Primary Sources on Copyright (1450-1900)
www.copyrighthistory.org
Identifier: uk_1690

Commentary on Locke's Second Treatise on Government (1690)
Ronan Deazley

School of Law, University of Birmingham, UK

Please cite as:
Deazley, R. (2008) ‘Commentary on Locke's Second Treatise on Government (1690)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

1. Full title

2. Abstract

3. John Locke and the Lapse of the Licensing Act 1662

4. Criminal and Seditious Libel, and Parliamentary Privilege

5. Attempts to Reintroduce Statutory Regulation of the Press

6. Property in Books

7. Locke's Enduring Legacy

8. References

1. Full title
Locke's Second Treatise on Government (1690)

2. Abstract
Extracts from a treatise in which Locke sets out his labour theory of property.

Locke's writings on the labour theory of property provided eighteenth century proponents of the concept of copyright at common law (that is, copyright as a natural authorial property right) with a philosophical basis upon which to develop their arguments. The commentary explores the significance of a series of correspondence between John Locke and Edward Clarke, then MP for Taunton, concerning the lapse of the Licensing Act 1662 (uk_1662), and in the run up to the passing of the Statute of Anne 1710 (uk_1710). The commentary argues that, regardless of how Locke's writings on property were subsequently co-opted in the mid-eighteenth century debates as to the nature of copyright, it is doubtful whether Locke himself considered that copyright existed at common law.

3. John Locke and the Lapse of the Licensing Act 1662
In May 1695, with the close of the last session of William III's (1650-1702) second parliament, the Licensing Act 1662 expired and pre-publication censorship of the English press came to an end.[1] In November 1694, a time when the government was dominated by the Whig Junto,[2] a committee had been appointed in the House of Commons to inspect what laws were "lately expired and expiring which [were] fit to be revived and continued". This committee, in January 1695, resolved to renew, amongst others, the 1662 Act, a suggestion which was rejected by the House of Commons on 11 February 1695 without division.[3] When the Continuation Bill reached the House of Lords, absent the Licensing Act, it was amended to re-include the 1662 Act, and returned it to the Commons. In response, the lower chamber appointed a committee to prepare a set of reasons for disagreeing to the amendment. Edward Clarke (1649/51-1710), MP for Taunton, reported that the committee had prepared a number of objections and presented them to the house whereupon it was ordered that "a Message be sent to the Lords, to desire a Conference upon the subject-matter of the amendments made by them to the said Bill" and that Clarke carry that message forward.[4] The following day, 18 April 1695, the House of Lords agreed to allow the Bill to proceed without the clause restoring the 1662 Act. In doing so, the Lords' decision brought to an end the relationship that had developed throughout the sixteenth and seventeenth centuries between the state and the Company of Stationers, a mutually beneficial association which provided the monarch and the government of the day with a mechanism for monitoring and censoring the press, and provided the stationers with the means by which to regulate the internal workings of the book trade.[5] It also marked the beginning of a period in British politics in which parliament and the party system had to renegotiate their attitudes to, and relationship with, an embryonic, independent fourth estate. On no account, however, was the removal of a system of pre-publication licensing unconditionally embraced. Indeed, over the next ten years, there would be no fewer than twelve additional attempts to re-introduce some form of statutory regulation of the press.[6] Of these, only one would succeed, and that was directed not at the press writ large, but towards the specific suppression of blasphemous notions by "writing, printing, teaching or advised speaking".[7] Of the others, each and every one was ultimately rejected by the parliament of the day.

Much of the substance of the Commons' position on the Licensing Act had its genesis in the life-long friendship that existed between Edward Clarke and the philosopher John Locke (1632-1704), and the opinions on that legislation which both men had shared. In 1675 Clarke, then a barrister of the Inner Temple, married Locke's cousin Mary Jepp (d.1705), and in February 1682 a correspondence between the two men began, which would last the rest of Locke's life.[8] Benjamin Rand notes that "[i]t was chiefly to carry on to the better advantage such deliberations of measures before Parliament that Locke, [John] Freke, and Clarke later formed the ‘College.'"[9] The ‘College', headed by John Freke (1652-1717),[10] represented an intimate group of friends (principally Freke, ‘the Bachelor', Locke, ‘the Castle', and Clarke, the ‘Grave Squire') who shared opinions on contemporary political events and aimed to promote various legislative measures in parliament, mainly through the agency of Clarke.[11]

Locke had first written to Clarke about the 1662 Act, when it was decided that it should be renewed in 1693, counseling him to "have some care of book-buyers as well as all of booksellers". He complained about the monopoly which the stationers exercised over the "ancient Latin authors", the poor quality and high cost of their publications, and the deleterious impact this was having upon the work of scholars.[12] Much of his criticism was picked up and expanded in a highly critical commentary on the 1662 Act and its impact on the printing trade in England which he wrote in 1694. In this commentary Locke did make reference to the importance of securing the "liberty to print";[13] however, as with the earlier correspondence with Clarke, most of his vitriol was reserved for the "lazy, ignorant Company of Stationers", those "dull wretches" who abused the registration process for their own gain, and whose "monopoly of all the Clasick Authers" resulted in the production of books which were "scandalously ill printed both for letter paper and correctness", for which they charged "excessive rates".[14] Rejecting the idea that anyone should have a right to print any book in perpetuity as being "very unreasonable and injurious to learning", Locke continued:

"[T]is very absurd and ridiculous that any one now liveing should pretend to have a propriety in, or a power to dispose of the proprietie of any copys or writeings of authors who lived before printing was known or used in Europe."

Rather, he suggested that, for those purchasing copies from authors, "it may be reasonable to limit their property to a certein number of years after the death of the Author, or the first printing of a book, as, suppose, 50 or 70 years".[15]

The parallels between Locke's commentary (see: uk_1693) and those reasons presented by the Commons to the Lords for refusing to renew the 1662 Act (see: uk_1695) are striking. While the committee's report on the Licensing Act did acknowledge the unwelcome prospect of a "great Oppression" re-emerging with the appointment of a new licensor, their arguments, like Locke's, had little to do with freedom of speech and the liberty of the press.[16] After beginning with the observations that the 1662 Act "in no wise answered the end for which it was made", and that the writers of "treasonable and seditious" books might, in any case, be left to punishment at common law, the Commons' committee preferred instead to focus on the more practical and commercial implications of re-enactment. These concerned the restraint to trade that the Act represented, the Company of Stationers' abuse of their position, and the monopolistic control they exercised over work by "Classick Authors".[17]

4. Criminal and Seditious Libel, and Parliamentary Privilege
While the Licensing Act was allowed to expire,[18] the radical transition to a print culture free of statutory regulation was ameliorated by two significant factors. In the first place, the earlier assessment by Locke that the restoration of the Licensing Act was unnecessary, as there existed sufficient authority within the common law to control the dissemination of seditious publications, would prove uncannily prescient. In May 1695, barely a month after the 1662 Act had lapsed, the Lord Justices declared that the offences of criminal and seditious libel were, when detected, still punishable at common law.[19] As Laurence Hanson states:

"[They] decided in short that the Licensing Act had been declarative of the common law, that it had vested in the Secretaries no powers of which they had not before possessed, and that its expiration meant no diminution of their prerogatives."[20]

In one sense then, nothing had really changed. True, the official office of licensor no longer existed, but instead, his functions were to be taken up by the then Secretaries of State; it became "the recognized practice of the Secretaries to issue warrants for the arrest of all those suspected of crimes against the State".[21] Second, parliament itself had various methods at its disposal by which to check the political press. It was, at that time, still considered a breach of parliamentary privilege to report in print the proceedings of either house or even to mention the names of members of parliament in the press. For such an offence, when sufficiently outraged, either chamber could summon before it the printer guilty of this breach of privilege, and, depending on the gravity of the offence, could commit the printer to the custody of the Sergeant at Arms until the end of the parliamentary session or until payment of certain fines.[22] Furthermore, on rare occasions, as, for example, with the trial of Dr Henry Sacheverell (bap.1674, d.1724) in 1710, either house was deemed capable of addressing any political libel, not simply those works relating to their own proceedings or members, and impeaching the author or printer in question.[23] More often than not, however, parliament was satisfied in condemning the publication at hand, ordering that it be burned at the hands of the common hangman, and directing the Attorney-General to prosecute the author at common law.[24]

5. Attempts to Reintroduce Statutory Regulation of the Press
Nevertheless, the availability of these two regulatory strategies did not mean that there would be no further legislative attempts to bring the press to heel. As noted above, throughout the next ten years there were to be no less than twelve further attempts to introduce some measure of statutory regulation.[25] In the years following the repeal of the Licensing Act, it remained uncertain just how far the common law was an adequate tool to deal with an emerging and increasingly unruly press. Indeed, over the next fifteen years there was to be little governmental action, despite the declaration by the Lord Justices; in general "[o]nly when Parliament pressed for action, or when particularly ill-willed or continued criticism was published, did the executive venture to act".[26] Moreover, the exponential proliferation of newspapers provided, in the minds of some, a sufficient impetus for continuing to press for the renewal of a system of regulation. As Feather comments:

"A completely different situation was created by the lapse of the Licensing Act, for even the Messenger of the Press, Robert Stephens, could not keep track of all publications, especially when the multiplication of newspapers increased the flow to a flood."[27]

The first of these twelve additional legislative proposals came on 11 February 1695, the very same day that the Commons had rejected the suggested renewal of the Licensing Act. Instead, a committee was appointed in the lower chamber, again, led by Edward Clarke, to prepare and bring in a Bill for the Better Regulating of Printing and Printing Presses.[28] The stated purpose of this new Bill, first presented to the house in March 1695, was for "preventing the mischiefs that may happen in church or State for want of a due regulation of printing and printing presses".[29] As it was, this new Bill did not represent too radical a departure from the old Act.[30] Rather than abandon the earlier commitment to pre-publication licensing, this Bill simply narrowed the range of material that would require the prior sanction of a suitable licensor before publication: books relating to divinity, the laws of England or the affairs of state and history of the realm, were to be first licensed by the Archbishop of Canterbury, the Lord Chancellor or Lord Keeper, or one of the secretaries of state, respectively (clause 3), and nothing contrary to the laws of the realm or the Christian religion was to be printed (clause 4). In this respect the Bill was certainly more moderate in tone than the 1662 Act which had provided a much more extensive list of prescribed works including any work of philosophy, science or art.[31] However, the freedom that had been gained as regards those areas of publication no longer subject to the scrutiny of the licensor was to be accompanied by an increased emphasis upon making the authors, printers, publishers and sellers of books more easily identifiable, and so more readily accountable for their works. Whereas the 1662 Act had only required that the printer of every work set his name to it, and be prepared to declare who the author of the work was, should the Licensor so require,[32] now, with the prospect of a free press, a more effective means of discovery and punishment of those writing seditious or libellous material came to the fore. Locke, earlier, had written that:

"To prevent mens being undiscovered for what they print you may Prohibit any book to be printed published or Sold without the printers or booksellers name under great penalties whatever be in it. And then let the printer or bookseller whose name is to it be answerable for whatever is against law in it as if he were the author unlesse he can produce the person he had it from which is all the restraint ought to be upon printing." [33]

To this end, the Bill directed that: notice be given of any press being erected within the country; the name of the printer and the place of printing had to appear on all works; anyone who put their name to a work would be accountable as the author of the work (along with the author); there was to be no sale of a work without a name printed on the work; and finally, that no-one was allowed to use another's name without authority (clauses 1-2, 5-8).

6. Property in Books
Four days after the House of Commons was given leave to prepare and bring in the new Bill, the Master of the Stationers' Company, John Sims, called an extraordinary meeting of the Court of Assistants.[34] It was agreed to petition the house, and the company treasurer was authorised to satisfy whatever costs were entailed in the process.[35] This was the first of two petitions received by the house relating to the Bill,[36] representing two separate interests of the book trade: the masters (the printers and booksellers) who were concerned with protecting their investment in books (copies), and the journeymen (the masters' employees) interested in protecting their particular place within the publishing hierarchy.[37] What were the stationers so concerned about, and why were they disposed to act so quickly? The proposed Bill, unlike the 1662 Act, provided no proprietary protection for published books. Understandably, this omission greatly alarmed the stationers, resulting in the preparation of the petition from the "Master, Wardens and Commonalty of the Art or Mystery of Stationers" in which they made clear to the Commons that "if their property should not be provided for by the said Bill, not only the petitioners but many widows and others, whose livelihood depends upon the petitioners property, will be utterly ruined".[38]

In this regard, it was not just the stationers who had misgivings about the Bill. Clarke, along with Freke, wrote to Locke on 14 March complaining that "the Court the Bishops and the Stationers Company take great exceptions to it for they all agree to say that it is wanting as to the Securing of property". He continued:

"[W]hen they are asked what they mean thereby they can none of them give any good answer and if they would all speak out they (every party) mean differently. The Court means that it would be allowed the power of granting patents. The Stationers mean that they would have the regulation of property and disposal of it by making their Register the standard of it ... The Bishops mean I know not what but they Chime in with the other two because they think property a very popular word, which Licensor is not."[39]

In response, Locke suggested that they might secure the "Author's property in his copy" by either including some provision that would allow a right to reprint those works which bore the name of the author or publisher upon them, or by issuing a "receipt" upon delivery of three copies of any printed work for the use of the King's library and the two universities which would "vest a priviledg in the Author of the said book his executors administrators and assignes of solely reprinting and publishing the said book for ____ years from the first edition thereof".[40] Locke's attitude to, and understanding of, the nature of literary property, however, ran contrary to the views of the other members of ‘the College'. In their opinion, addressed to Locke on 21 March, they set out that:

"[T]here needs no new care to be taken about property for tis a rule in Law that where ever there is damnum and injuria it may be recompensed in damages in an action on the case and who ever prints my Coppy injures me and endammages me so that I have the same security for this property that anyone has for any other." [41]

In this brief exchange, two conflicting positions were adumbrated that would resonate throughout the next eighty years. For Locke, as was also evidenced by his previous comments as to the absurd notion of a property existing in the work of "Clasick Authers", what property existed in a book was to be statutorily defined as well as limited in duration. For Clarke and Freke, both members of the legal profession, appropriate remedies for the unauthorised publication of books already existed at common law. At this point in time, the latter opinion was apparently not sufficient to allay the fears of the book trade, for while there were other objections raised in the Commons against the Bill,[42] the most problematic aspect, and the principal reason for its failure, certainly appears to have been the absence of a legislative protection for the property in books. Without this, the booksellers argued, they would be "utterly ruined". As a consequence, at the end of the parliamentary session, the Bill remained in committee.

7. Locke's Enduring Legacy
This comment, of course, is not about Locke's ‘Memorandum on the 1662 Act' and the role it played in ensuring that the Licensing Act was not revived following its lapse in May 1695, an event which would eventually lead to the enactment of the Statute of Anne 1710. Nor is it primarily about the views which Locke expressed in his correspondence with Freke and Clarke as to the nature of the proprietary rights that might exist in published works. Rather, it concerns the role which Locke's seminal Second Treatise on Government played in shaping conceptions of copyright throughout the eighteenth century and beyond. And yet the commentary thus far is significant in that it serves as a necessary backdrop to illustrate how, regardless of Locke's personal opinion on the institutional nature of copyright protection, his work "On Property" was nevertheless considered, by various eighteenth century commentators, to provide a conceptual basis upon which to found a system of individual ownership not just of land and chattels but of intellectual goods as well. In Tonson v. Collins (1762),[43] for example, William Blackstone (1723-1780), then appearing as plaintiff's counsel, sought to convince the court that copyright existed at common law prior to, and independent of, the Statute of Anne 1710. Observing that "it is more satisfactory, first to convince by reason, than merely to silence by authority", he embarked upon an extensive discourse on the existence of common law copyright "[a]s founded in reason". His aim was "to sift right to the bottom, and to argue on principles". In the course of his argument Blackstone made explicit reference to Locke's Second Treatise (and in particular sections 27 and 28). Asserting that the natural foundation of property was "invention and labour" he explained that an original composition exhibited both these qualities: its originality implied invention; the composition implied industry and labour. Of labour in particular, he argued that the "exertion of animal faculties" and "the exertion of the rational powers" should have "as fair a title to confer property" as each other. "Property" he declared "may with equal reason be acquired by mental, as by bodily labour".[44] Blackstone took up this thread four years later when he published the second volume of his Commentaries on the Laws of England in 1766.[45] Not surprisingly, his commentary on copyright did not stray overmuch from the position he had advocated in Tonson v. Collins (1762), nor from the one he would adhere to, as a judge, in Donaldson v. Becket (1774).[46] Blackstone wrote as follows:

"There is still another species of property, which, 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, and many others, 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 his copies."[47]

When Aston J delivered his opinion in Millar v. Taylor (1769) in favour of a perpetual common law copyright, drawing upon "great truths and sound propositions", he observed "[t]hat a man may have property in his body, life, fame, labours, and the like" and summarized the present case as being founded upon "the original right to the work, as being the mental labour of the author; and that the effect and produce of the labour is his".[48] Like Blackstone, it was an opinion that he would represent to the House of Lords in Donaldson v. Becket (1774).[49]

In a much more recent decision of the House of Lords, Designers Guild v. Russell Williams [2001],[50] Lord Bingham, delivering the leading opinion, set out the "very clear principle" upon which copyright law rests: "[T]hat anyone who by his or her own skill and labour creates an original work of whatever character shall, for a limited period, enjoy an exclusive right to copy that work. No one else may for a season reap what the copyright owner has sown".[51] The comment conjures up a very particular image in the mind's eye: the farmer toiling in the fields, turning the sod, sowing and nurturing his crop, only to lose the product of his labour to an undeserving other. For the farmer, read the struggling author; for his crop, read the original literary, dramatic, musical or artistic work; for those who reap what they have not sown, read the copyright pirate and thief. The image has a powerful, rhetorical appeal, providing a simple and seemingly self-evident premise upon which to base a copyright regime. More than this however, it invokes a theoretical and historical provenance that leads us back in time to the late seventeenth century, to the founding of the modern British state, to Locke, and to his Second Treatise:

"[E]very man has a property in his own person ... The labour of his body, and the work of his hands ... are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state nature hath placed it in, it hath by this labour something annexed to it, that excludes the common right of other men: for this labour being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good, left in common for others."[52]

Indeed, Bingham's bucolic archetype has his own antecedent in Locke's essay: "As much Land as a Man Tills, Plants, Improves, Cultivates, and can use the Product of, so much is his Property. He by his Labour does, as it were, inclose it from the Common".[53] That Locke did not appear to consider that his own observations upon property would extend to intellectual goods, such as copyright, hardly seems relevant.

8. References

Governmental papers and legislation

An Act for the more effectual suppressing of Blasphemy and Prophaneness, 1698, 9&10 Will.III, c.32, s.1.

Statute of Anne, 1710, 8 Anne c.19

Licensing Act, 1662, 13 & 14 Car.II, c.33

Cases

Tonson v. Collins (1762) 1 Black W. 321

Millar v. Taylor (1769) 4 Burr. 2303

Donaldson v. Becket (1774) 4 Burr. 2408

Designers Guild v. Russell Williams [2001] 1 All ER 700

Books and Articles

Astbury, R., "The renewal of the Licensing act in 1693 and its Lapse in 1695", The Library, [series], 33 (1978): 296-322.

Bainbridge, D., Intellectual Property, 5th. ed. (Harlow: Longman, 2002)

Barnard J., and McKenzie, D.F., ed., The Cambridge History of the Book in Britain, Volume IV 1557-1695 (Cambridge: Cambridge University Press, 2002)

Blackstone, W., Commentaries on the Laws of England, Vol.II (Oxford: Oxford University Press, 1766)

Blagden, C., The Stationers' Company, A History, 1403-1959 (London: George Allen & Unwin Ltd, 1960)

Cranston, M., John Locke, a biography (London: Longmans, Green & Co., 1957)

Cruickshanks, E., Handley S., and Hayton, D.W., ed., The House of Commons 1690-1715, Vol.III (Cambridge: Cambridge University Press, 2002)

De Beer, E.S., ed., The Correspondence of John Locke, in Eight Volumes (Oxford: Clarendon Press, 1978)

Deazley, R., On the Origin of the Right to Copy: Charting the Movement of Copyright in Eighteenth Century Britain, 1695-1775 (Oxford: Hart Publishing, 2004)

Feather, J., "From Censorship to Copyright: Aspects of the Government's Role in the English Book Trade 1695-1775". In Books and Society in History. Edited by Carpenter, K.E. (New York and London: Bowker Company, 1983), [Needs pp at end]

Feather, J., "The Book Trade in Politics: The Making of the Copyright Act of 1710", Publishing History, 8 (1980): 19-44

Garnett, K., Davies, G., Harbottle, G., ed., Copinger and Skone James on Copyright, 15th. ed. (London: Sweet & Maxwell, 2005)

Hamburger, P., "The Development of the Law of Seditious Libel and the Control of the Press", Stanford Law Review, 37 (1984-85): 661-765

Hanson, L., Government and the Press 1695-1763 (Oxford: Clarendon Press, 1932)

Hayton, D., The House of Commons 1690-1715, Vol.1. (Cambridge: Cambridge University Press, 2002)

Holmes G., and Speck, W.A., The Divided Society: Party Conflict in England 1694-1716 (London: Edward Arnold, 1967)

Holmes, G., The Making of a Great Power, Late Stuart and early Georgian Britain, 1660-1722 (London: Longman, 1993)

Holmes, G., The Trial of Doctor Sacheverell (London: Eyre Methuen, 1973)

Kenyon, J.P., Stuart England (London: Penguin, 1978)

Kishlansky, M., A Monarchy Transformed, Britain 1603-1714 (London: Penguin, 1997)

Laslett, P., ed., John Locke, Two Treatises of Government (Cambridge: Cambridge University Press, 1970)

Locke, J., (1690), Second Treatise on Government, s.27. Edited by Gough, J.W., (Oxford: Blackwell, 1966)

Lord King, The Life of John Locke, with Extracts from his Correspondence, Journals and Common Place Books, Vol.1. (London: Henry Colburn & Richard Bently, 1830)

Rand, B., The Correspondence of John Locke and Edward Clarke (Oxford: Clarendon Press, 1927)

Thomas, P.D.G., The House of Commons in the Eighteenth Century (Oxford: Clarendon Press, 1971)

Treadwell, M., "The stationers and the printing acts at the end of the seventeenth century". In The Cambridge History of the Book in Britain, Volume IV 1557-1695. Edited by Barnard J., and McKenzie, D.F. (Cambridge: Cambridge University Press, 2002), [Needs pp at end]

Wittke, C., The History of Parliamentary Privilege (New York: Da Capo Press, 1970)

[1] Part of the following commentary is replicated in the comment on the Licensing Act, 1662, 13 & 14 Car.II, c.33; see: uk_1662.

[2] Charles Talbot, the Earl of Shrewsbury held the office of Secretary of State, Edward Russell was the First Lord of the Admiralty, and Charles Montagu was the Chancellor of the Exchequer. For commentaries upon the political situation of this time, see generally: G. Holmes, The Making of a Great Power, Late Stuart and early Georgian Britain, 1660-1722 (London: Longman, 1993), 195-211, 322-33, 334-49; D. Hayton, The House of Commons 1690-1715, Vol. 1 (Cambridge: Cambridge University Press, 2002); M. Kishlansky, A Monarchy Transformed, Britain 1603-1714 (London: Penguin, 1997), 287-312; and J.P. Kenyon, Stuart England (London: Penguin, 1978), 268-97.

[3] For an account of the House of Common's rejection of the 1662 Act see, R. Astbury, "The renewal of the Licensing act in 1693 and its Lapse in 1695", The Library, 5^th ser., 33 (1978): 296-322. See also M. Treadwell, "The stationers and the printing acts at the end of the seventeenth century", in The Cambridge History of the Book in Britain, Volume IV 1557-1695 ed. J. Barnard and D.F. McKenzie (Cambridge: Cambridge University Press, 2002), and P. Hamburger, "The Development of the Law of Seditious Libel and the Control of the Press", Stanford Law Review, 37 (1984-85): 661-765 (714-17).

[4] Journal of the House of Commons (CJ), 11: 305-6.

[5] See: uk_1557; uk_1566; uk_1586; uk_1637.

[6] For details, see R. Deazley, On the Origin of the Right to Copy: Charting the Movement of Copyright Law in Eighteenth Century Britain (1695-1775) (Oxford: Hart Publishing, 2004), 1-29.

[7] An Act for the more effectual suppressing of Blasphemy and Prophaneness, 1698, 9 & 10 Will.III, c.32, s.1.

[8] See generally: B. Rand, The Correspondence of John Locke and Edward Clarke (Oxford: Clarendon Press, 1927); E. Cruickshanks, S. Handley and D.W. Hayton, eds., The House of Commons 1690-1715, 5 vols. (Cambridge: Cambridge University Press, 2002), 3: 576-98.

[9] Rand, 38.

[10] John Freke, a barrister and well known Whig, was a friend to both Clarke and Locke. Of these three men Rand writes: "The friendship existing between [them] was always of the most intimate kind"; Rand, 21. See also E.S. De Beer, ed., The Correspondence of John Locke, in Eight Volumes (Oxford: Clarendon Press, 1978), and M. Cranston, John Locke, a biography (London: Longmans, Green & Co., 1957).

[11] The most important legislative measure with which they were concerned was the Coinage Act; Rand, 41. Cruickshanks, Handley and Hayton note that Clarke "became the philosopher's mouthpiece in the Commons and consequently the most important member of Locke's ‘college', a policy making and parliamentary pressure-group that was particularly active in the mid-1690s"; Cruickshanks et al., 3: 577. De Beer writes that the College was "vigorous politically" from the end of 1694 until early 1697, after which it became less active, being mentioned in Locke's correspondence for the last time in 1701. Throughout this time Locke wrote letters both to Clarke and the College. The letters addressed to Locke were written generally by Freke, and signed by him and Clarke, or by him alone. See De Beer, 5: 199.

[12] Rand, 366.

[13] In this regard, he rejected the need for the 1662 Act arguing that, in any case, any man printing seditious material would be answerable for it at common law.

[14] He would later write of booksellers in the following terms: "Books seem to me to be pestilent things, and infect all the trade in them ... with something very perverse and brutal. Printers, binders, and sellers, and others that make a trade and gain out of them have universally so odd a turn and corruption of mind, that they have a way of dealing peculiar to themselves, and not conformed to the good of society, and that general fairness that cements mankind"; quoted in P. Laslett, ed., John Locke, Two Treatises of Government (Cambridge: Cambridge University Press, 1970), 7. Laslett continues: "This profound suspicion of book tradesmen, rather than any argued belief in liberty of expression, made John Locke the champion of the freedom of the press"; ibid.

[15] J. Locke, "Memorandum on the 1662 Act", in De Beer, 5: 785-95. For a slightly different version, see Lord King, The Life of John Locke, with Extracts from his Correspondence, Journals and Common Place Books, 2 vols. (London: Henry Colburn & Richard Bently, 1830), Vol.1.

[16] G. Holmes and W.A. Speck, The Divided Society: Party Conflict in England 1694-1716 (London: Edward Arnold, 1967), 67. Kenyon writes that "[t]he Act was renewed in 1685 and 1690, but objections to the monopoly it conferred on the Stationers' Company and the university presses (rather than any abstract love of press freedom) caused it to be abandoned for good in 1695"; Kenyon, 350.

[17] Whatever impression such arguments made upon the upper house, it is more likely that the real reason for the failure of the Lords to secure the return of the Licensing Act lay in a more fundamental conflict of constitutional authority between the two chambers. On 9 April Clarke wrote to Locke with the observation that "the Commons will not agree to the amendment for many reasons and particularly because they allow not the Lords to begin a Bill in which there is any pecuniary penalty that being a sort of raising money which the Commons says belongs solely to them"; De Beer, 5: 326. Robert Harley, holding office as Speaker of the House of Commons, echoed these sentiments in his letter of 8 January 1702, to the Archbishop of Canterbury who was proposing to introduce a Bill for the Better Regulation of Printers and Printing Presses in the Lords in 1702. Harley wrote to the Archbishop: "[T]his caution is necessary that it have not any pecuniary penalty when sent down to the Commons"; Lambeth Palace Library, Todd M.S., 930 (25). Thomas, writing on the legislative process in the eighteenth century, notes that "[b]ills could be introduced first into either the House of Commons or the House of Lords, except for certain categories of bills: all finance measures necessarily originated in the House of Commons; and it was the privilege of the Lords that all acts of grace should begin in their House"; P.D.G. Thomas, The House of Commons in the Eighteenth Century (Oxford: Clarendon Press, 1971), 47.

[18] While most writers agree that the main impetus for allowing the 1662 Act to expire came from the House of Commons, Hamburger suggests that it was equally significant "that the Crown was ... willing to abandon the law that for more than a century had been the mainstay of its press policy". The reason why the Crown permitted the Commons to reject the Act, he continues, lies in the fact that after the Licensing Act hed been reinstated for the last time in 1693, "the Crown initiated a test case to determine whether treason could be used as a substitute for the troublesome Licensing Act to prosecute the printed press on a regular basis". The prosecution, against William Anderton, was successful, as a result of which, Hamburger concludes, "the government was confident enough of its ability to use treason prosecutions against the press to allow the Licensing Act to expire"; Hamburger, 717-19.

[19] Criminal libel was understood to incorporate the publication of any material with the deliberate intention of causing a breach of the peace; seditious libel was defined as publishing any material likely to bring into hatred or contempt, or exciting disaffection against, the King, the government, ministers, either House of Parliament and the administration of justice, as well as material inciting changes in Church or State by other than lawful means.

Hamburger argues that throughout the seventeenth century the law of seditious libel was relied upon by the prosectuing authorities relatively infrequently, and when it was used, "it was used almost exclusively against manuscript offences". By contrast however from the start of the eighteenth century prsecutions became much more commonplace. Indeed he notes that "[b]etween 1702 and 1760, at least 115 informations and indictments for seditious libel were filed in the Court of King's Bench". Hamburger, 714, 724-25.

[20] L. Hanson, Government and the Press 1695-1763 (Oxford: Clarendon Press, 1932), 30.

[21] Ibid., 29. During the seventeenth century the office of Secretary of State was divided into two departments, Northern and Southern, which carried the responsibility of looking after English affairs in northern and southern Europe respectively. These two ministers, in addition to conducting foreign policy, instructing English diplomats abroad, and negotiating with foreign diplomats in London, had overall responsibility for the state of the press. Holmes, 94-5.

[22] On the various privileges of Parliament, see C. Wittke, The History of Parliamentary Privilege (New York: Da Capo Press, 1970), 21-54.

[23] Dr Henry Sacheverell, an Anglican parson and Tory zealot, preached a sermon, on 5 November 1709, in St Paul's Cathedral warning against "The Perils of False Brethren", castigating low churchmen and occasional conformists as ‘athiests', ‘bloodsuckers' and a ‘brood of vipers'. Soon after Sachervell had delivered his sermon, more than 100 000 copies of it were in print. The Whig ministry of the time sought to impeach him, in February and March 1710, for ‘high crimes and misdemeanours' against the State. On 20 March, by a vote of 69 to 52 in the House of Lords, Sacheverell was found guilty of the crimes alleged. Despite the conviction however, the Whig ministry were not to emerge victorious. Sensing Queen Anne's dissatisfaction, they compromised upon the punishment Sacheverell should receive, and it was proposed to the House that he be debarred from preaching for only seven years, that he was to be prevented from receiving any additional ecclesiastical preferment other than that which he already enjoyed, that he be imprisoned for three months, and, finally that his sermons were to be burnt by the Common Hangman. In the debate that followed, there was a Tory rout, and only the proposal that Sacheverell's sermons be burnt survived. For an in depth account of Sacheverell's trial see G. Holmes, The Trial of Doctor Sacheverell (London: Eyre Methuen, 1973).

[24] Hanson, 7-35.

[25] For a commentary on these various attempts to reintroduce a form of statutory licensing between 1695 and 1709 see Deazley, 1-29.

[26] Hanson, 60; see generally, ibid., 36-83. Hamburger notes that it was really only from 1703 onwards that the government began to make use of the law of seditious libel with any great regularity; Hamburger, 734-35.

[27] J. Feather, "From Censorship to Copyright: Aspects of the Government's Role in the English Book Trade 1695-1775", in Books and Society in History ed. K.E. Carpenter (New York and London: Bowker Company, 1983).

[28] Thomas comments of this initial stage that "it was by no means a formal one, and debates often arose" as a result of which "more than half the bills taken to a vote at this stage were defeated". Should the motion for leave to bring in the Bill be approved then "the practice was to appoint a Select Committee to draw up the Bill"; Thomas, 48.

[29] For a transcript of the Bill, taken from a manuscript copy sent from John Freke to John Locke, see De Beer, 5: 791-95.

[30] A number of clauses can be traced directly to the 1662 Act, for example: the requirement to reserve three copies of every new book and book printed with additions for the use of the King's library and the two universities (clause 9); the power to enter, search for and seize any works that were "treasonable, seditious, atheistical or heretical" (clause 10); the time limit for bringing prosecutions under the legislation (clause 12); the provision detailing a limited time-span for the Bill itself (clause 13).

[31] The 1662 Act had also required that books relating to heraldry, titles of honour and arms, and physick be subject to the scrutiny of the Licensor. John Freke, in correspondence with John Locke, described the Bill in this regard as "very unlike the old"; John Freke and Edward Clarke to Locke, 28 February 1695, in De Beer, 5: 278-79.

[32] Licensing Act, 1662, s.7.

[33] Locke, "Memorandum", in De Beer, 5: 786.

[34] The Court of Assistants was a body of members within the Stationers' Company responsible for administering the business of the Company. Blagden writes that "[t]he business of the Court was the ‘better Ordering' of the Company, the correction of abuses and the admission of apprentices and freemen"; C Blagden, The Stationers' Company, A History, 1403-1959 (London: George Allen & Unwin Ltd, 1960), 155.

[35] J. Feather, "The Book Trade in Politics: The Making of the Copyright Act of 1710", Publishing History, 8 (1980): 19-44 (19, 23).

[36] The first was from the Stationers' Company; the second was from "several free Workmen and Printers".

[37] Feather, "The Book Trade in Politics", 19.

[38] CJ 11: 288.

[39] John Freke and Edward Clarke to Locke, 14 March 1695, in De Beer, 5: 291.

[40] Ibid., 795-96.

[41] Ibid., 294-95.

[42] Other objections concerned the fact that the Bill provided the liberty to set up a press in any town in England, as well as the freedom to print and disseminate new "Notions in Physick". See John Freke and Edward Clarke to Locke, 14 March 1695; ibid., 291-92.

[43] Tonson v. Collins (1762) 1 Black W. 321.

[44] Ibid., 321-25.

[45] W. Blackstone, Commentaries on the Laws of England, Vol.II (Oxford: 1766).

[46] Donaldson v. Becket (1774) 4 Burr. 2408; see: uk_1774.

[47] Blackstone, 405.

[48] Millar v. Taylor (1769) 4 Burr. 2303, 2338-2341; see: uk_1769. Even the sceptical Yates J, who dissetned in Millar, accepted that "every man is intitled to the fruits of his own labour". He continued however: "But he can only be intitled to this, according to the fixed constitution o fthings; and subject to the general rights of mankind, and the general rules of property. He must not expect that those fruits shall be eternal; that he is to monopolize them to infinity; that every vegetation and increase shall be confined to himself alone, and never to revert to the common mass. In that case, the injustice would lie on the side of the monopolist, who would thus exclude all the rest of mankind from enjoying their natural and social rights"; ibid., 2359-2360.

[49] Anon., The Cases of the Appellants and Respondents in the Cause of Literary Property, before the House of Lords, wherein the Decree of Lord Chancellor Apsley was reversed (London: Bew, 1774), 39.

[50] Designers Guild v. Russell Williams [2001] 1 All ER 700.

[51] Ibid., 701. In the latest edition of Copinger and Skone James on Copyright, the authors rely upon this very dicta in a commentary upon the "Nature of Copyright"; K. Garnett, G. Davies, G. Harbottle, eds., Copinger and Skone James on Copyright, 15th. ed. (London: Sweet & Maxwell, 2005), 23. See also Bainbridge who comments that: "The basic reason for intellectual property is that a man should own what he produces, that is, what he brings into being. If what he produces can be taken from him, he is no better than a slave. Intellectual property is, therefore, the most basic form of property because a man uses nothing to produce it other than his mind"; D. Bainbridge, Intellectual Property, 5th. ed. (Harlow: Longman, 2002), 17.

[52] J. Locke, Second Treatise on Government ed. J.W. Gough (Oxford: Blackwell, 1966), s.27.

[53] Ibid., s.32.