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Cornell University Library Z653 .C22 Brief and argument for the Connorized IMu olin 3 1924 029 522 541 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924029522541 IN THE SUPREME COURT OF THE UNITED STATES. JANUARY 1908. 4« W,HITE-SM1TH MUSIC PUBLISHING COMPANY, vs. APOLLO COMPANY. WHITE-SMITH MUSIC PUBLISHINGl COMPANY, vs. APOLLO COMPANY. No. 110. No. 111. H X O K > 0. O O -I z o 3 CO z O O Brief and Argumeat for The Cpnnorized Masic Company. COPYRIGHT 1908 BY ALBERT h: WALKER. £r V A, ^Z\?0«\ TABLE OF CONTEXTS. PAGE Petition of the Connorized Music Company a Origin and Development of the Idea of Copyright prior to 1787 1 History of the Copyright Clause of the Federal Constitution 46 Significance which the f ramers of the Constitution must have intended to express by the word "Writings" 52 Origin and Development of Automatic Musical In- struments prior to 1787 57 Development of Automatic Musical Instruments from 1787 to 1908 65 Development of Copyright Statutes of the United States from 1787 to 1908 69 Supreme Court Copyright Cases, relevant to Copyright Foundations 73 Musical Copyright Laws of Foreign Nations 82 Musical Plagiarism 86 Constitutional Construction 94 Index 98-113 V. PREFACE. Those pages of this book, which are headed by the first ten letters of the alphabet, comprise a copy of the petition of the Connorized Music Company, which was presented to the Supreme Court on October 14, 1907. Those pages which are headed by Arabic numerals, comprise the Brief and Argument for the Connorized Music Company, filed in the Supreme Court in January, 1908, in pursuance of that petition of October 14, 1907, and in pursuance of the permission which was granted by the Court on October 21, 1907. This brief and argument are devoted to stating and maintaining the proposition that Section 4966 of the Revised Statutes of the United States, as amended Jan- uary 6, 1897, and all other statutes of similar import (on which statutes the two suits are necessarily based), are unconstitutional; because purporting to authorize copy- rights, on subjects outside of "writings", and because paragraph 8, of Section 8, of Article 1, of the Constitu- tion of the United States, limits all. copyrights to "writ- ings". This constitutional contention is not mentioned in the Brief for Appellee, which was submitted to the Court in these cases, in January, 1908, by Messrs. Burton, Mun- day, Evarts, Adcock and O'Connell; those gentlemen knowing that it would be the subject of this brief and argument for the Connorized Music Company. u The whole of the following brief and argument for the Connorized Music Company, was written by its sub- scriber, without any collaboration; and he is personally and professionally responsible for every state- ment therein. Those statements are numerous, and many of them may appear to be new ; but all of them can be verified by whoever will take time enough, and per- form labor enough, to follow the clues of the author through the great libraries from which many of them were collected by him, and will also avail themselves of access to his other sources of knowledge. A. H. W. Park Row Btjilding, New Yobk, Januaey 10, 1908. In the Supreme Court ol tlie United States, October Term, A. D., 1907. White-Smith Music PuBiiisHiNQ Company, vs. Apollo Company. No. no. White- Smith Music Publishing Company, vs. Apollo Company. No. III. Petition of the Connoeized Music Company foe per- mission to file a brief, and also to make an oral argu- ment, on the side of the Appellee. To the Supreme Court of the Umted States of America : You petitioner, the Connorized Music Company, re- spectfully represents that it is a corporation, created and existing in due form of law in the State of New York, and having a place of business on East 144th street and Austin place in the Borough of the Bronx and City of New York; and that it is pecuniarily interested to a large amount in the decision of the above-entitled cases; and that if that decision is to be in favor of the appellant, the White-Smith Music Publishing Company, the resulting pecuniary injury to your petitioner will be very great. Wherefore your petitioner respectfully prays that your petitioner may be permitted to file a brief on the side of the appellee in said cases and may also be per- mitted to submit an oral argument on' the same side at the time of the hearing of said cases, and before any de- cision in said cases is rendered by this Court; and your petitioner also prays for such other relief as to the Court may appear to be proper. And, in support and explanation of this petition, your petitioner respectfully represents the following facts: First. — Your petitioner's business consists mainly in making and selling special sheets of perforated paper, for use in automatic musical instruments; which sheets are covered by letters patent of the United States, No. 661,920, granted November 13, 1900, to James O'Connor, and which sheets are usable only with a particular con- struction in automatic musical instruments, and which construction is also covered by said letters patent. Second. — Your petitioner conducts its business by a contract with each of a number of manufacturers of automatic musical instruments; each of which contracts includes a license to that manufacturer to make and sell that patented construction, in the instruments of the li- censee, and includes an agreement for the purchase, by that licensee or its agents, from your petitioner, of all the sheets of perforated paper which are to be sold with or for those instruments, which agreement is occasioned by the fact that the said patented construction in the said instruments, requires the said patented perforated sheets for use therewith. Third. — The property of your petitioner which is em- ployed in its said business, consists of machinery, mas- ter sheets, and perforated sheets, and other tangible per- sonal property, together with the said letters patent; and that tangible personal property has cost the petitioner nearly one hundred thousand dollars; and those letters patent are very valuable to your petitioner's business. Fourth. — The Aeolian Company, of Meriden, Connec- ticut, is a large and wealthy corporation, which is en- gaged in making and selling automatic musical instru- ments, and in making and selling perforated sheets of paper for use in those instruments. Fifth- — There is an association of more than eighty publishers of printed sheet music, which association in- cludes nearly all the principal music publishers in the United States, and the members of which association copyright and publish most of the printed sheet music which is copyrighted and published, from time to time, in this country. Sixth. — The Aeolian Company has a contract with each member of said association of music publishers, whicli coatract substantially provides that the Aeolian Company shall have the exclusive right to make and sell perforated sheets of paper to be used in automatic musi- cal instruments, for producing the music represented by any or all of the copyrighted printed sbeet music pub- lished by that publisher; provided these two cases or eitlier of them is decided, by this Court in favor of the appellant, the White-Smith Music Publishing Company. Seventh. — These suits were actually begun and. have been really prosecuted by the Aeolian Company in the name of the White-Smith Music Publishing Company, but at the expense of the Aeolian Company, for the pur- pose of obtaining such a decision in favor of the White- Smith Music Publishing Company. Eighth. — If these cases are decided in favor of the White- Smith Music Publishing Company, all the above specified contracts will be thereby put into operation, and will operate to give the Aeolian Company the ex- clusive right to make and sell perforated sheets, for use in automatic musical instruments, to perform most of the music which the owner of such an instrument would desire to have performed thereby. That monopoly of the right to make and sell most of the perforated sheets which the public would wish to buy would practically result in conferring upon the Aeolian Company a monop- oly to make and sell all of the perforated sheets which the public would wish to buy, and also a practical monop- oly of making and selling all automatic musical instru- ments, operated by perforated sheets of paper; because no prospective purchaser of an automatic musical instru- ment would buy one which could be used by him in play- ing only a comparatively few tunes, when he could pur- chase one from the Aeolian Company, even at a higher price, for playing all the tunes which he would desire to have played ; and because the Aeolian Company could present this dilemma to every prospective purchaser of an automatic musical instrument, by simply declining to sell any perforated sheet for use in any instrument not made and sold by that company. Ninth. — Your petitioner's said business would be (juite extinguished by a decision of these suits in favoi; of the appellant, the White-Smith Music Publishing Company; because such a decision would doubtless be speedily followed by bills in equity and preliminary in- junctions, issued against your petitioner, and operating to completely stop your petitioner's said business. Tenth. — The decision of these cases depends mainly and perhaps entirely, upon the proper construction of that clause of section 8 of article I of the Constitution of the United States which authorizes Congress "To pro- mote the progress of science and the useful arts by se- curing for limited times to authors and inventors the exclusive right to their respective writings and discov- eries"; because the decision of these cases depends mainly, if not entirely, upon the question whether sheets of perforated paper for use in automatic musical in- struments (such as those for the sale of which by the appellee, the Apollo Company, these suits were brought, and such as those, the making and selling of which con- stitute your petitioner's business) are "writings" with- in the meaning of the Constitution of the United States, / Eleventh. — That Constitutional question was adjudi- cated in the negative by the Circuit Court in these cases on the grounds stated in that portion of the decision of that court which is printed in lines 33 to 48 inclusive, of page 430 of 139 Federal Reporter. Twelfth. — That decision of the Circuit Court on that constitutional question was by the White-Smith Music - Publishing Company assigned as error in the Circuit Court of Appeals. But that assignment of error was overruled by the Circuit Court of Appeals on the ground that as copyrights did not exist at the common law, the written foundation of the copyright laws of the United States must be strictly construed. (147 Federal Re- porter, 226). Thirteenth. — These cases were argued for the White- Smith Music Publishing Company in the Circuit Court and also in the Circuit Court of Appeals by Mr. Charles E. Hughes, who is now Governor of New York. He sup- ported the contention of the White-Smith Publishing Company in both those courts by pointing out that the copyright statutes of the United States allow copyrights to cover "musical compositions," as they expressly do in sections 4952 and 4956 of the Revised Statutes as those sections were amended March 3, 1891, and in section 4963 of the Revised Statutes, as that section was amend- ed March 3, 1897, and in section 4965, as amended March 2, 1895, and in section 4966, as amended January 6, 1897. And Mr. Hughes also pointed out that the last of those sections undeniably uses the phrase "musical composi- tions" to signify music sounding in the air, and he ar- gued with much force that the same phrase has that same meaning wherever it occurs in the other sections relevant to copyrights, and that therefore it constituted an infringement of the copyrights on the musical compo- sitions which are involved in these cases, to sell sheets of perforated paper which were adapted for use in auto- matic niusical instruments to sound out upon the air the particular musical compositions covered by the complain- ant's copyrights. Fourteenth. — There is no logical and conclusive re- ply which can be made to the above stated arguments of Mr. Hughes, except the reply which is based upon the constitutional limitation of copyrights to '.'writings"; and therefore the decision of these cases by this court involves the construction and application of the Con- stitution of the United States. Fifteenth. — Inasmuch as each of these cases involves the construction or application of the Constitution of the United States; both of these cases are within the appellate jurisdiction of this court under section 5. of the Judiciary Act of 1891, regardless of the amount of money directly involved in the£.e cases respectively. Sixteenth. — The amount of money which is really in- volved in the decision of these cases by this court must be many millions of dollars ; for a decision of these cases in favor of the appellant, would operate to confer upon the Aeolian Company a practical monopoly throughout the United States for many years of the business of making and selling automatic musical instruments op- 'erated by perforated sheets of paper as valve mechan- isms therein. h Seventeenth. — ^The Committees on Patents of the two houses of Congress, have long been engaged in studying the copyright laws of the United States, with a view to the enactment by Congress of a revised and consolidated Copyright Act to cover that department of the laws of the United States. After many months devoted to the consideration of the whole subject, the House Commit- tee on Patents on January 30, 1907, submitted to the House of Eepresentatives a report of eighteen printed pages, which was report No. 7083 of the second session of the Fifty-ninth Congress. That report stated that "A case involving the right to reproduce by mechanical means any copyrighted musical composition, is pending before the Supreme Court of the United States and your Committee felt that further legislation regarding this matter should be postponed until we can know what con- struction the court will give to the existing law." In- asmuch as the numerous arguments which had been sub- mitted during eight days of hearings to the Committee relevant to the "existing law" of this subject, had been confined to the existing constitutional law and had not included any discussion of the existing statutory law, this statement of the Committee amounted to recom- mending the House to take no action on this subject until the Supreme Court should have decided the constitu- tional question which is involved, in these cases, for the cases to which the Committee thus alluded were these two cases of the White-Smith Music Publishing Com- pany V. The Appolo Company. Eighteenth. — Though the fact that Congress is await- ing a decision of the Supreme Court upon a question of constitutional limitations before deciding what statutes to enact on the subject to which that constitutional limi- tation refers, is not alone sufficient to cause this court to: decide the constitutional question involved; it does ap- pear to be legitimate to call the attention of the Supreme Court to that fact as indicative of the great practical im- portance of the Constitutional question, when as now, that question is involved in a litigated case pending in the Supreme Court. Wherefore your petitioner again prays, as it has al- ready prayed, for permission to file a brief and also to present an oral argument on the side of the appellee in the above entitled cases ; and your petitioner again prays for such other relief as to the court may appear to be proper. CoNNOEizED Music Company, by Albert H. Walker, its Counsel. State of New York,, ^^ , '}' County of New York AiiBEET H. WaiiKeb, being duly sworn, deposes and says that he is attorney of the petitioner, the Connor- ized Music Company, and that he personally prepared the foregoing petition and knows the contents thereof; and that all the statements in said petition are accurately true according to the best and utmost of his information, knowledge and belief, which information was carefully acquired, and which knowledge is mainly of record, and is all thoroughly familiar, and which belief is founded on convincing evidence. Albert H. Walkeb. Subscribed and sworn to by Albert H. Walker before me this eleventh day of October, nineteen hundred and seven. Leon Laski, SEAL Notary Public, New York Co. CHAPTER I. The Origin and Development of the Idea of Copybight, Pmoe to 1787. Diligent searches, made during the last two centuries, have resulted in ascertaining when and by whom the idea of copyright was first so seriously entertained as to be expressed in any writing which has come down to our own times. The discoverer of that historic event was James Russell Lowell, and he discovered it in one of the prose writings of John Milton. That book was by him named the "Eikonoklastes". It was written in 1649, and published in October of that year, in reply to the "Eikon BasUike" which had been composed earlier in the same year by Dr. Gaudan, a clergyman of the Church of England, and published and palmed off as an authen- tic copy of papers written by King Charles I. not long before his execution in January, 1649. The book "Eikon Basilike" immediately made a profound impression upon the people of England and Scotland, because it pur- ported and appeared to portray, in his own language, many noble and pathetic meditations of the King, in the prospect of his forthcoming execution. To counter- act, that impression, Milton was employed on behalf of Cromwell, to write a book in reply to the "Eikon Basilike" and he did thereupon compose and publish the "Eikonoklastes". It was in that seldom explored book of several hundred pages, that Lowell found the state- ment that "Every author should have the property of his work reserved to him after his death, as well as liv- ing" and he published the fact of that discovery in his introduction to Milton's Areopagitica. This statement of Milton's opinion is taken as the earliest statement which has come down to us, of the idea of copyright; because the printed arguments of counsel, and the printed opinions of judges, and the printed writ- ings of authors in Europe and America, during the last two centuries have failed to disclose any statement of earlier date, to the effect that authors had or should have any exclusive right, to publish their works during their lives, or to transmit any such right to others when de- parting. The only earlier writing which has been thought to express any such idea, is to be found in another of the prose works of John Milton, namely his " Areopagitica " which was once called his speech for unlicensed printing, but which is more accurately named his essay in favor of liberty for the press. That essay was written in 1644, in criticism of the order of Parliament of June 14, 1643, which order subjected all printing to censorship in the future by Parliament, as all printing had been subjected for nearly a hundred years in the past by the Crown. The passage on this subject in the "Areopagitica" in which the idea of copyright has been thought by some persons to be discoverable, is as follows : ' ' Some of the patentees and monopolizers in the trade of book selling, who under the pretense of the poor in their company, not to be defrauded, and the just retain- ing of each man his several copy (which G-od forbid should be gainsaid) brought divers glosing colours to the House, which were indeed but colours, and serving to no end except to exercise a superiority over their neighbors." Some persons have thought they found the idea of copyright in that part of this prose of Milton, wherein he speaks of the "just retaining of each man his several copy" and wherein he expresses the pious wish that God should forbid such "just retaining" to be "gainsaid". But when this passage is compared with the parliamen- tary order of June 14, 1643, which it criticised, it will be found that the words "each man" did not refer to any author, but only to such individual members of the Company of Stationers as were in possession of "copy" suitable for printing and publication. Thus it appears that the ideas of John Milton, upon the subject of printing and publishing, had advanced no further in 1644, than that any man who was in lawful possession of "copy" suitable for a printer to put into type, should be permitted to print and publish that pro- duction without any censorship, subject only to legal re- sponsibility for any injury which the publication might cause. But it also appears that in 1649, his ideas had accumulated the additional element that "Every author should have the property of his work reserved to him after his death, as well as living." Although Milton's "Areopagitica" of 1644, and his " Eikonoklastes " of 1649, are seldom examined now, those two writings are entitled to permanent fame, because the "Areopagitica" was the first in modern times to advocate liberty for the press, and because the "Eikonoklastes" was the first in any times, to suggest the idea of authors * copyright. Much of the literature and many of the laws of ancient Chaldea, Egypt, China, Japan, India, Persia, Judea, Greece, Alexandria and Rome, have been transmitted to modern times, and are known to living scholars ; but not a single piece of that transmitted literature, nor one of those transmitted laws, contains any evidence that the idea of copyright was ever conceived by any ancient author or lawgiver, or occurred to anybody anywhere in ancient times. The first literature that was ever extensively copied and put on regular sale was the Egyptian book entitled the "Manifestation of the Light", but which afterward came to be known as the "Book of the Dead". Many thousand copies of that book were made and sold in Egypt during many centuries before the Christian era, by hundreds of different scribes, none of whom were sub- jected to any censorship or any copyright. The poems of Homer are believed to have been com- posed about nine hundred years before the Christian era, and they were compiled and reduced to writing about 550 B. C. ; but the idea that their compilers or anybody else, were entitled to any exclusive right to make and sell copies of those poems apparently di^ not occur to any- one. And though Homer did not reduce his works to writing, as Socrates did not, most of the other authors and orators of Greece did so, and many of them caused copies of their writings to be multiplied for distribution among their own contemporaries. Among these was Aristotle, the greatest scientist of the ancient world ; and among these also was Demosthenes, the greatest Greek orator, who not only wrote out his orations himself, but himself made copies of those orations for distribution among those who were not present at their delivery. Eome, during the age of Julius Caesar, and also dur- ing the Augustan age, was so devoted to literature that publishers and book-sellers were numerous and prosper- ous. The conunentaries of Caesar and the orations of Cicero, having been written out by them, were promptly copied in large numbers and sold and published in many cities, throughout the Eoman Empire. Indeed, the busi- ness of making and selling copies of contemporary writ- ings, was so extensive that the editions of numerous works which were written in the Julian and the Augustan ages, averaged at least five hundred copies each, and sometimes reached a thousand copies or more. The low- est of^ those numbers was at least equal to the sales of the first complete edition of the plays of Shakespeare; though that edition was printed with type, instead of be- ing written by hand, as was every copy of any writing published in ancient Rome. But none of those writings which have come down to us, nor any of the Eoman laws, which in the sixth century of the Christian era were com- piled under the Emperor Justinian, contains any sugges- tion of any custom or law of copyright. The capitol of the Roman Empire was removed from Rome to Constantinople in the fourth century; and though but little original literature was produced there, before the time of Justinian, the nine hundred years that intervened between the reign of Justinian, and the con- quest of Constantinople by the Turks, were centuries of considerable literary production, in fields of thought which though not now interesting to mankind, were then supposed to be of transcendant importance. Neverthe- less, that long history of law and letters in the Eastern Empire is as devoid as was the history of ancient Rome, of all suggestion of any law or custom of copyright. So also, in Western Europe, throughout the thousand years of the Middle Ages, ending with the invention of the art of printing in the middle of the fifteenth century, many men devoted their lives to the production of orig- inal writings, or to the copying, with pens, the writings 6 of other men; but all of those writings and copies which have come down to us, are destitute of any suggestion that anybody ever claimed or even thought that any author had or should have any exclusive right to make or sell copies of any composition. The two hundred years which passed between the in- vention of the art of printing in the middle of the fif- teenth century, and the publication of Milton's "Eikon- oklastes" in the middle of the seventeenth century, in- cluded the Elizabethan age; and literature, during that age, reached higher elevations than ever before, or ever since. The great writers of that time were Edmund Spenser, Christopher Marlowe, William Shakespeare and Francis Bacon; while many other stars also shone in the literary heavens, which might have been thought to be stars of the first magnitude if they had not been out- shone by that great quartett of writers. The Elizabethan authors took more comprehensive views of life and law than can be found set down elsewhere on any pages not more numerous, but it never occurred to any of them that any author was entitled to a natural right, or a common law right, to prohibit other persons from making, pub- lishing or selling copies of his writings ; or if any such idea did occur to any of them, he did not write it down and transmit it to us. The life of Shakespeare, alone, and what he did and did not do relevant to his writings, are sources from which a complete refutation of the hypothesis of the ex- istence of any custom or law of copyright in his time, can be completely drawn. For though he was a , decidedly acquisative and provident business man, he appears to have allowed anybody to make and sell and publish cop- ies of his printed or unprinted productions, without any attempt to prevent such doings, by an injunction in equity, or to collect damages therefor by an action at law. The first writing of Shakespeare to be printed was "Venus and Adonis", which poem was first printed in April 1593, by Eichard Field, a printer in London, who himself obtained a license from the Stationers Company for its production, simply because he was in possession of the manuscript. The only, but the sufficient evidence that Shakespeare consented to that publication, resides in the fact that though his name did not appear upon the title page, he did write and sign a dedication of the poem to the Earl of Southampton, and gave that dedication to Field, to prefix to the printed poem itself. At that time, Shakespeare was only twenty-nine, and unknown to fame, but the literary merits of "Venus and Adonis" were im- mediately recognized by the critics and by the public of London; and printers and publishers so promptly used their resources to satisfy the demand of eager purchas- ers, that six additional editions were, by several of them, printed and published within the next nine years, and whUe Shakespeare was still living ta London, to com- plain and to restrain, if he had had any legal ground for restraint or even for complaint. The next Shakesperian writing to be printed was printed by Field in May 1594, under the title of "A Booke intitled the Kavyshment of Lucrece." And this book soon became so popular that three more editions of it were published while Shakespeare continued to live in London. He did not, during his lifetime publish any of his sonnets, but they were all published seven years be- fore his death by Thorpe, apparently without his consent being asked, or being thought necessary. 8 Sixteen of Shakespeare's plays were printed and pub- lished in his lifetime without any apparent authority from him. And of these, Richard III was published in five separate editions, as also was the first part of Henry IV. Four editions were likewise published, before Shakespeare 's death, of Richard II, and the same number of Hamlet, and the same number of Romeo and Juliet; while Henry V, and Pericles, were each published in three editions; and King Lear, Midsummer Night's Dream, Merchant of Venice, and Troilus and Cressida were each published in two editions ; and the second part of Henry IV, Love 's Labors Lost, Much Ado about Noth- ing, Titus Andronicus and Merry Wives of Windsor, were each published in one edition. Thus forty-one edi- tions of some of Shakespeare's plays, and nine editions of some of his poems, were published in his lifetime, with- out any authority from him, being apparently had or asked. And when he died in 1616, he left in manuscript to mankind, such stupendous tragedies as Julius Caesar, Coriolanus, Antony and Cleopatra, Macbeth and Othel- lo ; and such great histories as King John, Henry VI, and Henry VIII, and such beautiful comedies as As You Like It, Twelfth Night, Winter's Tale, Cymbeline and The Tempest, and such minor but still valuable plays as The Two Gentlemen of Verona, Measure for Measure, Com- edy of Errors, Taming of the Shrew, and All's Well that Ends Well. The plays of Shakespeare prove that their author was remarkably well informed in the laws of England; and the fact that nearly half of his plays were published in his lifetime without his authority, and without ap- parent complaint from him, and the fact that he did not, in his will, mention any copyright in those plays, or any 9 right of action for infringement of any such copyright, and did not include in the property devised by his will, any copyright in those numerous plays of his which were still unpublished, are facts which abundantly establish the proposition that no copyright law existed in Eng- land during the literary lifetime of Shakespeare. And the same absence of any copyright law also ap- pears to have continued at least as late as the year 1649 ; because when Milton wrote his " Eikonoklastes " he said that "Every author should have the property of his work reserved to him after his death, as well as living"; for that statement implies that no author at that time did have any such right, but only that Milton thought he should. Though Milton in 1644, had written and published his "Areopagitica," in favor of liberty for the press, he did not live to see the press freed from such censorship and restraint as was then in force, and had been in force all the time since during the reign of Queen Mary, near- ly a hundred years before. For that censorship and re- straint continued in England long after Milton's death, and until the statutory expiration of the last Licensing Act, in 1694. And though Milton said in his "Eikonoklastes" in 1649, that "Every author should have the property of his work reserved to him after his death as well as liv- ing"; neither result was ever produced by any law of England, until both were conditionally provided for by an act of Parliament which received the sanction of Queen Anne in the eighth year of her reign, and which went into force in 1710, and which is known in the copy- right law, as the Statute of Anne. 10 During the sixteen years which intervened between the expiration of the last Licensing Act in 1694, and the taking effect of the Statute of Anne, printing and pub- livshing in England was free from censorship and re- straint under the authority of the Crown, which it had not before been during nearly a century and a half since its original restraint in the reign of Queen Mary. And during those sixteen years, printing and publishing was free from subjection to any copyright law in favor of any author, as it had always been in England, as truly as elsewhere throughout the world. The foregoing history proves that there never was any copyright law in. England, prior to the Statute of Anne. It is true that this important statement is con- trary to the decision of the Court of King's Bench, which was rendered in 1769, in the case of Millar v. Taylor, which was the first case in which the question of the pres- ence or absence of any common law copyright was ever litigated. But it is also true that that decision was con- "trary to the most learned and able opinion which was rendered by any of the four judges who constituted that court when that case was decided; and that it was con- trary to the opinion of the Lord Chancellor of England, and of the Chief Justice of the Court of Common Pleas, and of three other English justices, and of ex-Lord Chancellor Camden, and several other lords of parlia- ment, all of whom controverted the views of the three majority judges in Millar v. Taylor, when the same question came on to be decided by the House of Lords five years later. And it is also true that the opinion of the three judges in Millar v. Taylor was contrary to the historic fact, as that fact has been disclosed to modern 11 scholarship. Moreover there is some circumstantial evidence which tends to show that that opinion was even relinquished by Lord Mansfield himself (who was one of the three majority judges in Millar v. Taylor) when he came to hear the arguments to the contrary, which were presented to the House of Lords in the case of Donald- son V. Beckett in 1774. The case of Mildae, v. Taylor was first reported by James Burrow in April, 1773, in a book devoted entirely to that case and entitled "The Question Concerning Lit- erary Property, Determined by the Court of King's Bench on 20th April, 1769, in the Case between Andrew Millar and Robert Taylor, with the Separate Opinions of the four Judges, and the Reasons Given by Each in Support of his Opinion." This book was printed in London in 1773, by W. Strahan and M. Woodfall. The preface of the book was signed by James Burrow in 1773, and stated that the "detached piece" (which con- tains 127 folio pages) is a "Report of the Case of Lit- erary Property" of which another report by the same man is to form a part of the fourth Volume of his regu- lar reports of Cases in the King's Bench, since Lord Mansfield's coming to preside in that Court." The fourth volume of Burrow's regular reports was printed twenty years later, and has since been generally cited as if it were the true source of information in the case of Millar v. Taylor. But his first and elaborate re- port of 127 folio pages, is superior to his report in the fourth volume of his regular reports. At the time Millar v. Taylor was decided. Lord Mans- field had been Chief Justice of the Court of King's Bench for thirteen years, having been elevated to that place in 1756, at the same time that he was made a mem- 12 ber of the House of Lords, by being elevated to the peer- age, as Baron Mansfield. The other judges who sat in the case of Millar v. Taylor, were Justices Yates, As- ton and Willes. All four of these judges rendered elab- orate opinions upon the question involved in the case. Justice Willes, who delivered the first opinion, formulated that question as being "Whether the Copy of a Book or literary Composition belongs to the Author by the Common Law" ; and he defined the phrase, "Copy of a Book" to signify the sole right of printing, publishing and selling, and thus gave that phrase the same definition which is now ascribed to the word copy- right. Justice Willes voted in favor of the proposition that what he called the "copy", and what we call the copyright, of a book or literary composition, did belong to the author by the common law of England. He sup- ported that vote by an elaborate argument in two essen- tial parts. One of those parts was based upon some rec- ords, which Justice Willes understood to refer to the his- tory of the law of England, during the preceding two hundred years. The other part was based upon what Justice Willes understood to be the natural law of right and justice. But although Justice Willes held that either, and particularly both, of these arguments sup- ported the proposition that according to the common law, an author of a book or literary composition had the sole right of printing, publishing and selling copies thereof, he also said that "All the knowledge which can be ac- quired from the contents of a book is free to every man's use". Justice Aston also rendered an elaborate opinion agreeing with Justice Willes, particularly upon the prop- osition that authors were entitled to copyrights according 13 to natural law and justice. And he also agreed with Jus- tice Willes in limiting copyright to printing, publishing and selling copies of books and literary compositions, as distinguished from other methods, of conveying ideas or sentiments; for he said that "It is when sentiments are communicated to sight and understanding by print- ing, that a Work becomes property. ' ' Justice Yates elaborately controverted the opinions of Justices Willes and Aston in both their divisions; for he elaborately contended that there was no evidence whatever to be collected from the literary and legal his- tory of England, in support of the hypothesis of any common law copyright ; and he also said that that theory was inconsistent with some of the recognized principles of the common law on other subjects, and that it was inconsistent with the law of natural right and justice. On the latter point, Justice Yates presented many argu- ments in the negative, some of which he expressed as fol- lows ^ "All property has its proper limits, extents and bounds. " "A tangible thing is capable of exclusive pos- session and therefore of exclusive property, but this is not true of any idea. " "To give one man the exclusive right to express a particular idea is unnatural, for another man may happen to conceive the same idea, and should be permitted to express it if he does." "That every man is entitled to the fruits of his labor I readily admit. But he can only be entitled to this according to the fixed order of things, and subject to the general -rights of mankind, and the general rights of property. ' ' "He must not expect that these fruits shall be eternal; that he is to monopolize them to infinity; that their in- crease shall be confined to himself alone and never revert 14 to the common mass. In that case the injustice would lie on the side of the monopolist, who would thus exclude mankind from enjoying their natural and social rights." The drift of the argument of Justice Yates was to the effect that natural property inheres only in things which can be kept in exclusive possession, which is not true of ideas ; and that artificial property inr ideas, can be sup- ported by legislation only, and ought not to be unlimited in time. Lord Chief Justice Mansfield closed the consideration of the case of Millar v. Taylor by endorsing the opinions of Justices Willes and Aston, and by adding some state- ments of his own to support their conclusion, which con- clusion was, by his adherence, made the decision of the Court. The most imporant of those added statements of Lord Mansfield were two in number. The first of these was his statement that the word "Copy" had been used for ages to signify "the incor- poreal right to the sole printing and publishing of some- what intellectual, communicated by letters. ' ' But Lord Mansfield did not in his opinion in Millar v. Taylor, or at any other time, establish any historicity for that state- ment. Indeed, it is difficult to say how he could have made the statement at all, in view of the fact that he had just heard Justice Yates elaborately show the contrary to be true, in the history of England, and in view of the fact that he said nothing cogent to overthrow the argu- ment of Yates upon that historical point ; and in view of the fact that his opinion is destitute of any evidence that he had made any investigation in the law or literature of any other country, for the purpose of ascertaining the usage of ages relevant to the subject which he was dis- cussing. 15 The other important statement of Lord Mansfield was to the effect that during many years at the Bar, prior to his elevation to the bench, he had advised many clients that there was common law copyright in England. In- deed, he had committed himself to that view thirty years before, in the case of Tonson v. Walker, which was a bill in equity filed in 1739, and in which Lord Chancellor Hardwicke had granted a preliminary injunction in pur- suance of a default, and without any adjudication ; though he made a memorandum of doubt as to the existence of any common law copyright, and never did, during his life, give any judicial adherence to that theory. In our times, judges are generally inclined to absent themselves from the bench, and leave decisions entirely to their colleagues, when great questions are argued, be- fore courts sitting in banc, which they have formerly argued at the Bar ; but Lord Mansfield did not couple his statement that he had travelled with the question for many years at the Bar, with any indication that he felt any delicacy in taking part in the decision of the question on the Bench. However, that fact did not legally dis- qualify him from being one of the majority of the court in the case of Millar v. Taylor; and that majority did de- cide that the common law of England contained a rule to the effect that the author of a book or other literary com- position always had and still possessed a permanent, ex- clusive right to print, publish and sell copies of that book or composition. The case of Millar v. Taylor and the decision of the court of King's Bench therein, have been the subject of much consideration by authors, lawyers and judges in England and in the United States, from time to time, dur- 16 ing a century and a third. But those lawyers, authors and judges have nearly or quite all of them overlooked another decision of a still higher court of another Eng- lish speaking country, and which decision was contrary to that in Millar v. Taylor, and was much better sup- ported by numbers and weights of opinions, and also by learning and by logic. I am now mentioning and shall next explain the decision of the Court of Sessions of Scotland upon the question of literary property, in the cause of John Hinton of London, book-seller, v. Alex- ander Donaldson and others, book-sellers of Edinburgh. The Coukt of Sessions was the highest court in Scot- land in 1773, and this case of Hinton v. Donaldson was argued before a bench of thirteen judges, holding that court in that year. Among the counsel for the defender was James Boswell, Esquire, an advocate of Edinburgh, who afterward achieved permanent literary fame as the author of the life of Samuel Johnson. Boswell not only made one of six arguments which the judges praised highly, but healso published a report of the case, includ- ing copies of the written opinions of all of the judges who delivered written opinions, and who included all but two or three of those who heard the case. That report of Boswell was printed in Edinburgh in 1774, under his direction. The arguments in this case of Hinton v. Donaldson were made by three advocates on each side, and lasted four days, beginning July 20, 1773. On July 27, the court sat to announce its decision, and on that occasion ten of the thirteen judges who occupied the bench deliv- ered carefully prepared written opinions, in the following order, and to the following effect: 17 Lord Kennet took and elaborately maintained the ground that literary property is not in the law of nature, saying among other things that ' ' The law of nature is not founded on metaphysical arguments and to he deduced from long abstruse and abstract reasonings"; but that on the contrary "It must be obvious to mankind, at least as soon as it is proposed." He also took the ground that literary property was never in the law of Scotland, except in the Statute of Anne ; which statute, having been enacted two years after the union of England and Scot- land into the Kingdom of Great Britain, was in force in both those parts of that United Kingdom. On this point, Lord Kennet said "Copyright was never mentioned by any writer on the law of Scotland, except by Lord Bank- ton when treating of the Statute of Anne. ' ' And he also said that all Scotch lawyers who were also authors, had shown that they had no belief in any common law copy- right in Scotland, by taking out letters patent from th^ Crown to cover the printing of their respective works. Having analytically reviewed the law of nature, and historically reviewed the law of Scotland, Lord Kennet concluded by announcing his opinion to be, that there was no foundation for exclusive copyright to be found in either of those sources of jurisprudence. Lord Atjchinleok, in speaking of the question of the presence or absence of any law of copyright, other than the Statute of Anne, said, "This question has never re- ceived a judgment in any court of Europe, except lately in England." Although his Lordship did not mention the case of Milllar v. Taylor by name, that must have been the case to which he alluded, because it was the only case in which such a judgment had then been rendered in Eng- land. Proceeding to argue the question to which he re- ferred, he followed Lord Kennet in taking the ground 18 that copyright is not in the law of nature. He illustrated that point by saying: "If a man throws out a thing in company, whether instructive or entertaining, can he maintain that he has a right of property in his bon mot to him and his heirs forever?" His Lordship appeared to think that this question could reasonably be answered only in the negative. Mark Twain has sometimes advo- cated the view that the law of nature requires the recog- nition and enforcement of permanent copyright in lit- erary productions; and as his literary productions con- sist partly in bon mots, it appears that he would answer the question of Lord Auchinleck in the affirmative, and thus confine to himself and his heirs forever, the exclusive right to repeat all Mark Twain jokes. But if his heirs should happen not to inherit his skill in uttering those numerous witty and humorous passages, it would appar- ently be necessary to make the permanent properties therein, assignable, or make them foundations for li- censes, so that humorists in future times could purchase privileges for repeating to future generations some or all of his copyrighted humor and wit. Having thus disposed of the claim that copyright is founded on the laws of nature, Lord Auchinleck turned attention to the historical view, and said that "Before the art of printing, there was no attempt to assert, the author's property in any book which had been publish- ed", and that "To this day no law anywhere prohibits written copies". And that "If copyright were founded on the common law, it would reach against manuscript copies as well as printed ones, and this demonstrates that there is no common law property in authors". "Nor" (said his Lordship) "does any law forbid oral recitation of any literature; nor in extemporaneous speeches is there any copyright." 19 Lord Hailes in agreeing with the opinion of Lords Kennet and Auchinleck, said that there was' not a vestige of copyright law in Scotland other than the Statute of Anne, and that all Scotch authors have always acted as if they had no copyright. Lord Monbodo explained that Lord Hardwicke (who had granted several preliminary injunctions in unde- fended copyright cases) would give no opinion on the question of the presence or absence of common law copy- right in England; but that he himself held upon that question, the opinion of the majority of the English judges in the case of Millar v. Taylor. Though holding with those judges, that there was a common law copy- right independent of the Statute of Anne, Lord Monbodb said that he would allow every "man who purchased a book to appropriate the ideas to himself, as much as he could. , And his Lordship also said that common law copyright was limited to books,, and did not include pic- tures. Lord Justice, Clerk, said that no vestige of any law of copyright is to be found in the ancient world, and tha,t no trace of such a law even yet existed in any nation except England, and that neither Homer, or Virgil, Chaucer, or Spenser had any idea that they and their heirs and assigns had any exclusive right to copy their works. Turning from the consideration of the laws of other nations to those of Scotland, Lord Justice Clerk said that "The sources of the law of Scotland are the statutes, the Boman law, the ancient customs of Scotland, the doctrines of the Scotch lawyers, and the decisions of this court". And he found all these sources of law to be destitute of any law of copyright, other than the Statute of Anne. 20 Lord Kames, in giving his reasons for denying the ex- istence of any common law copyright in Scotland, said that "Before printing was invented, manuscripts might be multiplied at pleasure"; and having thus supported the non-existence of copright by immemorial custom, he took the ground that such a law would be contrary to social justice; on this point inquiring, "Why was man made a social being, but to benefit by society and to par- take of all the improvements of society in its progress toward perfection." Lord Gaedenstone, speaking of the arguments which had been presented by the six advocates, said, " I do not believe that this question has been debated with greater ability, than by the Scotch Bar". Proceeding to discuss the question, he said, "I admit into our common law, every principle of justice which have been allowed and received as principles of justice by other civilized na- tions", and that "It is admitted that there is no founda- tion for copyright in the civil law", (meaning the law of Rome) and that "For above three hundred years, and ever since the invention of printing, all the nations and states of Europe have, by their practice, established the nature of an author's right. They have all concurred in granting no more than a temporary privilege". When perhaps alluding to the opinion of Lord Mansfield in the case of Millar v. Taylor, in favor of the theory of per- manent common law copyright in England, Lord Garden- stone said, "The splendid error of one great man may mislead many; but I cannot easily be induced to think that the concurring sense and practice of nations is erro- neous." On the question involved in the case. Lord Gardenstone said, "I am of the opinion that it would be neither just nor expedient to allow property by common law to authors, in their works after publication". 21 Lord CoALstoN said that he regarded the monopolis- tic consequences of common law copyright as very im- portant ajid that ' ' Common law copyright is acknowledg- ed in no country except England, and even there, only in one case by a divided court, and even there the ques- tion is now pending in another case on appeal". In ex- pressing his conclusion of the absence of common law copyright in Scotland, Lord Coalston based his opinion not only on historical grounds, but also upon his view that there is no natural property in ideas, and that where a book is sold without condition, the purchaser has as much right to copy it as he has to lend it. Lord Alva, in expressing his concurrence with the opinion of- the absence of common law copyright, said that, "Copyright law is a creature of civilized society and refined policy, and will go no further than is ex- pressly established by custom or statute". His Lord- ship added that he did not envy any country where either common law or statute law might carry copyright law further than it was carried by the Statute of Anne, in the United Kingdom of Great Britain. The Lord Pb.esident of the court concluded the dis- cussion of the case by saying that he found no common law copyright in Scotland. The question of the presence or absence of such a law in that country, being submitted by the Lord President to the votes of his twelve associates, eleven of them voted that no common law copyright was known to the laws of Scotland. The great case of Donaldson v. Beckett was argued before the House of Lords, and decided by that tribunal in February 1774. That case in that court was an ap- peal from an injunction which had been decreed by Lord 22 Chancellor Apsley to enforce an alleged common, law copyright, in the case of Beckett v. Donaldson in the high Court of Chancery ; which injunction had been, issued in deference to the decision of the Court of King's Bench in Millar v. Taylor. The proceedings in the House of Lords in the case of Donaldson v. Beckett, and the decision of that case by that tribunal, were undoubtedly well known and correctly understood by the lawyers and statesmen of the eigh- teenth century. But some of the authors and lawyers who undertook to expound that case in the nineteenth century, were much mistaken in their expositions, partly because they were misled by that iaferior report of the case which they examined, in the fourth volume of Bur- row, and partly because they apparently read that report in the light of the more modem constitution of the House of Lords, instead of in the light of the constitution of the House of Lords, as it existed when Donaldson v. Beckett was decided in 1774. The next few paragraphs of this brief are devoted to an exposition of the case of Donaldson v. Beckett, in the light of the contemporaneous parliamentary record of that case, and of the constitution of the House of Lords as it existed at that time. The best report of the case of Donaldson v. Beckett is contained in Volume 17 of the Parliamentary History of England on pages 953 to 1004 inclusive. That report shows that the hearing of the case began on February 4, 1774, and ended with its decision twenty-two days later. At that time, the House of Lords consisted of two Arch- bishops and twenty-four Bishops, and of many peers of the realm (including dukes, marquises, earls, viscounts and barons), and of sixteen Scotch peers who had been 23 selected by election from among all the body of the Scotch nobility, to represent Scotland in the House of Lords. None of the judges in England were members of the House of Lords, excepting only Lord Mansfield, who was not only a judge, but was also, and independently, a peer. But though no judge had any right, as such, to take any part in any proceedings in the House of Lords, it had been customary for five centuries, beginning in the reign of Edward I, to summon judges of the common law courts to attend the House of Lords, from time to time, in an advisory capacity, whenever the Lords thought they heeded the assistance of official persons learned in the law, to draft bills to be considered by Parliament, or to render opinions upon legal or constitutional questions. Stubbs' Constitutional History of England, Vol. Ill, Section 754. In pursuance of this historic custom, all the twelve judges of the three common law courts were summoned to attend the House of Lords in the case of Donaldson V. Beckett, and to hear the arguments of counsel in that case, and afterward to deliver their own opinions upon the questions argued, so as to enable the Lords of Parlia- ment to decide that question, not only in the light of the arguments of counsel, but also in the light of the advisory opinions of the judges. The twelve judges who attended in pursuance of that summons were Lord Mansfield, then Chief Justice of the Court of King's Bench; Lord Chief Justice DeGrrey of the Court of Common Pleas; Lord Chief Baron Smythe, of the common law division of the Court of Exchequer, and the three associate justices of each of those courts. The associate justices of the Court of King's Bench in- cluded Justice Blackstone, who had been raised to that 24 Bench from the Bar since the decision of the case of Millar v. Taylor,' in place of Justice Yates, who had died in the meantime ; Blackstone having been one of the coun- sel for the plaintiff in that case. The senior counsel for the parties in the case of Don- aldson V. Beckett were Attorney General Thurlow for the appellant, and Solicitor General Wedderburn for the ap- pellee; both of whom were afterward successively Lord Chancellors of England. Mr. Thuklow in his opening argument, took the ground that there can be no natural literary property, be- cause it would be purely incorporeal, and that the history of printed publications in England negatived the exist- ence of any common law copyright in that country. Mk. Weddekbukn in answering Mr. Thurlow 's open- ing argument, claimed that literary property, though in- corporeal, was analogous to advowsons, remainders and reversions, which were also incorporeal, and nevertheless were property. And he also claimed that a common law copyright was inferable from the fact that James I once granted a license to print his own poems, which license implied a royal opinion that the author had a copyright on those poems. Mr. Thurlow in his reply, said among other things, that the alleged common law literary property was not comparable to advowsons, remainders or reversions, be- cause they, though themselves incorporeal, were based on corporeal things; and that all natural property must be either corporeal itself, or derive its existence from something of a corporeal nature, which was not true of the alleged common law copyright. And he held that the license granted by James I, was granted as a king controlling a censorship, and not as an author controll- ing a copyright. 25 Counsel on both sides having been heard, five ques- tions in writing were formulated and agreed to by the Lords and put to the twelve judges present. There- upon the House adjourned for six days in order to give the judges time to prepare their answers to those ques- tions. The first three questions were formulated by the Lord Chancellor, who was presiding over the House ; but the last two were formulated by Lord Camden, as ex- pressing more precisely the exact questions which were before the House for decision. These two questions were as follows: "IV. — ^Whether the author of any literary composi- tion, and his assigns, had the sole right of printing and publishing the same, in perpetuity, by the common law?" V. — Whether this right is in any way impeached, re- strained or taken away by the Statute of 8th Anne?" When the House of Lords assembled to hear the an- swers of the twelve judges to the propounded questions, eleven of those judges delivered their answers in due order. Seven of those eleven answered question IV in the affirmative, and four answered it in the negative; while six answered question V, in the afiirmative, and five in the negative. It was question IV, that involved the existence or non- existence of permanent common law copyright in Eng- land, prior to the Statute of Anne. The seven judges who informed the House of Lords that in their opinion such a common law copyright existed in the law of Eng- land were Justices Nares, Ashhurst, Blackstone, Willes, Aston and Gould and Lord Chief Baron Smythe. The four judges who informed the House of Lords that in their opinion no such common law copyright existed in the laws of England^ were Baron Eyre, Baron Perrott, Baron Adams and Lord Chief Justice De Grey. 26 The report of the case in the Parliamentary History of England says nothing at this point about Lord Mans- field, except that "Lord Mansfield declined speaking as a judge". This entry was made by the reporter at the conclusion of his report of the opinions of the eleven judges who rendered opinions, and before his report of any of the speeches of the four peers who delivered speeches upon the question before the House. And it being improbable that the reporter ventured to write down the entry in any other language than that used by Lord Mansfield himself; the entry indicates that after all the judges had spoken, Lord Mansfield being the senior judge present, rose and said that he declined to speak as a judge, and thus implied that he might be expected to speak as a peer. Thereupon the questions, upon which the eleven judges had rendered their advisory opinions, were taken up for discussion and decision by the House of Lords itself. LoED Camden, who had formerly been Chief Justice of the Court of Common Pleas, and afterward Lord Chancellor, but who did not then occupy any judicial po- sition, took the floor and delivered the first of the speeches which were delivered by those of the Lords pres- ent who addressed the House, before the House voted whether to affirm or reverse the decree of the court below. At this time Lord Camden and Lord Mansfield were generally recognized as the most learned jurists and most eloquent forensic orators in England. Lord Mansfield, under his family name of William Murray, and Lord Camden under his family name of Charles Pratt, were preeminent members of the English Bar, until Murray was made Chief Justice of the Court of Kings Bench, and raised to the peerage as Baron Mansfield, at the age of 27 52 in 1756, and until Pratt was made Chief Justice of the Court of Conunon Pleas, at the age of forty-eight in 1762. Pratt continued to be Chief Justice of that Court until 1765, when he was raised to the peerage as Earl Camden, and still longer till he was made Lord Chan- cellor, in 1766. His learning as a lawyer is indicated by the fact that only one of the decrees which he rendered during the years in which he conducted the high Court ' of Chancery, was reversed on appeal to the House of Lords, and one of his successors, Lord Eldon, afterward said that Lord Camden's decision was right also in that case. When Lord Camden entered the House of Lords in 1765, Lord Mansfield had been sitting there for nine years, and had wielded undisputed supremacy there, since the death of Lord Hardwicke in 1764 ; but he dread- ed the contest for supremacy which he foresaw froin the coming of Lord Camden. It was this great man who took the floor as a peer immediately after Lord Mansfield had declined to speak as a judge in the case of Donaldson V. Beckett ; and thereupon he proceeded to deliver to the Lords an elaborate, learned and eloquent argument against the theory of the existence of any common law copyright in England, at any time in the history of that country. The following points are among those which Lord Camden made in his speech. Printing was free for the first fifty years after its introduction into England, in the latter part of the fif- teenth century. Thereupon for the next hundred years, and until the time of the commonwealth, printing was ex- clusively subject to the Crown through the Stationer's Company, which paid no attention to any rights of authors, but only to the physical possessions of manu- 28 scripts. Never prior to the Statute of Anne, which went into effect in 1710, was any action brought in any Eng- lish court for infringement of any copyright, nor any claim made in any form of legal proceeding, that any copyright law existed on behalf of any author. After showing the historic absence of authors' copy- right, from the laws of England prior to the Statute of Anne, Lord Camden proceeded to argue that the idea of permanent copyright is contrary to natural law, deliver- ing, among others, the following sentences: "They forget their creator as well as their fellow creatures, who wish to monopolize his noblest gifts and greatest benefits." "Why do we enter into society at all, but to enlighten one another's minds and improve our faculties, for the com- mon wellfare of the species?" "Those great men, those favored mortals, those sublime spirits, who share that ray of divinity which we call genius, are entrusted by Providence with the delegated power of imparting to their fellow creatures that instruction which heaven meant for universal benefit. They must not be niggards to the world, or hoard for themselves the common stock." When Lord Camden had finished his speech against the theory of common law copyright in England, it was up to Lord Mansfield to reply to that speech if he could ; for he must have known that no other man present could compete with Lord Camden in either eloquence or learn- ing. But Lord Mansfield, having declined to speak as a judge, now failed to speak as a peer. He allowed the speech of Lord Camden to go substantially unanswered; for only one of the Lords present, and he the youthful and non-professional Lord Lyttleton, said anything in opposition to the speech of Lord Camden. 29 Lord Chancellor Apsley now followed Lord Camden with a speech in which he announced that though he him- self as Lord Chancellor had made the decree in the court below, from which the pending case had been brought by appeal to the House of Lords, he was convinced that the decree was wrong, and therefore favored its reversal. The Bishop of Caelislb and Lord Effingham made speeches in which they contended, as had Lord Camden and the Lord Chancellor, that common law copyright was unknown to the laws of England, and was contrary to the public policy. And still Lord Mansfield had nothing to say in support of that contrary view which he had an- nounced five years before when sitting as Chief Justice in the Court of King's Bench, in the case of Millar v. Taylor. The only entry made by the reporter at this point was simply: "Lord Mansfield did not speak." No other member of the House of Lords, rising to speak after Lord Effingham had finished his argument, the House proceeded to vote upon the question whether the decree of the court below should be affirmed or should be reversed, and thirty-three Lords voted upon that ques- tion. Those who voted to affirm, were the Duke of Northum- berland, the Duke of Portland, the Marquis of Eocking- ham, Earl Carlisle, Earl Fitzwilliam, Viscoimt Dudley, Viscount Torrington,. Lord Bruce, Lord Lyttleton, the Archbishop of Canterbury, and the Bishop of Chester, being eleven Lords in all. Those who voted to reverse the decree, were the Duke of Bolton, the Duke of Eoxburgh, the Earls Abercorn, Denbigh, Gower, Jersey, Loudon, Northingham, Oxford, Eadnor, Eoseberry, Sandwich and Spencer, and Vis- counts Falmouth, Say & Seal, and Weymouth, and Lords 30 Camden, Montague and Eavensworth, and the Bishops of Coventry, Litchfield and St. Asaph, being twenty-two Lords in all. Lord Mansfied having first refused to deliver to the House of Lords any opinion in his capacity as a judge, and having omitted to make any speech in his capacity as a peer, omitted also to vote upon the question of affirm- ing or reversing the decree of the Lord Chancellor in the court below. And that decree was reversed by a two- thirds vote of the House of Lords, which was, as it still is, the highest judicial tribunal known to the laws of Oreat Britain. Some writers have written that the question which the House of Lords decided in this case of Donaldson v. Beckett, was not the question "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", but only the question "Whether this right is in any way restrained, impeached or taken away by the Statute of 8th Anne". It is true that a re- versal of the decree would logically result from deciding the first of those questions in the negative, without de- ciding the last question at all, or would result from de- ciding the last question in the affirmative without decid- ing the other question at all. Therefore the fact that the House of Lords voted, by a vote of twenty-two to eleven, to reverse the decree, does not alone show whether that reversal was based upon a negative decision of the first question, or upon an affirmative decision of the last ques- tion. But there is a strong probability that the twenty- two Lords who voted for reversing the decree, all based their votes upon the negative of the first question; be- cause the negative of the first question was what gov- 31 erned Lord Camden and all the other Lords who made speeches, after the judges' had delivered their advisory opinions. Now, that circumstantial evidence which tends to show that Lord Mansfield, after hearing the arguments of four counsel and the opinions of the eleven judges who deliv- ered opinions, and the speeches of the five Lords who ad- dressed their colleagues in the case of Donaldson v. Beck- ett, became convinced that he had been wrong in the de- cision in which he participated in the case of Millar v. Taylor, is evidence which consists of the following cir- cumstances: 1. The arguments which were made in his hearing by Attorney General Thurlow and his colleague, Sir John Dalrymple, and by Baron Eyrie, Baron Pertott and Baron Adams, and by Lord Chief Justice De Grey, and hj Lord Camden and by Lord Chancellor Apsley and Lord Effingham and by the Bishop of Carlisle, were strong enough to convince anybody, that there never was and never ought to be any common law copyright in England. 2. The persistent silence of Lord Mansfield, and his omission even to vote, cannot be accounted for on any other theory than that he was too honest to adhere to his former opinion, and too proud to acknowledge that it was wrong. Twenty years after this case of Donaldson v. Beckett was decided, James Burrow published the fourth volume of his reports of cases in the Court of King's Bench. In that volume he properly included a report of the case of Millar v. Taylor, and as an unofficial appendix to that report, he printed, under the name of Millar v. Taylor, his report of the case of Donaldson v. Beckett (4 Burrow, 2408 to 2417). That report was during the nineteenth century, almost the only report of that case consulted by American authors, lawyers and judges. But the report 32 of Burrow was so faulty, that it misled everybody who consulted it, except such as knew enough about the con- stitution of the House of Lords in the eighteenth century, and about the history of the case of Donaldson v. Beck- ett to avoid that misleading. In a later part of this brief, an explanation will be made of how and where that re- port of Burrow misled learned counsel in the Supreme Court, and one justice of that tribunal, in the nine- teenth century upon the main significance of the case of Donaldson v. Beckett. But it did not mislead any of the framers or ratifiers of the federal constit»- tion, for it was not printed tillfive years after the estab- lishment of the federal government. This is a proper place in which to comment on one statement in Burrow's report relevant to Lord Mansfield, namely : "It was notorious that Lord Mansfield adhered to his opinion, and therefore concurred with the seven (refer- ring to the seven judges who had given opinions in favor of common law copyright). But it being very unusual (from reasons of delicacy) for a peer to support his own judgment upon an appeal to the House of Lords, he did not speak." This statement of Burrow is disentitled to weight for the following reasons : 1. It was never proper to insert in any law report any statement of the opinion of any judge, in any case where- in he himself expressly declined to say anything what- ever. 2. No such statement was made by the reporter for the regular report in the Parliamentary History of Eng- land. 3.S 3. No such statement was made in that report of the case which was printed in London the same year the case was decided, and which has come down to our times un- der the title of "The Pleadings of Counsel before the House of Lords in the Great Cause, concerning Literary Property, together with the Opinions of the Learned Judges, on the Common Law Copyright of Authors and Booksellers, to which are added the Speeches of the Noble Lords who spoke for and against reversing the decree of the Court of Chancery." 4. The case of Donaldson v. Beckett was not- an ap- peal from any judgment of Lord Mansfield, but was an appeal from a judgment of Lord Chancellor Apsley, in a case between parties who had never been before Lord Mansfield at aU. 5. Lord Mansfield was not too delicate in sentiment to support, in the case of Millar v. Taylor, in the coiurt of King's Bench, a view of the law which he had main- tained for many years at the Bar, on this question of common law copyright; and he could with much less question of delicacy, and indeed none whatever, support in a court of appeal, the same view of a point of law which he had taken in a lower court, in another case be- tween other parties. For these reasons, the statement of Burrow, made twenty years after the case of Donaldson v. Beckett was decided, and long after Lord Mansfield was dead, has no force to negative the circumstantial contemporaneous evidence which tends to show that Lord Mansfield kept silence in that case, for no other reason than that he was convinced of the error of his former opinion, and was too proud to take it back. 34 The London booksellers immediately after their de- feat in Donaldson v. Beckett, induced the House of Com- mons to pass a new Bill for their relief. That Bill was never printed; but "its title indicated that it provided for new terms of copyright on books which had already pass- ed through the terms of copyright prescribed by the Statute of Anne. But the House of Lords rejected this Bill on June 21, 1774, by a vote of 21 to 11; Lord Mans- field not voting either for or against its rejection. LoED Camden made the principal speech in opposi- tion to the Bill, in which he said that its preamble as- serted that prior to the decision in the case of Donaldson r. Beckett, it had been the prevailing opinion that there was a permanent common law copyright in the laws of England. But ,Lord Camden pronounced that state- ment untrue ; for he said that it was within his personal knowledge that nearly all lawyers held the contrary view, ever since he came to the Bar forty years before, and he added his information that the contrary view was also held by all the booksellers in England except those be- longing to the Stationers' Company in London, and also by all the booksellers in Scotland, Ireland and America. This action of the House of Lords, sitting in its leg- islative capacity in June 1774, so emphatically supple- mented its action in February 1774, when sitting in its jadicial capacity in the case of Donaldson v. Beckett, that no attempt was ever again made in the English Parlia- ment nor in any English court, to maintain any conten- tion that the common law of England ever included any copyright, or to induce Parliament to enact any statute which should, even approximately, have the same effect that a permanent common law copyright would have had if it had existed. 35 Now it is in order to turn to those copyright statutes of Great Britain which were enacted prior to the time of the framing of our Federal Constitution. The first of those British copyright statutes is com- monly called the Statute of Anne, and is Chapter XIX of the eighth year of the reign of Queen Anne, and is printed on pages 401, 402 and 403 of Volume IV of the British statutes at large. The principal elements of that statute are the following : First: "On and after April 10, 1710, the Author of any Book or Books already printed, or the Person or Persons who have purchased or acquired the Copy or Copies of said Book or Books, in order to print or reprint the same, shall have the sole right of printing said Book or Books for twenty-one Years from April 10, 1710, and no longer." Second: "The author of any Book or Books already composed, and not printed and published, or that shall hereafter be composed, and his Assignee or Assignees, shall have the sole liberty of printing and reprinting such book for fourteen years from the day of first pub- lishing the same and- no longer : Provided That after the expiration of the said Term of fourteen years, the sole right of printing and reprinting shall return to the au- thor, if then living, for another term of fourteen years. ' ' Third : ' ' Provided that nothing contained in this Act do extend to Books in any foreign language, printed be- yond the Seas." Fourth: The Statute of Anne also provided an elab- orate plan for compelling owners of copyrights to sell the books covered thereby at reasonable prices; which plan authorized divers public functionaries, to fix prices according to their judgments, after which those books 36 must not be sold at any higher prices respectively, under penalty of five pounds for each sale. The next British copyright statute which was in force in 1787, was Chapter XIII of the eighth year of George II. That statute was entitled "An Act for the Encour- agement of the Arts of Designing, Engraving and Etch- ing historical and other Prints by vesting the Properties thereof in the Inventors and Engravers during the Time therein mentioned." This was^ the Engraving Copy- right Act of 1734. This statute provided for copyrights for fourteen years, on printed pictures which might be invented and designed and multiplied by means of engraved, etched or otherwise produced printing plates. But this act did not provide any copyright on any picture made othermse than by printing, and did not cover any printed copy of any prior picture, except in the single case of John Pine, a London engraver, to whom the benefit of the Act was expressly extended, to the extent of covering a set of pic- tures which he proposed to engrave and publish, from several pieces of tapestry in the House of Lords and in His Majesty's Wardrobe; and other drawings relating to the Spanish invasion of the year 1588. The next British copyright Act which was in exist- ence in 1787, was the Engraving Copyright Act of 1766, which was Chapter 38 of the seventh year of George HI. That statute comprised several amendments to the En- graving Copyright Act of 1734. Those amendments ex- tended the benefit of that Act to all printed pictures, in- cluding copies of portraits, and pictures of landscapes, buildings and sculptures, and printed maps, charts, plans and drawings; and those amendments also extended the duration of copyrights on pictures from fourteen to twenty-eight years. 37 The next British copyright statute was the Copyright Act of 1775, in Chapter 53, of the fifteenth year of George III. That statute was entitled, "An Act enabling the two Universities in England, the four Universities in Scotland, and the several colleges of Eton, Westminster and Winchester, to hold in Perpetuity their Copyright in Books, given or bequeathed to the said Universities and Colleges for the Advancement of useful Learning and other Purposes of Education." This statute was enacted the next year after the de- cision of the House of Lords in the case of Donaldson v. Beckett, and it recognized the fact that according to tha laws of England, no copyright could continue longer than expressly provided by some statute. And though all other copyrights were limited by statutes to terms of years, this statute enacted that- certain copyrights be- longing to the universities and colleges mentioned there- in, should be perpetual. But the statute contained a proviso that it should not extend to any books or copies of books printed elsewhere than on the printing presses of the said universities or colleges, and for their sole benefit and advantage. The latest British copyright act which was in force in 1787. was the Engraving .Copyright Act of 1777. This Act was chapter 67, of the seventeenth year of George III, and like the Act of 1766, it was confined to amending the Engraving Copyright Act of 1734. But the amendments made by the Act of 1777, differed from the amendments of 1766, in that they gave the proprietor or proprietors of a copyright on a picture a right of acr tion for damages against infringers; whereas the Act of 1766 like that of 1734, had not given any right of action for damages, but only a right of action for. a penalty in 38 favor of any person or persons who might sue for the same, to he divided between that party, and the King's Most Excellent Majesty. These five British statutes, beginning with the Stat- ute of Anne, and ending with the Statute of 1777, com- prised the whole of the copyright law of England, at the time of the framing of the Constitution of the United States in 1787. The scope of that British statutory copyright law had not at that time been extended beyond the literal words of the statutes by judicial construction, except in the single case of Bach v. Longman, decided by Lord Mans- field in 1777, and reported by Mr. Cowper on page 623 of his volume of reports. That case was brought by John Christian Bach, a son of John Sebastian Bach, against Longman, and was based upon the fact that Longman had made and sold printed copies of certain sheet music which John Chris- tian Bach had copyrighted, and which sheet music repre- sented certain sonatas which he liad composed. The defendant's counsel took the ground that Bach's copyright was void because it had no foundation except the Statute of Anne, and because the Statute of Anne did not mention anything but books, as subjects of copy- rights. Lord Mansfield overruled this contention by first construing the Statute of Anne to cover "books and other writings" and then holding that the Statute thus con- strued was broad enough to cover signs and figures, as well as language and letters, saying, by way of illustra- tion, that the figures and symbols of algebra or arith- metic, were as truly copyrightable, as literature in the English language. This being true of the figures and symbols of mathematics, Lord Mansfield held it to be also 39 true of the signs and symbols of music, and he said that "A musical composition is a writing within the Statute of Anne." But Lord Mansfield also said that a copy- right' on "a musical composition" would be infringed only by multiplying copies thereof, and not by playing the music represented thereby. This account of the origin and development of the idea of copyright prior to 1787, has thus far been con- fined to the eastern hemisphere, and has resulted in showing an entire absence of evidence that any copyright ever constituted any part of the common law or custom- ary law of any country on that side of the world ; and in showing that the statutory copyright law of Great Bri- tain never extended prior to 1787, further than to books and other compositions recorded by means of letters, fig- ures or other signs or symbols, and to printed pictures. That law did not include any reproductions of any lit- erary or mathematical composition by means of speech, nor the performance of any musical composition by sounding it out upon the air, nor the reproduction of any copyrighted picture otherwise than by printing. In short, the British copyright law was always limited prior to 1787, to printing, and to publishing and selling printed things. Let us now, in imagination, cross the Atlantic Ocean from England to America at the beginning of 1787, bring- ing with us our knowledge of the origin and development of the idea of copyright in the eastern hemisphere prior to that time, with a view to search through the then thir- teen States on the western coast of that ocean, and through their literature and laws for such traces as ex- isted in this country, at that time, of the idea of copy- right. 40 Diligent searches made during the last few years, have resulted in ascertaining when and by whom the idea of copyright was first so seriously entertained in the western hemisphere as to cause anyone to do or propose to do anything in the direction of realizing any exclusiye or paramount right to print or publish anything. That event occurred in 1782 ; and the man who then introduced the idea of copyright into this country was Noah Web- ster, who afterward achieved permanent fame as the author of Webster's Spelling Book and of Webster's Dictionary. .Noah Webster was born in West Hartford, Connec- ticut, in 1758. He entered Y^le College in 1774, but the students being dispersed from New Haven by the exi- gencies of the Eevolutionary War, he completed his four years' course with other students under one of the pro- fessors in Glastenbury, Connecticut in 1778. In 1779, he studied law in Hartford, Connecticut, with Oliver Ells- worth, afterward Chief Justice of the United States Su- preme Court, and also lived in the family of Ellsworth as tutor of his children ; and in pursuance of his legal stud- ies, he was admitted to the distinguished Bar of Connecti- cut, at Hartford in 1780. His intellectual allegiance was given not only to law, but also to literature and to learn- ing ; and being less than twenty-five years old, he decided to devote himself for awhile to those pursuits for a live- lihood, while further preparing himself to labor in the field of applied justice. To that end, he established, early in 1782 a select boarding school in Goshen, Orange County, New York ; about twenty miles from Newburgh, where Washington's army was encamped awaiting the coming of peace after the capture of the army of Corn- wallis. It was at that time and place that Noah Webster 41 wrote the first mamiscript of what he planned to make a series of three school books, the first of which was to be a spelling book, the second a grammar, and the third a reader. Being a poor young man, he could entertain no hope of publishing any of his school books unless he could get credit for the price of the paper, printing and Ijinding, upon the basis of the expected proceeds of the expected sales, and he realized that those proceeds would l)e precarious, unless he could somehow secure a monop- oly of printing and selling his books. On this point it appears that his study of the law with Mr. Ellsworth had made him acquainted with the fact that the House of Lords eight years before, in the case of Donaldson v. Beckett, had decided that there was no copyright known to the laws of England. For, many years afterward, but many years before the end of his literary labors, in the course of a correspondence which he conducted with Daniel "Webster, he said, "Since the celebrated decision respecting copyright by the highest British tribunal, it seems to be generally admitted that the author has not a permanent exclusive right to the publication of his or- iginal works at common law, and that he must depend wholly on the statutes for the enjoyment of his right". This letter was written September 30, 1826, when Daniel Webster was a member of Congress from Massachusetts. Daniel Webster wrote, on October 14, 1826, & letter in reply to Noah Webster, in which- he said, "Property in the social state must be the creature of law; and it is a question of expediency, high and general, not particular expediency, how far the rights of authorship shall be pro- tected." This letter of Daniel Webster also expressly mentioned the opinion which Lord Mansfield had given in the case of Millar v. Taylor nearly sixty years before; 42 but intimated that the writer thought tliat Lord Mans- field was wrong and that Justice Yates was right in their opposite opinions in that case, relevant to the existence or non-existence of common law copyright in England. But independent of that argumentative issue of Mansfield aiiid Yates, Daniel Webster recognized in his letter to Noah Webster of October 14, 1826, that he quite agreed with the statement in the letter of September 30, 1826, from Noah to Daniel that "Since the celebrated decision respecting copyright by the highest British tribunal, it seems to have been generally admitted that the author has not a permanent exclusive right to the publication of his original works at common law". This opinion of the absence of any common law copy- right in England, was of course abundantly founded in the minds of Noah Webster and Daniel Webster on the decision of the "highest British tribunal" mentioned in the letter of Noah Webster, and which tribunal was of course the House of Lords, and which celebrated decision was of course the celebrated decision in Donaldson v. Beckett. But the same opinion must have been confirmed to both Daniel Webster and Noah Webster by the fact that though Justice Blackstone had delivered to the House of Lords an opinion to the contrary, when asked to advise that tribunal upon the point, he had in his Com- mentaries distinctly appeared to incline to the opinion that copyright was unknown to the common law of Eng-' land. For in Section 8 of the twenty-sixth chapter of the second book of those Commentaries, as published in England prior to the decision of Donaldson v. Beckett, and indeed, prior to the decision of Millar v. Taylor, he had thrown strong donbt and indeed, appeared to cast denial upon that theory. 43 Thus educated, as Noah Webster undoubtedly was in 1782, relevant to the absence of copyright from the com- mon law of England, he was also well enough educated as a lawyer to know the resulting absence of conamon law copyright in each of the United States. And he also must have known that the Statute of Anne was not in force in the United States; for that statute having been enacted after the establishment of all the thirteen col- onies, except Georgia, never was and never purported to be in force in any of them. This point of law was as famil- iar to the lawyers and law students of 1782 as it is to us, for Blackstone himself had said in Section fourth of the first volume of his Commentaries published in 1765, that though the American colonies were subject to the control of Parliament, they were not bound by any particular act of Parliament, unless particularly mentioned therein. Noah Webster, being thus informed of the absence of any copyright law in the United States, and having a present personal necessity for such a law to enable him to publish and print his proposed spelling book, gram- mar and reader, journeyed in the fall of 1782 from Goshen, New York, to Philadelphia, Pennsylvania, for the express purpose of showing his manuscript to influ- ential men there, and invoking their aid toward inducing the legislature of Pennsylvania to enact a copyright law for that state. He made some progress in the direction of promoting friendly interest in Philadelphia, but the legislature not being in session, he returned home to Goshen, passing through Trenton, New Jersey, on his way, and calling there upon Governor Livingston, and in- p^oking his influence in favor of the passage of a copyright law by the legislature of New Jersey, when that body should next assemble. 44 Soon afterward, and in October 1782, Webster sent a petition to the legislature of Connecticut, sitting in Hart- ford, praying for the passage of a copyright law. And in pursuance of that petition that legislature did in Jan- uary 1783, pass a copyright statute, which was the first copyright law of any kind that ever existed in the west- ern hemisphere. Massachusetts in March 1783 followed the example of Connecticut and enacted a similar copyright law, which was introduced into the House of Eepresentatives by the Rev. Timothy Dwight, who was a member of that House that year. Joel Baelow of Hartford, Connecticut, had been a classmate of Noah Webster in Yale, and in the spring of 1783, he joined with Webster in inducing "The United States in Congress Assembled," under the Articles of Confederation, to adopt a resolution to recommend to the several states, to secure to the authors or publishers of any new books not theretofore printed (being citizens of the United States) and to their executors, administra- tors and assigns, a copyright of such books for a term of fourteen years from the publication." The legislature of New Jersey followed the advice contained in that resolution by enacting a copyright stat- ute on May 27, 1783, and thus the seed which Webster had sown in the mind of the Governor of New Jersey the fall before, sprang up and bore fruit in that state. New Hampshire and Ehode Island soon joined the movement which had been begun in 1782, by Webster, and those states in November and December 1783 respective- ly, enacted copyright statutes which were substantially like that which had been enacted by Massachusetts in March of the same year. 45 Thus the initiative and efforts of Noah Webster in less than two years, had resulted in copyright statutes being established in the four New England states and in New Jersey. Pennsylvania,, in March 1784, also enacted a copy- right statute, so that the seed which Webster had sown in that' state in the fall of 1782, developed into a law in less than two years thereafter. Having thus secured the enactment of copyright laws in all of the northern states except New York, Noah Webster spent six months of the year 1785, in journeying through the southern states for the purpose of securing similar enactments in those states. To this end he started in May 1785, and visited Maryland, Delaware, North Carolina and South Caro- lina, without immediate success, though all except Dela- ware enacted copyright statutes prior to 1787. Having done his preparatory work in the summer and early fall of 1785 in those four states, Webster turned his attention to Virginia, and on his way from Annapolis to Eichmond, he called on General Washington, at his home at Mt. Ver- non, with the hope of securing his powerful assistance. That hope was abundantly gratified, for Washington gave him letters to the Governor of Virginia and to several in- fluential members of the legislature, so that he secured the enactment of his desired copyright law by the state of Virginia almost immediately. Three states only now remained to be subdued to the color of the Websterian hand, and of these Georgia en- acted a copyright law in February 1786, and New York in April of the same year. This history of the establish- ment of copyright laws in all but one of the thirteen states of the Union in less than four years after Noah Webster instituted the movement in that direction, is interesting 46 in several respects, including the fact tliat it indicates that the legislatures of those states recognized the ab- sence of any prior copyright law therein and proceeded promptly to supply that deficiency by the enactment of statutes. For it is not possible that every one of the twelve states could have been induced so promptly to attend to the subject of copyright by statutory enact- ments, if any influential members of any of the legisla- tures had supposed that there was already a common law copyright law in this country. But the absence of any copyright at common law in the United States is proved not only by the unanimous action of the legislatures of the twelve states in enact- ing statutory copyright laws within four years, but is also proved by the fact that the most diligent "searches have failed to disclose any evidence tending to show that anybody,. prior to 1782, ever claimed that there was any copyright law in any of the colonies or in any of the states of North America. CHAPTEE n. The Histoky of the Copteight Clause of the Federal constittttion. The constitutional convention occupied nearly four months, ending September 17, 1787, in framing the Fed- eral Constitution. But the subject of copyright was not mentioned in that convention until August 18, 1787. On that day James Madison submitted several propositions for powers to be conferred upon Congress, one of which was "To secure to literary authors, their copyrights for 47 limited times ' '. On the same day, Charles Pinckney sub- mitted several propositions for powers of Congress, one of which was ' ' To secure to authors exclusive rights for a certain time". Nothing was said or done about either of these propo- sitions on the day on which they were thus submitted, and they received no consideration or action until Aug- ust 31. On that day a committee of eleven were elected by ballot to report on such parts of the proposed Consti- tution as had been postponed or not acted on, and which latter parts included the copyright propositions of Mad- ison and Pinckney, and included also another proposi- tion which had been made by Charles Pinckney "To grant patents for useful inventions". The chairman of that Committee of eleven was David Brearley, who was the head of the New Jersey delegation, and who though only forty-two years old, had already been Chief Justice of New Jersey for eight years. Five days later, and on September 5, 1787, Brearley reported in favor of including among the powers of Con- gress one which he had formulated as the power "To promote the progress of science and useful arts, by se- curing for limited times, to authors and inventors the ex- clusive right to their respective writings and discover- ies". This proposition came before the convention for con- sideration on the same day, and it was immediately adopted, without opposition and without debate. It was never changed, or proposed to be changed, and was un- changed in the Constitution which was signed by the thirty-nine framers on September 17, 1787. It has al- ways been the only foundation of the copyright laws of the United States. 48 The intention of the thirty-nine framers of the Con- stitution, in respect of the scope and significance of the provision which Brearley framed, and they unanimously adopted, to be the foundation of the copyright laws of the United States, is to be learned from the language which they employed for that purpose. And that lan- guage is to be interpreted in the light of whatever can be discovered in relation to the knowledge which the thirty-nine framers then had relevant to the law of copy- rights and to the subjects thereof in Great Britain and in the United States. Moore v. United States, 91 U. S., 274, 1875 ; Kansas v. Colorado, 206 U. S., 95, 1907. Benjamin Franklin was the oldest and most versatile man among the thirty-nine framers. His knowledge rel- evant to the matter of copyrights in 1787 may be inferred from the following considerations : He was living in Eng- land, as agent for some of the thirteen colonies, from 1764, which was five years before the decision of the Court of King's Bench in the case of Millar v. Taylor, antil 1775, which was one year after the decision of the House of Lords in the case of Donaldson v. Beckett. During that long residence in England he was in fre- quent conference with members and committees of Par- liament, and was so distinguished on account of his so- cial, scientific, philosophical, literary and political attain- ments that he was personally acquainted with most of the distinguished men in England, and particularly those in the city of London. Among his intimate friends was the Bishop of St. Asaph, who was among the twenty-two Lords of Parliament who constituted the two-thirds ma- jority of the House of Lords, which m the case of Don- aldson V. Beckett, judicially negatived the theory of a common law copyright in England. Indeed, it was at the 49 coui\|try residence of that friend that Franklin wrote the first twenty-five or thirty thousand words of his cele- brated autobiography, which part of that remarkable book covered the first twenty-five years of his life, and which was all of it that he wrote till 1784, when in France he resumed that writing. The versatile Franklin was certain to be deeply inter- ested in the copyright controversy which occupied exten- sive public attention in England and in Scotland during several of those ten years' residence in England; and when he returned home to Philadelphia in the early part of 1775 he must have had complete knowledge of the whole subject, and must have known all about the deci- sion of the House of Lords in the case of Donaldson v. Beckett ; and, indeed, he probably brought back with him a copy of that elaborate report of the case which was printed in London in 1774, the title page of which is quoted in the first paragraph of page 33 of this brief. Franklin reached Philadelphia on May 6, 1775, and was almost immediately elected to the Continental Con- gress, where he continued to sit till after he took part in the framing and signing and promulgation of the Declaration of Independence, in 1776. Going to France a few months later to solicit the support of the King of that country on behalf of the United States in our Revo- lutionary War, he remained there until 1785. James Wilson, who was afterward one of the asso- ciate justices of the Supreme Court of the United States, was another of the framers of the Federal Constitution who undoubtedly knew in 1787 all about the copyright laws of England, and all about the controversy which had ended in that country thirteen years before, relevant to the existence or non-existence of an English common law 50 copyright. And Wilson also undoubtedly knew all about the copyright controversy in Scotland, which had ended with the decision of the Court of Sessions in 1773, in the case of Hinton v. Donaldson, for Wilson was himself a Scotchman who was already highly educated when he emigrated to the American Colonies in 1763, at the age of twenty-one. And though the case of Hinton v. Don- aldson was not argued and decided in Edinburgh until ten years after he left that city, the Court of Sessions had already rendered a noted copyright decision, in the case of Midwinter v. Hamilton, which was certain to be well known to so diligent and able a student as Wilson, even before he left Edinburgh. And though that case was based upon the Statute of Anne, and not upon any al- leged common law, the argument and decision of the case involved many important considerations relevant to the philosophical foundation of all copyright laws, as is apparent from a report of the case which was prepared by Lord Karnes, and was printed in Edinburgh in a pam- phlet entitled ' ' Considerations on the Nature of Literary Property. ' ' Charles Coteswobth Pinckney, though born in South Carolina, had lived many years in England, partly as a student of letters in Oxford University, and partly as a student of law in the Middle Temple in London. He had added to this liberal education in youth a brilliant and conspicuous career at the Bar of his native State, so that when he sat as a member of the constitutional convention at the age of forty-one, he must have known all about the topic of copyrights, as that topic was debated in Eng- land during his residence there, and also as it had been made the subject of a statute in South Carolina, and in 51 most of the other States, during the five years last pre- ceding the constitutional convention. Charles Pinckney was only twenty-nine years old when he took part in the framing of the Federal Consti- tution, but the part he took was so important and so use- ful, and his career in later life was so distinguished, that h.e must have been a young man of great learning and great ability. And though he had never been in Europe, he was a relative and an intimate friend of Charles Cotes- worth Pinckney, who had resided there for sixteen years, and from whom he doubtless learned much of the laws and public policies of Great Britain. It was Charles Pinckney who produced the form of Section 8 of Article I. of the Constitution, which section is devoted to defining the powers of Congress. And his personal draft of the proposed Constitution, which he presented to the conven- tion soon after it met, contained a section in that par- ticular form, and included many of the clauses of powers of Congress which now exist in the same form, and much the same language, in the Constitution itself. And it was Charles Pinckney who, on August 18, 1787, contributed to the consideration of the convention the proposition to add to the powers of Congress the power "To secure to authors exclusive rights for a certain time." 'Several of the members of the constitutional conven- tion, including Roger Sherman of Connecticut, Nathaniel Grorham of Massachusetts and John Langdon of New Hampshire, had long been judges of courts in their re- spective States, and they must have known the essential facts of the copyright controversies and statutes which had respectively occurred and been enacted in Great Britain, as well as the history of the copyright statutes 52 which had been enacted in the United States prior to the time of the constiutional convention of 1787. Taking into account the history of the idea of copy- right as that history had been developed in Great Britain, and which history must have been as well known to the members of the constitutional convention of that year as it is to us, and which must have been known to be sub- stantially what our present investigation has found it to be ; there is no escape from the conclusion that the con- stitutional convention, in adopting the provision confer- ring power on Congress to secure for limited time to au- thors the exclusive right to their respective writings, knew that they were not doing anything supplementary to any common law, but were laying an original foundation in written constitutional law, upon which Congress might thereafter build a structure of written statutory law of copyrights, and which structure, when erected, would not rest in any degree whatever upon any supposed nat- ural right or ancient custom, or upon any British founda- tion at all, but should rest entirely upon the consent of the people of the United States, expressed through their expected ratification of the Constitution which the con- vention was framing. CHAPTEE III. THE SIGNIFICANCE WHICH THE FEAMEES OF THE CONSTITU- TION MUST HAVE INTENDED TO EXPRESS BY THE WORD ' ' WRITINGS. ' ' The fundamental question upon which depends the de- cision of this case by the Supreme Court of the United 53 States is the question -v^hether the word "writings" in that clause of Section 8 of Article I of the Constitution, which authorizes Congress to secure for limited times to authors the exclusive right to their respective writings, was intended by the authors of the Constitution to be broad enough to cover a long sheet of paper, which has no sentence in any language written or printed or other- wise expressed thereon, and the essential characteristics of which comprise a large number of holes of uniform widths but varying lengths, punched through the paper at widely scattered locations from end to end thereof, and which sheet of paper, when caused to pass length- wise over a ' ' tracker board " in an automatic musical in- strument, will operate as an air valve to govern move- ments of air through a large number of holes through that "tracker board," so as to enable those separate air currents to intermittently operate such moving mechan- isms in the interior of the instruments as are adapted to actuate hammers striking against wires, to sound out upon the air such successions and combinations of sounds as will constitute audible music. Such a sheet of perforated paper is not adapted to impart any information through any attempted reading thereof, but is only adapted to be a temporary part of an automatic musical instrument, and which instrument is adapted to receive one or another of such temporary parts from time to time, and to perform a different com- position of audible music with each one which it receives. Counsel for the complainant in both the courts be- low contended that the perforated sheet in this case, which is adapted to cause an automatic musical instru- ment to perform the "Little Cotton Dolly" lullaby, is incidentally readable, as a printed "writing" of that 54 music would be; and therefore is a "writing," the char- acters of which are punched holes, instead of being ink deposits. That contention was and is entirely unfound- ed, as will appear from the following facts : First. — That perforated sheet does not contain any horizontal lines or other signs or things to indicate whether the two ranges of holes which extend lengthwise of the paper refer to notes in the treble staff or refer to notes in the bass staff of some sheet music or other, or whether one range of those holes refer to notes in one staff, while the other range refers to notes in the other staff. Second. — Assuming a good reader of staff notation to be told that one range of holes refers to notes in the treble staff, and that the other range of holes refers to notes in the bass staff, he would have to be acquainted with the construction of the automatic instrument in which the sheet is adapted to be used, in order to infer which range of holes refers to the notes in which staff. Third. — Assuming that inference to have been correct- ly drawn, the reader would next hunt over both sides of the perforated sheet to find some indication of the key of the composition. On the back of the sheet he would find the printed words "Key of C," but that would not inform him what is the first note in either the treble staff or the bass staff, because not every musical com- position begins either staff with its key note, and few begin both staffs with the key note, and the perforated sheet in question contains no indication whether the first hole in either or both of its ranges of holes is adapted to sound the key note of the composition. Fourth. — Assuming the reader to be told that the first hole in that range of holes which is adapted to 55 sound the notes in the bass staff is the key note C, he could not infer what note would be sounded by the first hole in the treble range, because there is nothing on or in the perforated sheet to show whether the first hole in the treble is adapted to sound a note just one octave above, or is adapted to sound a note which is more or a note which is less than one octave above the note which the first hole in the bass range is adapted to sound. Fifth. — Assuming the reader to be told that the first hole of the treble range is adapted to sound a note just one octave above the note which the first hole in the bass range is adapted to sound, the reader could not state the names of the notes which would be sounded by the holes throughout the length of the perforated sheet; because those names would then depend upon the distances of those holes from the edges of the sheet, and because those distances vary so little, from degree to degree, that they cannot be accurately measured by any pair of eyes. Sixth. — ^Assuming the reader to draw five parallel lines (after inferring their proper locations from all the above information) lengthwise of the treble range of holes, and then draw similar lines lengthwise of the bass range, he could afterward tell the names of the notes which the holes in each range are adapted to sound. But he could not tell their lengths with any uniform correct- ness, because the lengths of the holes do not always cor- respond with the lengths of the notes which they are adapted to sound. .Thus, for example, a particular hole may be adapted to sound a quarter note in the legato or connected style, or a half note in the staccato or dis- connected style, and no one can tell by measuring the length of that hole in which of those styles it is adapted to sound its note, and thereby tell whether its note is a half note or a quarter note. 56 Seventh. — Assuming the absence of all the above six deficiencies in the perforated sheet as a source of in- formation to a reader of written music, that sheet would still be useless for that purpose, because it contains noth- ing to indicate the rhythm of any musical composition. In all sheet music, rhythm is indicated by vertical lines crossing the five horizontal lines of each staff. That in- dication results from the fact that those lines divide that staff into measures, and from the fact that the first note in each measure is accented in the performance, and from the fact that the rhythm of a musical composition depends on how many quarter notes (or their equivalents in other notes) are in each measure. If each measure contains four quarter notes,or their equivalents,the music is in "four-four" time; but if a measure contains only three quarter notes, or their equivalents, the music is in "three-four" time. In the first of these cases the accent of the measure falls on the first note (of whatever length) in its comparatively long series of notes, but in the sec- ond case the accent falls on the first note (of whatever length). La its comparatively short series of notes. Thus the locations of the accents in any musical composition depend upon how the notes in a staff are divided into measures. The absence from the perforated sheet of any such division makes it impossible by any inspection of that sheet to locate the accents of any music which it may be adapted to perform. And no musical composition can be read or even be deciphered from any source of in- formation which does not show which of its notes are to be accented. For the locations of the accents are essen- tial to the rhythm. And musical rhythm is so essential to musical character that all recognizable identity may be eliminated from almost any musical composition by 57 changing its rhythm, without changing its key or chang- ing any of its notes. Now, the consideration of the question whether the framers of the Federal Constitution intended to make its clause relevant to authors' "writings" broad enough to cover such an unreadable part of an automatic musical instrument as governs the successions and combinations of sounds to be emitted thereby, and thus causes the in- strument to audibly perform a particular musical com- position, may properly continue with, an investigation of the question whether such automatic musical instru- ments, having such governing parts, were generally known, and were therefore presumably known to the members of the constitutional convention, in 1787. THE ORIGIN AND DEVELOPMENT OF AUTOMATIC MUSICAL INSTRUMENTS PRIOR TO 1787. An automatic musical instrument is properly defin- able as an instrument which can perform music by sound- ing it out upon the air, whenever it is operated by means of some simple homogeneous mechanical motion, without such complicated heterogeneous mechanical motions as are necessary to be made by the hand or fingers of a mu- sician when performing music with any non-automatic musical instrument. For example, a pianola or a phono- graph is an automatic musical instrument. And a piano operated by the' fingers of a pianist playing upon the keys, or a harp operated by the fingers of a harpist play- ing directly upon strings, is a non-automatic musical in- strument. It is impossible in the twentieth century to trace back the art of making and using automatic musical instru- 58 ments to its origin, because its origin was too ancient to leave so long any record or trace. The first British patent granted on any automatic mu- sical instrument was granted to Justinian Morse, April 13, 1731, on an automatic organ. The character of that instrument was set forth in that patent in the following language : "A new organ, by which any person, though unskilled in musick, may be taught in an hour's time with great exactness, any musick, though never so difficult, the musick being prickt on both sides of leaves of half inch wainscot, eight or ten psalm tunes being contained on a board about the size of a large sheet of paper and worked by clockwork, or jack or winch." In the year 1762 an automatic organ was built for the Earl of Bute. It had sixty cylinders, each of which was four and a half feet long. Each of these cylinders was provided with pins projecting from its periphery, which were so placed upon the cylinder that a regular and con- stant revolution of the cylinder would cause the pins to so operate other mechanism in the organ as to open and close valves in the organ pipes, and thus govern those pipes to audibly perform whatever music was followed in locating the pins on the cylinder. In 1787 Mr. Gumming built a new cylinder organ for the Earl of Bute, which had fifty-six cylinders, each of thirty-six of which was adapted to cause the organ to audibly perform one of the musical compositions of Han- del, and each of the other twenty of which was adapted to perform one or another of the musical compositions of twelve other distinguished composers. This new or- gan also had several other cylinders, each of which when shifted more or less in position, was adapted to cause 59 the organ to perform any one of several short and pop- ular melodies or airs. The Bute organ of 1762 was a costly and extensive instrument, which attracted much attention during the twenty-five years in which it was used in one of the resi- dences of the Earl, till 1787, when it was supplanted by the still better organ of Mr. Gumming. These two or- gans are described in a still extant pamphlet published in London in 1812, and entitled " Gumming 's Machine Or- gan, a Sketch." In 1775 there was published in Paris, a still extant, book of 236 pages, which was entitled "La Tonotechnic ou L'Art de noter Les Gylinders. " This book was de- voted entirely to teaching the art of accurately fixing pins upon the peripheries of cylinders in such positions that when the cylinders were rotated in automatic mu- sical instruments they would so operate the mechanisms of those instruments as to cause them to perform what- ever music was indicated in staff notation upon the sheet music which was followed in locating the pins. This French book of 1775 is illustrated by several pictures, one of which represents two men working together fixing pins upon the periphery of a cylinder, in accordance with a sheet of musical notation which one of the men has before him, while the other works on the cylinder. This book is an elaborate work, which proves that the art of making automatic musical instruments was far advanced in Paris in 1775. There can be no ground for doubt that Franklin, when he went to Paris a couple of years later, and remained there for seven years, in asociation with the best French society, must have heard music per- formed by automatic musical instruments, worked by such cylinders as those which that book explained* how 60 to make. And hearing such instruments, the ingenious mechanical mind of Franklin was sure to inquire with considerable detail into the art, so that when he returned to the United States he must have brought with him a knowledge of that art as it existed in Paris. Likewise, Franklin, during his residence of eleven years in London, from 1764 to 1775, was sure to learn the essential char- acter of the great automatic organ of the Earl of Bute, which was a celebrated instrument in and about London all the time from 1762 till 1787. Indeed, it is probable that many small automatic mu- sical instruments or music boxes, having been construct- ed in Paris in accordance with the directions of the French book of 1775, were imported into the United States, and thus made known in this country to many peo- ple during the twelve years that intervened between that time and the formation of the Federal Constitution in 1787; so that the fact of the existence and use of auto- matic musical instruments was probably known to many of the members of the constitutional convention, in addi- tion to being known to Franklin, who certainly could not have been unacquainted with the existence and essential character of such instruments, as they had long been known in England and in France. No MATERIALS EXIST out of whicli to coUoct any sup- port for the affirmative of the proposition that the fram- ers of the Federal Constitution intended to use the word "writings" in a sense which would confer upon Congress the power to make the copyright of any author cover any automatic musical instrument, or any instrumentality which, when inserted in such an instrument, and simply moved 'in or through it, would cause that instrument to 61 audibly perform the music indicated by the staff notation upon a sheet of printed music paper. On the other hand, the negative of that proposition is the inevitable conclusion to be drawn from the following facts and circumstances : FiBST. — Neither the dictionary of Samuel Johnson, nor any other dictionary of the English language which has ever been published, formulated any definition of the noun "writing" which included, or could ever be thought by anybody to include, any instrumentality which (like the pin-provided cylinder' of the automatic organ of Earl Bute) was adapted to cause an automatic musical instru- ment to audibly perform a particular musical composi- tion. Second. — Lord Mansfield, who during forty years at the Bar and on the Bench had done and said all he could find to say or do in favor of copyrights, had judicially said, in 1777, that it was no infringement of a copyright on a sheet of printed music to perform the music indi- cated by signs and symbols and other printed matter on that sheet. Bach v. Longman, Cowper's Reports, page 623. Thied. — James Madison, who was one of the most studious, learned and influential members of the consti- tutional convention, and who was the first to submit to the convention any proposition to confer power upon Congress to enact any copyright law, expressly confined his proposition to provide for copyrights in favor of lit- erary authors, and thus clearly showed that he was not in favor of authorizing Congress to grant copyrights to cover audible music. And the fact that he himself re- corded in his report of the debates of the convention the fact that no one opposed the adoption of the Brearley 62 report, shows that he was present when that report was made, and shows that he understood the word "writ- ings" therein to have a signification similar to the word "literary" in his own definition of the power to be con- ferred upon Congress. For if Madison had supposed that the word "writings," as reported by Judge Brear- ley, would cover a pinned cylinder, or any other mechan- ical device, for use in an automatic musical instrument, he doubtless would have moved to amend that report, by substituting some such language as that which he had himself proposed, and which nobody would ever contend was broad enough to cover such a pinned cylinder, or any other mechanical musical instrumentality. Fourth. — If any delegate had construed the word "writings" in the Brearley report to be broad enough to cover such a pinned cylinder, or other part of an auto- matic machine, he would have been sure to raise the question of conflict between the word ' ' writings ' ' as thus construed and the word "inventors," which was also employed in the Brearley report; and would have asked Judge Brearley whether it was not objectionable to au- thorize Congress to confer upon an inventor the exclu- sive right to make, use and sell a musical instrument con- trived by him, and also confer upon an author the exclu- sive right to use the same musical instrument, as being capable of audibly performing a musical composition contrived by that author, and thus confer upon each of two men the exclusive right to use one machine. Fifth. — If any delegate had discussed the Brearley report, and had taken the ground that natural justice required that an author of a musical composition should have a copyright which would be infringed by any auto- matic musical machine or part thereof, many of the other 63 delegates would have seen that that proposition would carry the "natural rights" of authors beyond the limits which had been drawn around those rights by their prin- cipal advocate, Lord Mansfield himself, in the case of Bach V. Longman, and would have objected to so doing. Sixth. — If any delegate, ignoring the decision of Lord Mansfield in Bach v. Longman, had reverted to his ear- lier decision in Millar v. Taylor, and also to the published opinions of Judges Willes and Aston in that case (which Lord Mansfield expressly endorsed), and had deduced from those sources the argument and conclusion that "natural right" justifies an author in monopolizing every possible use or expression of his idea, most of the dele- gates would have remembered that in the case of Donald- son V. Beckett, Lord Camden had controverted that view with great eloquence and power. And all the delegates would have inclined to agree with Lord Camden, rather than with Lord Mansfield, upon that issue ; because they would have remembered that during the Parliamentary struggle of twenty-one years before, over the question of the repeal of the Stamp Act, Lord Camden was the eloquent and unqualified friend of the Colonies, while Lord Mansfield was an uncompromising advocate of what he claimed to be the right of Parliament to tax the Col- onies without representation, and of what he claimed to be the propriety of the Stamp Act itself. For pages 168 to 181 of Volume 16 of the Parlia- mentary History of England, recorded the fact that in the celebrated debate in the House of Lords in February, 1766, Lord Mansfield elaborately argued that Parliament had a right to bind the Colonies on every subject what- ever, regardless of non-representation; and also record- ed the fact that Lord Camden, in an elaborate speech 64 against that contention of Lord Mansfield, delivered the following ardent summary of his contrary view, namely, "My position is this — I will maintain it to my last hour — taxation and representation are inseparable — this po- sition is founded on the law of nature — it is more, it is itself an eternal law of nature. ' ' Lord Camden and Lord Mansfield were both still liv- ing in 1787, and nobody could have made any headway in the constitutional convention in any attempt to induce that body to reject the views of Lord Camden, and follow those of Lord Mansfield in respect of the "natural rights" of authors; for the delegates themselves all had profound views on "natural rights," which they knew were shared by Lord Camden and were repudiated by Lord Mansfield. In short, all preaching relevant to "nat- ural rights" coming from Lord Mansfield would have been decidedly ineffective with the self-reliant Ameri- cans who in 1787 were establishing a nation, after hav- ing overthrown by war Lord Mansfield's pretension of Parliamentary right to bind the Colonies on every sub- ject whatever, regardless of non-representation. On the other hand, Lord Camden's contention that "natural right" did not justify any author in monopolizing every use and expression of his idea, would be powerftilly com- mended to the delegates to the constitutional convention by the fact that Lord Camden had also contended that "natural right" did not justify the Parliament of Great Britain in taxing, without representation, the Colonies in America. Seventh. — The copyright statutes which had been enacted within five years, by twelve of the States, were all inconsistent with any idea that the framers of the con- stitution felt authorized to use any language in the Fed- 65 eral Constitution which would subject any mechanical device, used in an automatic musical instrument, to the dominion of any copyright. For the copyright statutes of Connecticut and Georgia expressly confined copyrights to books, pamphlets, maps and charts. Those of Massa- chusetts, New Hampshire and Ehode Island expressly confined copyrights to books, treatises and other literary works (except that Ehode Island used the word "produc- tions" in place of the word "works"). Those of New York, New Jersey, Pennsylvania, and Virginia expressly limited copyrights to books and pamphlets. That of North Carolina expressly limited copyrights to books, maps, and charts. That of South Carolina expressly lim- ited copyrights to books. And that of Maryland express- ly limited copyrights to books and writings. All these statutes limited copyrights to records of information, and thus excluded from their scope, all instruments to be used in accomplishing physical results. And all auto- matic musical instruments and instrumentalities are such utilitarian instruments and nothing more. CHAPTER IV. DEVELOPMENT OF AUTOMATIC MUSICAL INSTBUMEKTS FROM 1787 TO 1908. Whoever undertakes to contend that the word "writ- ings" in that clause of Section 8 of Article 1 of the Fed- eral-Constitution which authorizes Congress to enact copyright laws, is broad enough to cover such sheets of perforated paper as those involved in this litigation, must now admit, or at least cannot any longer deny, that the 66 word "writings" was not understood by the framers of the Federal Constitution to have a scope broad enough to cover such perforated sheets, or to cover any other controlling part of an automatic musical instrument. For this reason it is necessary for the complainant's counsel to take the ground that the Federal Constitution is now to be so interpreted as to fit the new facts of the twen- tieth century, even in places where no such interpreta- tion would or could have been placed upon its language by those who framed it in 1787. The last chapter of this brief will be devoted to commenting upon this question of constitutional stretching; but this chapter will be de- voted to showing that the facts which must be invoked by complainant's counsel to support his contention on this point are not new facts at all. Indeed, this brief has already shown that those facts, in one form, existed in 1787, and must have been known to many, and perhaps to all, of the framers of the Fed- eral Constitution. That form of those facts related to the automatic organ of the British patent of Justinian Morse, of April 13, 1731, and related also to the auto- matic organ of Earl Bute of 1762, and to the automatic musical instnmaents which were elaborately described in the French book published in Paris in 1775. No argument can be framed in favor of the proposi- tion that such a perforated sheet of paper as that in- volved in this litigation, constitutes an infringement of a copyright on a musical composition, which would not e;iually favor the proposition that such • a pinned cylinder as that contained in the automatic or- gan of Earl Bute of 1762, or that described fn the French book of 1775, would also infringe such a copyright.. The characteristics of the two instrumentalities are so nearly alike, that the facts 67 which this court is asked to consider in construing the word "writings" in the Federal Constitution are essen- tially the same facts which were before the framers of that Constitution in 1787. And even if a substantial distinction could be drawn between the pinned cylinders which were used and well known in automatic musica;l instruments prior to 1787, and the perforated sheets of paper which are the subject of this litigation, it would still be true that those per- forated sheets of paper, though they were not known as early as 1787, have been well known for more than sixty, years. For such a perforated sheet of paper was shown and described as a part of an automatic musical instrument in the British patent No. 11,886, granted to Alexander Bain, October 7, 1847; and that patent showed its per- forated paper sheet operating as a valve mechanism, to intermittently admit air to the moving parts of an auto- matic musical instrument, in substantially the same way that the perforated sheets involved in this litigation like- wise operate to intermittently admit air to the moving parts of an automatic ^ musical instrument. And even five years before 1847, a Frenchman named Seytre made a perforated paper sheet, in the form of an endless belt, for operating mechanical musical instruments, and intro- duced such instruments, with such perforated sheets, in- to use in France, and probably also into several other countries in Europe, and is believed to have exported some of them to the United States. Passing over the intermediate development of the ap- plication of perforated sheets of