, Broughton Hall and Broughton Park;
ditto Princes Street;
ditto Castle Hill, and of whatever description which I may possess at my death;
Annual Rents;
to build and found an Hospital for Boys and Girls, to be called Donaldsons
Hospital, preferring those of the name of Donaldson and Marshall (which latter
was his mothers name), to be after the plan of the Orphan Hospital in Edinburgh
and John Watsons Hospital;
According to this will, in other words, all the considerable wealth that had accumu-
lated from the publishing business James carried on from his fathers generation was to
be used to build a charitable home for needy children. Te entire amount involved must
have come to a fgure of several millions of pounds in the currency of today, but since
the value of land was quite diferent at that time, it is difcult to grasp the total sum of
his endowment.
Donaldsons Hospital was built in accordance with James will over a period of nine
years beginning 1842. Queen Victoria, who visited in 1850 is said to have remarked that,
It is fner than some of my Scottish palaces.
Gazing over the broad lawns of the College, I imagined children chasing balls and
running around at play. Te Donaldsons work may have been pirate publishing, but
the books that they made available at cheap prices satisfed young peoples thirst for
knowledge and the wealth they amassed had been used to support the needs of children.
One could not deny that their fght to end perpetual copyright had ultimately led, not to
131
the satisfaction of personal greed, but to the public good. It seemed to me that Alexander
Donaldson would have been delighted with his sons decision to invest his wealth in an
institution for public welfare. He must have been quite proud of his son.
133
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Appendix A: Donaldsons Assertions
Te Respondents then proceeded to charge, that the Appellants, notwithstanding the
Premises, and without the Licence and Consent of the Respondents, published and sold
several Copies of the above mentioned Poems, called Te Seasons, and the said Hymn
on the Succession of the Seasons, each Copy being bound up in a single Volume, and
entitled, Te Seasons, by James Tompson; Edinburgh, printed by A. Donaldson, 1768,
thereby deriving to themselves great Gain, to the Detriment of the Respondents, who
claimed to themselves the whole Proft arising from the Publication and Sale of the same.
But, forasmuch as twenty eight Years (the longest Period allowed by the Statute
of Queen Anne, for the Monopoly of any new Work) had elapsed since the frst Publica-
tion, and before the Appellants had printed or sold the same, they denied (and think
themselves still warranted to deny) that the Respondents had, or could then have the
sole Privilege of printing and uttering the Seasons and the Hymn. And thy admit the
Publication and Sale of the said Poems, as charged by the Bill.
The Question, therefore, before the Court of Chancery, stood in this simple Form:
Whether the Author, having sold and delivered, for a competent Price, One or Five hun-
dred true Copies of his Work, retains in each of the Copies to [be] sold and delivered
Every Book, they say, consists of Two distinct Parts, the material Part, namely, the
Paper, Print, and Binding, which is a Manufacture; and the immaterial Part, namely, the
Doctrine contained in it, which is the Facture of the Mind. Te Property in the material
Part passes according to the Law in all other Cases; but the Property in the immaterial
Part remains to the Author,
Reasons.
I. Te Object contended for by the Respondents, is of so abstruse and chimerical a
Nature, that it is hardly capable of being defned. It is sometimes called Property, and for
the Sake of Distinction, Literary Property. Te Word Property has various Signifcations.
In a Philosophical Sense, the Qualities, inherent in any Subject or Ting, are called its
Properties. In a Civil Sense, Property is corporeal or incorporeal. Corporeal Property is
the actual Possession of some Substance, with the Power of enjoying and disposing of it.
Te Object now contended for is not corporeal Property. Incorporeal Property is of two
Sorts; First, it is a Right relating to some Substance, as a Right to take the Profts of Land,
without having the Possession of the Land, or a Title to it. 2dly, It is a right to exercise
APPENdICES
142
Appendices
some Faculty, or to do some particular Ting for Proft. Te Perception of the Profts,
is a taking of some Substance, or corporeal Property; and hence the incorporeal Right is
metaphorically called Property. Te Word, thus used, becomes equivocal, importing al-
ternately the Right and the Profts resulting from the Right. In like manner Land and the
Right to it, are both called Property. If the Object of the Respondents be an incorporeal
Right, it is a mere Right to do some particular Ting for Proft. Te Ting to be done
is the multiplying of Copies of Books. Te sole Right of multiplying Copies, is a sole Right
to exercise a natural Faculty, and this, it is obvious, is an extraordinary Privilege. A sole
Right to take the Profts arising from the Exercise of a natural Faculty, is a Monopoly in
itself very extraordinary. Tis Privilege and this Monopoly, the Respondents chose to call
their Property, and they are to maintain their Title to it at Common Law. But by that Law,
it is submitted, on the Part of the Appellants, that the Privilege and Monopoly never did,
and never can exist.
II. A Right at Common Law must be founded upon Principles of Conscience and
natural Justice. Conscience and natural Justice are not local or municipal. Natural Justice
is the same at Athens, at Rome, in France, Spain, and Italy. Copies of Books have existed
in all Ages, and they have been multiplied; and yet an exclusive Privilege, or the sole Right
of one Man to multiply Copies, was never dictated by natural Justice in any Age or
Country, and of course the sole Liberty of vending Copies could not exist of common Right,
which gives an equal Beneft to all.
III. An exclusive Privilege to exercise a natural Faculty is an Encroachment upon the
Rights of Man. A natural Faculty difers from the Execution of an Ofce. An Ofce is
the Work of civil Policy, and being of positive Institution, may be granted to one, without
Injury to the Rest: But when that, which of common Right should be free to all, becomes
confned to any one Man, or any Body of Men, the rest of the Community sufer an
Abridgement of their natural Liberty. But such a Restraint of the Liberty of many, for the
Sake of one, was never established by natural Justice. If it ever has existed, it has been the
Creature of the civil Magistrate upon Principles of Policy; but the Respondents disclaim
the Aid of the Legislature upon the present Question, and derive their Claim from the
Common Law.
IV. Te Common Law has ever regarded public Utility, the Mother of Justice and
of Equity. Public Utility requires that the Productions of the Mind should be difused
as wide as possible, and therefore the Common Law could not, upon any Principles
consistent with itself, abridge the Right of multiplying Copies. When the Common Law
took Root in this Kingdom, Literary Composition stood, in regard to the Manner of
making it public, upon the same Footing as in Greece or Rome. Writing was, in those
States, the only Method of multiplying Copies. To transcribe or copy out a Book was
the Right of every Individual; there was no other Way of propagating Knowledge: Of a
perpetual Right in one Man to write out Books or to make Copies, there is not a single
143
Trace in any Author that has come down from Antiquity. In like Manner the natural
Liberty of transcribing Books was never checked by the Common Law.
V. Te Common Law is immemorial Usage. If, therefore, there was a Time, when the
Privilege and Monopoly, now contended for, could not, and in Fact did not exist at Com-
mon Law, they never can exist by that Law. But such a Time has been, namely, from the
Beginning of our History down to the great ra of Printing; and Printing (which is only
a more expeditious Method of multiplying Copies) it is contended, could not change
the Principle of Right and Wrong, or innovate the Law. (Cases of the the Appellants: 26)
Appendix B: Te Statute of Anne
Anno Octavo
Ann Regin.
An Act for the Encouragement of Learning, by Vest-ing the Copies of Printed Books in
the Authors or Purchasers of such Copies, during the Times therein mentioned.
Whereas Printers, Booksellers, and other Persons, have of late frequently taken the Lib-
erty of Printing, Reprinting, and Publishing, or causing to be Printed, Reprinted, and
Published Books, and other Writings, without the Consent of the Authors or Proprietors
of such Books and Writings, to their very great Detriment, and too often to the Ruin of
them and their Families: For Preventing therefore such Practices for the future, and for
the Encouragement of Learned Men to Compose and Write useful Books; May it please
Your Majesty, that it may be Enacted, and be it Enacted by the Queens most Excellent
Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and
Commons in this present Parliament Assembled, and by the Authority of the same,
Tat from and after the Tenth Day of April, One thousand seven hundred and ten, the
Author of any Book or Books already Printed, who hath not Transferred to any other
the Copy or Copies of such Book or Books, Share or Shares thereof, or the Bookseller or
Booksellers, Printer or Printers, or other Person or Persons, who hath or have Purchased
or Acquired the Copy or Copies of any Book or Books, in order to Print or Reprint the
same, shall have the sole Right and Liberty of Printing such Book and Books for the
Term of One and twenty Years, to Commence from the said Tenth Day of April, and no
longer; and that the Author of any Book or Books already Composed and not Printed
and Published, or that shall hereafter be Composed, and his Assignee, or Assigns, shall
have the sole Liberty of Printing and Reprinting such Book and Books for the Term of
fourteen Years, to Commence from the Day of the First Publishing the same, and no
longer; And that if any other Bookseller, Printer, or other Person whatsoever, from and
144
Appendices
after the Tenth Day of April, One thousand seven hundred and ten, within the times
Granted and Limited by this Act, as aforesaid, shall Print, Reprint, or Import, or cause
to be Printed, Reprinted, or Imported any such Book or Books, without the Consent
of the Proprietor or Proprietors thereof frst had and obtained in Writing, Signed in the
Presence of Two or more Credible Witnesses; or knowing the same to be so Printed or
Reprinted, without the Consent of the Proprietors, shall Sell, Publish, or Expose to Sale,
or cause to be Sold, Published, or Exposed to Sale, any such Book or Books, without
such Consent frst had and obtained, as aforesaid, Ten such Ofender or Ofenders shall
Forfeit such Book or Books, and all and every Sheet or Sheets, being part of such Book or
Books, to the Proprietor or Proprietors of the Copy thereof, who shall forthwith Damask
and make Waste-Paper of them: And further, Tat every such Ofender or Ofenders,
shall Forfeit One Peny for every sheet which shall be found in his, her, or their Custody,
either Printed or Printing, Published or Exposed to Sale, contrary to the true intent
and meaning of this Act, the one Moiety thereof to the Queens most Excellent Majesty,
Her Heirs and Successors, and the other Moiety thereof to any Person or Persons that
shall Sue for the same, to be Recovered in any of Her Majesties Courts of Record at
Westminster, by Action of Debt, Bill, Plaint, or Information, in which no Wager of Law,
Essoign, Privilege, or Protection, or more than one Imparlance, shall be allowed.
And whereas many Persons may through Ignorance Ofend against this Act, unless
some Provision be made whereby the Property in every such Book, as is intended by
this Act to be Secured to the proprietor or Proprietors thereof, may be ascertained, as
likewise the Consent of such Proprietor or Proprietors for the Printing or Reprinting of
such Book or Books may from time to time be known; Be it therefore further Enacted
by the Authority aforesaid, Tat nothing in this Act contained shall be construed to
extend to subject any Bookseller, Printer, or other Person whatsoever, to the Forfeitures
or Penalties therein mentioned, for or by reason of the Printing or Reprinting of any
Book or Books without such Consent, as aforesaid, unless the Title to the Copy of such
Book or Books hereafter Published shall, before such Publication be Entred, in the
Register-Book of the Company of Stationers, in such manner as hath been usual, which
Register-Book shall at all times be kept at the Hall of the said Company, and unless
such Consent of the Proprietor or Proprietors be in like manner Entred , as aforesaid,
for every of which several Entries, Six Pence shall be Paid, and no more; which said
Register-Book may, at all Seasonable [sic; should be: Reasonable] and Convenient
times, be Resorted to, and Inspected by any Bookseller, Printer, or other Person, for
the Purposes before mentioned, without any Fee or Reward; and the Clerk of the said
Company of Stationers, shall, when and as often as thereunto required, give a Certifcate
under his Hand of such Entry or Entries, and for every such Certifcate, may take a Fee
not exceeding Six Pence.
145
Provided nevertheless, Tat if the Clerk of the said Company of Stationers, for the
time being shall Refuse or Neglect to Register, or make such Entry or Entries, or to give
such Certifcate, being thereunto Required by the Author or Proprietor of such Copy or
Copies, in the Presence of Two or more Credible Witnesses, Tat then such Person and
Persons so refusing, Notice being frst duly given of such Refusal, by an Advertisement
in the Gazette, shall have the like Beneft, as if such Entry or Entries, Certifcate or
Certifcates had been duly made and given; and that the Clerks so refusing, shall, for
any such Ofence, Forfeit to the Proprietor of such Copy or Copies the Sum of Twenty
Pounds, to be Recovered in any of Her Majesties Courts of Record at Westminster,
by Action of Debt, Bill, Plaint, or Information, in which no Wager of Law, Essoign,
Privilege or Protection, or more than one Imparlance shall be allowed.
Provided nevertheless, and it is hereby further Enacted by the Authority aforesaid,
Tat if any Bookseller or Booksellers, Printer or Printers, shall, after the said Five and
twentieth Day of March, One thousand seven hundred and ten, set a Price upon, or Sell
or Expose to Sale, any Book or Books at such a Price or Rate as shall be Conceived by
any Person or Persons to be High and Unreasonable; It shall and may be Lawful for any
Person or Persons to make Complaint thereof to the Lord Archbishop of Canterbury for
the time being; the Lord Chancellor, or Lord Keeper of the Great Seal of Great Britain for
the time being; the Lord Bishop of London for the time being; the Lord Chief Justice of
the Court of Queens Bench, the Lord Chief Justice of the Court of Common Pleas, the
Lord Chief Baron of the Court of Exchequer, for the time being; the Vice-Chancellors of
the Two Universities for the time being, in that part of Great Britain called England; the
Lord President of the Sessions for the time being; the Lord Justice General for the time
being; the Lord Chief Baron of the Exchequer for the time being; the Rector of the Col-
lege of Edinburgh for the time being, in that part of Great Britain called Scotland; who,
or any one of them, shall and have hereby full Power and Authority from time to time, to
Send for, Summon, or Call before him or them such Bookseller or Booksellers, Printer or
Printers, and to Examine and Enquire of the reason of the Dearness and Inhauncement
of the Price or Value of such Book or Books by him or them so Sold or Exposed to Sale;
and if upon such Enquiry and Examination it shall be found, that the Price of such Book
or Books is Inhaunced, or any wise too High or Unreasonable, Ten and in such case, the
said Archbishop of Canterbury, Lord Chancellor or Lord Keeper, Bishop of London, two
Chief Justices, Chief Baron, Vice-Chancellors of the Universities, in that part of Great
Britain called England, and the said Lord President of the Sessions, Lord Justice General,
Lord Chief Baron, and Rector of the College of Edinburgh, in that part of Great Britain
called Scotland, or any one or more of them, so Enquiring and Examining, have hereby
full Power and Authority to Reform and Redress the same, and to Limit and Settle the
Price of every such Printed Book and Books, from time to time, according to the best of
146
Appendices
their Judgements, and as to them shall seem Just and Reasonable; and in case of Alteration
of the Rate or Price from what was Set or Demanded by such Bookseller or Booksellers,
Printer or Printers, to Award and Order such Bookseller and Booksellers, Printer and
Printers, to Pay all the Costs and Charges that the Person or Persons so Complaining
shall be put unto, by reason of such Complaint, and of the causing such Rate or Price to
be so Limited and Settled; all which shall be done by the said Archbishop of Canterbury,
Lord Chancellor, or Lord Keeper, Bishop of London, two Chief Justices, Chief Baron,
Vice Chancellors of the Two Universities, in that part of Great Britain called England,
and the said Lord President of the Sessions, Lord Justice General, Lord Chief Baron,
and Rector of the College of Edinburgh, in that part of Great Britain called Scotland, or
any one of them, by Writing under their Hands and Seals, and thereof Publick Notice
shall be forthwith given by the said Bookseller or Booksellers, Printer or Printers, by an
Advertisement in the Gazette; and if any Bookseller or Booksellers, Printer or Printers,
shall, after such Settlement made of the said Rate and Price, Sell, or expose to Sale any
Book or Books, at a higher or greater Price than what shall have been so Limited and
Settled, as aforesaid, then and in every such case such Bookseller and Booksellers, Printer
and Printers, shall Forfeit the Sum of Five Pounds for every such Book so by him, her, or
them Sold or Exposed to Sale; One Moiety thereof to the Queens most Excellent Majesty,
Her Heirs and Successors, and the other Moiety to any Person or Persons that shall Sue for
the same, to be Recovered, with Costs of Suit, in any of Her Majesties Courts of Record at
Westminster, by Action of Debt, Bill, Plaint or Information, in which no Wager of Law,
Essoign, Privilege or Protection, or more than one Imparlance, shall be allowed.
Provided always, and it is hereby Enacted, Tat Nine Copies of each Book or Books,
upon the best Paper, that from and after the said Tenth Day of April, One thousand seven
hundred and ten, shall be Printed and Published, as aforesaid, or Re-printed and Published
with Additions, shall, by the Printer and Printers thereof, be Delivered to the Warehouse-
Keeper of the said Company of Stationers for the time being, at the Hall of the said Com-
pany, before such Publication made, for the Use of the Royal Library, the Libraries of the
Universities of Oxford and Cambridge, the Libraries of the Four Universities in Scotland,
the Library of Sion College in London, and the Library commonly called the Library
belonging to the Faculty of Advocates at Edinburgh respectively; which said Warehouse-
Keeper, is hereby required, within Ten Days after Demand by the Keepers of the respective
Libraries, or any Person or Persons by them or any of them Authorised to Demand the
said Copy, to Deliver the same, for the Use of the aforesaid Libraries; and if any Proprietor,
Bookseller or Printer, or the said Warehouse-Keeper of the said Company of Stationers,
shall not observe the Direction of this Act therein, Tat then he and they, so making
Default in not Delivering the said Printed Copies, as aforesaid, shall Forfeit, besides the
value of the said Printed Copies, the sum of Five Pounds for every Copy not so Delivered,
147
as also the value of the said Printed Copy not so Delivered, the same to be Recovered by the
Queens Majesty, Her Heirs and Successors, and by the Chancellor, Masters, and Scholars
of any of the said Universities, and by the President and Fellows of Sion College, and the
said Faculty of Advocates at Edinburgh, with their full Costs respectively.
Provided always, and be it further Enacted, Tat if any Person or Persons incur the
Penalties contained in this Act, in that part of Great Britain called Scotland, they shall be
recoverable by any Action before the Court of Session there.
Provided, Tat nothing in this Act contained do extend, or shall be construed
to extend, to Prohibit the Importation, Vending, or Selling of any Books in Greek,
Latin, or any other Foreign Language Printed beyond the Seas; Any thing in this Act
contained to the contrary notwithstanding.
And be it further Enacted by the Authority aforesaid, Tat if any Action or Suit
shall be Commenced or Brought against any Person or Persons whatsoever, for doing or
causing to be done any thing in pursuance of this Act, the Defendants in such Action
may Plead the General Issue, and give the Special Matter in Evidence; and if upon such
Action a Verdict be given for the Defendant, or the Plaintif become Nonsuited, or
Discontinue his Action, then the Defendant shall have and recover his full Costs, for
which he shall have the same Remedy as a Defendant in any case by Law hath.
Provided, Tat nothing in this Act contained shall extend, or be construed to extend,
either to Prejudice or Confrm any Right that the said Universities, or any of them, or
any Person or Persons have, or claim to have, to the Printing or Re-printing any Book or
Copy already Printed, or hereafter to be Printed.
Provided nevertheless, Tat all Actions, Suits, Bills, Indictments, or Informations
for any Ofence that shall be Committed against this Act, shall be Brought, Sued, and
Commenced within Tree Months next after such Ofence Committed, or else the same
shall be Void and of none Efect.
Provided always, Tat after the Expiration of the said Term of Fourteen Years, the
sole Right of Printing or Disposing of Copies shall return to the Authors thereof, if they
are then Living, for another Term of Fourteen Years.
FINIS.
(Source: Bently and Kretschmer (eds.), Primary Sources on Copyright (14501900) (http://www.copyrighthistory.org/)
149
Academy of St. Luke (Edinburgh) 10910, 115
Adams, Richard 64, 74
Anne, Queen (of Great Britain) 2
Aozora Bunko x
Apsley, Lord (Henry Bathurst) 52, 5556, 6366,
8283, 85, 122
Archibald, Elizabeth 100
Ashurst, William Henry 63, 6972
Aston, Richard 49, 6364, 7172, 75
attorney general 16, 40, 5556, 6061, 63, 122
Austen, Jane 106
authors right viii, 28, 31, 37, 42, 49, 64, 6870,
7375, 82
Balfour, John 14
Balliol, John 90
Bathurst, Henry, See Apsley
Bayne, Anne 115
Becket, Tomas 1, 1011, 15, 1821, 24, 27,
4749, 5152, 55, 5961, 6365, 6877, 80,
83, 86, 11516
Bickerstaf, Isaac 100, See also Ramsay (poet)
Blackstone, William 42, 48, 64, 70
Boleyn, Anne 26
Boswell, James 1213, 28, 3839, 41, 46, 52,
5758, 8587, 91, 103, 11415, 120
Bower, Alison 99
Burke, Edmund 53
Burney, Fanny 106
Burns, Robert 48, 105, 11213
Bute, Earl of (John Stuart) 54
Cadell, Tomas 36, 4849, 85, 112, 114
Caen-wood, See Kenwood (England)
Calvin, John 94
Camden, Lord (Charles Pratt) 5355, 65, 7682,
8485, 12122
Camden Town (England) 12122
Carlyle, Alexander 40
Catherine of Aragon 26
Caxton, William 25
INdEx
Chambers, Ephraim 3132, 106, 125
Charles I (of England) 27
Charles II (of England) 27, 57
circulating library 80, 105106
poet Ramsays 103104, 107, 110, 11213, 117
Sibbalds 107, 11213
Civil War (England) 27
Clark, John 110
Clarke, Edward 2728
Coleridge, Taylor 106
Collins, Benjamin 3637, 39, 42
Comic Market (Tokyo) xii
common law 1516, 63
copyright
common law 19, 2122, 24, 31, 3637, 42,
4445, 47, 4950, 5659, 6175, 7780,
85, 14243
perpetual xiii, 13, 2225, 27, 31, 33, 36,
44, 4647, 51, 53, 5859, 6263, 6566,
7071, 73, 77, 81, 83, 8588, 12526,
130, 142
copyright law
of Britain xiv, 1, 6
of Japan viiiix, xi
of the U.S.A. ixx
Copyright Term Extension Act (U.S.A.) x
Court of Chancery 1617, 21, 44, 4647, 49,
5152, 56, 61, 75, 85, 141
Court of Common Pleas 1617, 54, 63, 74, 76,
122, 145
Court of Exchequer 42, 6364, 74, 76, 145
Court of Kings Bench 1617, 37, 41, 47, 49, 51,
5354, 63, 74, 76, 79, 82, 119, 121
Court of Session (Scotland) 29, 3132, 38, 5152,
8687, 147
Court of Star Chamber, See Star Chamber
Cowper, William 105
Cranmer, Tomas 2627
Creech, William 112
Crichton, Andrew 99100
Cromwell, Oliver 27, 102
Cyclopaedia (Chambers) 3132, 106, 125
150
Index
Dalrymple, John 55, 5761, 63, 84, 11516
Darien Scheme 9293
De Grey, William 6364, 7477
Deazley, Ronan xivxv, 37, 51, 56, 69, 7275, 87
Defoe, Daniel 93
Dempster, George 8587
Dictionary of the English Language (Johnson) 8,
1314, 39, 85, 87, 125
Diderot, Denis 116
Dilly, Edward 85
Disney ixx
Donaldson, Alexander xiiixiv, 13, 512, 2021,
24, 30, 3236, 4248, 8487, 89, 93, 112,
11617, 123, 126, 129, 131
assertions of 1819, 2124, 3336, 4246,
14143
bookshop of 512, 46, 52, 87, 117, 12324
cases of 11, 4647, 5152, 5557, 59, 61,
6365, 68, 70, 7277, 8285, 87
catalogs of 79
printing workshop of 57, 123
Donaldson, James 1, 5, 1011, 8384, 12324,
12931
Donaldson, Jean, See Gillespie
Donaldson, John 5, 7
Donaldsons College, 12930
Donaldsons Hospital, See Donaldsons College
Donaldson v. Becket case xv, 13, 7, 9, 11, 18, 21,
24, 3031, 5153, 5587, 89, 126
Douglas, Gawin 100, See also Ramsay (poet)
Duncan I 90
Dunning, John 4748, 55, 6163, 65, 68, 84
Easy Club 100101, 116
Edinburgh Advertiser 5, 10, 8384, 12324
Edinburgh Festival 103, 129
Edinburgh Review 37, 39
Edward I (of England) 90
Edward II (of England) 90
Elizabeth I (of England) 9091, 95, 119
Emile (Rousseau) 59
enclosure of land 12426
Encyclopedia Britannica xv, 125
equity 16, 19, 22, 82, 142
Ever Green (Ramsay [poet]) 9, 101
Eyre, James 64, 6670, 7273
Feather, John 77
Ferguson, Adam 36, 89, 115
Fielding, Henry 109110
general warrant 5354, 65
Gentle Shepherd (Ramsay [poet]) 99, 102103
George III (of the United Kingdom) 40, 5355,
116, 122
Gibbon, Edward 48
Gillespie, Jean 12324
Goldsmith, Oliver 53
Gordon, George 11920
Gordon Riots 11921
Gould, Henry 64, 7374
Hamilton, Gavin 1415
Henry, Robert, See Northington
Henry VII (of England) 91
Henry VIII (of England) 26
Hergrave, Francis 55
Hinton, John 52
Hinton v. Donaldson case 52, 87
History of Great Britain (Hume) 14
Hobbes, Tomas 16
Hopeton, Earl of 9799, 102
Horace 99, 111
Houston, Robert Allan 9596
Howard of Efngton, Lord 83
human rights 23, 16, 19, 24
Hume, David 79, 1415, 36, 48, 59, 89, 11516
Hunt, Leigh 106
Jacobite 41, 9294, 100, 110, 119
James I (of England), See James VI (of Scotland)
James II (of England) 9192
James IV (of Scotland) 98
James VI (of Scotland) 9091
Johnson, Samuel 8, 1214, 3941, 46, 48, 58,
8588, 91, 97, 103, 11415, 120, 125
Johnston, William 35
151
Kaufman, Paul 106109
Keats, John 106
Kenwood (England) 12022
Kincaid, Alexander 6, 32, 36, 112
Kings Bench, See Court of Kings Bench
Knox, John 94, 96
Lackington, James 15
Law, Edmund 83
Leadhills (Scotland) 9799, 102, 106107
LEncyclopdie (Diderot) 32, 116
Licensing Act
of plays 11011
of publishing 22, 2728, 5658, 79
Life of Samuel Johnson (Boswell) 1214, 28, 3840,
46, 48, 5758, 85, 91, 97, 103, 114, 12021
Lindsay, Margaret 11516
literary property 18, 21, 24, 28, 33, 4345, 52,
5557, 5960, 63, 6869, 7172, 7475, 82,
8688, 124, 130, 141
Locke, John 8, 16, 2728, 31, 42, 81, 108
Lockhart, John Gibson 11213
Longman, Tomas 13
Longman II, Tomas 4849
lord chancellor 16, 20, 4041, 44, 4647, 5156,
6366, 75, 8283, 85, 12022, 14546
Louis XIV (of France) 57
Luckenbooths (Edinburgh) 103104
Lyttelton, Tomas 8283
MacAlpin, Kenneth 90
Macewan, James 112
Mackay, Alexander 113
Mansfeld, Lord (William Murray) 4142, 47, 4955,
6365, 74, 7677, 8284, 89, 11415, 11922
Mansfeld, William 8485
Marshal, Anna 5, 123, 130
Mary I (of England) 2627, 94
Mary II (of England) 92
Mary Stewart (Queen of Scotland) 9495, 98
McEuen, James 12
Merrill, John 33
Mickey Mouse ixx
Midwinter case 3132
Midwinter, Daniel 31
Millan, John 12, 47
Millar, Andrew 1115, 3536, 39, 42, 51, 57, 64,
7071, 85, 112, 125
cases of 32, 4649
Ramsay and 11416
reputation of 1115
Millar v. Donaldson case 46
Millar v. Kincaid case 32, 47
Millar v. Taylor case 9, 4749, 5152, 55, 6465,
6972, 76
Milton, John 8, 22, 3334, 62, 81, 105
Moritz, Karl Philipp 105
Murphy, Arthur 48, 55, 87
Murray, William, See Mansfeld
Nares, George 64, 6869, 73
natural law 16
natural rights 16, 2728, 31, 42, 45, 71
Neill, Patric 14
Newton, Isaac 81
North Briton 5354
Northington, Earl of (Robert Henry) 46
Osborne, Tomas 46
Osborne v. Donaldson case 46
Paradise Lost (Milton) 8, 33, 81
Perrot, George 64, 7273
Picard, Liza 52
Pitt, William (the Elder) 53
Pitt, William (the Younger) 122
Pope, Alexander 84, 115
Pratt, Charles, See Camden
Presbyterian 5, 9496, 99, 104105, 11011
Project Gutenberg x, 3
public domain ix, 59
Ramsay, Allan (poet) 89, 89, 97107, 109117
Ramsay, Allan (painter) 100, 109110, 11416
Reynolds, Joshua 40
Rivington, John 35
152
Index
Robert I (of Scotland) 90
Robert the Bruce, See Robert I
Robertson, Jerome 100
Robertson, William 108109, 114
Robinson Crusoe (Defoe) 93
Robinson, Henry Crabb 106
Ross, Christian 100, 111
Rosslyn (Scotland) 122
Rosslyn, Earl of, See Wedderburn
Rousseau, Jean-Jacques 59, 116
Scone (Scotland) 41, 8990
Scott, Walter 105, 11213
Seasons (Tomson) 1, 912, 15, 18, 20, 23, 33,
4749, 51, 83, 141
Select Society 11516
Shakespeare, William 3334, 81
Shenstone, William 105
Sheridan, Richard Brinsley 105
Sheridan, Tomas 38
Shirata Hideaki xivxv, 37, 42, 84
Sibbald, James 107, 11213
Smith, Adam 10, 25, 36, 39, 48, 89, 92, 115, 126
Smythe, Sydney Staford 64, 7476
solicitor general 16, 40, 65, 122
Sonny Bono Copyright Term Extension Act, See
Copyright Term Extension Act (U.S.A.)
Spectator 8, 33, 3637, 100
St. Giles Cathedral (Edinburgh) 5, 94, 104
St. Pauls Churchyard (London) 7, 52
Stackhouse, Tomas 52
Stamp Act 54
Star Chamber 2122, 27, 7779
Stationers Company 2, 11, 21, 2529, 3132, 34,
52, 5658, 6667, 7779, 82
statute law 1516, 45
Statute of Anne 12, 6, 25, 2832, 34, 4345,
5152, 8384, 8788, 119, 127, 141
content of 2931, 143-47
referred in cases 18, 2124, 3132, 37, 47,
4950, 5659, 6165, 6875, 79
Stone of Destiny 8991
Stone of Scone, See Stone of Destiny
Strahan, William 13, 36, 3839, 48, 112, 115,
12021
Strand (London) 7, 12, 42, 46, 52
Stuart, John, See Bute
Taylor, Robert 4749, 51, 55, 71
Tea Table Miscellany (Ramsay [poet]) 9, 101, 113,
115
Tomson, James 1, 9, 1112, 18, 20, 23, 33, 47,
59, 83
Turlow, Edward 37, 3940, 42, 48, 5557, 5961,
63, 76, 84, 87, 11920, 12223
Tompson, Richard 77, 84
Tonson, Richard 3537, 42, 48, 60, 64, 81
Tonson v. Collins case 3639, 4142, 44, 4750,
60, 64
Victoria, Queen (of the United Kingdom) 130
Virgin Unmasked (Fielding) 110
Wade, George 94
Wallace, William 90
Warburton, William 4445
Watt, James 89
Wealth of Nations (Smith) 25, 92
Wedderburn, Alexander 3740, 42, 55, 6061, 63,
84, 11516, 119, 122
Weir, Tomas 6
Westminster Abbey (London) 9091, 121
Westminster Hall (London) 17, 5253
Westminster Palace (London) 1, 17
Whiston, John 3335
Wilkes case 5355, 65
Wilkes, John 5354, 65
Wilkie, John 36
Willes, Edward 49, 6364, 7072
William III (of England) 92
Wilson, William 113
Wishart, George 94
Wordsworth, William 106
Worral, John 3435
Yair, John 112
Yates, Joseph 42, 49, 69, 71

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