4. Animals feræ naturæ. 5 Emblements. dens, the law will furnish me with a remedy; but if he is first in possession of the air, and I fix my habitation near him, the nuisance is of my own seeking, and may continue. If a stream be unoccupied, I may erect a mill thereon, and detain the water; yet not so as to injure my neighbor's prior mill, or his meadow; for he hath by the first occupancy acquired a property in the current.* 4. With regard, likewise, to animals feræ naturæ, all mankind had, by the original grant of the Creator, a right to pursue and take any fowl or insect of the air, any fish or inhabitant of the waters, and any beast or reptile of the field; and this natural right still continues in every individual, unless where it is restrained by the civil laws of the country. And when a man has once so seized them, they become, while living, his qualified property, or, if dead, are absolutely his own: so that to steal them, or otherwise invade this property, is, according to their respective values, sometimes a criminal offense, sometimes only a civil injury. The restrictions which are laid upon this right by the laws of England relate principally to royal fish, as whale and sturgeon, and such terrestrial, aerial, or aquatic animals as go under the denomination of game; the taking of which is made the exclusive right of the prince, and such of his subjects to whom he has granted the same royal privilege." But those animals which are not expressly so reserved are still liable to be taken and appropriated by any of the king's subjects, upon their own territories; in the same manner as they might have taken even game itself, till these civil prohibitions were issued; there being in nature no distinction between one species of wild animals and another, between the right of acquiring property in a hare or a squirrel, in a partridge or a butterfly; but the difference, at present made, arises merely from the positive municipal law. 5. To this principle of occupancy, also, must be referred the method of acquiring a special personal property in corn growing on the ground, or other emblements, by any possessor of the [404] land who hath sown or planted it, whether he be owner of the inheritance or of a less estate; which emblements are distinct from the real estate in the land, and subject to many, though not all, the incidents attending personal chattels. They (4) The subject of this paragraph does not belong to the head of personal property. Rights to light, air, &c., are not of a personal nature, but are incidents to the enjoyment of real estate; and even easements annexed to the person, or in gross, are real property. Vide ante, p. 36, n. (46).) (5) As to this, see post, p. 419, note. (6) The right to emblements does not seem to be aptly referred to the principle of occupancy; for they are the continuation of an inchoate, and not the acquisition of an original right.-[CHRIST IAN.] (Vide ante, p. 122.) were devisable by testament before the Statute of Wills," and for admitting the acquisition of this special property, by tenants sion. 6. The doctrine of property arising from accession is also 6. By acces grounded on the right of occupancy. By the Roman law, if any given corporeal substance received afterward an accession by natural or artificial means, as by the growth of vegetables, the pregnancy of animals, the embroidering of cloth, or the conversion of wood or metal into vessels and utensils, the original owner of the thing was entitled by his right of possession to the property of it under such its state of improvement; 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 doc I Perk., 512. " Bro. Abr., tit. Emblements, 21. 5 Rep., 116. 1 Roll. Abr., 666. P Pages 122, 146. q 3 Inst., 109. Inst., 2, 1, 25, 26, 31. Ff., 6, 1, 5. whatsoever, which shall be newly sown (7) But by the 56 Geo. III., c. 50, no sheriff or other officer shall sell or carry off from any lands any straw, chaff, turnips, or manure, in any case, nor any hay or other produce, contrary to any (8) This also has long been the law covenant or written agreement for the of England; for it is laid down in the benefit of the owner of the land; but the year-books that, whatever alteration of tenant must give previous notice to the form any property has undergone, the sheriff, &c., of the existence of such cov- owner may seize it in its new shape, if enant, &c. The produce, &c., may be he can prove the identity of the original sold, subject to an agreement to expend materials; as, if leather be made into it on the land. And landlords are not shoes, cloth into a coat, or if a tree be to distrain for rent on purchasers of squared into timber, or silver melted or crops severed from the soil, or other beat into a different figure. (5 Hen. things sold subject to such agreement; VII., fo. 15; 12 Hen. VIII., fo. 10.)nor shall the sheriff sell or dispose of any [CHRISTIAN.]t clover, rye grass, or any artificial grass * So, by statute, they are subject to distress in New York.-(2 R. S., 501, § 10.) + So trover lies for the recovery of boards or plank made out of saw logs, and the enhanced value may be claimed ---(7 Cowen, 95; 8 Wendell, 505.) VOL. II.-Hи 481 [405] trines are implicitly copied and adopted by our Bracton,t and have since been confirmed by many resolutions of the courts." It hath even been held that if one takes away and clothes another's wife or son, and afterward 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 ¡. Confusion an intermixture of goods. 8. Copyright in books. 7. But in the case of confusion of goods, where those of two persons are so intermixed that the several portions can 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. But if one willfully 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. But our law, to guard against fraud, gives the entire property, without any account, to him whose original dominion is invaded, and endeavored to be rendered uncertain, without his own consent.z9 10 8. There is still another species of property, which (if it subsists by the common law), being grounded on labor 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 labor of the occupant. And this is the right which an author may be supposed to have in his own original literary composi tions; 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 clearly a right to dispose of that identical work as he pleases, and any attempt to vary the disposition he has made 1406] of it appears to be an invasion of that right. Now the identi (9) See 2 Camp., 576; 15 Ves., 442. y Inst., 2, 1, 28. Poph., 38. 2 Bulstr., 325. 1 Hal., a On Gov., part 2, ch. 5. and, though partially founded on the notion of protecting the public from fraud (10) The right to the exclusive use of (3 Myl. & Cr., 338; 8 Sim., 477), is an particular distinctive trade marks, or of example of a right much more evidenta particular partnership firm (7 Sim., ly arising out of occupancy. (See 3 421), for enabling the public to know if it Dougl., 293; 3 B. & Cr., 541; 2 Ves. & is dealing with, or buying the manufac- B., 218; 2 Keen, 213; 3 Myl. & Cr., 1 tures of, a particular person, is some- 338; 5 Scott, N. R., 562. what analogous to literary copyright, ty 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 Roman law adjudged that if one man wrote any thing on the paper or parchment of another, the writing should belong to the owner of the blank materials; meaning thereby the mechanical operation of writing, for which it directed the [407] scribe to receive a satisfaction; for, in works of genius and invention, as in painting on another man's canvas, the same lawd 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, Martial,f and Statius. Neither with us, in England, hath there been (till very lately) any finalh determination upon the right of authors at the common law. e Epigr., i., 67; iv., 72; xiii., 3; xiv., g Juv., vii., 83. h Since this was first written, it was determined in the case of Millar v. Taylor, in B. R. Pasch., 9 Geo. III., 1769, that an exclusive and permanent copy Copyright now exists by statute. But whatever inherent copyright might have been supposed to subsist by the common law, the statute 8 Ann., c. 19 (amended by statute 15 Geo. III., c. 58), 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; and hath also protected that property by additional penalties and forfeitures; directing further, 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 ;" and a right in authors subsisted by the common law. But afterward, in the case of Donaldson v. Becket, before the House of Lords, 22d Feb., 1774, it was held that no copyright now subsists in authors, after the expiration of the sev (11) For the history of the law of copyright, see Lowndes on Copyright, and Millar v. Taylor, 4 Burr., 2303. In that case (which arose out of the printing of Thomson's "Seasons") it was decided that the authors had, by the common law, a perpetual copyright in their works; and that the statute of Anne, without interfering with this right, gave them additional remedies during a certain term. But this doctrine was overruled by the House of Lords, in the case of Donaldson v. Becket (4 Burr., 2408), and it was held that the statute of Anne had entirely taken away the common-law copyright. The stats. 8 Anne, c. 19, 41 Geo. III., c. 107, and 54 Geo. III., c. 156, have been repealed by the 5 & 6 Vict., c. 45, which now regulates literary copyright; and which limits its duration to the period of forty-two years from the first publication, or the period of the life of the author and the seven years next following his death, whichever is the longest. If, after the death of the author, the proprietor of the copyright refuses to republish the work, the Judicial Committee of the Privy Council may, in its discretion, authorize another person to publish it. A public register of the proprietorship of copyrights in printed works, and in MS. dramatic and musical pieces, is directed to be kept at the hall of the Stationers' Company, a stamped and certified copy of any entry in which register is made prima facie evidence of title. Entry in this register is not essential to the proprietor's title, but it is made a condition precedent to his right to sue upon an infringement; and assignments of copyright may be made by entry upon such register, in a prescribed form, without payment of any stamp duty. eral terms created by the statute of Queen Anne. i By statute 15 Geo. III., c. 53, some additional privileges in this respect are granted to the universities, and certain other learned societies. The copyright of articles contributed to an encyclopedia, review, or other periodical work, is, in certain cases, to belong to the projector, publisher, or proprietor of such work; subject to the right of any contributor under any contract, express or implied, to publish his own contributions separately. The infringement of copyright, by importing copies printed in foreign countries, is provided against by a clause in this act, and by the stat. 5 & 6 Vict., c. 47, s. 23, 24, 25; see, also, 34 Geo. III., c. 20, s. 37. A copy of every book is directed to be delivered at the British Museum, within a month from the time of publication, and, after demand, copies are to be delivered to the Stationers' Company for the use of the Bodleian, Cambridge, Advocates', and Trinity College, Dublin, Libraries. The universities of Cambridge and Oxford, and the colleges of Eton, Westminster, and Winchester, enjoy a perpetual unalienable copyright in such works as have been, or may be, given or bequeathed to them by the author or his representatives, such books not having been previously published or assigned. (Stat. 10 Geo. III., c. 53; see Burr., 661, 2401; 1 Vern., 275; 2 Eden, 173; 6 Ves., 687; Id., 341.) The stat. 1 & 2 Vict., c. 59 (the International Copyright Act), authorizes the queen, by order in council, to grant a copyright in any book published abroad, to the author and his representatives and assigns. This act, which was intended to form the basis of mutual treaties between this country and foreign states, does not appear to have been put into operation. As to the copyright in works composed or published abroad, independently of this act, see 2 Sim., 237; |
