of improvement (r) (9): but if the thing itself, by such operation, was changed into a different species, as, by making wine, oil, or bread, out of another's grapes, olives, or wheat, it belonged to the new operator, who was only to make a satisfaction to the former proprietor for the materials which he had so converted (s). And these doctrines are implicitly copied and adopted by our Bracton (t), and have since been *confirmed by many resolutions of the [* 405 ] courts (u). It hath even been held, that if one takes away and clothes another's wife or son, and afterwards they return home, the garments shall cease to be his property who provided them, being annexed to the person of the child or woman (w).

or mixing of

7. But in the case of confusion of goods, where those of 7. By confusion two persons are so intermixed, that the several portions can goods. be no longer distinguished, the English law partly agrees with, and partly differs from, the civil. If the intermixture be by consent, I apprehend that, in both laws, the proprietors have an interest in common, in proportion to their respective shares (x). But, if one wilfully intermixes his money, corn, or hay, with that of another man, without his approbation or knowledge, or casts gold in like manner into another's melting pot or crucible, the civil law, though it gives the sole property of the whole to him who has not interfered in the mixture, yet allows a satisfaction to the other for what he has so improvidently lost (y). But our law, to guard against fraud, gives the entire property, without any account, to him whose original dominion is invaded, and endeavoured to be rendered uncertain, without his own consent (z) (10).

(r) Inst. 2.1. 25, 26, 31; FF. 6.1.5.
(s) Inst. 2. 1. 25. 34.
(t) L. 2, c. 2 & 3.

(u) Bro. Abr. tit. Propertie, 23; Moor. 20; Poph. 38.

(9) Mr. Christian observes, that "this also has long been the law of England; for it is laid down in the Year-books, that whatever alteration of form any property has undergone, the owner may seize it in its new shape, if he can prove the identity of

(w) Moor. 214.

(x) Inst. 2. 1. 27, 28; 1 Vern. 217.
(y) Inst. 2. 1. 28.

(z) Poph. 38; 2 Bulstr. 325; 1
Hal. P. C. 513; 2 Vern. 516.

the original materials; as, if leather
be made into shoes, cloth into a coat,
or if a tree be squared into timber, or
silver melted or beat into a different
figure. (5 Hen. VII. fo. 15; 12 Hen.
VIII. fo. 10.)"

(10) In the case of Lupton v. White,

8. Of authors in their own original literary compositions.

8. There is still another species of property, which (if it subsists by the common law,) being grounded on labour and invention, is more properly reducible to the head of occupancy than any other; since the right of occupancy itself is supposed by Mr. Locke (a), and many others (b), to be founded on the personal labour of the occupant. And this is the right, which an author may be supposed to have in his own original literary compositions: so that no other person without his leave may publish or make profit of the copies. When a man, by the exertion of his rational powers, has produced an original work, he seems to have [ *406] clearly a *right to dispose of that identical work as he (a) On Gov. part 2, ch. 5.

(15 Ves. 439, et seq.) Lord Eldon took
rather a different view of our law from
that laid down in the text. His lord-
ship thought, that a man who, by his
own tortious act in confounding two
funds, makes it impossible for another
to ascertain the amount of his proper-
ty, is bound himself to furnish the
means of distinguishing the two, or to
relinquish the whole. What, Lord El-
don asked, are the cases in the old law
of a mixture of corn and flour? and he
answers his own question thus :-"If
one man mixes his corn or flour with
that of another, and they were of equal
value, the latter must have back the
quantity that belongs to him, if that
can be ascertained; but, if articles of
different value are mixed together, pro-
ducing a third value, the aggregate of
both, and through the fault of the per-
son mixing them the other party can-
not tell what was the original value of
his property, he must have the whole."

Lord Eldon, therefore, did not think
that an account was not to be taken, if
that was practicable; but that, where
the person whose original dominion is
invaded has not the means of furnish-
ing the account, the duty of supplying
itrests with the wrong-doer; and if he
fails to distinguish the two properties
which he has confounded, he loses his

(b) See p. 8.

claim to any part thereof. (See also Lord Chedworth v. Edwards, 8 Ves. 50.)

The general rule, that, as against an agent who has mixed the property of his employer with his own, so as to render it undistinguishable, the whole may, both at law and in equity, be taken to be the property of the employer, is well settled; but, the same rule does not, in all cases, hold against the creditors of such agent: for instance, if an agent pay money belonging to his employer into his own banking-house, and to his general account, this money may not be distinguishable; but, should the agent become bankrupt, the whole sum which appears to be due to him from the bankers, will go to his assignees, and his employer can only come in as a general creditor under the commission. (Ex parte Townsend, 15 Ves. 470.) So, if the bankers had any account with the agent by way of set-off, that set-off would equally affect the money paid in to his account (though being, in truth, the money of his employer), as it would the agent's own money, supposing the bankers to have no notice, displacing their equity. (Massey v. Banner, 1 Jac. & Walk. 248.)

pleases, and any attempt to vary the disposition he has made of it, appears to be an invasion of that right. Now the identity of a literary composition consists entirely in the sentiment and the language; the same conceptions, clothed in the same words, must necessarily be the same composition: and whatever method be taken of exhibiting that composition to the ear or the eye of another, by recital, by writing, or by printing, in any number of copies, or at any period of time, it is always the identical work of the author which is so exhibited and no other man (it hath been thought) can have a right to exhibit it, especially for profit, without the author's consent. This consent may perhaps be tacitly given to all mankind, when an author suffers his work to be published by another hand, without any claim or reserve of right, and without stamping on it any marks of ownership; it being then a present to the public, like building a church or bridge, or laying out a new highway but in case the author sells a single book, or totally grants the copyright, it hath been supposed, in the one case, that the buyer hath no more right to multiply copies of that book for sale, than he hath to imitate for the like purpose the ticket which is bought for admission to an opera or a concert; and that, in the other, the whole property, with all its exclusive rights, is perpetually transferred to the grantee. On the other hand, it is urged, that though the exclusive property of the manuscript, and all which it contains, undoubtedly belongs to the author, before it is printed or published; yet, from the instant of publication, the exclusive right of an author or his assigns to the sole communication of his ideas immediately vanishes and evaporates ;. as being a right of too subtile and unsubstantial a nature to become the subject of property at the common law, and only capable of being guarded by positive statutes and special provisions of the magistrate.

the common

The Roman law adjudged, that, if one man wrote any of copyright by thing on the paper or parchment of another, the writing law. should belong to the owner of the blank materials (c): meaning thereby the mechanical operation of writing, for

(c) Si in chartis membranisve tuis carmen vel historiam vel orationem Titius scripserit, hujus corporis non Ti

tius sed tu dominus esse videris. Inst.
2. 1. 33. [See page 404.]

Of copyright by statute.

which it directed the *scribe to receive a satisfaction; for, in works of genius and invention, as in painting on another man's canvas, the same law (d) gave the canvas to the painter. As to any other property in the works of the understanding, the law is silent; though the sale of literary copies, for the purposes of recital or multiplication, is certainly as ancient as the times of Terence (e), Martial (ƒ), and Statius (g). Neither with us in England hath there been (till very lately) any final (h) determination upon the right of authors at the common law (11).

But whatever inherent copyright might have been supposed to subsist by the common law, the stat. 8 Ann. c. 19, (amended by stat. 15 Geo. III. c. 53,) hath now declared that the author and his assigns shall have the sole liberty of printing and reprinting his works for the term of fourteen years, and no longer (i); and hath also protected that

(d) Inst. s. 34.

(e) Prol. in Eunuch. 20.

(f) Epigr. i. 67; iv. 72; xiii. 3; xiv. 194.

(g) Juv. vii. 83.

(h) Since this was first written, it was determined in the case of Miller v. Taylor, in B. R. Pasch. 9 Geo. III. 1769, that an exclusive and permanent

(11) Mr. Christian observes, that "whether the productions of the mind could communicate a right of property or of exclusive enjoyment in reason and nature; and if such a moral right existed, whether it was recognised and supported by the common law of England; and whether the common law was intended to be restrained by the statute of queen Anne; are questions, upon which the learning and talents of the highest legal characters in this kingdom have been powerfully and zealously exerted.

“These questions were finally so determined, that an author has no right at present beyond the limits fixed by the statute. But, as that determination was contrary to the opinion of Lord Mansfield, of the learned com

copyright in authors subsisted by the common law. But afterwards, in the case of Donaldson v. Becket, before the House of Lords, 22 Feb. 1774, it was held, that no copyright now subsists in authors, after the expiration of the several terms created by the statute of queen Anne.

(i) By statute 15 Geo. III. c. 53.

mentator, and of several other judges, every person may still be permitted to indulge his own opinion upon the propriety of it, without incurring the imputation of arrogance.

"No less than eight of the twelve judges were of opinion that this was a right allowed and perpetuated by the common law of England; but six held, that the enjoyment of it was abridged by the statute of queen Anne, and that all remedy for the violation of it was taken away after the expiration of the terms specified in the act; and agreeable to that opinion was the final judgment of the lords.

"See the arguments at length of the judges of the King's Bench, and the opinions of the rest, in 4 Burr. 2303.”

property by additional penalties and forfeitures: directing farther, that if, at the end of that term, the author himself be living, the right shall then return to him for another term of the same duration (12): and a similar privilege is