She says Mr Cooper is a failure. With the exception of Washington Irving, there never was an American writer so justly popular in America as Cooper. It is true that latterly he has displeased the majority, by pointing out to them their faults, and that he is not always in a good humour when he writes about England. But to state the author of such works as The Pilot, The Last of the Mohicans, and The Prairie, a failure, is really too absurd. The cause of this remark is said to be that Mr Cooper had a quarrel with Miss Martineaus particular friend Mr S. There is only one remark in the whole of her observations which is in itself true. She says Bulwer is much read. Here she is correct: but the cause which she gives for his being so much read, is not the real one. She asserts it is on account of his liberal opinions; it is not on that account, it is from the interest of his stories, and the beauty of his writing.
But the assertion that seemed to me the most strange in Miss Martineaus work, was, that Mr Carlisle, the author of Sartor Resartus, was the most read of any English author. Without intending to depreciate the works of Mr Carlisle, I felt convinced from my own knowledge, that this could not be a fact, for Mr Carlisles works are not suited to the Americans. I, therefore, determined to ascertain how far it was correct. I went to the publishers, and inquired how many of Mr Carlisles works had been printed. They replied that they had printed one edition of six hundred copies, which they had nearly sold; and were considering whether it would be worth their while to print a second; and in consequence of Miss Martineaus assertion, that Byron was little known, I applied to the largest publishers in New York and Philadelphia, to ascertain, if I could, how many copies of Byron had been published. The reply was, that it was impossible to say exactly, as there had been so many editions issued, by so many different publishers, but that they considered that from one hundred and fifty to two hundred thousand copies, must have been sold! so much for the accuracy of Miss Martineau.12
I am afraid, that notwithstanding the eloquent and energetic exertions of the author of Ion, we shall never be able to make the public believe that the creations of a mans brain are his own property, or effect any arrangement with foreign countries, so as to secure a copyright to the English author. As on my arrival in America it was reported in the newspapers that I had come out to ascertain what could be done in that respect, and to follow up the petition of the English authors. The subject was, therefore, constantly introduced and canvassed; and I naturally took an interest in it. Every one almost was for granting it; but, at the same time, every one told me that we should not obtain it.
The petition of the English authors to Congress was warmly espoused by Mr Clay, who invariably leads the van in everything which is liberal and gentlemanlike. A select committee, of which Mr Clay was chairman, was formed to consider upon it, and the following was the result of their inquiry, and a bill was brought in, upon the report of the committee:
In Senate of the United States, Feb. 16, 1837.
Mr Clay made the following report:
The select committee to whom was referred the address of certain British and the petition of certain American authors, have, according to order, had the same under consideration, and beg leave now to report:
That, by the act of Congress of 1831, being the law now in force regulating copyrights, the benefits of the act are restricted to citizens or residents of the United States; so that no foreigner, residing abroad, can secure a copyright in the United States for any work of which he is the author, however important or valuable it may be. The object of the address and petition, therefore, is to remove this restriction as to British authors, and to allow them to enjoy the benefits of our law.
That authors and inventors have, according to the practice among civilised nations, a property in the respective productions of their genius is incontestible; and that this property should be protected as effectually as any other property is, by law, follows as a legitimate consequence. Authors and inventors are among the greatest benefactors of mankind. They are often dependent, exclusively, upon their own mental labours for the means of subsistence; and are frequently, from the nature of their pursuits, or the constitutions of their minds, incapable of applying that provident care to worldly affairs which other classes of society are in the habit of bestowing. These considerations give additional strength to their just title to the protection of the law.
It being established that literary property is entitled to legal protection, it results that this protection ought to be afforded wherever the property is situated. A British merchant brings or transmits to the United States a bale of merchandise, and the moment it comes within the jurisdiction of our laws they throw around it effectual security. But if the work of a British author is brought to the United States, it may be appropriated by any resident here, and republished, without any compensation whatever being made to the author. We should be all shocked if the law tolerated the least invasion of the rights of property, in the case of the merchandise, whilst those which justly belong to the works of authors are exposed to daily violation, without the possibility of their invoking the aid of the laws.
The committee think that this distinction in the condition of the two descriptions of property is not just; and that it ought to be remedied by some safe and cautious amendment of the law. Already the principle has been adopted in the patent laws, of extending their benefits to foreign inventions and improvements. It is but carrying out the same principle to extend the benefit of our copyright laws to foreign authors. In relation to the subject of Great Britain and France, it will be but a measure of reciprocal justice; for, in both of those countries, our authors may enjoy that protection of their laws for literary property which is denied to their subjects here.
Entertaining these views, the committee have been anxious to devise some measure which, without too great a disturbance of interests or affecting too seriously arrangements which have grown out of the present state of things, may, without hazard, be subjected to the test of practical experience. Of the works which have heretofore issued from the foreign press, many have already been republished in the United States; others are in a progress of republication, and some probably have been stereotyped. A copyright law which should embrace any of these works, might injuriously affect American publishers, and lead to collision and litigation between them and foreign authors.
Acting, then, on the principles of prudence and caution, by which the committee have thought it best to be governed, the bill which the committee intend proposing provides that the protection which it secures shall extend to those works only which shall be published after its passage. It is also limited to the subjects of Great Britain and France; among other reasons, because the committee have information that, by their laws, American authors can obtain there protection for their productions; but they have no information that such is the case in any other foreign country. But, in principle, the committee perceive no objection to considering the republic of letters as one great community, and adopting a system of protection for literary property which should be common to all parts of it. The bill also provides that an American edition of the foreign work for which an American copyright has been obtained, shall be published within reasonable time.
If the bill should pass, its operation in this country would be to leave the public, without any charge for copyright, in the undisturbed possession of all scientific and literary works published prior to its passagein other words, the great mass of the science and literature of the world; and to entitle the British or French author only to the benefit of every copyright in respect to works which may be published subsequent to the passage of the law.
The committee cannot anticipate any reasonable or just objection to a measure thus guarded and restricted. It may, indeed, be contended, and it is possible that a new work, when charged with the expense incident to the copyright, may come into the hands of the purchaser at a small advance beyond what would be its price, if there were no such charge; but this is by no means certain. It is, on the contrary, highly probable that, when the American publisher has adequate time to issue carefully an edition of the foreign work, without incurring the extraordinary expense which he now has to sustain to make a hurried publication of it, and to guard himself against dangerous competition, he will be able to bring it into the market as cheaply as if the bill were not to pass. But, if that should not prove to be the case, and if the American reader should have to pay a few cents to compensate the author for composing a work which he is instructed and profited, would it not be just in itself? Has any reader a right to the use, without remuneration, of intellectual productions which have not yet been brought into existence, but lie buried in the mind of genius? The committee think not; and they believe that no American citizen would not feel it quite as unjust, in reference to future publications, to appropriate to himself their use, without any consideration being paid to their foreign proprietors, as he would to take the bale of merchandise, in the case stated, without paying for it; and he would the more readily make this trifling contribution, when it secured to him, instead of the imperfect and slovenly book now often issued, a neat and valuable work, worthy of preservation.
With respect to the constitutional power to pass the proposed bill, the committee entertain no doubt, and Congress, as before stated, has acted on it. The constitution authorises Congress to promote the progress of science and useful arts, by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries. There is no limitation of the power to natives or residents of this country. Such a limitation would have been hostile to the object of the power granted. That object was to promote the progress of science and useful arts. They belong to no particular country, but to mankind generally. And it cannot be doubted that the stimulus which it was intended to give to mind and genius, in other words, the promotion of the progress of science and the arts, will be increased by the motives which the bill offers to the inhabitants of Great Britain and France.
The committee conclude by asking leave to introduce the bill which accompanies this report.
Let it not, however, be supposed that Mr Clay was unreported by the American press; on the contrary, a large portion of it espoused the cause of the English author in the most liberal manner, indeed the boon itself, if granted, would in reality be of more advantage to America than to us; as many of them argued. The New York Daily Express observes, But another great evil resulting from the present law is, that most of the writers of our own country are utterly precluded from advancing our native literature, since they can derive no emolument or compensation for their labours; and it is idle to urge that the devotees of literature, any more than the ingenious artisan or mechanic, can be indifferent to the ultimate advantages which should result alike to both from the diligent use and studious application of their mental energies. We patronise and read the works of foreign writers, but it is at the expense of our own, the books of the English author being procured free of all cost, supersede those which would otherwise be produced by our own countrymen,thus the foreigner is wronged, while the same wrong acts again as a tariff upon our American author and all this manifest injury is perpetuated without its being qualified by the most remote advantage to any of the parties concerned.
The Boston Atlas responded to this observation in almost the same language.
This systematic, legalised depredation on English authors, is perfectly ruinous to all native literature. What writer can devote himself to a literary work, which he must offer on its completion, in competition with a work of the same description, perhaps, furnishing printed copy to the compositors, and to be had for the expense of a single London copy. What publisher would give its worth for a novel, in manuscript, supposing it to be equal to Bulwers best, when he would get a novel of Bulwer himself, for a few shillingswith an English reputation at the back of it? This is the great reason that we have so few works illustrative of our own historywhether of fact or fiction. Our booksellers are supplied for nothing.
I extract the following from a very excellent article on the subject, in the North American Review.
Another bad consequence of the existing state of things is, that the choice of books, which shall be offered us, is in the wrong hands. Our publishers have, to no small extent, the direction of our reading, inasmuch as they make the selection of books for reprinting. They, of course, will choose those works which will command the readiest and most extensive sale; but it must be remembered, that in so doing, while they answer the demand of the most numerous class of readers, they neglect the wants of the more cultivated and intelligent class. Besides his, there are many admirable works, which might come into general use if they were presented to our reading public, but which are left unnoticed by the publishers, because their success is doubtful. Supposing Abbotts Young Christian, for instance, a book which has had a more extensive circulation than any work of the present times, had been first published in England at the same moment that a good novel appeared, the American publishers would have given us immediately a horrid reprint of the novel; but we should have heard nothing of Abbotts book, till its success had been abundantly tried abroad; nor even then, if some ephemeral novel had started up which promised to sell better.
Nor is it certain that the price of books would be seriously augmented by the passage of the copyright law. It must be remembered, that a great number of writers would thus be called into the field at once, English as well as American writers; for, if English authors could enjoy this benefit, they would soon begin to write expressly for America; and the competition would become so great, as to regulate the prices of books to a proper standard. But, even supposing the price to be considerably raised, it would certainly be better to pay two dollars for a handsome volume, which is worth keeping, and worth reading again, than to pay only one dollar for a book, which in five years will be worth no more than the same amount of brown paper. And, finally, there is the consideration of a native literature, which will, we presume, be placed by all reasonable and intelligent persons above that of cheap books.
Nevertheless, a large portion of the press took up the other side of the question, as may be inferred from a reply which I have inserted in the note beneath.13
The bill brought in was lost. Strange to say, the Southerner voted against, on the grounds that they would not give a copyright to Miss Martineau, to propagate her abolition doctrines in that countryforgetting, that as a copyright would increase the price of a work, it would be the means of checking its circulation, rather than of extending it.