Weekly national intelligencer. [volume] (Washington [D.C.]) 1841-1869, 1854-03-25


Now, it is to be remarked that prescription can
only be applied to that which can be occupied, and
to that which must needs be appropriated in order
to be enjoyed at all Ifthe earth is to be cultivated
it can only be done byappropriating certain portions
OF 1t to the exclusive possession of its cultvators.
The sea cannot be thus occupied, and hence no man
or set of men are justified in prescribing to them
selves any exclusive proprietorship in the ocean.
They cannot so mix their labor in it as to create a
peculiar right to it nor is it necessary for the pro-
per enjoyment of the sea that prescription should
devote it to the exclusive possession of any man or
men under the title of proprietors. 1t must ever
remain as great watery commons, the highway OF
| the nations.
Property, therefore, in the full sense of the term,
can only exist in something that is approprable, or,
more exactly still, in something that presupposes
for its due enjoyment and development the condi-
ton of being appropriated to the exclusive posses
sion of what is called a proprietor, A house or a
farm is property in this full sense of the term, be-
cause they each demand, as condition of their
worth and value to an occupant, the right of sole
possession. But we think it is demonstrable that
such property cannot exist in books and literary
writings The right of an author to his book is IN
questionable, as far as it goes but it is not the
same as the right of man to house which he has
in fee-simple. We hope to make this point clear;
for all argument in behalf of the authors turns
on this very difference in the nature of what is call
ed literary property" and of what is called real
estate" @slSs ,.
| Wehave shown that no amount of prescription can
avail to make property of that which is in its very
nature or essence incapable of being appropriated
and we have seen that property in the strict sense
Of the torn, something that demands for its due
| enjoyment the condition of exclusive possession.
| Now, we contend that literary property becomes
impossible in idea when tried by these tests for it
is of the very essence Of thought that it cannot be
exclusively appropriated, and it is of the very ma
ture of thought that so far from demanding for its
due development the condition Of being exclusively
appropriated, that it then becomes most valuable
when it is shared by the greatest number The
language, moreover, of people is, it were, the
great that embathes the intelligence of that peo-
pie, and this sea, like old ocean itself, is common
possession to all. The language of a nation EN-
balms, preserves, and transmits from generation to
generation the whole complex of that nation striv-
ings, actngs and thiukings. Their language is the
index of their historical social, political, intellec-
tual, asthetical, and moral progress, the mighty
reservoir into which has been drained the wisdom
of ages We are all born with an equal right to
share in this inheritance, and as it confers upon an
author invaluable advantages, so also it implies re-
sponsbiities which the author cannot evade. We
may illustrate the rights of authors by comparing
them to the analogous rights of inventors. The
inventor does not any more than the author acquire
perpetual right of property in the products of his
ingenuity and the reason is the same in both cases
The inventor of the magnetic telegraph, for exam
pie, was too much indebted to the antecedent dis
coveries of science to claim the perpetual and OK
elusive ownership of his invention but he is en-
| titled to an ample compensation for all the labor
and skill bestowed in the scientific combinations
and researches which enabled him to confer such a
service on the public. And he should possess such
exclusive interest in his invention and for so long
period of time as shall not only recompense him
for his labor but shall also act as an encourage
ment to still further applications of science. And
| it is q beautiful adjustment of nature that the
scientific progress which creates demand for any
practical art will almost invariably ensure the at
tainment Of the end desired; and the demand
which preceded it is almost equally sure to secure
for its fortunate inventor an adequate reward for
his scientific ingenuity But the same principle
has not held equally good in literature. Men have
deemed it culpable to steal the inventions of the
mechanic. Why not equally so to steal the inven-
| tons of the poet?
Now, what is a book? We shall adopt the def.
milton of one who has argued in favor of the per-
peual right of an author in his productions though
| we of course contest this right. GA book is that
written speech by which author addresses the
public; and in its preparation the use which he
makes of his faculties in order to put in circulation
the thoughts Of his mind implies service render
ed to the public, service or less valuable in
proportion to the valle of the ideas communicated
We accept this definition and shall proceed to show
from it wherein consists the right of author to
enjoy usufruct in his productions, and also what
| are the limitations to this enjoyment.
The author according to our idea is not by vir-
tue of his works property holder in the same sense
as is the proprietor of farm and reasons for
making this distinction have been already given. If
this explanation be considered too metaphysical we
may present the same argument in its practical
bearings as follows: No man may arrogate to him
self the exclusive faculty of thinking, and no man
may legitimately say Here are certain thoughts
of mine, in which have an exclusive and perpetu-
al right" for, reply to him, thought is free to
all free in its very nature and essence, free to be
exercised, and free to follow ats own sweet will"
Neither may man lawfully assert an exclusive and
perpetual proprietorshp in certain thoughts, for the
following reasons He is not, in the first place, the
sole proprietor of the words he uses for these he
is vastly indebted to his predecessors. Language
being as we have before implied the receptacle no
less than the vehicle of thought the author may be
aptly likened to the children of Israel when they
entered Canaan and enjoyed the possession of wells
which they digged not, of vineyards which they
planted not, and of houses which they had not
built" Thought being free and the instrument of
its use being the common and inalienable possession
of all, no man has the right to lay perpetual en-
1 horro IN .pv collacton either of words or ideas