Books and their makers during the Middle Ages

IN the preceding studies of the varying relations to the Government and to the community of literary productions and of the gradual development under the extension of the system of local privileges of the policy of protecting and encouraging literary production, but little reference has been made to the publishing methods and the conditions of literary production in England. It was in fact the case that during the first two centuries after printing, the conditions in England had very little influence upon the development of any European system for controlling or protecting literary production. The work of the earlier English printers was, as we have seen, addressed much more to the tastes of the local public than to the requirements of the scholars of Europe, and while a certain proportion of books were, in England as on the Continent, printed in Latin, this proportion was much smaller than with the undertakings of the contemporary publishers of Holland, Germany, and France.

While increasingly large importations were made from year to year, more particularly from Paris, Amsterdam, Basel, and Cologne, of books needed for use in Oxford, Cambridge, and London, the export during these two centuries for Continental sale, of books printed in England, was but inconsiderable. In the matter of legislative enactments, or of the policy of the State towards literary production, we have seen Paris following to some extent the precedents set in Venice. Upon this same general system of privileges for short terms and for limited territory, privileges gradually extended to longer terms and to cover additional States. The earlier practice in Germany had on the whole also been based upon the Italian precedents. Holland was the first of the European States to issue privileges without conditions depending upon censorship, but apart from this very essential distinction, the Dutch privileges were, in form, very similar to those of Venice and Milan. In no one of these countries does any particular attention appear to have been given to the methods and practices of England, and the English system for the regulation of literary property, a system which grew up in connection with the practical monopoly given to the Stationers’ Company, appears to have taken shape (English fashion) with very little, if any, reference to Continental precedents. The Stationers’ Company received its charter, by royal decree, in 1556 (two years after the marriage of Queen Mary to Philip of Spain). It constituted an organisation of the printing and publishing trade of London which assumed to represent the publishing interests of the country. The Company differed from the book-trade association of Paris in that it had no direct connection with either of the two Universities, and held its authority directly from the Crown. The libraires jurés of Paris were, it is to be remembered, members of the University, and the regulations governing their operations formed part of the law of the University. The members of the British Company, on the other hand, were manufacturers and traders who had received directly from the Crown a monopoly of the business of printing books, and the regulations formed for them and by them required only the approval of the royal authorities or representatives of the Crown, and when this had been given, these regulations became the law for the control of the book-trade, and for the control also of the literary property (the property in “copy”) that was, from year to year, coming into existence and increasing in importance. The basis of the authority of the Stationers’ Company was the theory that all printing was the prerogative of the King. While this theory was never pushed to its logical conclusion, it secured a certain foundation in the direct ownership and monopoly asserted and enforced by the Crown in the printing of certain classes of literature which formed the most considerable and remunerative of the earlier productions of the English Press, such as prayer-books and other works of service of the State Church, of which Church the King was the head, the editions of the Bible, the cost of translating which had been borne by the Crown, almanacs (on the ground that they were abstracted from the prayer-book), year-books, Acts of State, etc. The assigns of the royal copyright in almanacs were not always, however, able to support their claim to an exclusive control. Scrutton cites one case (among several) in which this claim was overruled.[178]

The printers did not attempt any opposition (which would in any case have been futile) to these contentions of the Crown. They purchased patents or privileges for the production of the King’s books or publications owned by the Crown, and they found it to their advantage, at a time when the Crown was all-powerful, to strengthen their position with the community at large by securing the royal sanction and a royal grant for the undertakings to the originating of which the Crown could make no claim. Such property-right as could be said to exist in these last was also derived from the royal grant. The distinctive feature in the development of literary property in England may be said to be the all-important part claimed and exercised by the Crown in its creation and protection. I do not find in any other State of Europe a parallel to the relation of the Crown to the beginnings of copyright. Even in France, where the supervision of the Press passed eventually into the direct control of the King, the royal edicts and privileges give the impression rather of defining and of limiting than of creating property in the “copy.” I do not overlook the contentions that came to be argued out at a later date concerning the existence of copyright as a property at Common Law, an existence apart from and independent of a royal edict or of a legislative statute. I am merely pointing out the actual form given to these preliminary undertakings of the English printer-publishers, under which form they secured directly from royal authority the right to hold and to defend their “copy.”

I will recall for the purposes of this summary, that the first privilege in England bears date 1518, and was issued to Richard Pynson, King’s Printer, the successor, second in line, to Caxton. In 1504, we find the first record of the office of “Printer to the King,” when William Faques placed on the title-pages of his books the term Regius Impressor. The office apparently continued in existence, with rather varying functions, until the revolution of 1688. The successor of Faques was Richard Pynson, and he was the first English printer to use the term cum privilegio, which appears on the title-page of one of his books in 1518. The full wording of this privilege is worth quoting:

Cum privilegio impressa a rege indulto, ne quis hanc orationem intra biennium in regno Angliæ imprimat aut alibi impressam et importatam in eodem regno Angliæ vendat. This privilege gives a monopoly, for the term of two years, for a certain Orationem. The date is fifteen years later than that of the first privilege issued in France. The shortness of the term is to be noted, the majority of French and Italian privileges of this period being for from five to ten years. Pynson prints on his title-pages simply cum privilegio a rege indulto, without any reference to limit of term. In 1530, a privilege of seven years is granted to an author in consideration of the value of his work, and this appears to be the first record of an English copyright being granted to an author.[179]

The first dispute about English copyright of which we have record, arose about 1530, when a printer named Trevers reprinted, without authorisation, a work the privilege for which had been issued to Wynkyn de Worde. The preface to Worde’s second edition, issued in 1533, contains a vigorous complaint at this piratical interference with his rights, but does not inform us what steps, if any, had been taken to defend these rights. Scrutton does not mention the name of the book, but it was probably The Mirroure of God for the Sinfull Soule.

Royal privileges continued to be issued during the sixteenth century, while after 1556, the entries in the registers of the Stationers’ Company are made evidence of the exclusive rights to the persons named for printing the book specified. Finally the privileges issued by the King came to an end, being superseded by the registers of the Company. The King’s privileges had been for specific, and usually for quite brief, terms. The entries of “copies” on the Stationers’ registers made no specification of terms, and such property rights as were indicated or initiated by these entries were, therefore, for an indefinite term and could be claimed to be in perpetuity. These Stationers’ Hall entries were in certain respects similar to the records in the Land Office of a western Territory or in the County Clerk’s office of a State, records which serve as final evidence of the title or ownership of the lands specified. The copyright registers served as do the land records, for the transfers of ownership as well as for the original certificate of ownership, and with the “copies” as with the parcels of land, the ownership was understood to be based on the Common Law, and to be in perpetuity. The King’s patents or grants for the “copies,” the ownership of which, as previously specified, was claimed by the Crown, continued to be given for specified terms, to certain favoured individuals selected as “Printers to the King.” Apart from these books, the specification of a limited term for the control of any particular book ceases with the close of the royal privileges.

As before stated, the Stationers’ Company, in giving title to property in a “copy” or literary production, acted as the representative of the authority of the Crown, an authority which had, it was claimed, been bestowed upon it by the royal charter. Under this royal authority, the Stationers’ Company possessed for a long series of years the monopoly of printing throughout the United Kingdom. Printing could be done only by the members of the Company, and the by-laws adopted by the Company for the regulation of printing, in so far as they did not conflict with the statutes of the kingdom, became part of the law of the land.[180] The purpose of the earlier English ordinances concerning printing, and of the ordinances establishing the Stationers’ Company itself, was specified in substance as follows: “The order and regulation of printing and of printing-presses in the interests of Church and State.”[181] The operations of an association of printers, an association which owed to the Crown its existence, its authority, and the property rights in its valuable monopoly, could be supervised and controlled to an extent that would not have been practicable with the undertakings of printers acting independently. With reference to the maintenance of the royal authority, it was certainly wise policy for the Crown thus to secure and to maintain an effective control over the work of the printing-press, this new instrument for influencing public opinion. The later effect of this royal absolutism was, curiously enough, to secure an earlier and more definite recognition in England than was reached in any other country, for property in literary production, and for the right of literary producers to control and to enjoy the results of their labours. The fact that there was a property, without limit or term, in the “copy” of a literary production, that is, in its copyright, was understood to have been established by the evidence of the Stationers’ registers, and by the assured practice, extending over a series of years, of authors, printers, and publishers. The control of the work of the Stationers was, in 1637, placed in the hands of the Star Chamber, and the decree issued in that year by the Chamber had for its immediate purpose the regulation and restraining of the printing of “libellous, seditious, and mutinous books.” As an essential detail of this regulation, it was again ordered that “every book should be licensed and entered into the Register’s book of the Company of Stationers.” The replacing, in 1640, of the absolutism of the Star Chamber by the absolutism of the Long Parliament (an absolutism no less arbitrary, though based upon a very different source of authority) made no change in the completeness of the authority left with the Stationers’ Company. The Parliamentary Ordinances of 1641, in prohibiting printing or importing without the consent of the owner of the copies of said books, constituted a clear statutory recognition of property in “copy,” a recognition evidently resting, says Scrutton, upon an understanding of its existence under the Common Law.[182] The Act of 1643 for “redressing disorders in printing,” and the licensing Act of 1662, while also having for their main purpose the control of literature of political influence, continued to affirm or to imply the existence of property in the “copy” of books. A reference in the latter Act indicates that the owners of “copies” were at this time not necessarily members of the Stationers’ Company. The inference is that an author, in arranging to print his book through a licensed stationer, did not always dispose of his copyright. The licensing Act gave a statutory protection for copyright, a protection the provisions of which were of necessity limited to the term of the Act itself and of its several renewals, the last of which expired in 1694. While the recovery of statutory penalties was thus limited, the expressions used in the Act, as was the case with the preceding Acts, made continued recognition, by expression or by implication, of the existence of copyright property independent of the statute, the protection of which could be maintained under the Common Law. The English authorities on the subject, Maugham, Coppinger, Scrutton, and others, and the American Drone, are at one in the opinion that, at the period in question, the close of the seventeenth century, it was the general understanding that authors possessed in their productions a perpetual right of property, and that this right could be assigned. Such an understanding, an understanding upon which were based Parliamentary Acts for regulation and for licence, and in accord with which were carried on important and continued business undertakings, marked a development in the conception of literary property which had as yet been reached in no other country. Scrutton admits that the records of the courts do not supply the evidence that might be looked for in support of this contention. There are, namely, no entries of prosecutions in the advisory courts for printing without a licence.[183] He points out, however, that the Stationers’ Company had under its charter summary rights of search, seizure, and imprisonment, and that similar powers were confirmed or renewed by the Licensing Acts. In case of infringement, therefore, no recourse to the ordinary courts was needed, and no records of proceedings would exist.

The Act of April, 1710,[184] known as the Act of Queen Anne, under which a statutory protection for a term of fourteen years was given to the author of a literary production, had the result of bringing to a close for Great Britain the period of Common Law copyright. This result was probably not intended by the legislators who framed the Act, and was certainly not anticipated by the publishers at whose instance the matter had been taken up, and who were simply applying for a more specific and more effective protection (during such term as Parliament saw fit to grant) for the property in their “copies,” of the existence of which property there had as yet been no question. It was, in fact, not until 1769 that any serious contention was raised against the continued validity of copyright at Common Law. In that year the Common Law right was maintained in the decision rendered in the famous case of Millar vs. Taylor, a decision rendered the more noteworthy because it was concurred in by Lord Mansfield, the greatest authority on the subject of copyright whom Europe had thus far known.

In 1774, in the case of Donaldson vs. Becket, the issue was raised for the second time, the property involved being the same in each suit, the “copyright” of Thomson’s Seasons. In this case, the House of Lords reversed its previous decision. Its conclusion was in substance: first, that an author had a Common Law right to his production before publication (ten judges in the affirmative and one dissenting); second, that after the publication such Common Law right still rested in the author (eight judges in the affirmative and three in the negative); third, that under the statute of 1710, the author had lost his right of action at Common Law and retained protection for his copyright only during the term prescribed by the statute (six judges in the affirmative and five in the negative); fourth, that the right at Common Law possessed by the author and his assigns prior to 1710 had been a right in perpetuity (seven judges in the affirmative, four in the negative). In each of these votes, including that on the vital issue of the effect upon the Common Law right of the statute of 1710, Lord Mansfield was recorded in favour of the continued right of the author at Common Law, and of the perpetuity of copyright, irrespective of the effect of this statute.

The result of this decision in Donaldson vs. Becket was, as said, to bring to a close what may be called the Common Law period of copyright in England, and to replace this by a copyright protection limited to terms of the successive statutes. This whole matter is in its date beyond the period considered in the present narrative. For this reason, notwithstanding the continued pertinence and importance of the issues raised in these two noteworthy suits and the distinctive interest of the arguments presented by the famous advocates on either side of the question, it has not seemed to me in order to undertake to give here any detailed analysis either of the arguments or of the two decisions arrived at. It is proper, however, to make this brief reference to the results of these two cases as well because the Act of 1710 marked, as explained, a definite epoch in the history of literary property in England, as because this Act, the discussions which gave rise to it, and the much more important discussions which resulted from it sixty years later, marked a development in England of a conception of literary property and of an education of public opinion concerning it which had not as yet been reached in any State in Europe. We find in France no such discussions and no legislation based upon a recognition of the principles underlying literary property, until the Convention of 1793. It required a revolution to bring about in France a result that in England was arrived at in regular course in the ordinary development of law.

This brief reference to the development in England of the recognition of the rights of literary producers may be fitly concluded with a quotation from the eloquent plea of John Milton in behalf of the liberty of the printing-press.

In 1644, an order for the regulation of printing was under consideration in Parliament (the Long Parliament) which provided that “No Book, Pamphlet, or Paper, shall be henceforth printed unless the same be first approved and licensed by such as shall be thereto appointed.” Milton had been a persistent opponent of the policy of censorship and licensing, and in defiance of the ordinance of 1643 (an ordinance in which the decrees of the Star Chamber abolished in 1640 had been in substance renewed) he had published in that year, without licence and without printer’s name, his treatise on Divorce. The Stationers’ Company, recognising the danger to their authority of a defiance by an author like Milton, had the matter brought up in the Commons. It was referred to the committee on printing and the order above cited was the result. The famous Areopagitica, an oration in the form of a pamphlet, was then written by Milton to protest against the whole theory of the exercise by Government licensers of a supervision and control of literature, or of the delegation of such control to a commercial company which was the creation of Government. The author of Paradise Lost speaks as follows:

“For that part which preserves justly every man’s copy to himselfe, or provides for the Poor, I touch not, only wish they be not made pretenses to abuse and persecute honest and painfull men, who offend not in either of these particulars. But that other clause of Licensing Books, which we thought had dy’d with his brother Quadragesimal and Matrimonial when the Prelats expir’d, I shall now attend with such a Homily as shall lay before ye, first, the inventors of it to bee those whom ye will be loath to own; next, what is to be thought in generall of reading, whatever sort the Books be, and that this Order avails nothing to the suppressing of scandalous, seditious, and libellous Books, which were mainly intended to be suppresst; last, that it will be primely to the discouragement of all Learning and the stop of Truth, not only by disexercising and blunting our abilities in what we know already, but by hindering and cropping the discovery that might bee yet further made both in religious and civill Wisdome.

I deny not, but that it is of greatest concernment in the Church and Commonwealth, to have a vigilant eye how Bookes demeane themselves as well as Men; and thereafter to confine, imprison, and do sharper justice on them as Malefactors. For Books are not absolutely dead things, but doe contain a potencie of Life in them to be as active as that Soule with whose progeny they are; nay, they do preserve as in a violl the purest afficacie and extraction of that living intellect that bred them. I know they are as lively, and as vigorously productive, as those fabulous Dragons’ teeth, and being sown up and down, may chance to spring up armed men. And yet, on the other hand, unlesse wariness be us’d, as good almost kill a Man as kill a good Book; who kills a Man kills a reasonable creature, God’s Image; but hee who destroys a goode Booke, kills Reason itselfe, kills the Image of God, as it were in the eye. Many a Man lives a burden to the Earth; but a goode Booke is the pretious life-blood of a master spirit, inbalm’d and treasur’d up on purpose to a Life beyond Life. ’T is true, no age can restore a Life, whereof perhaps there is no great losse; and revolutions of ages doe oft recover the losse of a rejected Truth, for the want of which whole Nations fare the worse. We should be wary therefore what persecution we raise against the living labours of publick men, how we spill that season’d Life of Man preserved and stor’d up in Books; since we see a kinde of homicide may be thus committed, sometimes a martyrdome; and if it extend to the whole impression, a kinde of massacre, whereof the execution ends not in the slaying of an elementall Life, but strikes at that ethereall and first essence, the breath of Reason itselfe, slaies an Immortality rather than a Life.”[185]