Imatges de pàgina

for a long time to revive the system; and whenever afterward, the effort was made, it was unsuccessful, until the last session of Congress. The obstacles to its revival were such as to repress every hope of renewing the experiment until a material change was wrought in public opinion. These objections were, in the first place, the difficulty of defining, to the satisfaction of all parts of the Union, the precise class of debtors who could, consistently with the constitutional jurisdiction of Congress, be made subjects of a bankrupt law. It seemed, on all these occasions, to be taken for granted that the power of Congress extended no farther than to bankruptcy in its techni. cal and limited sense, by which its operation is restricted to merchants and traders. But the more general, and, perhaps, more substantial objection, was the expense, delay, and litigation which had been found to attend its proceedings; and the still more grievous abuses and frauds to which the system leads, notwithstanding the vigilance and integrity of those to whom its administration was committed. It was observed by the chancellor and the judges of the Supreme Court of New-York, in a report made to the Legislature of that state, by whom their opinions had been requested as to the expediency of the insolvent laws, that, “ judging from their former experience, and from observation in the course of their judicial duties, they were of opinion that it was a source of fraud and perjury. They were apprehensive," they stated, “ that the evil was incurable, and arose principally from the infirmity inherent in such a system.” With respect to the infirmities of the English system of bankruptcy, which are the growth of more than two centuries, during which it has been constantly under the view of Parliament, and maturing by the wisdom of a succession of distinguished

judges, the late Lord Eldon, one of the ablest min isters and soundest lawyers of modern times, after his appointment as chancellor, took the earliest opportunity to express his indignation at the frauds which had been committed under cover of that system, and emphatically remarked, that "the abuse of the bankrupt law was a disgrace to the country.

In the face of such testimony, thus derived from men of the greatest learning and experience in the practice and administration of the law both in Enge land and in this country, the friends and advocates of the bankrupt system have persevered, and by straining the constitutional point, and inducing Congress to adopt a latitude of construction which had not been thought of on any of the former occasions, eventually procured the passage of an act which, under the title of a Bankrupt Law, embraces provisions peculiar to insolvent laws, rendering it the vol. untary refuge of the debtor, and extending its benefits to every description of persons owing debts, with the exception of those created in consequence of a defalcation as a public officer, or as an executor, administrator, guardian, or trustee, or while acting in any other fiduciary capacity. It moreover subjected merchants, traders, bankers, factors, brokers, and underwriters to be declared bankrupt on the petition of their creditors, and proof of their having committed an act of bankruptcy. And this measure prevailed more from the atrophy under which commercial enterprise and credit had laboured for the few preceding years, than from real conviction of its consistency either with the provisions of the Constitution, or the rules of sound policy. It was, indeed, considered as a temporary expedient, to be abandoned when it had performed its office, and the causes which produced it had ceased to operate ; and it has, accordingly, been since repealed. None of the states have enacted bankrupt laws, technically so called. Most of them, however, have permanent insolvent laws; but, inasmuch as they cannot discharge the debtor from the obligation of his contract, and imprisonment for debt has been abolished in many states, the operation of those laws is, in effect, confined to the person of the debtor in the states where that relic of a barbarous age is still preserved,

“ And where he cannot be discharged, Till nature tire with its own weight, and then Is he but more undone to be at liberty.”




The first to be enumerated in this class is the power "to promote the progress of science and the useful arts, by securing for limited times, to authors and inventors, the exclusive right to their writings and discoveries."

The claims of authors and inventors are so congenial to our notions of natural justice, and accord so harmoniously with the ultimate objects of society in establishing the rights of property, that, at first sight, it seems strange that the existence of this right should ever have been made A question. It was so, however, in the great case of literary property which arose in England. It was, nevertheless, finally settled, by a solemn judgment of the House of Lords, that, although such right had existed at common law, yet that


the statute passed in the reign of Queen Anne for securing copy-rights had limited the right, which had before been perpetual, to a term of years But those judges, whose opinions were overruled by this reversal of an almost unanimous opinion of the Court of King's Bench,* and who, reasoning upon different principles, arrived at a differ. ent result, were perplexed by the indefinite na ture of the right, and embarrassed by the consequences of admitting it. On the one hand, to deprive men of genius of the right to the profits of invention was discouraging literature and the useful arts, and throwing impediments in the way of science and learning. On the other hand, an unlimited right to the exclusive enjoyment of the fruits of genius and discovery, though for a time it might stimulate both, yet, in its consequences, would levy a perpetual tax on posterity, and check the progress of invention itself

* This celebrated case is reported in 4 Burrow, 2303, under the title of Miller vs. Taylor, which was the cause decided in the Court of King's Bench, all the judges, excepting Mr. Justice Yates, agreeing that an author had the sole right of printing and publishing his work in perpetuity by the common law, and that such right is in no wise impeached by the statute of Anne. A writ of error was afterward brought, but the plaintiff in error suffered himself to be non-prossed ; and the Court of Chancery granted an injunction in 1710. In 1774, the case of Donaldson vs. Becket brought the question on appeal before the House of Lords. The lords commissioners of the great seal had granted an injunction against violating a copy-right at common law; and when the appeal from that decree was brought up to the Lords, the judges were directed to deliver their opinions upon the following questions, viz.:

1. Whether, at common law, an author had the sole right of first printing and publishing his book for sale; and might bring an ac. tion against any person who printed, published, and sold the same without his consent ?

2. If the author had such right originally, did the law take it away upon his printing and publishing his work for sale; and might any person afterward reprint and sell it for his own benefit against the will of the author ?

3. If such action would have laid at common law, is it taken away by the statute of Anne ? And is an author by that statute precluded from every remedy, except on the foundation of said statute, and on the terms and conditions prescribed thereby?

4. Whether the author of any literary composition, and his assigns, had the sole right of printing and publishing the same in perpetuity by the common law?

5. Whether this right is in any way impeached, restrained, or taken away by the statute ?

Upon the first question, the judges were eight to three in the affirmative; on the second, seven to four; on the third, six to five in the negative : so that the general result was, " that an author had the sole right in perpetuity at common law, and that such right was in no wise impeached by the statute." It was known that LORD MANSFIELD adhered to the opinion delivered by him in the Court of King's Bench; and therefore concurred with the eight upon the first question; and with the seven upon the second; and with the five on the third. But, it being unusual for a peer to support his own judgment on an appeal, he gave no

The full result of admitting an exclusive and perpetual right of property in the produce of intellectual labour was not, and could not be fully known or estimated ; but that it would operate as a bar to the advancement of human knowledge, and powerfully retard the progress of society, was clear to demonstration. Yet, to deny to inventors the fair profits derivable from their talents and exertions, seemed to be at variance with every idea of natural justice and every dictate of liberal policy. It was, in effect, to deny to genius its appropriate reward, and to withhold from the powers of intellect one of the strongest stimulants to their exertion. From a balanced consideration, therefore, of both sides of this important question, the statute of Anne, limiting the rights of authors and inventors, in their writings and discoveries, to a term of years, was regarded as a compromise, by which the claims opinion; and the LORD CHANCELLOR (APSLEY) seconding Lord CAMDEN's, his predecessor's, motion “to reverse,” the decree of the Court of Chancery was reversed. So that the decision of the Peers was, in effect, that the right was perpetual at common law, but reversed by the statute to a term of years.

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