U.S. Supreme Court Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834) Wheaton v. Peters 33 U.S. (8 Pet.) 591 APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF PENNSYLVANIA Syllabus Copyright. From the authorities cited in the opinion of the
Court and others which might be referred to, the law appears to be
well settled in England that since the statute of 3 Anne, the
literary property of an author in his works can only be asserted
under the statute, and that notwithstanding the opinion of a
majority of the judges in the great case of Miller v.
Taylor was in favor of the common law right before the
statute, it is still considered in England as a question by no
means free from doubt.

															That an author at common law has a property in his manuscript,
and may obtain redress against anyone who deprives him of it or by
obtaining a copy endeavors to realize a profit by its publication
cannot be doubted, but this is a very different right from that
which asserts a perpetual and exclusive property in the future
publication of the work after the author shall have published it to
the world.

															The argument that a literary man is as much entitled to the
product of his labor as any other member of society cannot be
controverted. And the answer is that he realizes this product in
the sale of his works when first published.

															In what respect does the right of an author differ from that of
an individual who has invented a most useful and valuable machine?
In the production of this his mind has been as intensely engaged as
long, and perhaps as usefully to the public, as any distinguished
author in the composition of his book. The result of their labors
may be equally beneficial to society, and in their respective
spheres they may be alike distinguished for mental vigor. Does the
common law give a perpetual right to the author, and withhold it
from the inventor? And yet it has never been pretended that the
latter could hold, by the common law, any property in his invention
after he shall have sold it publicly. It would seem, therefore,
that the existence of a principle which operates so unequally may
well be doubted. This is not a characteristic of the common law. It
is said to be founded on principles of justice, and that all its
rules must conform to sound reason.

															That a man is entitled to the fruits of his own labors must be
admitted, but he can enjoy them only, except by statutory
provision, under the rules of property which regulate society and
which define the rights of things in general.

															It is clear there can be no common law of the United States. The
federal government is composed of twenty-four sovereign and
independent states, each of which may have its local usages,
customs, and common law. There is no principle which pervades the
union and has the authority of law that is not embodied in the
Constitution or laws of the union. The common law could be made a
part of our system by legislative adoption.

															When a common law right is asserted, we look to the state in
which the controversy originated.

															When the ancestors of the citizens of the United States
emigrated to this Page 33 U. S. 592 country, they brought with them, to a limited extent, the
English common law as part of their heritage. No one will contend
that the common law, as it existed in England, has ever been in
force in all its provisions in any state in this Union. It was
adopted only so far as its principles were suited to the condition
of the colonies, and from this circumstance we see what is the
common law in one state is not so considered in another. The
judicial decisions, the usages and customs of the respective
states, must determine how far the common law has been introduced
and sanctioned in each.

															If the common law in all its provisions has not been introduced
into Pennsylvania, to what extent has it been adopted? Must not
this Court have some evidence on the subject? If no copyright of an
author, in his wont, has been heretofore asserted there, no custom
or usage established, no judicial decisions been given, can the
conclusion be justified that by the common law of Pennsylvania, an
author has a perpetual property in the copyright of his works.

															These considerations might well lead the court to doubt the
existence of this law, but there are others of a more conclusive
character.

															In the eighth section of the first article of the Constitution
of the United States it is declared that Congress shall have power
"to promote the progress of science and the useful arts by
securing, for a limited time, to authors and inventors the
exclusive right to their respective writings and inventions." The
word "secure," as used in the Constitution, could not mean the
protection of an acknowledged legal right. It refers to inventors
as well as authors, and it has never been pretended by anyone
either in this country or in England that an inventor has a
perpetual right at common law to sell the thing invented.

															It is presumed that the copyright recognized in the act of
Congress and which was intended to be protected by its provisions
was the property which an author has by the common law in his
manuscript, which would be protected by a Court of Chancery, and
this protection was given as well to books published under the
provisions of the law as to manuscript copies.

															Congress, by the act of 1790, instead of sanctioning an existing
perpetual right in an author in his works, created the right,
secured for a limited time, by the provisions of that law.

															The right of an author to a perpetual copyright does not exist
by the common law of Pennsylvania.

															No one can deny that where the legislature is about to vest an
exclusive right in an author or to an inventor, it have the power
to provide the conditions on which such right shall be enjoyed, and
that no one can avail himself of such right who does not
substantially comply with the requisites of the law. This principle
is familiar as it regards patent rights, and it is the same in
relation to the copyright of a book. If any difference should be
made as respects a strict conformity to the law, it would seem to
be more reasonable to make the requirement of the author, rather
than of the inventor.

															The acts required by the laws of the United States to be done by
an author to secure his copyright are in the order in which they
must naturally transpire. First the title of the book is to be
deposited with the clerk and

															"the record he makes must be inserted in the first or second
page; then the public notice in the newspapers is to be given,
and within six months after the publication of the book, a copy
must be deposited in the Department of State. " Page 33 U. S. 593 It has been said, these are unimportant acts. If they are indeed
wholly unimportant, Congress acted unwisely in requiring them to be
done. But whether they are unimportant or not is not for the Court
to determine, but the legislature, and in what light they were
considered by the legislature the Court can only know by its
official acts. Judging of those acts by this rule, the Court is not
at liberty to say they are unimportant and may be dispensed with.
They are acts which the law requires to be done, and may this Court
dispense with their performance?

															The security of a copyright to an author by the acts of Congress
is not a technical grant of precedent and subsequent conditions.
All the conditions are important; the law requires them to be
performed, and consequently their performance is essential to a
perfect title. On the performance of a part of them the right
vests, and this was essential to its protection under the statute,
but other acts to be done, unless Congress has legislated in vain,
to render this right perfect. The notice could not be published
until after the entry with the clerk; nor could the book be
deposited with the Secretary of State until it was published. But
they are acts not less important than those which are required to
be done previously They forma part of the title, and until they are
performed, the title is not perfect.

															Every requisite under both the acts of Congress relative to
copyrights is essential to the title.

															The acts of Congress authorizing the appointment of a reporter
of the decisions of the Supreme Court of the United States require
the delivery of eighty copies of each volume of the reports to the
Department of State. The delivery of these copies does not
exonerate the reporter from the deposits of a copy in the
Department of State, required under the Copyright Act of Congress
of 1790. The eighty copies delivered under the reporter's act are
delivered for a different purpose, and cannot excuse the deposit of
one volume as especially required by the copyright acts.

															No reporter of the decisions of the Supreme Court has, nor can
he have, any copyright in the written opinions delivered by the
Court, and the Judges of the Court cannot confer on any reporter
any such right.

															The case as stated in the opinion of the Court was as
follows:

															"The complainants in their bill state that Henry Wheaton is the
author of twelve books or volumes of the reports of cases argued
and adjudged in the Supreme Court of the United States, and
commonly known as 'Wheaton's Reports,' which contain a connected
and complete series of the decisions of said Court from the year
1816 until the year 1827. That before the first volume was
published, the said Wheaton sold and transferred his copyright in
the said volume to Matthew Carey of Philadelphia, who, before the
publication, deposited a printed copy of the title page of the
volume in the Clerk's Office of the District Court of the Eastern
District of Pennsylvania, where he Page 33 U. S. 594 resided. That the same was recorded by the said clerk according
to law, and that a copy of the said record was caused by said Carey
to be inserted at full length in the page immediately following the
title of said book. And the complainants further state that they
have been informed and believe that all things which are necessary
and requisite to be done in and by the provisions of the Acts of
Congress of the United States passed 31 May, 1790, and 29 April,
1802, for the purpose of securing to authors and proprietors the
copyrights of books and for other purposes in order to entitle the
said Carey to the benefit of the said acts have been done."

															"It is further stated that said Carey afterwards conveyed the
copyright in the said volume to Matthew Carey, Henry C. Carey, and
Isaac Lea, trading under the firm of Matthew Carey & Sons, and
that said firm, in the year 1821, transferred the said copyright to
the complainant, Robert Donaldson. That this purchase was made by
an arrangement with the said Henry Wheaton with the expectation of
a renewal of the right of the said Henry Wheaton under the
provisions of the said acts of Congress, of which renewal he, the
said Robert Donaldson, was to have the benefit until the first and
second editions of the said volume which he, the said Donaldson,
was to publish should be sold. That at the time the purchase was
made from Carey & Sons, a purchase was also made of the residue
of the first edition of the first volume, which they had on hand,
and in the year 1827 he published another edition of said volume, a
part of which still remains unsold."

															"The bill further states that for the purpose of continuing to
the said Henry Wheaton the exclusive right, under the provisions of
the said acts of Congress, to the copy of the said volume for the
further term of fourteen years, after the expiration of the term of
fourteen years from the recording of the title of the said volume
in the clerk's office as aforesaid, the said Robert Donaldson, as
the agent of Wheaton within six months before the expiration of the
said first term of fourteen years, deposited a printed copy of the
title of the said volume in the Clerk's Office of the District
Court of the Southern District of New York, where the said Wheaton
then resided, and caused the said title to be a second time
recorded in the said clerk's office, and also caused a copy of the
said record to be a second time published Page 33 U. S. 595 in a newspaper printed in the said City of New York for the
space of four weeks, and delivered a copy of the said book to the
Secretary of State of the United States, and that all things were
done agreeably to the provision of the said Act of Congress of May
31, 1790, and within six months before the expiration of the said
term of fourteen years."

															"The same allegations are made as to all the other volumes which
have been published; that the entry was made in the clerk's office
and notice given by publication in a newspaper, before the
publication of each volume, and that a copy of each volume was
deposited in the Department of State."

															"The complainants charge that the defendants have lately
published and sold or caused to be sold a volume called 'Condensed
Reports of Cases in the Supreme Court of the United States,'
containing the whole series of the decisions of the Court from its
organization to the commencement of Peters' Reports at January
term, 1827. That this volume contains, without any material
abbreviation or alteration, all the reports of cases in the said
first volume of Wheaton's Reports, and that the publication and
sale thereof is a direct violation of the complainants' rights, and
an injunction, &c., is prayed."

															The defendants in their answer deny that their publication was
an infringement of the complainants' copyright, if any they had,
and further deny that they had any such right, they not having
complied with all the requisites to the vesting of such right under
the acts of Congress.

															The bill of the complainants was dismissed by the decree of the
circuit court, and they appealed to this Court. Page 33 U. S. 654 MR. JUSTICE McLEAN delivered the opinion of the Court.

															After stating the case, he proceeded:

															Some of the questions which arise in this case are as novel in
this country as they are interesting. But one case involving
similar principles, except a decision by a state court, has
occurred, and that was decided by the Circuit Court of the United
States for the District of Pennsylvania, from whose decree no
appeal was taken.

															The right of the complainants must be first examined. If this
right shall be sustained as set forth in the bill, and the
defendants shall be proved to have violated it, the Court will be
bound to give the appropriate redress.

															The complainants assert their right on two grounds.

															First, under the common law.

															Secondly, under the acts of Congress.

															And they insist in the first place that an author was entitled,
at common law, to a perpetual property in the copy of his works and
in the profits of their publication, and to recover damages for its
injury by an action on the case and to the protection of a court of
equity.

															In support of this proposition, the counsel for the complainants
have indulged in a wide range of argument and have shown great
industry and ability. The limited time allowed for the preparation
of this opinion will not admit of an equally extended consideration
of the subject by the Court.

															Perhaps no topic in England has excited more discussion among
literary and talented men than that of the literary property of
authors. So engrossing was the subject for a long time as to leave
few neutrals, among those who were distinguished Page 33 U. S. 655 for their learning and ability. At length the question whether
the copy of a book or literary composition belongs to the author at
common law was brought before the Court of King's Bench in the
great case of Miller v. Taylor, reported in 4 Burr. 2303.
This was a case of great expectation; and the four judges, in
giving their opinions, seriatim, exhausted the argument on both
sides. Two of the judges and Lord Mansfield held that by the common
law an author had a literary property in his works, and they
sustained their opinion with very great ability. Mr. Justice
Yeates, in an opinion of great length, and with an ability if
equaled, certainly not surpassed, maintained the opposite
ground.

															Previous to this case, injunctions had issued out of chancery to
prevent the publication of certain works at the instance of those
who claimed a property in the copyright, but no decision had been
given. And a case had been commenced at law between Tonson and
Collins on the same ground, and was argued with great ability more
than once, and the Court of King's Bench were about to take the
opinion of all the judges when they discovered that the suit had
been brought by collusion to try the question, and it was
dismissed.

															This question was brought before the House of Lords in the case
of Donaldson v. Beckett, reported in 4 Burr. 2408.

															Lord Mansfield, being a peer, through feelings of delicacy,
declined giving any opinion. The eleven judges gave their opinions
on the following points. 1st. Whether at common law an author of
any book or literary composition had the sole right of first
printing and publishing the same for sale, and might bring an
action against any person who printed, published, and sold the same
without his consent. On this question there were eight judges in
the affirmative and three in the negative.

															2d. If the author had such right originally, did the law take it
away upon his printing and publishing such book or literary
composition, and might any person afterward reprint and sell for
his own benefit such book or literary composition against the will
of the author. This question was answered in the affirmative by
four judges and in the negative by seven.

															3d. If such action would have lain at common law, is it taken
away by the statute of 8 Anne, and is an author by Page 33 U. S. 656 the said statute precluded from every remedy except on the
foundation of the said statute and on the terms of the conditions
prescribed thereby. Six of the judges to five decided that the
remedy must be under the statute.

															4th. 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. Which question was decided in favor
of the author by seven judges to four.

															5th. Whether this right is any way impeached, restrained, or
taken away by the statute 8 Anne? Six to five judges decided that
the right is taken away by the statute. And, the Lord Chancellor
seconding Lord Camden's motion to reverse, the decree was
reversed.

															It would appear from the points decided that a majority of the
judges were in favor of the common law right of authors, but that
the same had been taken away by the statute.

															The title and preamble of the statute, 8 Anne, ch. 19, is as
follows:

															"An act for the encouragement of learning by vesting the copies
of printed books in the authors or purchasers of such copies,
during the times therein mentioned."

															"Whereas printers, booksellers, and other persons have of late
frequently taken the liberty of printing, reprinting, and
publishing or causing to be printed, reprinted, and published books
and other writings without the consent of the authors or
proprietors of such books and writings, to their very great
detriment and too often to the ruin of them and their
families,"

															&c.

															In 7 Term 627, Lord Kenyon says

															"All arguments in the support of the rights of learned men in
their works must ever be heard with great favor by men of liberal
minds to whom they are addressed. It was probably on that account
that when the great question of literary property was discussed,
some judges of enlightened understanding went the length of
maintaining that the right of publication rested exclusively in the
authors and those who claimed under them for all time, but the
other opinion finally prevailed, which established that the right
was confined to the times limited by the act of Parliament. And
that, I have no doubt, was the right decision."

															And in the case of University of Cambridge v. Pryer, 16
East 319, Lord Ellenborough remarked,

															"It has been said that Page 33 U. S. 657 the statute of 8 Anne has three objects, but I cannot subdivide
the two first; I think it has only two. The counsel for the
plaintiffs contended that there was no right at common law, and
perhaps there might not be, but of that we have not particularly
anything to do."

															From the above authorities and others which might be referred to
if time permitted, the law appears to be well settled in England
that since the statute of 8 Anne, the literary property of an
author in his works can only be asserted under the statute. And
that, notwithstanding the opinion of a majority of the judges in
the great case of Miller v. Taylor was in favor of the
common law right before the statute, it is still considered in
England as a question by no means free from doubt.

															That an author at common law has a property in his manuscript,
and may obtain redress against anyone who deprives him of it or by
improperly obtaining a copy endeavors to realize a profit by its
publication cannot be doubted, but this is a very different right
from that which asserts a perpetual and exclusive property in the
future publication of the work after the author shall have
published it to the world.

															The argument that a literary man is as much entitled to the
product of his labor as any other member of society cannot be
controverted. And the answer is that he realizes this product by
the transfer of his manuscripts or in the sale of his works when
first published.

															A book is valuable on account of the matter it contains, the
ideas it communicates, the instruction or entertainment it affords.
Does the author hold a perpetual property in these? Is there an
implied contract by every purchaser of his book that he may realize
whatever instruction or entertainment which the reading of it shall
give, but shall not write out or print its contents?

															In what respect does the right of an author differ from that of
an individual who has invented a most useful and valuable machine?
In the production of this his mind has been as intensely engaged as
long and perhaps as usefully to the public as any distinguished
author in the composition of his book.

															The result of their labors may be equally beneficial to Page 33 U. S. 658 society, and in their respective spheres they may be alike
distinguished for mental vigor. Does the common law give a
perpetual right to the author and withhold it from the inventor?
And yet it has never been pretended that the latter could hold, by
the common law, any property in his invention after he shall have
sold it publicly.

															It would seem, therefore, that the existence of a principle may
well be doubted which operates so unequally. This is not a
characteristic of the common law. It is said to be founded on
principles of justice, and that all its rules must conform to sound
reason.

															Does not the man who imitates the machine profit as much by the
labor of another as he who imitates or republishes a book? Can
there be a difference between the types and press with which one is
formed and the instruments used in the construction of the
others?

															That every man is entitled to the fruits of his own labor must
be admitted, but he can enjoy them only, except by statutory
provision, under the rules of property, which regulate society and
which define the rights of things in general.

															But if the common law right of authors were shown to exist in
England, does the same right exist, and to the same extent, in this
country?

															It is clear there can be no common law of the United States. The
federal government is composed of twenty-four sovereign and
independent states, each of which may have its local usages,
customs, and common law. There is no principle which pervades the
union and has the authority of law that is not embodied in the
Constitution or laws of the Union. The common law could be made a
part of our federal system only by legislative adoption.

															When, therefore, a common law right is asserted, we must look to
the state in which the controversy originated. And in the case
under consideration, as the copyright was entered in the Clerk's
Office of the District Court of Pennsylvania for the first volume
of the book in controversy, and it was published in that state, we
may inquire whether the common law as to copyrights, if any
existed, was adopted in Pennsylvania.

															It is insisted that our ancestors, when they migrated to
this Page 33 U. S. 659 country, brought with them the English common law as a part of
their heritage.

															That this was the case to a limited extent is admitted. No one
will contend that the common law, as it existed in England, has
ever been in force in all its provisions in any state in this
union. It was adopted so far only as its principles were suited to
the condition of the colonies, and from this circumstance we see
what is common law in one state is not so considered in another.
The judicial decisions, the usages and customs of the respective
states, must determine how far the common law has been introduced
and sanctioned in each.

															In the argument it was insisted, that no presumption could be
drawn against the existence of the common law as to copyrights in
Pennsylvania from the fact of its never having been asserted until
the commencement of this suit.

															It may be true in general that the failure to assert any
particular right may afford no evidence of the nonexistence of such
right. But the present case may well form an exception to this
rule.

															If the common law, in all its provisions, has not been
introduced into Pennsylvania, to what extent has it been adopted?
Must not this Court have some evidence on this subject? If no right
such as is set up by the complainants has heretofore been asserted,
no custom or usage established, no judicial decision been given,
can the conclusion be justified that by the common law of
Pennsylvania, an author has a perpetual property in the copyright
of his works?

															These considerations might well lead the Court to doubt the
existence of this law in Pennsylvania, but there are others of a
more conclusive character.

															The question respecting the literary property of authors was not
made a subject of judicial investigation in England until 1760, and
no decision was given until the case of Miller v. Taylor was decided in 1769. Long before this time, the Colony of
Pennsylvania was settled. What part of the common law did Penn and
his associates bring with them from England?

															The literary property of authors as now asserted was then
unknown in that country. Laws had been passed regulating the
publication of new works under license. And the King, as the head
of the church and the state, claimed the exclusive Page 33 U. S. 660 right of publishing the acts of Parliament, the book of common
prayer, and a few other books.

															No such right at the common law had been recognized in England
when the colony of Penn was organized. Long afterwards, literary
property became a subject of controversy, but the question was
involved in great doubt and perplexity, and a little more than a
century ago it was decided by the highest judicial court in England
that the right of authors could not be asserted at common law, but
under the statute. The statute of 8 Anne was passed in 1710.

															Can it be contended, that this common law right, so involved in
doubt as to divide the most learned jurists of England at a period
in her history as much distinguished by learning and talents as any
other, was brought into the wilds of Pennsylvania by its first
adventurers. Was it suited to their condition?

															But there is another view still more conclusive.

															In the eighth section of the first article of the Constitution
of the United States, it is declared that Congress shall have
power

															"To promote the progress of science and useful arts by securing
for limited times to authors and inventors the exclusive right to
their respective writings and discoveries."

															And in pursuance of the power thus delegated, Congress passed
the Act of 30 May, 1790.

															This is entitled

															"An act for the encouragement of learning by securing the copies
of maps, charts and books to the authors and proprietors of such
copies during the times therein mentioned."

															In the first section of this act it is provided

															"That from and after its passage, the author and authors of any
map, chart, book, or books already printed within these United
States, being a citizen, &c., who hath or have not transferred
to any other person the copyright of such map, chart, book, or
books, &c., shall have the sole right and liberty of printing,
reprinting, publishing, and vending such map, book, or books for
fourteen years."

															In behalf of the common law right, an argument has been drawn
from the word "secure," which is used in relation to this right
both in the Constitution and in the acts of Congress. This word,
when used as a verb active, signifies to protect, insure, save,
ascertain, &c. Page 33 U. S. 661 The counsel for the complainants insist that the term, as used,
clearly indicates an intention not to originate a right, but to
protect one already in existence.

															There is no mode by which the meaning affixed to any word or
sentence by a deliberative body can be so well ascertained as by
comparing it with the words and sentences with which it stands
connected. By this rule, the word "secure," as used in the
Constitution, could not mean the protection of an acknowledged
legal right. It refers to inventors as well as authors, and it has
never been pretended by anyone either in this country or in England
that an inventor has a perpetual right at common law to sell the
thing invented.

															And if the word "secure" is used in the Constitution in
reference to a future right, was it not so used in the act of
Congress?

															But it is said that part of the first section of the act of
Congress which has been quoted, a copyright is not only recognized
as existing, but that it may be assigned as the rights of the
assignee are protected, the same as those of the author.

															As before stated, an author has by the common law a property in
his manuscript, and there can be no doubt that the rights of an
assignee of such manuscript would be protected by a Court of
Chancery. This is presumed to be the copyright recognized in the
act, and which was intended to be protected by its provisions. And
this protection was given as well to books published under such
circumstances as to manuscript copies.

															That Congress, in passing the act of 1790, did not legislate in
reference to existing rights appears clear from the provision that
the author, &c., "shall have the sole right and liberty of
printing," &c. Now if this exclusive right existed at common
law, and Congress was about to adopt legislative provisions for its
protection, would it have used this language? Could it have deemed
it necessary to vest a right already vested? Such a presumption is
refuted by the words above quoted, and their force is not lessened
by any other part of the act.

															Congress, then, by this act, instead of sanctioning an existing
right, as contended for, created it. This seems to be the clear
import of the law, connected with the circumstances under which it
was enacted. Page 33 U. S. 662 From these considerations it would seem that if the right of the
complainants can be sustained, it must be sustained under the acts
of Congress. Such was probably the opinion of the counsel who
framed the bill, as the right is asserted under the statutes, and
no particular reference is made to it as existing at common law.
The claim, then, of the complainants must be examined in reference
to the statutes under which it is asserted.

															There are but two statutes which have a bearing on this subject
-- one of them has already been named, and the other was passed 29
April, 1802.

															The first section of the act of 1790 provides that an author, or
his assignee,

															"Shall have the sole right and liberty of printing, reprinting,
publishing, and vending such map, chart, book, or books for the
term of fourteen years from the recording of the title thereof in
the clerk's office, as hereinafter directed, and that the author,
&c., in books not published, &c., shall have the sole right
and liberty of printing, reprinting, publishing, and vending such
map, chart, book, or books for the like term of fourteen years from
the time of recording the title thereof in the clerk's office as
aforesaid. And at the expiration of the said term, the author,
&c., shall have the same exclusive right continued to him,
&c., for the further term of fourteen years, provided he or
they shall cause the title thereof to be a second time recorded and
published in the same manner as is hereinafter directed, and that
within six months before the expiration of the first term of
fourteen years."

															The third section provides that

															"No person shall be entitled to the benefit of this act . . .
unless he shall first deposit . . . a printed copy of the title in
the clerk's office. . . . And such author or proprietor shall
within two months from the date thereof cause a copy of said record
to be published in one or more of the newspapers printed in the
United States for the space of four weeks."

															And the fourth section enacts that

															"The author . . . shall, within six months after the publishing
thereof, deliver or cause to be delivered to the Secretary of State
a copy of the same, to be preserved in his office."

															The first section of the act of 1802 provides that

															"Every person who shall claim to be the author, . . . before he
shall Page 33 U. S. 663 be entitled to the benefit of the act entitled an act for the
encouragement of learning by securing the copies of maps, charts,
and books to the authors and proprietors of such copies during the
time therein mentioned, he shall, in addition to the requisites
enjoined in the third and fourth sections of said act, if a book or
books, give information by causing the copy of the record which by
said act he is required to publish to be inserted in the page of
the book next to the title."

															These are substantially the provisions by which the
complainants' right must be tested. They claim under a renewal of
the term, but this necessarily involves the validity of the right
under the first as well as the second term. In the language of the
statute, the "same exclusive right" is continued the second term
that existed the first.

															It will be observed that a right accrues under the act of 1790
from the time a copy of the title of the book is deposited in the
clerk's office. But the act of 1802 adds another requisite to the
accruing of the right, and that is that the record made by the
clerk shall be published in the page next to the title page of the
book.

															And it is argued with great earnestness and ability that these
are the only requisites to the perfection of the complainants'
title. That the requisition of the third section to give public
notice in the newspapers, and that contained in the fourth to
deposit a copy in the Department of State, are acts subsequent to
the accruing of the right, and whether they are performed or not
cannot materially affect the title.

															The case is compared to a grant with conditions subsequent,
which can never operate as a forfeiture of the title. It is said
also that the object of the publication in the newspapers and the
deposit of the copy in the Department of State was merely to give
notice to the public, and that such acts, not being essential to
the title, after so great a lapse of time may well be presumed.
That if neither act had been done, the right of the party having
accrued before either was required to be done, it must remain
unshaken.

															This right, as has been shown, does not exist at common law --
it originated, if at all, under the acts of Congress. No one can
deny that when the legislature are about to vest an exclusive right
in an author or an inventor, they have the Page 33 U. S. 664 power to prescribe the conditions on which such right shall be
enjoyed, and that no one can avail himself of such right who does
not substantially comply with the requisitions of the law.

															This principle is familiar as it regards patent rights, and it
is the same in relation to the copyright of a book. If any
difference shall be made as it respects a strict conformity to the
law, it would seem to be more reasonable to make the requirement of
the author, rather than the inventor.

															The papers of the latter are examined in the Department of
State, and require the sanction of the Attorney General, but the
author takes every step on his own responsibility unchecked by the
scrutiny or sanction of any public functionary.

															The acts required to be done by an author to secure his right
are in the order in which they must naturally transpire. First, the
title of the book is to be deposited with the clerk, and the record
he makes must be inserted in the first or second page; then the
public notice in the newspapers is to be given, and within six
months after the publication of the book a copy must be deposited
in the Department of State.

															A right undoubtedly accrues on the record's being made with the
clerk and the printing of it as required, but what is the nature of
that right? Is it perfect? If so, the other two requisites are
wholly useless.

															How can the author be compelled either to give notice in the
newspaper or deposit a copy in the State Department. The statute
affixes no penalty for a failure to perform either of these acts,
and it provides no means by which it may be enforced.

															But we are told they are unimportant acts. If they are indeed
wholly unimportant, Congress acted unwisely in requiring them to be
done. But whether they are important or not is not for the court to
determine, but the legislature, and in what light they were
considered by the legislature we can learn only by their official
acts.

															Judging then of these acts by this rule, we are not at liberty
to say they are unimportant and may be dispensed with.

															They are acts which the law requires to be done, and may this
Court dispense with their performance?

															But the inquiry is made shall the nonperformance of these
subsequent conditions operate as a forfeiture of the right? Page 33 U. S. 665 The answer is that this is not a technical grant of precedent
and subsequent conditions. All the conditions are important; the
law requires them to be performed, and consequently their
performance is essential to a perfect title. On the performance of
a part of them, the right vests, and this was essential to its
protection under the statute; but other acts are to be done, unless
Congress have legislated in vain to render the right perfect.

															The notice could not be published until after the entry with the
clerk, nor could the book be deposited with the Secretary of State
until it was published. But these are acts not less important than
those which are required to be done previously. They form a part of
the title, and until they are performed, the title is not
perfect.

															The deposit of the book in the Department of State may be
important to identify it at any future period should the copyright
be contested or an unfounded claim of authorship asserted.

															But, if doubts could be entertained whether the notice and
deposit of the book in the State Department were essential to the
title under the act of 1790, on which act my opinion is principally
founded, though I consider it in connection with the other act;
there is, in the opinion of three of the judges, no ground for
doubt under the act of 1802. The latter act declares that every
author, &c., before he shall be entitled to the benefit of the
former act, shall, "in addition to the requisitions enjoined in the
third and fourth sections of said act, if a book, publish,"
&c.

															Is not this a clear exposition of the first act? Can an author
claim the benefit of the act of 1790 without performing "the
requisites enjoined in the third and fourth sections of it." If
there be any meaning in language, the act of 1802, the three judges
think, requires these requisites to be performed "in addition" to
the one required by that act, before an author, &c., "shall be
entitled to the benefit of the first act."

															The rule by which conditions precedent and subsequent are
construed in a grant can have no application to the case under
consideration, as every requisite in both acts is essential to the
title.

															A renewal of the term of fourteen years can only be obtained Page 33 U. S. 666 by having the title page recorded with the clerk and the record
published on the page next to that of the title and public notice
given within six months before the expiration of the first
term.

															In opposition to the construction of the above statutes as now
given, the counsel for the complainants referred to several
decisions in England on the construction of the statute of 8 Anne
and other statutes.

															In the case of Beckford v. Hood, 7 Term 620, the Court
of King's Bench decided

															"that an author whose work is pirated before the expiration of
twenty-eight years from the first publication of it may maintain an
action on the case for damages against the offending party,
although the work was not entered at Stationers Hall."

															But this entry was necessary only to subject the offender to
certain penalties provided in the statute of 8 Anne. The suit
brought was not for the penalties, and consequently the entry of
the work at Stationers Hall was not made a question in the case. In
the case of Blackwell v. Harper, 2 Atk. 95, Lord Hardwicke
is reported to have said upon the act of 8 Anne, c. 19. "The clause
of registering with the Stationers Company is relative to the
penalty, and the property cannot vest without such entry," for the
words are

															"that nothing in this act shall be construed to subject any
bookseller, &c., to the forfeitures, &c., by reason of
printing any book, &c., unless the title to the copy of such
book hereafter published shall, before such publication, be entered
in the register book of the Company of Stationers."

															The very language quoted by his lordship shows that the entry
was not necessary to an investiture of the title, but to the
recovery of the penalties provided in the act against those who
pirated the work.

															His Lordship decided in the same case that

															"Under an act of Parliament providing that a certain inventor
shall have the sole right and liberty of printing and reprinting
certain prints for the term of fourteen years and to commence from
the day of first publishing thereof, which shall be truly engraved
with the name of the proprietor on each plate, and printed on every
such print or prints, the property in the prints vests absolutely
in the engraver, though the day of publication is not mentioned.
" Page 33 U. S. 667 The authority of this case is seriously questioned in the case
of Newton v. Cowie, 4 Bingham 241. And it would seem from
the decision of Lord Hardwicke that he had doubts of the
correctness of the decision, as he decreed an injunction, without
bygone profits. And Lord Alvanly, in the case of Harrison v.
Hogg, cited in 4 Bing. 242, said "that he was glad he was
relieved from deciding on the same act, as he was inclined to
differ from Lord Hardwicke."

															By a reference to the English authorities in the construction of
statutes somewhat analogous to those under which the complainants
set up their right, it will be found that the decisions often
conflict with each other; but it is believed that no settled
construction has been given to any British statute, in all respects
similar to those under consideration, which is at variance with the
one now given. If, however, such an instance could be found, it
would not lessen the confidence we feel in the correctness of the
view which we have taken.

															The act of Congress under which Mr. Wheaton, one of the
complainants, in his capacity of reporter, was required to deliver
eighty copies of each volume of his reports to the Department of
State, and which were probably faithfully delivered, does not
exonerate him from the deposit of a copy under the act of 1790. The
eighty volumes were delivered for a different purpose, and cannot
excuse the deposit of the one volume as specially required.

															The construction of the acts of Congress being settled, in the
further investigation of the case it would become necessary to look
into the evidence and ascertain whether the complainants have not
shown a substantial compliance with every legal requisite. But on
reading the evidence, we entertain doubts which induce us to remand
the cause to the circuit court, where the facts can be ascertained
by a jury.

															And the cause is accordingly remanded to the circuit court with
directions to that court to order an issue of facts to be examined
and tried by a jury at the bar of said court upon this point, viz. whether the said Wheaton as author, or any other
person as proprietor, had complied with the requisites prescribed
by the third and fourth sections of the said act of Congress,
passed 31 May, 1790, in regard to the volumes of Wheaton's Reports
in the said bill mentioned, or in Page 33 U. S. 668 regard to one or more of them in the following particulars, viz., whether the said Wheaton or proprietor did, within
two months from the date of the recording thereof in the clerk's
office of the district court, cause a copy of the said record to be
published in one or more of the newspapers printed in the resident
states, for the space of four weeks, and whether the said Wheaton
or proprietor after the publishing thereof, did deliver or cause to
be delivered to the Secretary of State of the United States, a copy
of the same to be preserved in his office, according to the
provisions of the said third and fourth sections of the said
act.

															And if the said requisites have not been complied with in regard
to all the said volumes, then the jury to find in particular in
regard to what volumes they or either of them have been so complied
with.

															It may be proper to remark that the Court is unanimously of
opinion that no reporter has or can have any copyright in the
written opinions delivered by this Court, and that the judges
thereof cannot confer on any reporter any such right.

															MR. JUSTICE THOMPSON, dissenting.

															It is matter of regret with me at any time to dissent from an
opinion pronounced by a majority of this Court, and where my mind
is left balancing, after a full examination of the case, my
habitual respect for the opinion of my brethren may justify a
surrender of my own. But where no such apology is left to me to
rest upon, it becomes a duty to adhere to my own opinion, and I
shall proceed to assign the reasons which have led me to a
conclusion different from that at which a majority of the Court has
arrived.

															It is unnecessary for me to state anything more with respect to
the bill and answer than barely to observe that the complainants in
the court below rest their claim both upon the statutory and the
common law right. The bill charges that all the provisions of the
acts of Congress have been complied with, that everything has been
done which was required by those acts in order to entitle them to
the benefit thereof, and that if it were otherwise, the orator,
Henry Wheaton has, as the author of said reports, the property in
the copy of the same and the sole right to enjoy and dispose of the
same. Page 33 U. S. 669 It would be improper in the present stage of this cause to
examine the evidence which was before the court below touching
certain questions of fact which it is alleged are required by the
acts of Congress in order to entitle the complainants to the
benefit of those acts have been complied with. An issue has been
directed to inquire into those matters. Nor is it deemed necessary
to examine whether the publication of the Condensed Reports by the
defendants is a violation of the complainants' copyright if they
have complied with all the requisites of the acts of Congress. This
would seem necessarily implied, by the ordering of the issue, for
such inquiries would be useless if the right secured under those
acts has not been violated.

															I shall therefore confine myself to an examination of the common
law right and the effect and operation of the acts of Congress upon
such right.

															I think I may assume as a proposition not to be questioned, that
in England, prior to the Statute of Anne, the right of an author to
the benefit and profit of his work is recognized by the common law.
No case has been cited on the argument, and none has fallen under
my observation at all throwing in doubt this general proposition.
Whenever the question has been there agitated, it has been in
connection with the operation of the statute upon this right. The
case of Miller v. Taylor, 4 Burr. 2303, decided in the
year 1769, was the first determination in the Court of King's Bench
upon the common law right of literary property. In that case, the
broad question is stated and examined whether the copy of a book or
literary composition belongs to the author by the common law, and
three of the judges, including Lord Mansfield, decided in the
affirmative. Mr. Justice Yeates dissented. But I am not aware that
upon this abstract question a contrary decision has ever been made
in England. This would seem to be sufficient to put at rest that
general question and render it unnecessary to go into a very
particular examination of the reasons and grounds upon which the
decision was founded. The elaborate examination bestowed upon the
question by the judges in that case has brought into view, on both
sides of the question, the main arguments of which the point is
susceptible.

															The great principle on which the author's right rests is that it
is the Page 33 U. S. 670 fruit or production of his own labor, and which may, by the
labor of the faculties of the mind, establish a right of property
as well as by the faculties of the body, and it is difficult to
perceive any well founded objection to such a claim of right. It is
founded upon the soundest principles of justice, equity, and public
policy. Blackstone, in his Commentaries, 2d vol. 405, has
succinctly stated the principle that when a man, by the exertion of
his rational powers, has produced an original work, he seems to
have clearly a right to dispose of that identical work as he
pleases, and any attempt to vary the disposition he has made of it
appears to be an invasion of that right. That the identity of a
literary composition consists entirely in the sentiment and the
language. The same conception, clothed in the same words, must
necessarily be the same composition, and whatever method be taken
to exhibit that composition to the ear or to the eye of another, by
recital, by writing, or by printing, in any number of copies or at
any period of time, it is always the identical work of the author
which is so exhibited, and no other man, it has been thought, can
have a right to exhibit it, especially for profit, without the
author's consent. The origin of this right is not probably to be
satisfactorily ascertained, and indeed if it could, it might be
considered an objection to its existence as a common law right; but
from the time of the invention of printing in the early part of the
fifteenth century, such a right seems to have been recognized. The
historical account of the recognition of the right is to be
collected from the discussions in Miller v. Taylor. The
Stationers Company was incorporated in the year 1556, and from that
time to the year 1640, the Crown exercised an unlimited authority
over the press which was enforced by the summary process of search,
confiscation, and imprisonment given to the Stationers Company and
executed by the then supreme jurisdiction of the Star Chamber. In
the year 1640, the Star Chamber was abolished, and the existence of
copyrights before that period upon principles of usage can only be
looked for in the Stationers Company or the Star Chamber or acts of
state, and the evidence upon this point, says Mr. Justice Wills, is
liable to little suspicion. It was indifferent to the views of
government whether the property of an innocent book licensed was
open or private property. Page 33 U. S. 671 It was certainly against the power of the Crown to allow it as
private property without being protected by any royal privilege. It
could be done only on principles of private justice, moral fitness,
and public convenience, which, when applied to a new subject, make
common law, without a precedent; much more when received and
approved by usage. And in this case of Miller v. Taylor, it was found by the special verdict

															"that before the reign of her late Majesty Queen Anne, it was
usual to purchase from authors the perpetual copyright of their
books, and to assign the same from hand to hand for valuable
consideration, and to make the same the subject of family
settlements for the provision of wives and children."

															This usage is evidence of the common law, and shows that the
copyright was considered and treated as property, transferable from
party to party, and property, too, of a permanent nature, suitable
for family settlement and provisions.

															Common law, says Lord Coke, 1 Inst. 1, 2, is sometimes called
right, common right, common justice. And Lord Mansfield says the
common law is drawn from the principles of right and wrong, the
fitness of things, convenience and policy. And it is upon these
principles that the copyright of authors is protected. After the
year 1640, when the press became subject to license, the various
ordinances and acts of Parliament referred to in Miller v.
Taylor and collected in Maugham's treatise on the Law of
Literary Property 13-16, necessarily imply and presuppose the
existence of a common law right in the author.

															The common law, says an eminent jurist, 2 Kent's Comm. 471,
includes those principles, usages, and rules of action applicable
to the government and security of person and property which do not
rest for their authority upon any express and positive declaration
of the will of the legislature. A great proportion of the rules and
maxims which constitute the immense code of the common law grew
into use by gradual adoption, and received from time to time the
sanction of the courts of justice without any legislative act or
interference. It was the application of the dictates of natural
justice and of cultivated reason to particular cases. In the just
language of sir Matthew Hale, the common law of England is not the
product of the wisdom of some one man or society of men in any Page 33 U. S. 672 one age, but of the wisdom, counsel, experience, and observation
of many ages of wise and observing men. And in accordance with
these sound principles and as applicable to the subject of
copyright are the remarks of Mr. Christian, in his notes to
Blackstone's Commentaries, 2 Bl.Comm. 06, and note. Nothing, says
he, is more erroneous than the practice of referring the origin of
moral rights and the system of natural equity to the savage state
which is supposed to have preceded civilized establishments, in
which literary composition, and, of consequence, the right to it,
could have no existence. But the true mode of ascertaining a moral
right is to inquire whether it is such as the reason, the
cultivated reason, of mankind must necessarily assent to. No
proposition seems more conformable to that criterion than that
everyone should enjoy the reward of his labor, the harvest where he
has sown, or the fruit of the tree which he has planted. Whether
literary property is sui generis or under whatever
denomination of rights it may be classed, it seems founded upon the
same principle of general utility to society, which is the basis of
all other moral rights and obligations. Thus considered, an
author's copyright ought to be esteemed an invaluable right,
established in sound reason and abstract morality.

															It is unnecessary, for the purpose of showing my views upon this
branch of the case, to add anything more. In my judgment, every
principle of justice, equity, morality, fitness, and sound policy
concurs in protecting the literary labors of men to the same extent
that property acquired by manual labor is protected. The objections
to the admission of the common law right of authors are generally
admitted to be summed up in all their force and strength by Mr.
Justice Yeates in the case of Miller v. Taylor. These
objections may be classed under two heads: the one founded upon the
nature of the property or subject matter of the right claimed, and
the other on the presumed abandonment of the right by the author's
publication.

															The first appears to me to be too subtle and metaphysical to
command the assent of anyone or to be adopted as the ground of
deciding the question. It seems to be supposed that the right
claimed is to the ideas contained in the book. The claim, says Mr.
Justice Yeates, is to the style and ideas of the author's
composition, and it is a well established maxim that Page 33 U. S. 673 nothing can be an object of property which has not a corporal
substance. The property claimed is all ideal, a set of ideas which
have no bounds or marks whatever -- nothing that is capable of a
visible possession -- nothing that can sustain anyone of the
qualities or incidents of property. Their whole existence is in the
mind alone. Incapable of any other modes of acquisition or
enjoyment than by mental possession or apprehension; safe and
invulnerable from their own immateriality, no trespass can reach
them, no tort affect them; no fraud or violence diminish or damage
them. Yet these are the phantoms which the author would grasp and
confine to himself, and these are what the defendant is charged
with having robbed the plaintiff of.

															He asks, can sentiments themselves (apart from the paper on
which they are contained) be taken in execution for a debt, or if
the author commits treason or felony or is outlawed, can the ideas
be forfeited? Can sentiments be seized or by any act whatever be
vested in the Crown? If they cannot be seized, the sole right of
publishing them cannot be confined to the author. How strange and
singular, says he, must this extraordinary kind of property be
which cannot be visibly possessed, forfeited, or seized, nor is
susceptible of any external injury, nor, consequently, of any
specific or possible remedy?

															These and many other similar declarations are made by Mr.
Justice Yeates to illustrate his view of the nature of a copyright.
And he seems to treat the question as if the claim was to a mere
idea, not embodied or exhibited in any tangible form or shape. No
such pretension has ever been set up, that I am aware of, by any
advocate of the right to literary property. And this view of it
would hardly deserve a serious notice had it not been taken by a
distinguished judge. Lord Mansfield, in the case of Miller v.
Taylor, in defining the nature of the right or copyright,
says

															"I use the word 'copy' in the technical sense in which that name
or term has been used for ages, to signify an incorporeal right to
the sole printing and publishing of something intellectual
communicated by letters,"

															and this is the sense in which I understand the term copyright
always to be used when spoken of as property.

															The other objection urged by Mr. Justice Yeates that the
publication by the author is an abandonment of the exclusive Page 33 U. S. 674 right rests upon more plausible grounds, but is equally
destitute of solidity.

															This would seem, according to his view of the case, the main
point in the cause. The general question, he says, is whether,
after a voluntary and general publication of an author's work by
himself or by his authority, the author has a sole and perpetual
property in that work, so as to give him a right to confine every
subsequent publication to himself or his assigns forever.

															And he lays down this general proposition. That the right of
publication must forever depend on the claimant's property in the
thing to be published. Whilst the subject of publication continues
his own exclusive property, he will so long have the sole and
perpetual right to publish it. But whenever that property ceases or
by any act or event becomes common, the right of publication will
be equally common. The particular terms in which Mr. Justice Yeates
states his proposition are worthy of notice. He puts the case upon
its being a general publication, the meaning of which undoubtedly
is that the publication is without any restriction expressed or
implied as to the use to be made of it by the party into whose
hands it might come by purchase or otherwise. Unless such was his
meaning, the proposition, I presume no one will contend, can be
maintained. Suppose an express contract made with a party who shall
purchase a book that he shall not republish it; this surely would
be binding upon him.

															So if the bookseller should give a like notice of the author's
claim, and a purchase of a book made without any express
stipulation not to republish, the law would imply an assent to the
condition. And any circumstances from which such an undertaking
could be reasonably inferred would lead to the same legal
consequences. The nature of the property and the general purposes
for which it is published and sold show the use which is to be made
of it. The usual and common object which a person has in view in
the purchase of a book is for the instruction, information, or
entertainment to be derived from it, and not for republication of
the work. It is the use of it for these purposes which is implied
in the sale and purchase. And this use is in subordination to the
antecedent and higher right of the author, and comes strictly
within the maxim sic utere Page 33 U. S. 675 tuo ut alienam non laedas. But the case is not left to
rest on any implied notice of the author's claim and the conditions
on which he makes it public. This is contained on the title page of
the very book purchased, and cannot be presumed to escape the
notice of the purchaser. It is there in terms announced, that the
author claims the right of publication, and whoever purchases
therefore does it with notice of such claim and is bound to use it
in subordination thereto. Mr. Justice Yeates admits that every man
is entitled to the fruits of his own labor, but that he can be
entitled to it only subject to the general rights of mankind and
the general rules of property, and that there must be a limitation
to such right; otherwise the rights of others are infringed. The
force of such limitation upon the right is not readily perceived.
If the right exists, it is a common law right, growing out of the
natural justice of the case, being the result of a man's own labor.
He thinks the Statute of Anne fixes a just limitation. But suppose
no statute had been passed on the subject; where would have been
the limitation? The right existing, who would have authority to say
where it should end? It must necessarily be without limitation, and
it is no infringement of the rights of others. They enjoy it for
the purpose intended and according to the nature of the property.
The purchaser of the book has a right to all the benefit resulting
from the information or amusement he can derive from it. And if, in
consequence thereof, he can write a book on the same subject, he
has a right so to do. But this is a very different use of the
property from the taking and publishing the very language and
sentiment of the author, which constitute the identity of his
work.

															Mr. Justice Yeates puts the effect of a publication upon the
ground of intent in the author. The act of publication, says he,
when voluntarily done by the author, is virtually and necessarily a
gift to the public. And he must be deemed to have so intended it.
But no such intention can surely be inferred when the contrary
intention is inscribed upon the first page of the book, which
cannot escape notice.

															The case of Percival v. Phipps, 2 Ves. & Beam. 19,
recognizes the implied prohibition against publishing the work of
another arising from the very nature of the property. It was held
in that case that private letters, having the character Page 33 U. S. 676 of literary composition, were within the spirit of the act
protecting literary property, and that by sending a letter, the
writer did not give the receiver authority to publish it, and this
is the doctrine of Lord Hardwicke in Pope v. Carl, 2 Atk.
342, where it is said that familiar letters may form a literary
composition in which the author retains his copyright, and does
not, by sending them to the person to whom they are addressed,
authorize him or a third person to use them for the purpose of
profit by publishing them against the interest and intention of the
author. That by sending the letter, though he parts with the
property of the paper, he does not part with the property of
copyright in the composition.

															But how stands the case with respect to the effect of
publication by the author according to Mr. Justice Yeates' own
rule. He says "in all abandonments of such kind of property, two
circumstances are necessary," an actual relinquishing the
possession, and an intention to relinquish it. That the author's
name's being inserted in the title page is no reason against the
abandonment, for many of our best and noblest authors have
published their works from more generous views than pecuniary
profit. Some have written for fame and the benefit of mankind. That
the omission of the author's name can make no difference, for if
the property be absolutely his, he has no occasion to add his name
to the title page. He cannot escape, it seems, from calling the
copyright property, although a mere idea, and resorts again to his
favorite theory that it has no indicia, no distinguishing marks to
denote his proprietary interest therein, and hard, says he, would
be the law, that should adjudge a man guilty of a crime, when he
had no possibility of knowing that he was doing the least wrong to
any individual. That he could not know who was the proprietor of
these intellectual ideas, they not having any earmarks upon them,
or tokens of a particular proprietor.

															If, as Mr. Justice Yeates admits, it is a question of intention
whether the author meant to abandon his work to the public, and
relinquish all private or individual claims to it, no possible
doubt can exist as to the conclusion in the present case. Would a
jury hesitate a moment upon the question under the evidence before
the Court? The right set up and stamped upon the title page of the
book, shuts the door against any Page 33 U. S. 677 inference, that the publication was intended to be a gift to the
public.

															Mr. Justice Yeates admits that so long as a literary composition
is in manuscript, and remains under the sole dominion of the
author, it is his exclusive property. It would seem, therefore,
that the idea when once reduced to writing, is susceptible of
identity and becomes the subject of property. But property without
the right to use it is empty sound, says Mr. Justice Aston in Miller v. Taylor. And indeed it would seem a mere mockery
for the law to recognize anything as property, which the owner
could not use safely and securely for the purposes for which it was
intended unless interdicted by the principles of morality or public
policy.

															It is not necessary that I should go into any particular
examination of the construction of the Statute of Anne or to what
extent it may affect the common law right of authors in England,
because, as I shall hereafter show, that statute was never
considered in force in Pennsylvania. The mere common law right,
uninfluenced by that statute, is alone drawn in question under this
branch of the case. And the decision in the case of Miller v.
Taylor, would seem to put that question at rest in England, at
that day. Mr. Justice Yeates, in aid of his opinion, relied much
upon that statute, arguing that from the title, which is an "act
for the encouragement of learning by vesting the copies of printed
books in the authors or purchasers of such copies during the times
therein mentioned," and from the provision in the act, that the
sole right should be vested, &c., for twenty-one years and no
longer; the right was created, and limited by the act, and did not
rest upon the common law. The other three judges, however,
maintained that an author's right was not derived from the statute,
but that he had an original perpetual common law right and property
in his work, and that the statute was only cumulative, and giving
additional remedies for a violation of the right. That the preamble
in the act proceeds upon the ground of a right of property in the
author having been violated, and that the act was intended as a
confirmation of such right. And that from the remedy enacted
against the violation of the right being only temporary, it might
be argued that it afforded an implication that there existed no
right but what was Page 33 U. S. 678 secured by the act. To guard against which, there is an express
saving in the ninth section of the act.

															"Provided that nothing in this act contained shall extend or be
construed to extend either to prejudice or confirm any
right that the said universities or any of them, or any
person or persons, have or claim to have to the printing or
reprinting, any book or copy already printed or hereafter to be
printed."

															That the words "any right" manifestly meant any other right than the term secured by the act. It may be
observed here that whatever may be the just weight to be given to
the term "vested" and the words "no longer," as
used in the Statute of Anne and so much relied on by Mr. Justice
Yeates have no application to our acts of Congress, no such term or
provision being used. A writ of error was brought in this case of Miller v. Taylor, but afterwards abandoned, and the law
was considered settled, until called in question in Donaldson
v. Beckett, 4 Burr. 2408, which came before the House of Lords
in the year 1774, upon an appeal from a decree of the Court of
Chancery founded upon the judgment in Miller v.
Taylor. Upon this appeal certain questions were propounded to the twelve
judges. Lord Mansfield, however gave no opinion, it being very
unusual, as the reporter states, from reasons of delicacy, for a
peer to support his own judgment upon appeal to the House of Lords.
This statement necessarily implies, however, that he had not
changed his opinion. There were therefore eleven judges who voted
upon the questions.

															One of the questions propounded was whether at common law an
author of any book or literary composition had the sole right of first printing and publishing the same for sale, and might
bring an action against any person who printed, published and sold
the same without his consent.

															Upon this question ten voted in the affirmative, and one in the
negative.

															Another question was, if the author had such right originally, did the law take it away, upon his printing and publishing such book or literary composition, and might any person,
afterwards, reprint and sell, for his own benefit, such book or
literary composition, against the will of the author.

															Upon this question seven were in the negative, and four in the
affirmative. Page 33 U. S. 679 The vote upon these two questions settled the point that, by the
common law, the author of any literary composition, and his
assigns, had the sole right of printing and publishing the same in
perpetuity.

															Another question propounded was if an action would have lain at
common law, is it taken away by the Statute of Anne? and is an
author, by the said statute, precluded from every remedy, except on
the foundation of the statute, and on the terms and conditions
prescribed thereby?

															Upon this question, six voted in the affirmative and five in the
negative, and it will be perceived that if Lord Mansfield had voted
on this question, and in conformity with his opinion in Miller
v. Taylor, the judges would have been equally divided.

															That the law in England has not been considered as settled, in
conformity with the vote on this last question, is very certain.
For it is the constant practice in chancery to grant injunctions to
restrain printers from publishing the works of others, which
practice can only be sustained on the ground that the penalties
given by the statute, are not the only remedy that can be resorted
to. In Miller v. Taylor, Lord Mansfield says the whole
jurisdiction exercised by the Court of Chancery since 1710, the
date of the Statute of Anne, against pirates of copies is an
authority that authors had a property antecedent to which the act
gives a temporary additional security. It can stand upon
no other foundation. And in the case of Beckford v. Hood, 7 Term 616, it was decided that an author whose work is pirated
before the expiration of the time limited in the statute, may
maintain an action on the case for damages against the offending
party. Lord Kenyon says the question is whether, the right of
property being vested in authors for certain periods, the common
law remedy for a violation of it does not attach within the time
limited by the act of Parliament. Within those periods, the act
says that the author shall have the sole right and liberty of
printing, &c. Thus, the statute having vested that right in the
author, the common law gives the remedy by action in the case for
violation of it, and that the meaning of the act in creating the
penalties was to give an accumulative remedy. And in this all the
judges concurred. And Mr. Justice Grose Page 33 U. S. 680 observes that in the great case of Miller v. Taylor, Mr. Justice Yeates gave his opinion against the common law right of
authors, but he was decidedly of opinion that an exclusive right of
property was vested by the statute for the time limited, and he
says that by the decision in the House of Lords of Donaldson v.
Beckett, the common law right of action is not considered as
taken away by the Statute of Anne, but that it could not be
exercised beyond the time limited by that statute, and it is worthy
of notice that this action on the case for damages was sustained,
although the work was not entered at Stationers Hall nor the
author's name affixed to the first publication. This, Lord Kenyon
observes, was to serve as a notice and warning to the public that
none might ignorantly incur the penalties and forfeitures given
against such as pirate the works of others. But calling on a party
who has injured the civil property of another for a remedy in
damages cannot properly fall under the description of a forfeiture
or penalty.

															From this view of the law as it stands in England, it is very
clear that, previous to the Statute of Anne, the perpetual common
law right of authors, was undisputed. That after that statute, in
the case of Miller v. Taylor, it was held that this common
law right remained unaffected by the statute, which only gave a
cumulative remedy. That the subsequent case of Donaldson v.
Beckett, limited the right to the times mentioned in the
statute. But that for all violations of the right during that time,
all the common law remedies continued, although no entry of the
work at Stationers Hall had been made, according to the provisions
of the statute. Such entry being necessary only for the purpose of
subjecting the party violating the right to the penalties given by
the act.

															I do not deem it necessary particularly to inquire whether, as
an abstract question, the same reasons do not exist for the
protection of mechanical inventions as the production of mental
labor. The inquiry is not whether it would have been wise to have
recognized an exclusive right to mechanical inventions. It is
enough when we are inquiring what the law is, and not what it ought
to have been, to find that no such principle ever has been
recognized by any judicial decision. The argument was urged with
great earnestness by Mr. Justice Yeates in Miller v.
Taylor, but repudiated by Lord Mansfield and the other Page 33 U. S. 681 judges. With respect to copyrights, however, the law has been
considered otherwise, and the original common law right fully
established, though modified in some respects by the Statute of
Anne.

															I shall proceed now to some notice of the light in which
copyrights have been viewed in this country.

															It appears from the journals of the old Congress, 8 Journals
257, that this question was brought before that body by sundry
papers and memorials on the subject of literary property, and which were referred to a committee, of which Mr. Madison was
one, and on 27 May, 1783, the following resolution was reported and
adopted.

															"Resolved that it be recommended to the several states to secure
to the authors or publishers of any new books not hitherto printed,
being citizens of the United States, and to their executors,
administrators and assigns, the copyright of such books for a
certain time, not less than fourteen years from the first
publication, and to secure to the said authors if they shall
survive the term first mentioned, and to their executors,
administrators, and assigns, the copyright of such books for
another term or time not less than fourteen years, such copy or
exclusive right of printing, publishing, and vending the same, to
be secured to the original authors or publishers, their
executors, administrators, and assigns, by such laws and such
restrictions, as to the several states may seem proper."

															This right is here treated and dealt with as property already
existing, and not as creating anything which had previously no
being. It is spoken of as something tangible that might pass to
executors and administrators, and transferable by assignment. And
the recommendation to the states was, to pass laws to secure such
right.

															It must be presumed, that Congress understood the light in which
this subject was viewed in the mother country. And it is deserving
of notice, that Mr. Madison, one of the committee, afterwards wrote
the number in the Federalist, where this subject is discussed, and
where it is expressly asserted, that this has been adjudged in
England to be a right at common law.

															And it is worthy of remark also that no mention is here made of
any right in mechanical inventions, and although the arts and
sciences are connected in the same clause in the Constitution, Page 33 U. S. 682 and placed under the legislative power of Congress, it does not,
by any means follow that they were considered as standing on the
same footing.

															Several of the states had already passed laws on this subject,
and many others, in compliance with the recommendation of Congress,
did the same.

															The State of Massachusetts, as early as March, 1783, passed a
law entitled, "an act for the purpose of securing to authors, the
exclusive right and benefit of publishing their literary
productions for twenty-one years." The preamble to this act shows
in a strong and striking manner the views entertained at that day
in this enlightened state of the value of this right.

															"Whereas the improvement of knowledge, the progress of
civilization, the public weal of the community, and the advancement
of human happiness greatly depend on the efforts of learned and
ingenious persons in the various arts and sciences; as the
principal encouragement such persons can have to make great and
beneficial exertions of this nature must exist in the legal
security of the fruits of their study and industry to themselves;
and as such security is one of the natural rights of all men, there
being no property more peculiarly a man's own than that
which is produced by the labor of his mind, therefore to encourage
learned and ingenious persons to write useful books for the benefit
of mankind, be it enacted,"

															&c. The act then proceeds to declare that all books,
treatises and other literary works, &c., shall be the sole
property of the author or authors, being subjects of the United
States of America, their heirs and assigns, for the full and
complete term of twenty-one years from the date of their first
publication. And certain penalties are affixed to a violation of
the right, with a proviso, that the act shall not be construed to
extend in favor, or for the benefit of any author, or subject of
any other of the United States, until the state of which such
author is a subject, shall have passed similar laws for securing to
authors the exclusive right and benefit of publishing their
literary productions. 1 Laws Mass. 94.

															This act recognizes in the fullest and most unqualified manner,
the natural right which an author has to the productions and labor
of his own mind. And it is worthy of notice that the act does not
recognize as a natural right, or in any manner Page 33 U. S. 683 provide for the protection of mechanical inventions; thereby
showing the distinction between mental and manual labor in the view
of that legislature, although it is now attempted to put them on
the same footing.

															The State of Connecticut had, previously, in the same year
(January 1783), passed an act for the encouragement of literature
and genius, containing the following preamble:

															"Whereas it is perfectly agreeable to the principles of natural
justice and equity that every author should be secured in receiving
the profits that may arise from the sale of his works, and such
security may encourage men of learning and genius to publish their
writings, which may do honor to their country, and service to
mankind."

															Certain provisions are then made for the security of such right
which it is unnecessary here to be particularly noticed.

															There is a like proviso as in the Massachusetts act, that the
benefit of the law is not to extend to authors, inhabitants of, or
residing in other states, until such states have passed similar
laws. Statutes of Conn. 474. This law is also confined to literary
productions, and in no manner extending to mechanical labors.

															In the Colony of New York, in the year 1786, a law "to promote
literature" was passed reciting

															"Whereas, it is agreeable to the principles of natural equity
and justice that every author should be secured in receiving the
profits that may arise from the sale of his works, and such
security may encourage persons of learning and genius to publish
their writings, which may do honor to their country and service to
mankind."

															and then making provision for securing to authors the sole right
of printing, publishing, and selling their works for fourteen
years. With a proviso to the fourth section of the act, recognizing
a common law right, but leaving it open and unaffected in cases not
coming within the act, viz., "Provided that nothing in this act shall extend to, affect,
prejudice, or confirm the rights which any person may have to the
printing or publishing of any books or pamphlets at common law, in
cases not mentioned in this act."

															The State of Virginia also, in the year 1785, passed a similar
law, for securing to authors of literary works, an exclusive
property therein, for a limited time. 1 Rev.Code 534. Like Page 33 U. S. 684 laws for the same purpose were passed by other states, which are
not necessary here to be noticed, enough having been referred to to
show the light in which literary property was viewed in this
country, and that such laws were passed, with a view to protect and
secure a preexisting right, founded on the eternal rules and
principles of natural right and justice, and recognized by the
common law.

															But under the existing governments of the United States before
the adoption of the present Constitution, adequate protection could
not be given to authors throughout the United States by any general
law. It depended on the legislatures of the several states, and
this led to the provisions in the present Constitution, giving to
Congress power

															"to promote the progress of science and the useful arts by
securing for limited times to authors and inventors the exclusive
right to their respective writings and discoveries."

															Constit. Art. 1, sec. 8.

															It has been argued at the bar that as the promotion of the
progress of science and the useful arts is here united in the same
clause in the Constitution, the rights of authors and inventors
were considered as standing on the same footing, but this, I think,
is a nonsequitur. This article is to be construed
distributively, and must have been so understood, for when Congress
came to execute this power by legislation, the subjects are kept
distinct and very different provisions are made respecting them.
All the laws relative to inventions purport to be acts to promote
the progress of the useful arts. They do not use any language which
implies or presupposes any existing prior right to be secured, but
clearly imply that the whole exclusive right is created by the law,
and ends with the expiration of the patent. The first law, passed
in the year 1790, 1 Story's Ed. 80, requires that the specification
shall be so particular, as not only to distinguish the invention or
discovery from other things before known and used, but also to
enable a workman or other person skilled in the art or manufacture
to make, construct, or use the same to the end that the public may
have the full benefit thereof after the expiration of the patent
term. This is the consideration demanded by the public for the
protection during the time mentioned in the patent, and the books
furnish no case that I am aware of where an Page 33 U. S. 685 action has been attempted to be sustained upon any supposed
common law right of the inventor.

															But the case is quite different with respect to copyrights. All
the laws on this subject purport to be made for securing to authors
and proprietors such copyright. They presuppose the existence of a
right, which is to be secured, and not a right originally created
by the act. The security provided by the act is for a limited time.
But there is no intimation that at the expiration of that time the
copy becomes common, as in the case of an invention. The right, at
the expiration of the time limited in the acts of Congress, is left
to the common law protection, without the additional security
thrown around it by the statutes, and stands upon the same footing
as it did before the statutes were passed. The protection for a
limited time by the aid of penalties, against the violators of the
right, proceeds upon the ground that the author, within that time,
can so multiply his work and reap such profits therefrom as to
enable him to rest upon his common law right without the
extraordinary aid of penal laws.

															In the Federalist, No. 43, written by Mr. Madison, who reported
the resolution referred to in the old Congress, this clause in the
Constitution is under consideration, and the writer observes that
the utility of this power will scarcely be questioned. The
copyright of authors has been solemnly adjudged in Great Britain,
to be a right at common law. The right to useful inventions
seems with equal reason to belong to the inventors. The public good
fully coincides in both cases with the claims of individuals. The
states cannot separately make effectual provision for either of the
cases, and most of them have anticipated the decision of this point
by laws passed at the instance of Congress.

															Although it is here said that the right to useful inventions
seems with equal reason to belong to the inventors, as the
copyright to authors; yet it is not pretended that the common law
equally recognizes them. But the contrary is necessarily implied
when it is expressly said that the copyright has been adjudged to
be a common law right, but is silent as to inventors' rights.

															The common law right of authors is expressly recognized by MR.
JUSTICE STORY in his Commentaries. In noticing this Page 33 U. S. 686 article in the Constitution, he says

															"This power did not exist under the Confederation, and its
utility does not seem to have been questioned. The copyright of
authors in their works had, before the Revolution, been decided in
Great Britain to be a common law right, and it was regulated and
limited under statutes passed by Parliament upon that subject."

															3 Story's Com. 48. If these statutes do not affect the right in
the case now before the Court, it remains and is to be viewed as a
common law right.

															The judge in the court below who decided this case seems to
place much reliance on what he considers a doubt suggested by
Chancellor Kent as to the existence of the common law right. Let us
see what he does say. "It was," says he,

															"for some time the prevailing and better opinion in England that
authors had an exclusive copyright at common law, as permanent as
the property of an estate, and that the Statute of Anne, protecting
by penalties that right for fourteen years, was only an additional
sanction, and made in affirmance of the common law. This point came
at last to be questioned, and it became the subject of a very
serious litigation in the Court of King's Bench. It was decided in Miller v. Taylor, 1769, that every author had a common law
right in perpetuity, independent of statute, to the exclusive
printing and publishing his original compositions. The court was
not unanimous, and the subsequent decision of the House of Lords in Donaldson v. Beckett, in February, 1774, settled this very
litigated question against the opinion of the King's Bench, by
establishing that the common law right of action, if any
existed, could not be exercised beyond the time limited by the
Statute of Anne, 2 Com. 375, second ed. It is here fully admitted
that by the decision in Miller v. Taylor, every author had
a common law right in perpetuity to the publishing of his original
composition. And if it was intended to intimate that the subsequent
decision, in Donaldson v. Beckett, overruled this
decision, as to the common law right, I apprehend, this must be a
mistake according to the report of the case in 4 Burr. I understand
the decision then was, by ten of the judges, that at common, law an
author had the sole right of first printing and publishing
his work, and by seven judges to four that such right continued
after his first publication. It is true it Page 33 U. S. 687 was decided by six to five of the judges, that the common law
right of action could not be exercised beyond the time limited by
the Statute of Anne. But with the construction of this statute we
have no concern, if it was not in force in Pennsylvania. The
settlement of the common law right is the material point and that
is admitted by Chancellor Kent to have been decided in favor of the
author. There is certainly considerable obscurity in the report of
this case, as to how far it has modified the common law remedy;
this arises probably from the manner in which the questions were
propounded by the House of Lords to the judges."

															I do not perceive how it becomes necessary in this case to
decide the question whether we have here any code of laws known and
regarded as the common law of the United States. This case presents
a question respecting the right of property, and in such cases the
state laws form the rules of decision in the courts of the United
States, and the case now before the Court must be governed by the
law of copyright in the State of Pennsylvania. The complainants,
though citizens of New York, are entitled to the benefit of those
laws for the protection of their property, and have a right to
prosecute their suit in the courts of the United States.

															If, by the common law of England, an author has the copyright in
his literary compositions, it becomes necessary to inquire whether
that law is in force in the State of Pennsylvania.

															It was very properly admitted by the court below on the trial of
this cause that when the American colonies were first settled by
our ancestors, it was held as well by the settlers as by the judges
and lawyers of England that they brought with them, as a birthright
and inheritance, so much of the common law as was applicable to
their local situation and change of circumstances, and that each
colony judged for itself what parts of the common law were
applicable to its new condition. MR. JUSTICE STORY recognizes the
same principle in his Commentaries, vol. 1, 137 to 140. Englishmen,
says he, removing to another country, must be deemed to carry with
them those rights and privileges which belong to them in their
native country, and that the plantations formed in this country
were to be deemed a part of the ancient dominions, Page 33 U. S. 688 and the subjects inhabiting them to belong to a common country,
and to retain their former rights and privileges. That the
universal principle has been (and the practice has conformed to it)
that the common law is our birthright and inheritance, and that our
ancestors brought hither with them, upon their immigration, all of
it which was applicable to their situation. The whole structure of
our present jurisprudence stands upon the original foundation of
the common law. The old Congress, in the year 1774, unanimously
resolved, that the respective colonies are entitled to the common
law of England. 1 Story's Com. 140, and note.

															The Colony of Pennsylvania was settled about the year 1682, at
which period, and down to the time of the case of Miller v.
Taylor, 1769, the whole course of the British government, as
well in Parliament as in the Star Chamber and Court of Chancery,
proceeded, in relation to the regulation of copyrights, upon the
ground of an existing common law right in authors, and which was to
universally acknowledged, that it was not contested in a court of
justice until that case, and then solemnly and upon the most mature
deliberation decided to be a common law right, notwithstanding the
Statute of Anne passed in the year 1710. And the subsequent
decision of Donaldson v. Beckett, turned entirely upon the
construction of that act, which it was supposed limited the remedy
to the time prescribed in the act for the protection of the
copyright. So that at the time of the settlement of Pennsylvania
and for nearly a century thereafter, the common law right with all
the common law remedies attached to it, was the received and
acknowledged doctrine in England. And if the common law was brought
into Pennsylvania by the first settlers, the law of copyright
formed a part of it and was in force there, and has so continued
ever since, not having been abolished or modified by any
legislature in that state. But the existence of the common law in
Pennsylvania is not left to inference upon the general principles
applicable to emigrants, before alluded to; there is positive
legislation on the subject.

															We find, as early as the year 1718, a law in that colony with a
recital

															"Whereas King Charles II, by his royal charter to William Penn
for erecting this country into a province, did declare it to be his
will and pleasure that the laws for regulating Page 33 U. S. 689 and governing of property within the said province, as well for
the descent and enjoyment of lands as for the enjoyment and
succession of goods and chattels and likewise as to felonies should
be and continue the same as they should be, for the time being, by
the general course of the law in the Kingdom of England, until the
said laws shall be altered by the said William Penn, his heirs and
assigns, and by the freemen of the said province, their delegates
or deputies, or the greater part of them, and whereas it is a
settled point that as the common law is the birthright of all
English subjects, so it ought to be their rule in the British
dominions. But acts of Parliament have been adjudged not to extend
to these plantations, unless they are particularly named as such,
now therefore"

															and certain statutes relating to crimes are adopted, and this
question came under the consideration of the supreme court of that
state in the case of Morris' Lessee v. Van
Dorin , 1 Dall. 64, in the year 1782, and CHIEF
JUSTICE McEAN, in pronouncing the judgment of the Court, says

															"This state has had her government for above a hundred years,
and it is the opinion of the Court, that the common law of England
has always been in force in Pennsylvania. That all statutes made in
Great Britain before the settlement of Pennsylvania, have no force
here unless they are convenient, and adapted to the circumstances
of the country, and that all statutes made since the settlement
of Pennsylvania, have no force here, unless the colonies are
particularly named, and he adds that the spirit of the act of 1718
supports this opinion."

															With respect to English statutes which have been considered in
force in Pennsylvania, we have the most satisfactory evidence in
the report of the judges of the supreme court of that state, made
under an act of the legislature passed April 7, 1807, 3 Binn. 395,
by which the judges were required to examine, and report, which of
the English statutes are in force in that commonwealth, and upon
this subject the report states:

															"With respect of English statutes, enacted since the settlement
of Pennsylvania it has been assumed as a principle that they do not
extend here unless they have been recognized by our acts of
assembly or adopted by long continued practice in courts of
justice. Of the latter description there are very few, and those,
it is supposed, were introduced from a sense of their Page 33 U. S. 690 evident utility. As English statutes, they had no obligatory
force, but from long practice, U.S. they may be considered as
incorporated with the law of our country."

															From this review of the law I think I have shown that, by the
common law of England down at least to the decision in the case of Donaldson v. Beckett, an author was considered as having
an exclusive right in perpetuity to his literary compositions. That
this right, as a branch of the common law, was brought into
Pennsylvania with the first settlers as early as the year 1682.
That whatever effect and operation the Statute of Anne may have
been deemed to have had upon the common law in England, that
statute never having been in force in Pennsylvania, the common law
right remains unaffected by it. And with this view of the law and
the rights of an author, I proceed to consider the acts of Congress
which have been passed on this subject.

															Observing in the first place that we are bound to presume that
Congress understood the nature and character of this claim of
authors to the enjoyment of the fruits of their literary labors and
the ground upon which it rested. This is useful and necessary to
conduct us to a right understanding of their legislation. A
knowledge of the mischief is necessary to a just and correct view
of the remedy intended to be applied.

															But the knowledge of Congress on this subject is not left open
to presumption. The question as to its being an exclusive and
perpetual right was brought directly to the view of Congress.

															Three acts have been passed on this subject, and being not only in pari materia, but connected with each other by their
very titles and objects, are to be construed together and explained
by each other.

															The last act on the subject was passed in the year 1831, and is
entitled "An Act to amend the several acts respecting copyrights,
approved February 3, 1831." And the report of the judiciary
committee, to whom the subject was referred, shows in what point of
light the subject was presented to Congress.

															Your committee, says the report,

															"believes that the just claims of authors require from our
legislation a protection not less than what is proposed in
the bill reported. From the first principles of proprietorship in property, an author has an exclusive Page 33 U. S. 691 and perpetual right in preference to any other to the
fruits of his labor. Though the nature of literary property is
peculiar, it is not the less real and valuable. If labor and effort
in producing what before was not possessed or known will give
title, then the literary man has title, perfect and absolute, and
should have his reward."

															The object of the law, and to which the attention of Congress
was specially drawn, was the protection of property, claimed and
admitted to be exclusive and perpetual in the author.

															It may be useful preliminarily to notice a few of the settled
rules by which statutes are to be construed.

															In construing statutes, three points are to be regarded: the old
law, the mischief, and the remedy, and the construction should be
such, if possible, to suppress the mischief and advance the remedy.
1 Bl.Com. 87; Bac.Ab. Stat. 1, pl. 31, 32.

															An affirmative statute does not abrogate the common law.

															If a thing is at common law, a statute cannot restrain it unless
it be in negative words. Plowd. 113; 2 Kent's Com. 462; 2 Mason
451; 1 Inst. 111, 115; 10 Mod. 118. Bac.Abr. Stat. 9.

															Where a statute gives a remedy, where there was one by the
common law, and does not imply a negative of the common law remedy,
there will be two concurrent remedies. In such case, the statute
remedy is accumulative. 2 Bac. 803, 805; 2 Inst. 200; Com.Dig.
Action upon Statute 6.

															Considering the common law right of the author established and
with these rules of construing statutes kept in view, I proceed to
the consideration of the acts of Congress.

															The first law was passed in the year 1790, 1 vol. Story's ed. of
Laws of United States 94, and is entitled

															"An act for the encouragement of learning by securing the copies
of maps, charts, and books to the authors and proprietors of such
copies during the times therein mentioned."

															The first section declares that the author of any book or books
already printed, being a citizen of the United States and who hath
not transferred the copyright to any other person, and any other
person, being a citizen of the United States, &c., who hath
purchased, or legally acquired the copyright of such book, in order
to print, reprint, publish, or vend the same, shall have the sole
right and liberty of printing, reprinting, publishing, and Page 33 U. S. 692 vending the same for fourteen years from the recording the
title thereof in the clerk's office, as hereinafter directed.
The like provision is made with respect to books or manuscripts not
printed or thereafter composed. The title and this section of the
act obviously consider and treat this copyright as property --
something that is capable of being transferred -- and the right of
the assignee is protected equally with that of the author, and the
object of the act, and all its provisions purport to be for
securing the right. Protection is the avowed and real purpose for
which it is passed. There is nothing here admitting the
construction that a new right is created. The provision in no way
or manner deals with it as such. It in no manner limits or
withdraws from the right any protection it before had. It is a
forced and unreasonable interpretation, and in violation of all the
well settled rules of construction, to consider it as restricting,
limiting, or abolishing any preexisting right. Statutes are not
presumed to make any alteration in the common law further or
otherwise than the act expressly declares. And therefore, when the
act is general, the law presumes it did not intend to make any
alteration, for if such was the intention, the legislature would
have so expressed it. 11 Mod. 148; 19 Vin. 512, Stat. E. 6, pl. 12.
And hence the rule is laid down in Plowden, if a thing is at common
law, a statute cannot restrain it unless it be in negative words.
It is in every sense an affirmative statute, and does not abrogate
the common law.

															The cumulative security or protection given by the statute
attaches from the recording of the title of the book in the
clerk's office of the district court where the author or proprietor
shall reside. If the statute should be considered as creating
a new right, that right vests upon recording the title. This is the
only prerequisite or condition precedent to the vesting the right.
Whatever it is that is given by the statute, and the other
requirements in the third and fourth sections, of publishing in the
newspaper within two months from the date of the record and
delivering a copy of the book to the Secretary of State within six
months from the publication cannot be construed as prerequisites or
conditions precedent to the vesting. These provisions cannot be
considered in any other light than as directory. In no other view
can these sections of the law be Page 33 U. S. 693 made consistent with the provisions of the first section. The
benefit of the act, so far as respects the exclusive right, takes
effect from the time of recording the title in the clerk's office,
but the publication in the newspaper may be made at any time within
two months, and the copy delivered to the Secretary of State within
six months.

															What would be the situation of the author if his copyright
should by violated before the expiration of the time allowed him
for these purposes? Would he have no remedy? The second section
declares in terms that if any person, from and after the recording the title, shall, without the consent of the
author or proprietor, print or reprint, &c., he thereby incurs
the penalties given by the act. Both the right and the remedy
therefore given by the act attach on the recording of the title.
And this construction is not at all affected by anything contained
in the third section of the act, which declares that no person
shall be entitled to the benefit of this act unless he shall have
deposited a printed copy of the title in the clerk's office. This
is in perfect harmony with the first and second sections, and
although the requirement to publish a copy of the record in the
newspaper is in the same section, it is in a separate and distinct
clause, and no more required to be considered a prerequisite than
if it was in a distinct section, and so it was considered by Mr.
Justice Washington in Ewer v. Coxe, 4 Wash.C.C. 490, and
he also in that case considered the requirement in the fourth
section to deliver a copy to the Secretary of State as directory,
and not as a condition, and indeed the result of his opinion was
that if the author's copyright depended upon the act of 1790, it
would be complete by a deposit of a copy of the title in the
clerk's office. But that the act of 1802 not only added another
requisite, viz. causing a copy of the record to be
inserted at full length in the title page, but made the publication
in the newspaper, and the delivery of a copy of the book to the
Secretary of State prerequisites, although not made so by the act
of 1790.

															Mr. Justice Washington is fully supported in his construction of
the act of 1790 by the case of Nichols v. Ruggles, 3 Day
145, decided in the Supreme Court of errors of the State of
Connecticut, where it is held that the provisions of the statute,
which require the author to publish the title of his book in a
newspaper, and to deliver a copy of the work to the Page 33 U. S. 694 Secretary of State, are merely directory, and constitute no part
of the essential requisites for securing the copyright. This case
was decided in the year 1808, and I do not find any reference to
the act of 1802. This can only be accounted for upon the
supposition that, in the opinion of the counsel and court, this act
did not at all affect the construction of the act of 1790, for had
it been supposed that the act of 1802 made the publication in a
newspaper and a delivery of a copy of the work to the Secretary of
State prerequisites to the vesting of the copyright, it would
necessarily have led to a different result on the motion for a new
trial. Judge Hopkinson, who tried the cause now before the Court,
thinks the act of 1790 will not admit of the construction given to
it by Judge Washington, but that under that act the publication in
a newspaper and delivery of a copy of the work to the Secretary of
State are prerequisites to the establishment of the right, and such
I understand to be the opinion of a majority of this Court by which
the construction of the act of 1790 by Judge Washington is
overruled. I have already attempted to show that this construction
of the act of 1790 cannot be sustained; nor do I think that the act
of 1802 will aid that construction of the act of 1790, and in this
I understand my brother McLEAN concurs, so that upon this question,
as to the effect of the act of 1802 upon the act of 1790, the Court
is equally divided, and the decision of the cause rests upon the
act of 1790. A brief notice, however, of the act of 1802, 2 Story's
Ed. Laws U.S. 866, may not be amiss.

															It purports, so far as it relates to the present question, to be
a supplement to the act of 1790, and declares that the author or
proprietor of a book, before he shall be entitled to the benefit of
that act, shall, in addition to the requisites enjoined in the
third and fourth section of said act, give information, by causing
a copy of the record, required to be published in a newspaper, to
be inserted at full length in the title page or in the page
immediately following the title page of the books. It is to be
observed that this purports to be a supplementary act, the office
of which is only to add something to the original act, but not to
alter or change the provisions which it already contains. It leaves
the original act precisely as it was, and only superadds to its
provisions the matter of the supplement, and Page 33 U. S. 695 both, when taken together, will receive the same construction as
if originally incorporated in the same act. This is the natural and
rational view of the matter. Suppose this new requisite had been in
the original act, how would it stand? If it was in a separate and
distinct section, it would run thus: that the author, before he
shall be entitled to the benefit of this act, shall insert at full
length, in the title page of the book a copy of the record of the
title. This could not change the construction of the act as to the
publication in the newspaper or delivery of a copy of the book to
the Secretary of State. Nor could it have any such effect if it
followed immediately after the prerequisite of depositing a printed
copy of the title of the book in the clerk's office, and this would
have been the natural place for the provision if it had been
inserted in the original act.

															Judge Washington, in Ewer v. Coxe, says that the
supplemental act declares that the person seeking to obtain this
right shall perform this new requisition in addition to those
prescribed in the third and fourth sections of the act of 1790, and
that he must perform the whole before he shall be entitled to
the benefit of the act. I find no such declaration in the act.
The second section, which relates to prints, does contain this
declaration, but it has no application to books.

															If the act of 1802 is intended as a legislative construction of
the act of 1790 and is clearly erroneous, it cannot be binding upon
the Court.

															The act of 1831, being in pari materia, may be taken
into consideration in construing the previous acts which it
purports to amend, and we find in this act only two prerequisites
imposed upon an author to entitle him to the benefit of the act, viz., to deposit a printed copy of the title of the book
in the clerk's office of the district court of the district wherein
the author or proprietor shall reside, and to give information of
the copyright being secured, by inserting on the title page, or the
page immediately following, the entry therein directed, viz., "entered according to the act of Congress," &c.
And these being prerequisites under the former laws, it is fairly
to be concluded that they were the only prerequisites, and that the
other requirements are merely directory; and if so, the
complainants in the court below have shown all that the acts of Page 33 U. S. 696 Congress require to vest the copyright. The title has been
recorded in the clerk's office, and a copy of the record inserted
in the title page of the book.

															But if the complainants in the court below have not made out a
complete right under the acts of Congress, there is no ground upon
which the common law remedy can be taken from them. If there be a
common law right, there certainly must be a common law remedy. The
statute contains nothing in terms, having any reference to the
common law right, and if such right is considered abrogated,
limited, or modified by the acts of Congress, it must be by
implication; and to so construe these acts is in violation of the
established rules of construction that where a statute gives a
remedy in the affirmative, without a negative expressed or implied,
for a matter which was actionable at common law, the party may sue
at common law, as well as upon the statute. 1 Chitty's Pl. 144.
This is a well settled principle, and fully recognized and adopted
in the case of Almy v. Harris, 5 Johns, 175.

															Whatever effect the Statute of Anne may have had in England as
to limiting or abridging the common law right there, no such
effect, upon any sound rules of interpretation, can grow out of our
acts of Congress. There is a wide difference in the phraseology of
the laws. The Statute of Anne contains negative words. It declares
that the author shall have the sole right and liberty of printing,
&c., for the time contained in the statute, and no
longer, and these are the words upon which the advocates for
the limitation of the common law right mainly rest; and it was for
a long time considered by the ablest judges in England that even
these strong words did not limit or abridge the common law right,
and the question at this day is not considered free from doubt.

															This act, and the construction which it had received in England,
were well known and understood when the act of Congress was passed,
and no such limitation is inserted or intended, or any matter at
all repugnant to the continuance of the common law right, in its
full extent. These laws proceed on the ground that the common law
remedy was insufficient to protect the right and provide additional
security by means of penalties for the violation of it. Congress
having before them the Statute of Anne, and apprised of the doubt
entertained in Page 33 U. S. 697 England as to its effect upon the common law right, if it had
been intended to limit or abridge that right, some plain and
explicit provision to that effect would doubtless have been made,
and not having been made, is, to my mind, satisfactory evidence
that no such effect was intended.

															If the present action was to recover the penalties given by the
statute, it might be incumbent on the appellants to show that all
the requirements in the acts of Congress had been complied with.
This would be resorting to the new statutory remedy, and the party
must bring himself within the statute in order to entitle him to
that remedy. But admitting that the right depends upon the statute
and is limited to the time therein prescribed, the remedy by
injunction continues during that time. This is admitted by Mr.
Justice Yeates in Miller v. Taylor. The author, says he,
has certainly a property in the copy of his book during the term
the statute has allowed, and whilst that term exists, it is like a
lease, a grant or any other common law right, and will equally
entitle him to all common law remedies for the enjoyment of that
right. He may, I should think, file an injunction bill to stop the
printing. But I may say with more positiveness he might bring an
action to recover satisfaction for the injury done, contrary to
law, under the statute. And the same doctrine is laid down by the
whole court in Beckford v. Woood, 7 Term 616. Lord Kenyon
says the statute vests the right in authors for certain periods,
and within those periods, the act says, the author shall have the
sole right and liberty of printing, &c., and the statute having
vested the right in the author, the common law gives the remedy, by
action on the case for a violation of it, and that the act, by
creating the penalties, meant to give an accumulative remedy.

															The language in the Statute of Anne which is considered as
vesting the right is the same as in the act of Congress. In the
former, it is considered as necessarily implied in the declaration
that the author shall have the sole right during such
time, &c. And in the act of Congress, there is the same
declaration, that the author shall have the sole right of
printing, &c., from the time of recording the title in the
clerk's office. The right, being thus vested at the time, draws
after it the common law remedy. And there is no more reason for Page 33 U. S. 698 contending, that the remedy given by the statute supersedes the
common law remedy under the act of Congress than under the Statute
of Anne. The statute remedy is through the means of penalties in
both cases.

															The term for which the copyright is secured in the case now
before the Court has not expired, and according to the admitted and
settled doctrine in England, under the Statute of Anne, the common
law remedy exists during that period.

															Upon the whole, in whatever light this case is viewed, whether
as a common law right or depending on the act of Congress, I think
the appellants are entitled to the remedy sought by the bill, and
that the decree of the court below ought to be reversed, the
injunction made perpetual, and an account taken according to the
prayer in the bill, without directing an issue to try any matter of
fact touching the right.

															MR. JUSTICE BALDWIN also dissented from the opinion of the
Court.

															This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Eastern
District of Pennsylvania and was argued by counsel, on
consideration whereof it is ordered, adjudged and decreed by this
Court that the judgment and decree of the said circuit court in
this cause be and the same is hereby reversed, and that this cause
be and the same is hereby remanded to the said circuit court with
directions to that court to order an issue of facts to be examined
and tried by a jury at the bar of said court upon this point,
whether the said Wheaton as author, or any other person as
proprietor, had complied with the requisites prescribed by the
third and fourth sections of the said Act of Congress passed 31
May, 1790, in regard to the volumes of Wheaton's Reports in the
said bill mentioned or in regard to one or more of them in the
following particulars, viz., whether the said Wheaton or
proprietor did, within two months from the date of the recording
thereof in the clerk's office of the district court, cause a copy
of the said record to be published in one or more of the newspapers
printed in the resident states for four weeks, and whether the Page 33 U. S. 699 said Wheaton or the proprietor, after the publishing thereof,
did deliver or cause to be delivered to the Secretary of State of
the United States a copy of the same, to be preserved in his office
according to the provisions of the said third and fourth sections
of the said act, and that such further proceedings be had therein
as to law and justice may appertain and in conformity to the
opinion of this Court.