« PreviousContinue »
after the book had been published in London, it was also published in America. Messrs. Routledge & Co. subsequently printed and sold copies of it at the rate of 2s. each, Messrs. Low's price being 168. A bill for an injunction was filed to restrain the sale, and for an account. The appellants demurred; but the Vice Chancellor overruled the demurrer, and the injunction was granted. Messrs. Routledge appealed; and the case, after being heard by the Lords Justices, who made a decree in favor of the respondents, was brought up by appeal to the House of Lords.
All the lords agreed in overruling the demurrer, and holding that, under the British Copyright Act, 5 & 6 Vict. c. 45, an alien friend who first publishes in the United Kingdom a work of which he is the author, if at the time of publication be is resident in the British dominions, is entitled to copyright in such work throughout the British dominions, even though such residence should be only temporary; and the fact that the temporary residence is in a colony with an independent legislature, under the laws of which he would not be entitled to copyright, does not prevent his acquiring this privilege.
This doctrine seems extremely liberal, especially when contrasted with our own practices towards English authors; but Lord Cairns (the Chancellor) and Lord Westbury went even farther, and expressed the opinion that the protection of copyright is given to every author who first publishes in the United Kingdom, wheresoever he may be resident, or of whatever state he may be the subject. Lords Cranworth and Chelmsford did not concur in this latter opinion, and Lord Colonsay avoided the expression of any opinion on this second branch of the subject.
The other copyright case was Low v. Ward. “This was a motion by the publishing firm of Sampson, Low, & Marston, of Fleet Street, for the purpose of restraining the publication and sale by the defendants, Messrs. Ward, Lock, & Tyler, of a cheap edition of "The Guardian Angel,' by Oliver Wendell Holmes, of Boston, Mass. It appeared that “The Guardian Angel' first appeared in a serial form in the United States in the monthly numbers of “The Atlantic Monthly Magazine,' commencing in January, 1867. In March of that year Professor Holmes entered into an agreement with the plaintiffs for the as. signment to them of the copyright of the work, and, for the purpose of acquiring a British copyright, – there being no international copyright treaty between England and the United States, - went to reside at Montreal, Canada, for some time previous to the first publication of the work in this country. In October, 1867, - at which date the story was not completed in the numbers of “The Atlantic Monthly,' – the plaintiffs, in pursuance of their agreement with the author, published “The Guardian Angel' in two volumes, at the retail price of 16s. In April, 1868, the defendants, Messrs. Ward, Locke, & Tyler, of Warwick House, Amen Corner, in ignorance, as they stated, of any copyright claimed by the plaintiffs, or of the editions brought out by them, published from the pages of The Atlantic Monthly'a 2s. reprint of • The Guardian Angel,' and it was sought by the present bill to restrain this publication as an infringement of the copyright vested in the plaintiffs. The entry of the name of Professor Holmes as proprietor of the copyright of "The Guardian Angel’ and of the date of first publication (October 25, 1867), was made at Stationers' Hall on the 3d of June last, and at the same time an entry was made in the register of the assignment of the copyright by Professor Holmes to the plaintiffs.
“The Vice Chancellor (Giffard) said that he had not the slightest doubt upon the case. It was settled by the case of Low v. Routledge (Law Rep, 1 Ch. App. 42), that an American who chose to go across the frontier into British territory acquired exactly the same rights in respect of copyright as if he were a British subject. The only substantial ground of defence was, that there could not be copyright as to a part of a work only. But there were numerous cases in point showing that the copy. right might be separated and claimed for a portion of the work. He might instance the cases of the last canto of Childe Harold,' of Croker's Notes to Boswell's Life of Johnson,' and, again, of separate articles in cyclopædias. There was no analogy in this respect between copyright and patent right. It was immaterial whether the copyright extended to the whole book or to a part only of the book, and it was not incumbent upon Professor Holmes to give notice to the world of his intention to claim copyright in this country. There must be an injunction as to the last six chapters of the work.”
NEUTRALITY Laws. — The Neutrality Laws Commissioners have framed an important amendment to the Foreign Enlistment Act, inserting into the 7th section, which provides that if any person in any part of the Queen's dominions shall, without her leave, “ equip, furnish, fit out, or arm, or attempt or endeavor to equip, &c., or procure to be equipped, &c., or knowingly assist or be concerned, &c., with intent or in order that the ship shall be employed in the service of any power to commit hostilities against any power with which the Queen is not at war, the offender is to be deemed guilty of a misdemeanor;" the words “ fit out, arm, despatch, &c., with intent or knowledge that the same will be employed,” &c., instead of “ equip, furnish, fit out,” &c. They also recommend that this amendment should extend to the building of any ship, to the intent that the same shall, after being fitted out and armed, either within or beyond her Majesty's dominions, be employed, &c., and to the commencing or attempting to do any of such acts.
It will be seen that the law in this new draft comprises all that the United States asked during the war. It is doubtful, however, whether the commissioners' recommendations will be adopted, as they are opposed by Mr. Vernon Harcourt. He signs the report, but alleges several objections on the ground of policy. One is, that a law of such severity will close the private ship-yards, on which the government greatly relies in time of war.
THE PROPERTY OF MARRIED WOMEN. — As is well known, the question of enacting a law securing to married women the control of their separate property, is now undergoing much discussion in England. Mr. Shaw Lefevre introduced in Parliament, at the last session, a bill for the purpose, and a Parliamentary committee have been collecting evidence, both as to the condition of English women under the existing laws, and the practical working of our American systems. They have now agreed on a report in which they quote the evidence of Mr. David Dudley Field, of New York, and Ex-Governor Washburn and Mr. Justice Wells, of Massachusetts, all strongly in favor of the change in the law; and they attribute much weight to the evidence from this country. They express themselves generally favorable to the proposed measure, but say that there are so many important questions arising in its settlement to which they are not at present able to give a thorough discussion, that they recommend the reference of the matter to a select committee of the next Parliament.
The Solicitors' Journal gives the following abstract of this important bill:
“The bill 'to amend the law with respect to the property of married women,' prepared and brought in by Mr. Shaw Lefevre, Mr. Russell Gurney, and Mr.J. S. Mill, contains only fourteen clauses, and bears evidence of having been carefully prepared. We think that upon the whole it is an advance, though unquestionably by a somewhat long stride, in the direction in which legislation and the practice of the Court of Chancery have been tending for years past, although the framer of the preamble seems disposed to deny any merits whatever to the existing law. The preamble states that the law of property and contract, with respect to married women, is unjust in principle, and presses with peculiar severity upon the poorer classes of the community. The latter part of the preamble is unfortunately true, as an application to the Court of Equity by a married woman of the poorer classes is a serious step, yet the only one by which she can obtain assistance from these equitable doctrines which have displaced the common law as regards husband and wife. On the former part of it, we do not in this place express any opinion. It is there enacted (section 1), that a married woman shall be capable of holding, alienating, and devising property, and of contracting as a feme sole, and (section 2) that property of women married after the act, which is to come into operation on the 1st of January, 1869, whether belonging to them before marriage, or acquired by them after marriage, shall be held by them free from the debts of their hus. bands, and from their control or disposition, as if unmarried. It is clear that the best advice that it is in our power to give to a woman about to be married must be, 'Wait till the 1st of January, 1869. That the wife's property should be exempted from the husband's debts is highly desirable ; but how are you to exempt it from his control ? We fear that it is beyond the power, even of Parliament, to do that. Suppose the case of a husband and wife under the new law, being of that class where, of all others, a settlement of the wife's property is most desirable, — the class of traders. Under the law as it is to be, the wife retains her property ; before long, without doubt, she will be asked to put it into the business, possibly to become a partner in it, to which we can see no legal objection under the new state of things. Would not ninety-nine women out of a hundred, in such a case, put their fortunes into their husbands' hands to do what he liked with them? And is not that the very evil which settlements were meant to avert? It is, however, still open to a woman on marriage to make a settlement.
“Section 3 extends to women already married the right to hold, as if unmarried, property acquired by them after the act, subject to any settlement which they may have made of it, and to any vested rights of their husbands in it.
“Section 4,- the earnings of a married woman to be her personal estate, — is a valuable provision, extending to all married women the protection which, under the 20 & 21 Vict. c. 85, deserted wives only were enabled to obtain. This provision will undoubtedly be a great boon to the lower classes of society.
“Section 5. A husband shall not be liable for his wife's debts incurred before marriage, or for any wrong committed by her.
“Section 6 repeals in part the existing law of distribution, giving the husband the same distributive share in the personalty of his intestate wife as she would take on his dying intestate, in his personalty.
“Section 7 reserves the tenancy by the curtesy.
“Section 8 provides for a state of things that will, no doubt, often occur. Questions between husband and wife, as to chattels, are to be decided in a summary way, either by the Court of Chancery or by a county court, as the case may be, the right being reserved to the petitioner of applying to the county courts, whatever the amount at stake may be. It is probably by an oversight that no provision has been made as to the amount which may be adjudicated upon in the Superior Court and county court respectively. As the bill stands, the forum will be entirely in the option of the petitioner, irrespectively of the amount at stake.
"Section 9, however, prevents one class of these questions from being raised, by providing that a husband shall not be liable to account for his wife's income and personalty received by him with her sanction; although we can conceive a good many nice questions being raised as to what amounts to such sanction on her part.
“Section 10 contains a saving of existing settlements, and power to make future settlements, and does away with the doctrine of restraint on anticipation as a bar to the claims of the creditors of the wife, where such restraint is contained in any future settlement.
"Section 11 extends the principle of the Infants' Settlement Act, 18 & 19 Vict. c. 43, enabling a girl (even if under seventeen apparently) to make binding settlements, with the consent of her parents or guardian and of her intended husband, and saves the husband's covenant for settlement of wife's after-acquired property, made before the act comes into operation.
"We have thus endeavored to give a short sketch of the principal features of this act, which, however it may be amended, must, if it passes, modify to a great extent, if not revolutionize, the position of married women in England as regards property."
WOMAN SUFFRAGE. — It seems that the overseers in several counties and boroughs have placed female occupiers, duly qualified if they had been “male persons," upon the list of voters.
The argument by which their right to vote is sustained is not altogether frivolous. A good deal is to be said for it, and it is difficult to find a logical answer, although to maintain it gravely savors somewhat of the ridiculous.
The words of the enfranchisement clause of “The Representation of the People Act, 1867," are " every man.” The phrase in the bill as introduced was that which had been employed unchallenged in the original Reform Act, — "every male person.” Mr. Mill moved that the word “person” should stand alone, with avowed purpose thus to admit duly qualified single women to the franchise. His amendment was rejected by a large majority; and to place the matter beyond doubt, as it was supposed, the words “ every man” were adopted, and so the bill became law.
But there is an Act of Parliament, passed a short time ago, for the purpose of abbreviating statutes by certain declaratory enactments that particular expressions should bear a certain meaning, unless otherwise expressly directed by the statute containing them. Among others, it is declared that words implying the masculine gender shall include the feminine gender, unless from the context it shall appear that the intention was otherwise.
It is contended that the words “ every man" in the new Reform Act must, under the above provision, be held to include every woman, inasmuch as there is no express or implied provision to the contrary in the act extending the franchise. - Law Times.
The telegraph informs us, that the question has recently received a legal adjudication unfavorable to the claims of women.
GOVERNOR EYRE'S CASE. — The case of The Queen v. Eyre, in the Queen's Bench, has given rise to an extraordinary scene, which, in the language of the London Times, caused greater excitement in Westminster Hall than any thing that has occurred there during living memory. On the second of June last, Mr. Justice Blackburn, the senior puisne Judge of the Queen's Bench, delivered a charge to the Grand Jury of Middlesex on the indictment presented against Mr. Eyre for high crimes and misdemeanors in acts of alleged abuse and oppression in the execution of his office as Governor of Jamaica.
Among other propositions, the learned judge laid down the following; viz., That martial law anciently existed in England, in practice at least, although not sanctioned by courts of law; that after the Petition of Right in the time of Charles I., it was abandoned in time of peace, but not expressly abandoned in time of war; that under the colonial statutes of Jamaica, the governor had authority to proclaim martial law for a limited period; and that the transportation of Gordon from a peaceful part of the island to a district where martial law existed was not criminal if Mr. Eyre honestly thought that Gordon was guilty, and that there was such a danger from an organized conspiracy that it was necessary that he should be punished promptly in order to suppress the insurrection, and that a reasonable man in Governor Eyre's position would have thought as he did ; and he further stated that the points of law in his charge had the sanction of the Lord Chief Justice and his brethren of the Queen's Bench. The grand jury, after deliberating four hours, came into court, and informed the judge that they returned “no true bill.” At the next session of the court in banco the Lord Chief Justice, Sir Alexander Cockburn, took occasion to contradict some of the statements of Mr. Justice Blackburn. In reference to the assertion that the law laid down in the charge had the assent of the other members of the court, he read from a written paper as follows:
“There was, undoubtedly, a proposition of law which seemed to us sufficient for the guidance of the jury, and which we understood was to form, if I may so express myself, the basis of the charge, on which proposition we were all agreed ; namely, that, assuming that the governor of a colony had, by virtue of authority delegated to him by the Crown, or conferred on him by local legislation, the power to put martial law in force, all that could be required of him, so far as affects his responsibility in a court of criminal law, was, that in judging of the necessity, which, it is admitted on all hands affords the sole justification for resorting to martial law,- either for putting this exceptional law in force, or prolonging its duration, - he should not only act with an honest intention to discharge a public duty, but should bring to the consideration of the course to be pursued the careful, conscientious, and considerate judgment which may reasonably be expected from one invested with authority, and which, in our opinion, a governor so circumstanced is bound to exercise before he places the Queen's subjects committed to his government beyond the pale and protection of the law."
This proposition, the Chief Justice said, had received the assent of the court in consultation with Mr. Justice Blackburn, and, indeed, this is contained in the charge. But the Chief Justice proceeded to say, that, as far as he was individually concerned, there were in the charge of the learned judge certain propositions of law from which he altogether dissented. He denied that martial law, as we now understand it, was ever legally exercised in England against civilians not taken in arms, and expressed very grave doubts whether the martial law which the Jamaica statute authorized the governor to put in force was any thing more than a levy of the inhabitants, and their subjection, while in the military service, to