by many refolutions of the courts ". It hath even been held, that if one takes away and cloaths another's wife or fon, and afterwards they return home, the garments fhall ceafe to be his property who provided them, being annexed to the perfon of the child or woman w.

7. BUT in the cafe of confufion of goods, where thofe of two perfons are so intermixed, that the several portions can be no longer diftinguished, the English law partly agrees with, and partly differs from, the civil. If the intermixture be by confent, I apprehend that in both laws the proprietors have an intereft in common, in proportion to their respective fhares. But if one wilfully intermixes his money, corn, or hay, with that of another man, without his approbation or knowlege, or cafts gold in like manner into another's melting pot or crucible, the civil law, though it gives the fole property of the whole to him who has not interfered in the mixture, yet allows a fatisfaction to the other for what he has fo improvidently loft . But our law, to guard against fraud, gives the entire property, without any account, to him whofe original dominion is invaded, and endeavoured to be rendered uncertain, without his own confent",

8. THERE is ftill another fpecies of property, which (if it fubfifts by the common law) being grounded on labour and invention, is more properly reducible to the head of occupancy than any other; fince the right of occupancy itself is fuppofed by Mr. Locke, and many others, to be founded on the perfonal labour of the occupant. And this is the right, which an author may be supposed to have in his own original literary compofitions: fo 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

difpofition he has made of it, appears to be an invafion of that right. Now the identity of a literary compofition confists intirely in the fentiment and the language; the fame conceptions, cloathed in the fame words, must neceffarily be the fame compofition: and whatever method be taken of exhibiting that compofition 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 fo exhibited; and no other man (it hath been thought) can have a right to exhibit it, especially for profit, without the author's confent. This confent may perhaps be tacitly given to all mankind, when an author fuffers his work to be published by another hand, without any claim or reserve of right, and without ftamping on it any marks of ownership; it being then a prefent to the public, like building a church or bridge, or laying out a new highway: but, in cafe the author fells a single book, or totally grants the copyright, it hath been supposed, in the one cafe, that the buyer hath no more right to multiply copies of that book for fale, 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 it's exclufive 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 inftant of publication, the exclusive right of an author or his affigns to the fole communication of his ideas immediately vanishes and evaporates; as being a right of too fubtile and unfubftantial a nature to become the fubject of property at the common law, and only capable of being guarded by positive statutes and fpecial provifions 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

c Si in chartis membranifve tuis carmen vel biftoriam vel orationem Titius fcripferit,

bujus corporis non Titius fed tu dominus effe videris. Inft. 2. 1. 33. See page 404.

fcribe to receive a fatisfaction; for, in works of genius and invention, as in painting on another man's canvas, the fame law d gave the canvas to the painter. As to any other property in the works of the understanding, the law is filent; though the fale of literary copies, for the purposes of recital or multiplication, is certainly as antient as the times of Terence, Martial', and Statius . Neither with us in England hath there been (till very lately) any final determination upon the right of authors at the common law.

BUT whatever inherent copyright might have been fuppofed to fubfift by the common law, the statute 8 Ann. c. 19. (amended by statute 15 Geo. III. c. 53.) hath now declared that the author and his affigns shall have the fole liberty of printing and reprinting his works for the term of fourteen years, and no longer 1; and hath also protected that property by additional penalties and forfeitures: directing farther, that if, at the end of that term, the author himself be living, the right fhall then return to him for another term of the fame duration:—and a similar privilege is extended to the inventors of prints and engravings, for the term of eight and twenty years, by the ftatutes 8 Geo. II. c. 13. and 7 Geo. III. c. 38. befides an action for damages, with double cofts, by statute 17 Geo. III. c. 57. All which parliamentary protections appear to have been fuggefted by the exception in the statute of monopolies, 21 Jac. I. c. 3. which allows a royal patent of privilege to be granted for fourteen years to any inventor of a new manufacture, for the fole working or making of the fame; by virtue whereof it is held, that a temporary property therein becomes vested in the king's patentee*.

a Ibid. §. 34.

e Prol. in Eunuch. 20.

f

cafe of Donaldson v. Becket, before the houfe of lords, 22 Febr. 1774, it was held

Epigr. . i. 67. iv. 72. xiii.3. xiv. 194. that no copyright now fubfifts in authors, 8 Juv. vii. 83.

h Since this was firft written, it was determined in the cafe of Millar v. Taylor in B. R. Pafch. 9 Geo. III. 1769, that an exclufive and permanent copyright in authors fubfifted by the common law. But afterwards, in the

after the expiration of the several terms created by the ftatute of queen Anne.

i By ftatute 15 Geo. III. c. 53. fome additional privileges in this respect are granted to the univerfities, and certain other learned focieties.

ki Vern. 62.

CHAPTER THE TWENTY-SEVENTH.

OF TITLE BY PREROGATIVE, AND FORFEITURE.

A

SECOND method of acquiring property in per fonal chattels is by the king's prerogative: whereby a right may accrue either to the crown itself, or to fuch as claim under the title of the crown, as by the king's grant, or by prescription, which supposes an antient grant,

SUCH in the first place are all tributes, taxes, and customs; whether constitutionally inherent in the crown, as flowers of the prerogative and branches of the cenfus regalis or antient royal revenue, or whether they be occafionally created by authority of parliament; of both which fpecies of revenue we treated largely in the former volume. In these the king acquires and the subject loses a property, the instant they become due if paid, they are a chofe in poffeffion; if unpaid, a chofe in action. Hither alfo may be referred all forfeitures, fines and amercements due to the king, which accrue by virtue of his antient prerogative, or by particular modern ftatutes which revenues created by ftatute do always affimilate, or take the fame nature, with the antient revenues; and may therefore be looked upon as arifing from a kind of artificial or fecondary prerogative. And, in either cafe, the owner of the thing forfeited, and the person fined or amerced, lofe and part with the property of the forfeiture, fine, or amercement, the inftant the king or his grantee acquires it.

In these several methods of acquiring property by prerogative there is also this peculiar quality, that the king cannot have a joint property with any person in one entire chattel, or fuch a one as is not capable of division or separation; but where the titles of the king and a fubject concur, the king shall have the whole: in like manner as the king cannot, either by grant or contract, become a joint-tenant of a chattel real with another perfon; but by fuch grant or contract shall become entitled to the whole in feveralty. Thus, if a horse be given to the king and a private perfon, the king shall have the fole property: if a bond be made to the king and a fubject, the king fhall have the whole penalty; the debt or duty being one fingle chattel; and fo, if two perfons have the property of a horse between them, or have a joint debt owing them on bond, and one of them affigns his part to the king, or is attainted, whereby his moiety is forfeited to the crown; the king shall have the entire horse, and entire debt. For, as it is not consistent with the dignity of the crown to be partner with a subject, so neither does the king ever lofe his right in any inftance; but, where they interfere, his is always preferred to that of another perfon: from which two principles it is a neceffary confequence, that the innocent though unfortunate partner must lose his fhare in both the debt and the horse, or in any other chattel in the fame circumftances.

THIS doctrine has no opportunity to take place in certain other inftances of title by prerogative, that remain to be mentioned; as the chattels thereby vefted are originally and folely vefted in the crown, without any transfer or derivative affignment either by deed or law from any former proprietor, Such is the acquifition of property in wreck, in treasuretrove, in waifs, in eftrays, in royal fish, in swans, and the

a See pag. 184.

c Cro. Eliz. 263. Plowd. 323. Finch,

b Fitzh. Abr. t. dette, 38. Plowd. Law. 178. 10 Mod. 245. 243d Co. Litt. 30.