may use, what is in all cases very difficult to define, fair quotation. (f) A man may adopt part of the work of another. The quo animo is the inquiry in these cases. The question is, whether it be a legitimate use of another's publication, in the exercise of a mental operation, deserving the character of an original work. (g)

*

If an encyclopædia or review should copy so much of a *383 book as to serve as a substitute for it, it becomes an actionable violation of literary property, even without the animus furandi. If so much be extracted as to communicate the same knowledge as the original work, it is a violation of copyright. It must not be in substance a copy. An encyclopædia must not be allowed, by its transcripts, to sweep up all modern works. It would be a recipe for completely breaking down literary property. (a)

original author's language, is an infringement of his right; and, indeed, every quotation will be, pro tanto, a violation, unless excused on the ground of its inconsiderable extent, or on the presumed assent of the author, which, in works of fair criticism, might be justly implied.

(ƒ) Mr. Curtis, after an examination of the authorities on the question, how far the quotation of passages may be allowed, even when there is a fair acknowledgment of the source from which they are taken, observes: "There is no more definite and consistent limit than the point where an injury may be perceived, which varies of course in each case, and is not by our law supposed to be capable of a distinct announcement by a positive rule." Curtis on Copyright, 252.

(g) Wilkins v. Aikin, 17 Ves. 422.

(a) Roworth v. Wilkes, 1 Camp. 94. In Bohn v. Bogue, before the vice-chancellor of England, in February, 1846 (New York Legal Observer for August, 1846, [iv. 310],) it was held that the word substitute was not correctly used by Lord Ellenborough in the case in Campbell; for a work may be a piracy though the passages copied are stated to be quotations, and are not so extensive as to render the piratical work a substitute for the original work. If the piracy take, though as quotation, a materially valuable part of a work, it is a breach of copyright, and chancery will interfere and direct a trial on that point. If the matter extracted from a publication be merely for the purpose of criticism, or if the matter extracted be too minute as a matter of property or value, it will not be protected under an injunction. Bell v. Whitehead, in the English Chancery, 1839, [3 Jur. 68.] In the case of the Publishers of Sparks's Life of Washington v. The Publishers of Upham's Life of Washington, in U. S. C. C. for Massachusetts, 1841, it appeared that 353 pages out of 886 pages, of which the two volumes of the work of the defendant were composed, were copied verbatim from the former work, being letters of Washington. Judge Story granted a perpetual injunction, and held that the letters of Washington were the subject of copyright under the circumstances in which they were placed. He laid down the general proposition, that if so much of a work be taken in form and substance, that the value of the original work is sensibly diminished, or the labors of the original author are substantially, to an injurious extent, appropriated by another, it constitutes, in point of law, piracy pro tanto.1

1 Ante, 373, n. 1.

The act of Congress of 1831 (and of which the substance has been given in the preceding pages) has greatly enlarged the privilege of copyright beyond that which existed under the acts of Congress of 1790 and 1802. Under those acts, the exclusive right of printing, publishing, and vending was confined to the term of fourteen years, with the privilege of renewal for the further term of fourteen years, if the author should be living when the first term expired. The act of 1831 extends and continues to the proprietors of copyrights then existing, and not expired when the act passed, the benefit of all its provisions for the enlarged term given by the act, to be computed from the time of the first entry of the copyright under the former statutes, and with the like privilege of renewal, as is provided in relation to copyrights originally secured under the act of 1831. All the provisions and remedies intended for the protection and security of copyrights are declared to extend to the benefit of the proprietors of copyrights already obtained according to law, during the extended term thereof, in the same manner as if the copyright had been entered and secured under the new act. (b)

Under the English law it was understood that if the author assigned away his right generally, and outlived the period of twenty-eight years, his assignee, by the general assignment, would have the benefit of the resulting term of fourteen years more. Such a contingent right in the author himself will pass by the general assignment of all his interest in the copyright. (c) *But if the author died before the expiration *384 of the period entitling him to a renewal, his personal representatives, and not the assignee, were entitled to the renewal. (a)

(b) Act of Congress, February 3, 1831, c. 16, sec. 15, 16. The act of Congress of February 15, 1819, c. 19, gave to the circuit courts original cognizance, as well in equity as at law, of all suits and controversies arising under any law of the United States, granting or confirming to authors or inventors the exclusive right to their writings or discoveries; and with authority on bills in equity to grant injunctions, according to the course and principles of courts of equity, to prevent the violation of the rights of authors or inventors.

(c) Carnan v. Bowles, 2 Bro. C. C. 80. By act of Congress of June 30, 1834, instruments in writing for the transfer or assignment of copyrights are to be proved or acknowledged, as deeds for the conveyance of land are, and are to be recorded in the office where the original copyright is deposited and recorded. If not so recorded within sixty days after execution, they are to be deemed fraudulent and void against any subsequent purchaser or mortgagee for valuable consideration without notice. (a) Petersdorff's Abr. vi. 565.

The language of the act of Congress, giving the right of renewal, in the case of the author's death, to his widow and children, would seem to require the same construction, and to have intended a personal benefit to the widow and children. The statute speaks of the widow and children in a restrictive sense as a descriptio personarum; and it says that they shall be entitled to the renewal of the copyright, on complying with certain terms. (b) The justice and policy of securing to ingenious and learned men the profit of their discoveries and intellectual labor were very ably stated by the court of K. B. in the great case of Miller v. Taylor. The Constitution and laws of the United States contain the declared sense of this country in favor of some reasonable provision for the security of their productions. The former law of Congress afforded only a scanty and inadequate protection, and did not rise to a level with the liberal spirit of the age. But the recent statute has made liberal amends, and redeemed the government of our country from the reproach to which it had been exposed. Lord Camden once declaimed against literary property. "Glory," said he, "is the reward of science, and those who deserve it scorn all meaner views. It was not for gain that Bacon, Newton, Milton, and Locke instructed and delighted the world." In answer to this it may be said, that the most illustrious writers in every branch of science, within the last half century, have reaped a comfortable support, as well as immortal fame, from the fruits of their pen. The experiment in Great Britain has proved the utility, as well as the justice, of securing a liberal recompense to intellectual labor; and the prospect of gain has not been found, in the case of such men as Robertson, or Gibbon, or Sir Walter Scott, either to extinguish the ardor of genius or abate the love of true glory.

(b) In the case of the Rev. John Pierpont [Pierpont v. Fowle, 2 Wood. & M. 23, the plaintiff having assigned his copyright to his book, The Reader, renewed the copyright at the expiration of the fourteen years, and the assignee continuing to publish the book as his own, the court (Judge Woodbury) held that the author, by selling the copyright, sold only the right then existing, and that the subsequent copyright, so renewed, belonged to the original author, and the assignee was decreed to account for his subsequent sales.

[538]

LECTURE XXXVII.

OF TITLE TO PERSONAL PROPERTY BY TRANSFER BY ACT OF LAW.

GOODS and chattels may change owners by act of law in the cases of forfeiture, succession, marriage, judgment, insolvency, and intestacy. Those of succession and marriage have already been considered, and I shall now confine myself to the other means of acquiring title to chattels by act of law.

1. By Forfeiture. The title of government to goods by forfeiture, as a punishment for crimes, is confined, in New York, to the case of treason. The right, so far as it exists in this country, depends, probably, upon local statute law; and the tendency of public opinion has been to condemn forfeiture of property, at least in cases of felony, as being an unnecessary and hard punishment of the felon's posterity. Every person convicted of any manner of treason, under the laws of New York, forfeits his goods and chattels, and also his lands and tenements, during his lifetime; but the rights of all third persons, existing at the time of the commission of the treason, are saved. (a) Forfeiture of property for crimes in any other case is expressly * abolished. (a) And even the attainder of treason does * 386 not extend to corrupt the blood of the offender, or to forfeit the dower of his wife. (b) The forfeiture in treason as to real estate related at common law back to the time of the treason committed; and, therefore, all alienations and incumbrances by the traitor, between the time of the offence and the conviction, were avoided; but the forfeiture of his goods and chattels related

(a) N. Y. Revised Statutes, i. 284, sec. 1, 2; ii. 656, sec. 3. It is made the duty of the attorney general to recover, by ejectment, real estate escheated to the people of the State of New York, or forfeited upon any conviction or outlawry for treason. Ib. i. 283, 284. There is a similar statute provision in some of the other states. (a) N. R. Revised Statutes, ii. 701, sec. 22.

(b) Ib. i. 742, sec. 16; ib. i. 282; ib. ii. 701, sec. 22; ib. ii. 98, sec. 81.

only to the time of the conviction, and all sales made in good faith and without fraud, before conviction, were good. (c)

Forfeiture of estate and corruption of blood, under the laws of the United States, and including cases of treason, are abolished. (d) Forfeiture of property, in cases of treason and felony, was a part of the common law, and must exist at this day in the jurisprudence of those states where it has not been abolished by their constitutions or by statute. (e) Several of the state constitutions have provided that no attainder of treason or felony shall work corruption of blood or forfeiture of estate, except during the life of the offender, (f) and some of them have taken away the power of forfeiture absolutely, without any such exception. (g) There are other state constitutions which impliedly admit the existence or propriety of the power of forfeiture, by taking away the right of forfeiture expressly in cases of suicide, and in the case of deodand, and preserving silence as to other cases; and in one instance (h) forfeiture of property is limited to the cases of treason and murder.

The English law has felt the beneficial influence of the progress of public opinion on this subject. The statute of 7 Anne,

*

c. 22, abolished, after the death of the Pretender, forfeiture * 387 for treason beyond the life of the offender; and though the statute of 17 Geo. II. c. 29, postponed the operation of that provision, it was only until the death of the Pretender and his sons. And, by a bill introduced into Parliament by Sir Samuel Romilly, in 1814, and afterwards, under modifications, passed into a law, corruption of blood, in cases of felony, except murder, was abolished. (a) The ingenious and spirited

(c) Hawk. P. C. b. 2, c. 49, sec. 30; 4 Bl. Comm. 381, 387. In the case of custom-house seizures for forfeiture of goods, the title of the government relates back to the time of the forfeiture. Ocean Insurance Co. v. Polleys, 13 Peters, 157.

(d) Laws of U. S., April 20, 1790, c. 9, sec. 24.

(e) In Massachusetts, as lands under their charter were held as of the manor of East Greenwich, the customs of gavelkind were so far applied to the tenure as not to subject the lands to forfeiture for treason or felony. Hutch. Hist. i. 447. (f) Constitutions of Pennsylvania, Delaware, and Kentucky.

(g) Constitutions of Connecticut, Ohio, Tennessee, Indiana, Illinois, and Missouri. (h) Constitution of Maryland.

(a) This was the statute of 54 Geo. III. c. 145, which declared that no attainder for felony, murder excepted, should extend to disinherit the heirs or affect the right and title to the lands beyond the life of the offender. The statute of 3 & 4 Wm. IV. c. 106, went further, and declared, that after the death of any person attainted, his descendants may inherit.