in this case; and probably any approval, direct or indirect, prior or subsequent, by a legislature upon which creditors had reason to depend, would amount to a ratification of such a mortgage within the Federal Constitution, and would entitle it to protection as a contract, whatever the decision on the main questions just discussed. The Railway Tariff Act of Minnesota, which is also before the Supreme Court, is incidentally discussed in McElrath's Case.1 Judge Dillon intimates in that case that there is, in his opinion, no middle ground between the absolute right of the company to fix their own compensation, and the absolute right, on the other hand, of the legislature to prescribe their compensation; but he then allowed a receiver, pendente lite, and without prejudice, to collect such rates as seemed necessary, without regard to the act, and reserved his final order as to the disposal of the funds collected until the validity of the act was argued before him upon a test case, which is still undecided. The late war left the average American politician with a powerful desire to acquire property from other people without paying for it. A succession of schemes, too familiar to recapitulate here, have been tried, and, after hard struggles, have been defeated by the honest common sense of the community. We have sufficient faith in the speedy clarification of ideas, among the honest advocates of the so-called Granger laws, to feel confident that this assault upon private property will soon lose their support, and be publicly classed with the exploded fallacies of repudiation and unlimited greenbacks, before the illegality of the Potter law is adjudicated at Washington. When that decision is reached, we believe it will be then received with general favor throughout the whole country. It is necessary in order to restore public confi dence in the rights of private property, now severely shaken. 1 2 Dillon, 460. AUTHORS' RIGHTS BEFORE PUBLICATION.—THE REPRESENTATION OF MANUSCRIPT PLAYS. THE principle of law is well established, that an author, whether in literature, sculpture, painting, or in any department requiring creative power, has unlimited control over the products of his brain until they have been abandoned to the public. Whether reduced to writing or not, whether in manuscript or in print, traced in marble or upon canvas, such production is his property. He has the exclusive right of using it in any manner which does not interfere with the rights of others, and he may prevent others from making any use of it which invades his own. rights. This common-law right is as sacred, and the remedy for its enforcement as effective, in the case of the author and his unpublished works as in that of the banker and his bonds. Indeed, in the great English case of Millar v. Taylor,1 decided in 1769 by a full bench, over which Lord Mansfield presided, the doctrine was affirmed that not even by publication did the author lose the common-law right of property in his literary work. This decision, however, was not long acquiesced in; for the contrary doctrine was declared five years after by the House of Lords, in Donaldson v. Becket. There was, however, a marked diversity of opinion among the eminent judges in attendance; and it is recorded that the argument which turned the scale was delivered by Lord Camden, who declared that there was no foundation for literary property, either in the common law or in the principles of sound policy or good sense. His declamation that glory, not profit, is the true reward of men of letters, which has been thundered from many a school platform, possesses a vein of delicate humor, which was, perhaps, not appreciated at the time of its delivery. "Knowledge," said his Lordship, "has no value or use for the solitary owner; to be enjoyed it must be communicated. Scire tuum nihil est, nisi te scire hoc sciat alter.' Glory is the reward of science, and those who deserve it scorn all meaner views. I speak not of the scribblers for bread, who tease the press with their wretched productions; fourteen years is too long a privilege 1 . for their perishable trash. It was not for gain that Bacon, Newton, Milton, Locke, instructed and delighted the world; it would be unworthy such men to traffic with a dirty bookseller for so much a sheet of letterpress. When the bookseller offered Milton five pounds for his Paradise Lost,' he did not reject it, and commit his poem to the flames, nor did he accept the miserable pittance as the reward of his labor; he knew that the real price of his work was immortality, and that posterity would pay it. Some authors are as careless about profit as others are rapacious of it; and what a situation would the public be in with regard to literature, if there were no means of compelling a second impression of a useful work to be put forth, or wait till a wife and children are to be provided for by the sale of an edition? All our learning will be locked up in the hands of the Tonsons and the Lintons of the age, who will set what price upon it their avarice chooses to demand, till the public become as much their slaves as their own hackney compilers are." 1 Common-law protection after publication was now lost for ever; and the doctrine has since been firmly established that after the work has been once published to the world, and thereby made public property, the owner's exclusive rights are lost, except so far as they may be protected by statute. It is therefore important to inquire what act on the part of the author constitutes such a publication as will work an abandonment of his property to the public, and divest him of the exclusive title thereto. Publication may be defined, for the purposes of this discussion, as a communication of the knowledge of the contents of a work, whether by circulation of copies, or by public representation or exhibition. Such communication, however, may be confidential, expressly or impliedly, in which case the publication is limited or private; or it may be without restriction as to persons and purpose, and in that case the publication, being unqualified, becomes general or public. An author may circulate his literary work among a limited number of persons for their amusement or instruction or other purpose, with the understanding, either express or implied, that such communication is confidential and for a restricted use. It is immaterial whether the work so com 1 Campbell's Lives of the Lord Chancellors, Vol. V. 240. municated is in manuscript or in print. Nor does it seem to be essential to restrict the number among whom the circulation may be made to any specified limit. So long as the communication is withheld from the general public and limited to a select few for a restricted purpose, the publication is private, and cannot be construed as one divesting the author of his exclusive rights. In Prince Albert v. Strange,1 it appeared that Queen Victoria and her husband had given lithographic impressions of drawings and etchings, which they had made occasionally for their own amusement, to intimate friends. The defendant, without authority, announced a public exhibition of copies of the prints which had come into his possession; but he was promptly restrained by the court. The same rule applies with equal force in the case of the confidential representation of a dramatic or musical composition, the delivery of a lecture, or the exhibition of a painting or other work of art, before an audience to which the indiscriminate public is not admitted. A play may thus be given under such circumstances as to make its representation a private and not a public one. But when the circulation of any literary production, or the performance or exhibition of any dramatic or musical composition or work of art, is not restricted either as to purpose or numbers, and no discrimination is made as to the persons admitted to these privileges, such communication then becomes general and public. In general, an unconditional publication is an abandonment of the author's rights, except so far as they may be protected by statute. When a book has been printed and given to the public without the protection of the copyright statute, the exclusive right thereto is lost to the author, and it becomes general property. The sale of a single copy is a general publication. But if its literary owner, having possession of all the other copies and the manuscript, should buy back the copy sold before it has been made the means of further communication, he thereby becomes again invested with the same rights that he had before parting with such copy.2 The question whether an author who first publishes in an uncopyrighted newspaper is entitled to copyright in the same matter, subsequently published by him in a different form, came up in the United States Circuit Court in Pennsylvania, in 1839, on an application for an injunction.3 The injunction was refused, and 1 (1849) 2 De G. & S. 652. 2 Keene v. Wheatley, 9 Am. Law Reg. 33. 3 Miller v. M'Elroy, 1 Am. Law Reg. 198. the question reserved to the final hearing. No further report of the case appears; but there is certainly neither authority nor reason to support the conclusion that the publication of an uncopyrighted work in an uncopyrighted newspaper or magazine is not an abandonment of the author's exclusive rights therein. The delivery of a letter, whether it be a literary composition or merely a letter of friendship or of business, to the person to whom it is addressed is not a publication, so as to divest the writer of the sole and exclusive right of publishing it; and neither the person receiving the letter nor another may rightfully publish it without the consent of the writer.1 To determine whether there has been a publication is usually a very simple matter when publication is by printing; but whether the public representation of an uncopyrighted drama, the delivery of a manuscript lecture, or the public exhibition of a painting, or other work of art, is a dedication thereof to the public when no abandonment is intended by the author, is a question of no little difficulty. And though there have been numerous decisions upon this point, it cannot be regarded as fully and satisfactorily settled. The law on this point relating to public lectures, so far as it has been settled, has been clearly stated by Judge Hoar, of Massachusetts, to the effect that an auditor has no "right to report, phonographically or otherwise, a lecture or other written discourse which its author delivers before a public audience, and which he desires again to use in like manner for his own profit, and to publish it without his consent, or to make any use of a copy thus obtained. The student who attends a medical lecture may have a perfect right to remember as much as he can, and afterward to use the information thus acquired in his own medical practice, or to communicate it to students or classes of his own, without involving the right to commit the lecture to writing, for the purpose of subsequent publication in print or by oral delivery. So any one of the audience at a concert or opera may play a tune which his ear has enabled him to catch, or sing a song which he may carry away in his memory, for his own entertainment or that of others, for compensation or gratuitously, while he would have no right to copy or publish the musical composition." 2 1 Woolsey v. Judd (N. Y. Superior Court, 1855), 4 Duer, 379. |