[dvd-discuss] T. B. Macaulay on Copyright

[Seth Johnson <seth.johnson(at)realmeasures.dyndns.org>]

(An old speech on copyright policy; shows the lasting
relevance of many of the positions presently being treated
as marginal.  There are hyperlinks to the endnotes in the
HTML version.  -- Seth)


> http://www.kuro5hin.org/?op=displaystory;sid=2002/4/25/1345/03329

T. B. Macaulay on Copyright

Posted by "jolly st nick"
Thu Apr 25th, 2002 at 05:46:59 PM EST

The easiest form of parochialism to fall into is to assume
that we are smarter than the past generations, that our
thinking is necessarily more sophisticated. This may be true
in science and technology, but not necessarily so in wisdom. 

Today I would like to share with you a speech made in 1841
by Thomas Babbington Macaulay, a brilliant philosopher,
critic and historian who was himself a great enemy of
historical parochialism. The speech is on the topic of
copyright, and the theories set forth became the basis of
copyright policies in the English speaking world for well
over a hundred years. These theories now popularly
superceded by theories of natural rights to intellectual
property. 

Be forewarned: this speech is long, and far more
intellectually challenging than most modern political
speech. But the mind behind it is lively and incisive, and
you may be surprised by how little the fundamental issues
have changed, and how some of the disingenuous arguments put
forth today echo those of the far past. Judge for yourself
whether the politicians to day are wiser than those of a
hundred and sixty years ago. 

---

First a few words about this text. When I first attempted to
post this, there were complaints that the language in it was
too hard, and that it was too long. So I withdrew the
article and began to examine ways to handle this problem.
What I quickly realized was that the largest problem is how
Macaulay refers to familiar people, popular books and
everyday things that most modern readers won't know about.
Where we might hold up Howard Hughes or Bill Gates as an
exemplar of a rich man, he uses Prince Esterhazy. Where we
might use John Steinbeck as a representative author, he uses
Samuel Richardson. Many American readers may be unsure of
whether a farthing is worth more or less than a penny or
whether twenty thousand pounds was a lot of money in 1841.
Ironically, this speech is more difficult than Macaulay's
scholarly works because it was colloquial and informal, and
used commonplace examples. Readers of 2141 will probably
need footnotes to identifiy Homer Simpson or George Lucas. 

Because of this modern readers may be confused at points as
to the exact point Macaulay is making. To address this
problem, I've have gone through the work and looked up most
of the terms and people you might find unfamiliar. At
Rusty's suggestion, I hyperlinked the first appearance of
each unfamiliar person or term to a footnote. Each footnote
is reverse hyperlinked back to the first appearance of the
term so you can return easily. Another problem with this
speech is the way it was broken into paragraphs when it was
set down. While this presents no problem if the speech is
heard or read in a newspaper or book, it is tiring to track
extremely long paragraphs on a computer screen. For this
reason, I have introduced line breaks (not paragraph breaks)
into the longer paragraphs. I hope this will not obscure
Macaulay's meaning. Finally, at the time this speech was
made, it was permissable to take time leading the reader to
your point, so long as it was made well. However, modern
style demands that each conclusion be set forth first with
the evidence following. Readers unaccustomed to the older
style may at times wonder if they are missing the point. I
experimented at one point with inserting some brief comments
to help guide readers through this problem, but this proved
to be unsatisfactory. My best advice is if you feel slightly
at sea, then keep sailing on. Things will become clear
shortly. 

With respect to the overall length of the work, I have
decided against condensing or paraphrasing it. The length of
the work was one of my reasons for posting it in the first
place. The trend in communication is towards shorter and
less specific; nowhere has this trend been taken to a
greater extreme than commercial and political speech.
Slogans and sound bites are very short and ideally vague
enough that nobody could disagree with them ("peace with
honor", "compassionate conservative"). Modern political
speeches are bland matrices into which these nuggets are
embedded. This speech is very different animal; it is about
persuasion, not seduction. Yes, it is challenging, but it
will reward you with new insights about the issue of
copyright. It has no wasted parts; indeed it is in fact very
brief when you consider its information payload, and except
for a few niceties of parliamentary address, remarkably
staightforward and unornamented. 

Most of all, I would like to invite you to step across the
barrier of time, into the mind of one of my favorite
writers. It is a genial mind, incisive but modest, scholarly
yet unpretentious, and full of generous and liberal
sentiment. 

::::


A SPEECH DELIVERED IN THE HOUSE OF COMMONS ON THE 5TH OF
FEBRUARY 1841 

by Thomas Babington Macaulay 

On the twenty-ninth of January 1841, Mr Serjeant Talfourd
obtained leave to bring in a bill to amend the law of
copyright. The object of this bill was to extend the term of
copyright in a book to sixty years, reckoned from the death
of the writer. 

On the fifth of February Mr Serjeant Talfourd moved that the
bill should be read a second time. In reply to him the
following Speech was made. The bill was rejected by 45 votes
to 38. 

Though, Sir, it is in some sense agreeable to approach a
subject with which political animosities have nothing to do,
I offer myself to your notice with some reluctance. It is
painful to me to take a course which may possibly be
misunderstood or misrepresented as unfriendly to the
interests of literature and literary men. It is painful to
me, I will add, to oppose my honourable and learned friend
on a question which he has taken up from the purest motives,
and which he regards with a parental interest. These
feelings have hitherto kept me silent when the law of
copyright has been under discussion. But as I am, on full
consideration, satisfied that the measure before us will, if
adopted, inflict grievous injury on the public, without
conferring any compensating advantage on men of letters, I
think it my duty to avow that opinion and to defend it. 

The first thing to be done, Sir, is to settle on what
principles the question is to be argued. Are we free to
legislate for the public good, or are we not? Is this a
question of expediency, or is it a question of right? Many
of those who have written and petitioned against the
existing state of things treat the question as one of right.
The law of nature, according to them, gives to every man a
sacred and indefeasible property in his own ideas, in the
fruits of his own reason and imagination. The legislature
has indeed the power to take away this property, just as it
has the power to pass an act of attainder for cutting off an
innocent man's head without a trial. But, as such an act of
attainder would be legal murder, so would an act invading
the right of an author to his copy be, according to these
gentlemen, legal robbery. 

Now, Sir, if this be so, let justice be done, cost what it
may. I am not prepared, like my honourable and learned
friend, to agree to a compromise between right and
expediency, and to commit an injustice for the public
convenience. But I must say, that his theory soars far
beyond the reach of my faculties. It is not necessary to go,
on the present occasion, into a metaphysical inquiry about
the origin of the right of property; and certainly nothing
but the strongest necessity would lead me to discuss a
subject so likely to be distasteful to the House. 

I agree, I own, with Paley in thinking that property is the
creature of the law, and that the law which creates property
can be defended only on this ground, that it is a law
beneficial to mankind. But it is unnecessary to debate that
point. For, even if I believed in a natural right of
property, independent of utility and anterior to
legislation, I should still deny that this right could
survive the original proprietor. Few, I apprehend, even of
those who have studied in the most mystical and sentimental
schools of moral philosophy, will be disposed to maintain
that there is a natural law of succession older and of
higher authority than any human code. 

If there be, it is quite certain that we have abuses to
reform much more serious than any connected with the
question of copyright. For this natural law can be only one;
and the modes of succession in the Queen's dominions are
twenty. To go no further than England, land generally
descends to the eldest son. In Kent the sons share and share
alike. In many districts the youngest takes the whole.
Formerly a portion of a man's personal property was secured
to his family; and it was only of the residue that he could
dispose by will. Now he can dispose of the whole by will:
but you limited his power, a few years ago, by enacting that
the will should not be valid unless there were two
witnesses. If a man dies intestate, his personal property
generally goes according to the statute of distributions;
but there are local customs which modify that statute. 

Now which of all these systems is conformed to the eternal
standard of right? Is it primogeniture, or gavelkind, or
borough English? Are wills jure divino? Are the two
witnesses jure divino? Might not the pars rationabilis of
our old law have a fair claim to be regarded as of celestial
institution? Was the statute of distributions enacted in
Heaven long before it was adopted by Parliament? Or is it to
Custom of York, or to Custom of London, that this pre-
eminence belongs? Surely, Sir, even those who hold that
there is a natural right of property must admit that rules
prescribing the manner in which the effects of deceased
persons shall be distributed are purely arbitrary, and
originate altogether in the will of the legislature. If so,
Sir, there is no controversy between my honourable and
learned friend and myself as to the principles on which this
question is to be argued. For the existing law gives an
author copyright during his natural life; nor do I propose
to invade that privilege, which I should, on the contrary,
be prepared to defend strenuously against any assailant. The
only point in issue between us is, how long after an
author's death the State shall recognise a copyright in his
representatives and assigns; and it can, I think, hardly be
disputed by any rational man that this is a point which the
legislature is free to determine in the way which may appear
to be most conducive to the general good. 

We may now, therefore, I think, descend from these high
regions, where we are in danger of being lost in the clouds,
to firm ground and clear light. Let us look at this question
like legislators, and after fairly balancing conveniences
and inconveniences, pronounce between the existing law of
copyright, and the law now proposed to us. The question of
copyright, Sir, like most questions of civil prudence, is
neither black nor white, but grey. The system of copyright
has great advantages and great disadvantages; and it is our
business to ascertain what these are, and then to make an
arrangement under which the advantages may be as far as
possible secured, and the disadvantages as far as possible
excluded. The charge which I bring against my honourable and
learned friend's bill is this, that it leaves the advantages
nearly what they are at present, and increases the
disadvantages at least fourfold. 

The advantages arising from a system of copyright are
obvious. It is desirable that we should have a supply of
good books; we cannot have such a supply unless men of
letters are liberally remunerated; and the least
objectionable way of remunerating them is by means of
copyright. You cannot depend for literary instruction and
amusement on the leisure of men occupied in the pursuits of
active life. Such men may occasionally produce compositions
of great merit. But you must not look to such men for works
which require deep meditation and long research. Works of
that kind you can expect only from persons who make
literature the business of their lives. Of these persons few
will be found among the rich and the noble. The rich and the
noble are not impelled to intellectual exertion by
necessity. They may be impelled to intellectual exertion by
the desire of distinguishing themselves, or by the desire of
benefiting the community. But it is generally within these
walls that they seek to signalise themselves and to serve
their fellow-creatures. Both their ambition and their public
spirit, in a country like this, naturally take a political
turn. It is then on men whose profession is literature, and
whose private means are not ample, that you must rely for a
supply of valuable books. Such men must be remunerated for
their literary labour. And there are only two ways in which
they can be remunerated. One of those ways is patronage; the
other is copyright. 

There have been times in which men of letters looked, not to
the public, but to the government, or to a few great men,
for the reward of their exertions. It was thus in the time
of Maecenas and Pollio at Rome, of the Medici at Florence,
of Louis the Fourteenth in France, of Lord Halifax and Lord
Oxford in this country. Now, Sir, I well know that there are
cases in which it is fit and graceful, nay, in which it is a
sacred duty to reward the merits or to relieve the
distresses of men of genius by the exercise of this species
of liberality. But these cases are exceptions. I can
conceive no system more fatal to the integrity and
independence of literary men than one under which they
should be taught to look for their daily bread to the favour
of ministers and nobles. I can conceive no system more
certain to turn those minds which are formed by nature to be
the blessings and ornaments of our species into public
scandals and pests. 

We have, then, only one resource left. We must betake
ourselves to copyright, be the inconveniences of copyright
what they may. Those inconveniences, in truth, are neither
few nor small. Copyright is monopoly, and produces all the
effects which the general voice of mankind attributes to
monopoly. My honourable and learned friend talks very
contemptuously of those who are led away by the theory that
monopoly makes things dear. That monopoly makes things dear
is certainly a theory, as all the great truths which have
been established by the experience of all ages and nations,
and which are taken for granted in all reasonings, may be
said to be theories. It is a theory in the same sense in
which it is a theory that day and night follow each other,
that lead is heavier than water, that bread nourishes, that
arsenic poisons, that alcohol intoxicates. If, as my
honourable and learned friend seems to think, the whole
world is in the wrong on this point, if the real effect of
monopoly is to make articles good and cheap, why does he
stop short in his career of change? Why does he limit the
operation of so salutary a principle to sixty years? Why
does he consent to anything short of a perpetuity? He told
us that in consenting to anything short of a perpetuity he
was making a compromise between extreme right and
expediency. But if his opinion about monopoly be correct,
extreme right and expediency would coincide. Or rather, why
should we not restore the monopoly of the East India trade
to the East India Company? Why should we not revive all
those old monopolies which, in Elizabeth's reign, galled our
fathers so severely that, maddened by intolerable wrong,
they opposed to their sovereign a resistance before which
her haughty spirit quailed for the first and for the last
time? Was it the cheapness and excellence of commodities
that then so violently stirred the indignation of the
English people? 

I believe, Sir, that I may with safety take it for granted
that the effect of monopoly generally is to make articles
scarce, to make them dear, and to make them bad. And I may
with equal safety challenge my honourable friend to find out
any distinction between copyright and other privileges of
the same kind; any reason why a monopoly of books should
produce an effect directly the reverse of that which was
produced by the East India Company's monopoly of tea, or by
Lord Essex's monopoly of sweet wines. Thus, then, stands the
case. It is good that authors should be remunerated; and the
least exceptionable way of remunerating them is by a
monopoly. Yet monopoly is an evil. For the sake of the good
we must submit to the evil; but the evil ought not to last a
day longer than is necessary for the purpose of securing the
good. 

Now, I will not affirm that the existing law is perfect,
that it exactly hits the point at which the monopoly ought
to cease; but this I confidently say, that the existing law
is very much nearer that point than the law proposed by my
honourable and learned friend. For consider this; the evil
effects of the monopoly are proportioned to the length of
its duration. But the good effects for the sake of which we
bear with the evil effects are by no means proportioned to
the length of its duration. A monopoly of sixty years
produces twice as much evil as a monopoly of thirty years,
and thrice as much evil as a monopoly of twenty years. But
it is by no means the fact that a posthumous monopoly of
sixty years gives to an author thrice as much pleasure and
thrice as strong a motive as a posthumous monopoly of twenty
years. On the contrary, the difference is so small as to be
hardly perceptible. 

We all know how faintly we are affected by the prospect of
very distant advantages, even when they are advantages which
we may reasonably hope that we shall ourselves enjoy. But an
advantage that is to be enjoyed more than half a century
after we are dead, by somebody, we know not by whom, perhaps
by somebody unborn, by somebody utterly unconnected with us,
is really no motive at all to action. It is very probable
that in the course of some generations land in the
unexplored and unmapped heart of the Australasian continent
will be very valuable. But there is none of us who would lay
down five pounds for a whole province in the heart of the
Australasian continent. We know, that neither we, nor
anybody for whom we care, will ever receive a farthing of
rent from such a province. And a man is very little moved by
the thought that in the year 2000 or 2100, somebody who
claims through him will employ more shepherds than Prince
Esterhazy, and will have the finest house and gallery of
pictures at Victoria or Sydney. 

Now, this is the sort of boon which my honourable and
learned friend holds out to authors. Considered as a boon to
them, it is a mere nullity, but considered as an impost on
the public, it is no nullity, but a very serious and
pernicious reality. 

I will take an example. Dr Johnson died fifty-six years ago.
If the law were what my honourable and learned friend wishes
to make it, somebody would now have the monopoly of Dr
Johnson's works. Who that somebody would be it is impossible
to say; but we may venture to guess. I guess, then, that it
would have been some bookseller, who was the assign of
another bookseller, who was the grandson of a third
bookseller, who had bought the copyright from Black Frank,
the doctor's servant and residuary legatee, in 1785 or 1786.
Now, would the knowledge that this copyright would exist in
1841 have been a source of gratification to Johnson? Would
it have stimulated his exertions? Would it have once drawn
him out of his bed before noon? Would it have once cheered
him under a fit of the spleen? Would it have induced him to
give us one more allegory, one more life of a poet, one more
imitation of Juvenal? I firmly believe not. I firmly believe
that a hundred years ago, when he was writing our debates
for the Gentleman's Magazine, he would very much rather have
had twopence to buy a plate of shin of beef at a cook's shop
underground. Considered as a reward to him, the difference
between a twenty years' and sixty years' term of posthumous
copyright would have been nothing or next to nothing. But is
the difference nothing to us? I can buy Rasselas for
sixpence; I might have had to give five shillings for it. I
can buy the Dictionary, the entire genuine Dictionary, for
two guineas, perhaps for less; I might have had to give five
or six guineas for it. Do I grudge this to a man like Dr
Johnson? Not at all. Show me that the prospect of this boon
roused him to any vigorous effort, or sustained his spirits
under depressing circumstances, and I am quite willing to
pay the price of such an object, heavy as that price is. But
what I do complain of is that my circumstances are to be
worse, and Johnson's none the better; that I am to give five
pounds for what to him was not worth a farthing. 

The principle of copyright is this. It is a tax on readers
for the purpose of giving a bounty to writers. The tax is an
exceedingly bad one; it is a tax on one of the most innocent
and most salutary of human pleasures; and never let us
forget, that a tax on innocent pleasures is a premium on
vicious pleasures. I admit, however, the necessity of giving
a bounty to genius and learning. In order to give such a
bounty, I willingly submit even to this severe and
burdensome tax. Nay, I am ready to increase the tax, if it
can be shown that by so doing I should proportionally
increase the bounty. My complaint is, that my honourable and
learned friend doubles, triples, quadruples, the tax, and
makes scarcely any perceptible addition to the bounty. Why,
Sir, what is the additional amount of taxation which would
have been levied on the public for Dr Johnson's works alone,
if my honourable and learned friend's bill had been the law
of the land? I have not data sufficient to form an opinion.
But I am confident that the taxation on his Dictionary alone
would have amounted to many thousands of pounds. In
reckoning the whole additional sum which the holders of his
copyrights would have taken out of the pockets of the public
during the last half century at twenty thousand pounds, I
feel satisfied that I very greatly underrate it. Now, I
again say that I think it but fair that we should pay twenty
thousand pounds in consideration of twenty thousand pounds'
worth of pleasure and encouragement received by Dr Johnson.
But I think it very hard that we should pay twenty thousand
pounds for what he would not have valued at five shillings. 

My honourable and learned friend dwells on the claims of the
posterity of great writers. Undoubtedly, Sir, it would be
very pleasing to see a descendant of Shakespeare living in
opulence on the fruits of his great ancestor's genius. A
house maintained in splendour by such a patrimony would be a
more interesting and striking object than Blenheim is to us,
or than Strathfieldsaye will be to our children. But,
unhappily, it is scarcely possible that, under any system,
such a thing can come to pass. My honourable and learned
friend does not propose that copyright shall descend to the
eldest son, or shall be bound up by irrecoverable entail. It
is to be merely personal property. It is therefore highly
improbable that it will descend during sixty years or half
that term from parent to child. The chance is that more
people than one will have an interest in it. They will in
all probability sell it and divide the proceeds. The price
which a bookseller will give for it will bear no proportion
to the sum which he will afterwards draw from the public, if
his speculation proves successful. He will give little, if
anything, more for a term of sixty years than for a term of
thirty or five and twenty. The present value of a distant
advantage is always small; but when there is great room to
doubt whether a distant advantage will be any advantage at
all, the present value sink to almost nothing. Such is the
inconstancy of the public taste that no sensible man will
venture to pronounce, with confidence, what the sale of any
book published in our days will be in the years between 1890
and 1900. The whole fashion of thinking and writing has
often undergone a change in a much shorter period than that
to which my honourable and learned friend would extend
posthumous copyright. What would have been considered the
best literary property in the earlier part of Charles the
Second's reign? I imagine Cowley's Poems. Overleap sixty
years, and you are in the generation of which Pope asked,
"Who now reads Cowley?" What works were ever expected with
more impatience by the public than those of Lord
Bolingbroke, which appeared, I think, in 1754? In 1814, no
bookseller would have thanked you for the copyright of them
all, if you had offered it to him for nothing. What would
Paternoster Row give now for the copyright of Hayley's
Triumphs of Temper, so much admired within the memory of
many people still living? I say, therefore, that, from the
very nature of literary property, it will almost always pass
away from an author's family; and I say, that the price
given for it to the family will bear a very small proportion
to the tax which the purchaser, if his speculation turns out
well, will in the course of a long series of years levy on
the public. 

If, Sir, I wished to find a strong and perfect illustration
of the effects which I anticipate from long copyright, I
should select,--my honourable and learned friend will be
surprised,--I should select the case of Milton's
granddaughter. As often as this bill has been under
discussion, the fate of Milton's granddaughter has been
brought forward by the advocates of monopoly. My honourable
and learned friend has repeatedly told the story with great
eloquence and effect. He has dilated on the sufferings, on
the abject poverty, of this ill-fated woman, the last of an
illustrious race. He tells us that, in the extremity of her
distress, Garrick gave her a benefit, that Johnson wrote a
prologue, and that the public contributed some hundreds of
pounds. Was it fit, he asks, that she should receive, in
this eleemosynary form, a small portion of what was in truth
a debt? Why, he asks, instead of obtaining a pittance from
charity, did she not live in comfort and luxury on the
proceeds of the sale of her ancestor's works? But, Sir, will
my honourable and learned friend tell me that this event,
which he has so often and so pathetically described, was
caused by the shortness of the term of copyright? Why, at
that time, the duration of copyright was longer than even
he, at present, proposes to make it. The monopoly lasted,
not sixty years, but for ever. At the time at which Milton's
granddaughter asked charity, Milton's works were the
exclusive property of a bookseller. Within a few months of
the day on which the benefit was given at Garrick's theatre,
the holder of the copyright of Paradise Lost,--I think it
was Tonson,--applied to the Court of Chancery for an
injunction against a bookseller who had published a cheap
edition of the great epic poem, and obtained the injunction.
The representation of Comus was, if I remember rightly, in
1750; the injunction in 1752. Here, then, is a perfect
illustration of the effect of long copyright. Milton's works
are the property of a single publisher. Everybody who wants
them must buy them at Tonson's shop, and at Tonson's price.
Whoever attempts to undersell Tonson is harassed with legal
proceedings. Thousands who would gladly possess a copy of
Paradise Lost, must forego that great enjoyment. And what,
in the meantime, is the situation of the only person for
whom we can suppose that the author, protected at such a
cost to the public, was at all interested? She is reduced to
utter destitution. Milton's works are under a monopoly.
Milton's granddaughter is starving. The reader is pillaged;
but the writer's family is not enriched. Society is taxed
doubly. It has to give an exorbitant price for the poems;
and it has at the same time to give alms to the only
surviving descendant of the poet. 

But this is not all. I think it right, Sir, to call the
attention of the House to an evil, which is perhaps more to
be apprehended when an author's copyright remains in the
hands of his family, than when it is transferred to
booksellers. I seriously fear that, if such a measure as
this should be adopted, many valuable works will be either
totally suppressed or grievously mutilated. I can prove that
this danger is not chimerical; and I am quite certain that,
if the danger be real, the safeguards which my honourable
and learned friend has devised are altogether nugatory. That
the danger is not chimerical may easily be shown. Most of
us, I am sure, have known persons who, very erroneously as I
think, but from the best motives, would not choose to
reprint Fielding's novels, or Gibbon's History of the
Decline and Fall of the Roman Empire. Some gentlemen may
perhaps be of opinion that it would be as well if Tom Jones
and Gibbon's History were never reprinted. I will not, then,
dwell on these or similar cases. I will take cases
respecting which it is not likely that there will be any
difference of opinion here; cases, too, in which the danger
of which I now speak is not matter of supposition, but
matter of fact.  Take Richardson's novels. Whatever I may,
on the present occasion, think of my honourable and learned
friend's judgment as a legislator, I must always respect his
judgment as a critic. He will, I am sure, say that
Richardson's novels are among the most valuable, among the
most original works in our language. No writings have done
more to raise the fame of English genius in foreign
countries. No writings are more deeply pathetic. No
writings, those of Shakspeare excepted, show more profound
knowledge of the human heart. As to their moral tendency, I
can cite the most respectable testimony. Dr Johnson
describes Richardson as one who had taught the passions to
move at the command of virtue. My dear and honoured friend,
Mr Wilberforce, in his celebrated religious treatise, when
speaking of the unchristian tendency of the fashionable
novels of the eighteenth century, distinctly excepts
Richardson from the censure. Another excellent person, whom
I can never mention without respect and kindness, Mrs Hannah
More, often declared in conversation, and has declared in
one of her published poems, that she first learned from the
writings of Richardson those principles of piety by which
her life was guided. I may safely say that books celebrated
as works of art through the whole civilised world, and
praised for their moral tendency by Dr Johnson, by Mr
Wilberforce, by Mrs Hannah More, ought not to be suppressed.
Sir, it is my firm belief, that if the law had been what my
honourable and learned friend proposes to make it, they
would have been suppressed. 

I remember Richardson's grandson well; he was a clergyman in
the city of London; he was a most upright and excellent man;
but he had conceived a strong prejudice against works of
fiction. He thought all novel-reading not only frivolous but
sinful. He said,--this I state on the authority of one of
his clerical brethren who is now a bishop,--he said that he
had never thought it right to read one of his grandfather's
books. Suppose, Sir, that the law had been what my
honourable and learned friend would make it. Suppose that
the copyright of Richardson's novels had descended, as might
well have been the case, to this gentleman. I firmly
believe, that he would have thought it sinful to give them a
wide circulation. I firmly believe, that he would not for a
hundred thousand pounds have deliberately done what he
thought sinful. He would not have reprinted them. And what
protection does my honourable and learned friend give to the
public in such a case? Why, Sir, what he proposes is this:
if a book is not reprinted during five years, any person who
wishes to reprint it may give notice in the London Gazette:
the advertisement must be repeated three times: a year must
elapse; and then, if the proprietor of the copyright does
not put forth a new edition, he loses his exclusive
privilege. Now, what protection is this to the public? What
is a new edition? Does the law define the number of copies
that make an edition? Does it limit the price of a copy? Are
twelve copies on large paper, charged at thirty guineas
each, an edition? It has been usual, when monopolies have
been granted, to prescribe numbers and to limit prices. But
I did not find the my honourable and learned friend proposes
to do so in the present case. And, without some such
provision, the security which he offers is manifestly
illusory. It is my conviction that, under such a system as
that which he recommends to us, a copy of Clarissa would
have been as rare as an Aldus or a Caxton. 

I will give another instance. One of the most instructive,
interesting, and delightful books in our language is
Boswell's Life of Johnson. Now it is well known that
Boswell's eldest son considered this book, considered the
whole relation of Boswell to Johnson, as a blot in the
escutcheon of the family. He thought, not perhaps altogether
without reason, that his father had exhibited himself in a
ludicrous and degrading light. And thus he became so sore
and irritable that at last he could not bear to hear the
Life of Johnson mentioned. Suppose that the law had been
what my honourable and learned friend wishes to make it.
Suppose that the copyright of Boswell's Life of Johnson had
belonged, as it well might, during sixty years, to Boswell's
eldest son. What would have been the consequence? An
unadulterated copy of the finest biographical work in the
world would have been as scarce as the first edition of
Camden's Britannia. 

These are strong cases. I have shown you that, if the law
had been what you are now going to make it, the finest prose
work of fiction in the language, the finest biographical
work in the language, would very probably have been
suppressed. But I have stated my case weakly. The books
which I have mentioned are singularly inoffensive books,
books not touching on any of those questions which drive
even wise men beyond the bounds of wisdom. There are books
of a very different kind, books which are the rallying
points of great political and religious parties. What is
likely to happen if the copyright of one of the these books
should by descent or transfer come into the possession of
some hostile zealot? I will take a single instance. It is
only fifty years since John Wesley died; and all his works,
if the law had been what my honourable and learned friend
wishes to make it, would now have been the property of some
person or other. The sect founded by Wesley is the most
numerous, the wealthiest, the most powerful, the most
zealous of sects. 

In every parliamentary election it is a matter of the
greatest importance to obtain the support of the Wesleyan
Methodists. Their numerical strength is reckoned by hundreds
of thousands. They hold the memory of their founder in the
greatest reverence; and not without reason, for he was
unquestionably a great and a good man. To his authority they
constantly appeal. His works are in their eyes of the
highest value. His doctrinal writings they regard as
containing the best system of theology ever deduced from
Scripture. His journals, interesting even to the common
reader, are peculiarly interesting to the Methodist: for
they contain the whole history of that singular polity
which, weak and despised in its beginning, is now, after the
lapse of a century, so strong, so flourishing, and so
formidable. The hymns to which he gave his imprimatur are a
most important part of the public worship of his followers.
Now, suppose that the copyright of these works should belong
to some person who holds the memory of Wesley and the
doctrines and discipline of the Methodists in abhorrence.
There are many such persons. The Ecclesiastical Courts are
at this very time sitting on the case of a clergyman of the
Established Church who refused Christian burial to a child
baptized by a Methodist preacher. I took up the other day a
work which is considered as among the most respectable
organs of a large and growing party in the Church of
England, and there I saw John Wesley designated as a
forsworn priest. Suppose that the works of Wesley were
suppressed. Why, Sir, such a grievance would be enough to
shake the foundations of Government. Let gentlemen who are
attached to the Church reflect for a moment what their
feelings would be if the Book of Common Prayer were not to
be reprinted for thirty or forty years, if the price of a
Book of Common Prayer were run up to five or ten guineas.
And then let them determine whether they will pass a law
under which it is possible, under which it is probable, that
so intolerable a wrong may be done to some sect consisting
perhaps of half a million of persons. 

I am so sensible, Sir, of the kindness with which the House
has listened to me, that I will not detain you longer. I
will only say this, that if the measure before us should
pass, and should produce one-tenth part of the evil which it
is calculated to produce, and which I fully expect it to
produce, there will soon be a remedy, though of a very
objectionable kind. Just as the absurd acts which prohibited
the sale of game were virtually repealed by the poacher,
just as many absurd revenue acts have been virtually
repealed by the smuggler, so will this law be virtually
repealed by piratical booksellers. At present the holder of
copyright has the public feeling on his side. Those who
invade copyright are regarded as knaves who take the bread
out of the mouths of deserving men. Everybody is well
pleased to see them restrained by the law, and compelled to
refund their ill-gotten gains. No tradesman of good repute
will have anything to do with such disgraceful transactions.
Pass this law: and that feeling is at an end. Men very
different from the present race of piratical booksellers
will soon infringe this intolerable monopoly. Great masses
of capital will be constantly employed in the violation of
the law. Every art will be employed to evade legal pursuit;
and the whole nation will be in the plot. On which side
indeed should the public sympathy be when the question is
whether some book as popular as Robinson Crusoe, or the
Pilgrim's Progress, shall be in every cottage, or whether it
shall be confined to the libraries of the rich for the
advantage of the great-grandson of a bookseller who, a
hundred years before, drove a hard bargain for the copyright
with the author when in great distress? 

Remember too that, when once it ceases to be considered as
wrong and discreditable to invade literary property, no
person can say where the invasion will stop. The public
seldom makes nice distinctions. The wholesome copyright
which now exists will share in the disgrace and danger of
the new copyright which you are about to create. And you
will find that, in attempting to impose unreasonable
restraints on the reprinting of the works of the dead, you
have, to a great extent, annulled those restraints which now
prevent men from pillaging and defrauding the living. If I
saw, Sir, any probability that this bill could be so amended
in the Committee that my objections might be removed, I
would not divide the House in this stage. But I am so fully
convinced that no alteration which would not seem
insupportable to my honourable and learned friend, could
render his measure supportable to me, that I must move,
though with regret, that this bill be read a second time
this day six months. 

---- 
Notes: 

I have attempted here to footnote some of the references
that may be obscure to most modern readers, although in some
cases the exact person or thing being referred to is not
clear. 

[1]Jure divino: divine law (i.e. ordained by God). 

[2]Pars Rationabilis: Lat. "reaonable part"; a legal term
applying to the amount of a husband's personal estate a
widow is entitled to other than her dowry. 

[3]Statute of distributions: A 1670 English statute, called
the Statute of Distributions, standardized the apportionment
and descent of personal property when there was no will. 

[4]Maecenas: Maecenas, Gaius, Roman politician and associate
of Augustus, patron of various latin poets such as Virgil
and Horace. 

[5]Pollio: Pollio, Gaius Asinius, sided with Caesar against
Pompey; also patron of Virgil and Horace. 

[6]Lord Halifax: Halifax, Charles Montagu, 1st Earl of 1661
-- 1715. 

[7]Lord Oxford: Possibly Harley, Robert, 1st Earl of Oxford 

[8]The East India Company: This company had a monopoly on
far east trade, including a very unpopular monopoly on tea.
This was so lucrative it was compared to having a license to
print money. It became a virtual country in its own right,
with its own military forces and vast economic resources.
The monopoly was ended by Parliament in 1833 and in 1857 the
company was dissolved. 

[9]Johnson, Samuel 1709 -- 1784: British poet and
lexicographer 

[10]Cowley, Abraham 1618 -- 1667: British poet with close
political ties to Charles II 

[11] Pope, Alexander 1688 -- 1744: British poet, translator
and critic. 

[12]Henry St John, 1st Viscount Bolingbroke 1678 -- 1751:
British Tory politician and writer. 

[13]Hayley, William: After his death, his work became a sort
of proverbial archetype of truly execrably bad poetry.
Flourished ca. 1781. 

[14]Milton, John (1608-1674): British poet and philosopher;
wrote the epic "Paradise Lost". Then his wife died and he
wrote "Paradise Regained". Also author of Aereopagitica, a
famouse early treatise on freedom of the press. 

[15]Garrick, David 1717-1779: British actor, theatrical
manager and playwright. Credited with repopularizing
Shakespeare after he had gone out of fashion in the prior
century. Managed the Drury Lane theatre, and wrote the song
"Heart of Oak," which later became the hymn of the Canadian
navy and was featured on a Star Trek epiosode. 

[16]Tonson's: Firm founded in 1677 by Jacob Tonsen;
pioneered the modern publishing business as a intermediary
between an author and the public. 

[17]Fielding: Likely Fielding, Henry 1707 -- 1754, British
playwright, novelist and parodist. Most famous work: The
History of Tom Jones, A Foundling (1749). Inspired the
Licensing act of 1740 because of his parodies. 

[18]Gibbon, Edward 1737 -- 1794:British historian most noted
for his work, The History of the Decline and Fall of the
Roman Empire , published in five volumes between 1776 and
1788. This book was widely read (and still is) among the
British intelligentsia. During the rise and apex of the
British empire, they tended to identify Britain as a kind of
modern Rome. 

[19]Wilberforce: Most likely William Wilberforce 1759 -
1833, a moral reformer whose efforts lead to the Slavery
Abolition Act. He ws deceased some eight years at the time
of this speech, so it may refer to Samuel, his son, and
Anglican bishop and biblical scholar. 

[20]More, Hannah 1745 -- 1833: British playwright and
religious reformer. Her work led to the founding of the
Religious Tracts Society 

[21]Clarissa, or The History of a Young Lady (1747-8) by
Samuel Richardson: Possibly the longest English novel ever,
weighing in at over one million words. 

[22]Aldus:Possibly refers to Aldus Manutius (1449-1515)? a
scholar, typographer and printer who made the first widely
available printed editions of many Greek works. These
volumes would have been collectors items in Macaulay's
times. 

[23]Caxton, William (late 15th Century): The first English
printer. Printed about a hundred books, surviving copies of
which are extremely rare and of course highly valuable. 

[24]Boswell, James 1740 -- 1795: biographer and apparently
somewhat dissipated man of letters. Remembered for his life
of Samuel Johnson. 

[25]Camden, William 1551 -- 1623: scholar and antiquarian;
Brittania was the topographical, historical and
archaeological survey of the British Isles. 

[26]Wesley, John 1703 -- 1791: founder of Methodism. 

[27]Paternoster Row: street about a block north of St Paul's
Cathedral, historical center of London book trade. 

[28]Juvenal:Decimus Junius Juvenalis fl. ca. 130 CE Roman
satirist and social critic. Familiar to erudite English
readers via Dryden's famous translations from the late
1600s. 

[29]Rasselas: The History of Rasselas, Prince of Abissinia
by Sam. Johnson; 1825. 

[30]British money: 
4 Farthings = 1 Penny 
48 Farthings = 12 Pence = 1 Shilling 
96 Farthings = 24 Pence = 2 Shillings = 1 Florin 
240 Farthings = 60 Pence = 5 Shillings = 1 Crown 
960 Farthings = 240 Pence = 20 Shillings = 1 Pound
(sovereign) 
1008 Farthings = 252 Pence = 21 Shillings = 1.05 Pound = 1
Guinea 

[31]Prince Esterhazy: Possibly Prince Anton Esterhazy, a
patron of the composter Haydn. Died in 1762. After his death
a kind of benchmark for exterme wealth, the way we would
compare somebody today to Howard Hughes or Bill Gates. 

[32]Fit of the Spleen: what we would now call "a bout of
depression". Early western medical theory attributed a man's
health and disposition to four fluids or "humours",
associated with different organs and dispositions. Black
bile is associated with the spleen, and melancholy, and was
held to be a regulate or reduce the effect other humors.
"Venting one's spleen" is releasing the check on your other
humors -- i.e. allowing oneself to become angry. 

[33]Twenty thousand pounds: in 1841, this would have been
the equivalent of about a million dollars. 

[34]Blenheim palace: Ancestral home of the Dukes of
Marlborough and birthplace of Winston Churchill. One of most
spectacular and admired aristrocratic homes in Britain, it
was built in 1705 at a cost that would amount to almost 33
million pounds in current terms. Today we might hold out
William Randolph Hearst's San Simeon estate as a comparable
example of a ostentatiously magnificent home. 

[35]Strathfieldsaye: palace built for Arthur Wellesley, Duke
of Wellington as a reward for his defeat of Napoleon in
1815. Wellington was still active in Tory politics at this
time. 

[36]Bill of Attainder: a law passed by parliament dictating
the execution of an individual without trial. This was
exclusively used to get rid of political rivals who had
committed no capital crime, it was by the 1700s justly
regarded as a form of legislative murder. Mr. Talfourd
apparenty had, in a flight of rhetoric, compared the modest
copyrights then in effect to a Bill of Attainder, i.e., a
form of legislative theft. 

[37]Paley, William (1743-1805): British theologian and
writer. He was an early exponent of utilitarianism (the
philosophy of the greatest good for the greatest number),
along with Jeremy Bentham (1748-1832).

[38]Primogeniture etc.: Customs of inheritence. Under
primogeniture, the eldest son inherits the entire esteate;
under gavelkind the estate is split evenly; under bourough
English the estate is inherited in its entirety by the
youngest son. Each of these systems were in practice in
various parts of England at this time.

[39]Custom of York, Custom of London etc.: These were local
laws governing things like contracts and inheritence. Both
the Custom of London, and the Custom of York (whch held in
Northern England between 1300 and 1692) held that the wife
got one third, the children one third and deceased could
specify how the balance was to be used (before his death,
naturally ;-). The custom of Kent is also called "borough
English" (see above). Lords on individual manors were a law
unto themselves and could specify various customs to be
followed within their lands.