Primary Sources on Copyright (1450-1900)
Commentary on Defoe's Essay on the Regulation of the Press 1704
School of Law, University of Birmingham, UK
Please cite as:
Deazley, R. (2008) ‘Commentary on Defoe's Essay on the Regulation of the Press (1704)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
1. Full title
3. The Accession of Anne
4. Defoe's Essay on the Regulation of the Press
5. Party Politics and the Press
6. Defoe and Press-Piracy
7. The Stationers Lobby for Protection
1. Full title
Defoe, D. Essay on the Regulation of the Press (1704)
Treatise in which Daniel Defoe sets out his arguments concerning the importance of maintaining a free press, as well as the need to provide for a statutory protection to prevent the ‘press-piracy' of published books.
Defoe sets out various public interest arguments concerning the encouragement of learning, industry and the arts, in support of his case for the introduction of copyright legislation. The commentary describes part of the background to the passing of the Statute of Anne 1710 (uk_1710), in particular: the various unsuccessful attempts to reintroduce an alternative to the Licensing Act 1662 (uk_1662); Defoe's public writing on the need for, and social value of, copyright protection; and the influence of his writings in providing the Company of Stationers with a new rhetorical strategy with which to lobby parliament and secure the passing of the Statute of Anne.
3. The Accession of Anne
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. The lapse of the 1662 Act 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 thirteen attempts to re-introduce some form of statutory regulation of the press. The last of these Bills was introduced into the Commons in 1703. Following William's death, he was succeeded by Anne (1665-1714), and, in July 1703, a general election was held. Buoyed at the polls with the accession to the throne of an Anglican Stuart who was firmly committed to the Church, the election proved to be a landslide victory for the Tory Party. On the convening of Queen Anne's first parliament, several of the High Tory leaders were appointed to the cabinet in a government dominated by Tory personalities. When Anne prorogued parliament at the end of the first session during her reign, she addressed the House, as William III had done before her, on the issue of the press, remarking that:
"[I]t might have been for the public service to have had some further laws, for restraining the great license, which is assumed of publishing and spreading scandalous pamphlets and libels; but as far as the present Laws will extend, I hope you will all do your duty in your respective stations, to prevent and punish such pernicious practices."
Anne would have to wait little more than a month into the next session for the Commons to make their last assault on the freedom of the press prior to the passing of the Statute of Anne 1710. However, the impetus for this final legislative effort almost certainly had less to do with the monarch's closing observations from the previous session, than it had to do with the High Tory Ministry's sensibilities over the issue of occasional conformity, an issue which, for Holmes, became "the most bitterly contested of all the battlegrounds of the political parties in the years between 1702 and 1705".
In the first session of Anne's new parliament, the Tories, seeking to reassert the dominance of the Anglican Church, had introduced a Bill addressing the practice of occasional conformity, in which they proposed to levy large fines against those who took the Anglican sacrament in order to qualify for municipal and national office, but afterwards attended the services of dissenting churches. The Bill passed the Commons but was defeated in the Lords. When the new parliamentary session began, the Tories once again sought to secure the passage of the Occasional Conformity Bill, and were once again defeated in the Lords. Against this background, on 15 December 1703, a complaint was read to the House of Commons concerning comments made by John Tutchin (1660/4-1707) in an issue of The Observator "on Occasional Conformity". Almost immediately afterwards it was ordered that leave be given to bring in a Bill to Restrain the Licentiousness of the Press. A committee, appointed to inquire as to who the author, the printer and the publisher of the paper were, reported on 3 January 1704 that Tutchin was the author, John How (c.1657-1719) the printer, and Benjamin Bragg the publisher. All three were ordered into the custody of the Sergeant of Arms of the house for printing a seditious libel. Ten days later, the Licentiousness Bill was presented, by the Solicitor-General, to the Commons. Receiving its second reading on 18 January, it was committed to the whole house; however, the committee's final report was repeatedly delayed, and as a consequence was never brought before the house. The life of this Bill had ended.
4. Defoe's Essay on the Regulation of the Press
On 19 February 1704, a day when the committee was reporting to the Commons that they had gone through the Licentiousness Bill and had made several amendments thereto, Daniel Defoe (1660?-1731) published the first issue of his influential journal, A Weekly Review of the Affairs of France. Although Defoe would later use the Review to mount a sustained press campaign, in advance of the passing of the Statute of Anne, to highlight the iniquitous situation in which "scandalous and unjust Invasions of Property" were allowed to be perpetrated upon the writers of the day, of more immediate significance was the fact that, just prior to the launch of his periodical, but between the time that the Licentiousness Bill had been ordered to be prepared, and its first reading, Defoe also published his tract An Essay on the Regulation of the Press. In this essay, the increasing importance of maintaining a free press, in view of the now dominant party system, proved of fundamental concern to Defoe. He proffered the following scenario:
"[S]uppose this or that Licensor, a Partyman that is, one put in and upheld by a Party; suppose him of any Party, which you please, and a Man of the opposite Kidney, brings him a Book, he views the character of the Man, O, says he, ‘I know the Author, he is a damn'd Whig, or a rank Jacobite, I'll license none of his Writings'."
Defoe asked "who will Study, who will breed up their children to Letters, when all the Fruits of their Labours are liable to the Blast of the Arbitrary Breath of Mercenary Men"? and suggested that, with the return of the Licensor "a book could be damn'd for the Author, not the Author for the book". "I leave it to any body to judge" he continued "whether a License of the Press can be consistent either with the Encouragement due to Learning, the Liberty of this Nation, the Reason of the thing, or the Reputation of any Party who desire it". Instead, like Locke (1632-1704) before him, Defoe advocated a free press subject to an increased emphasis on post-publication accountability and prosecution, proposing that "a Law be made to make the last Seller the Author, unless the name of the Author, Printer or Bookseller, be affix'd to the Book". In this way, he continued, "no Book can be published, but there will be somebody to answer for it".
5. Party Politics and the Press
What influence Defoe's powerful broadside might have had in ensuring that the Licentiousness Bill did not pass through parliament can only ever be the subject of conjecture. This was after all a period in politics unlike any other that had preceded it, or indeed any that was to follow. The introduction of a triennial parliamentary system, the development of clearly definable party lines, and the emergence of an influential and vital electorate, all operated to establish the conditions necessary to allow for the birth of a popular political press. Politicians themselves were not only keen for an uncensored press, but also had begun to realise the potential of political propaganda in currying popular opinion, both within and outside of Westminster. Indeed, no-one made better use of the press in this regard than Robert Harley (1661-1724), who had secured Defoe's release from a six-month sentence in Newgate a short while before, and who now employed Defoe as a political writer and propagandist. Parliament was becoming increasingly intoxicated by, and reliant upon, a free press. Moreover, given the declaration by the judiciary following the lapse of the Licensing Act that the offences of criminal and seditious libel were, when detected still punishable at common law, it was more and more evident that the control and censorship of the book trade, if it was required at all, could be effectively addressed as an separate issue from any need to provide for the property in such books. The booksellers' courtship with the censorial state definitively came to a close. What the booksellers needed was a new discourse within which to couch the merits of providing a property in published works, and it was just that which Defoe in his Essay provided.
6. Defoe and Press-Piracy
Of all the arguments that Defoe marshalled in his condemnation of the prospect of a return to publication under licence, perhaps the most powerful, in the writer's opinion, was that with which he opened his Essay:
"To put a general stop to publick Printing, would be a check to Learning, a Prohibition of Knowledge, and make Instruction Contraband: And as Printing has been own'd to be the most useful Invention ever found out, in order to polish the Learned World, make men Polite, and encrease the Knowledge of Letters, and thereby all useful Arts and Sciences; so the high Perfection of Human Knowledge must be at a stand, Improvements stop, and the Knowledge of Letters decay in the Kingdom, if a general Interruption should be put to the Press."
The single most important reason, in ensuring that pre-publication censorship of the press would not be revived lay in the "Perfection of Human Knowledge", and the encouragement of learning. The same rationale he argued also lay at the heart of the need to prevent "a certain sort of Thieving which is now in full practice in England, and which no law extends to punish, viz. some Printers and Booksellers printing Copies none of their own". This, he considered, was an abuse upon authors "every jot as unjust as lying with their wives, and breaking up their Houses". It was "down-right robbing on the High-way, or cutting a Purse, ... is a Ruin to the Trade, a Discouragement to Learning, and the Shame of a well mannag'd Government". Should a law be passed to facilitate post-publication prosecution, it could, he continued, also effectively suppress:
"[T]his most villanous Practice, for every Author being oblig'd to set his Name to the Book he writes, has, by this Law, an undoubted exclusive Right to the Property of it. The Clause in the Law is a Patent to the Author, and settles the Propriety of the Work wholly in himself, or in such to whom he shall assign it."
This was not to be the only time, however, that Defoe would address the subject of "Press-Piracy". While other writers, such as Joseph Addison (1672-1719), did broach the question of literary property, it was Defoe, through his periodical A Review of the Affairs of France, who most consistently invoked the issue of the writer's property in his work. In the years following the collapse of the Licentiousness Bill, he continually positioned the matter plainly in public view. Writing on 8 November 1705, he set out the problem with the press as it currently stood:
"Books are Printed by no body, and Wrote by every body; one Man Prints another Man's Works, and calls them his own; again, another Man Prints his own, and calls them another Man's ... continual Roberies, Piracies, and Invasions of Property, range among the Occupation. One Man Studies Seven Year, to bring a finish'd Peice into the World, and a Pyrate Printer, Reprints his Copy immediately, and Sells it for a quarter of the Price."
He continued that "[t]hese things call for an Act of Parliament, and that so loud as I hope will not be deny'd, that so Property of Copies may be secur'd to Laborious Students, to the Encouragement of Letters and all useful Studies". Later he would write that the absence of any protection for an author not only "gives a Liberty to daily Invasions of Property equal in Villany, to robbing a House, or plundering an Hospital" but also "is a discouragement to Industry, a Dishonour to Learning, and a Cheat upon the whole Nation". Later still he implored for a law which, "by Securing the Property of Books to the Authors or Editors of them", would not only provide "due and just Restraints to the Press", but would also function "for the encouraging of Learning, Arts, and Industry". Defoe drew an explicit link between the benefit to society as a whole, in terms of both the encouragement and spread of learning, as well as in fostering industry, which came with a statutory protection for published works. The influence of this aspect of Defoe's commentary is easily traced in the emerging discourse and the calls for legislation that were to follow, as the booksellers adopted the rhetoric of the new social contract.
7. The Stationers Lobby for Protection
The first manifestation of a change in the booksellers' approach comes in a pamphlet from 1706 entitled Reasons humbly Offer'd for a Bill for the Encouragement of Learning, and the Improvement of Printing. This was, most probably, penned and printed by none other than John How, one of the three men responsible for the tract on occasional conformity that had provided the impetus for the Tory government's attempts to secure the Licentiousness Bill Licentiousness Bill. In it he suggested that:
"It seems to be very reasonable, that when a Gentleman has spent the greatest Part of his Time and Fortune in a Liberal Education, he should have all the Advantages that may possibly be allow'd him for his Writings, one of which Advantages is the sole and undoubted Right to the Copy of his own Book, as being the Product of his own Labour."
Without protecting the author's copy (and by extension, protecting those persons that give authors "Mony or other valuable Considerations" for such copies), How predicted that "[l]earned men will be wholly discouraged from Propagating the most useful Parts of Knowledge and Literature, Purity of Print will be Destroy'd, and the Bookseller Undone". When thirteen of the most influential "Booksellers and Printers in and about the city of London" laid a petition before the House of Commons on 26 February 1707, they used this argument:
"[M]any learned Men have spent much Time, and been at great Charges in composing Books, who used to dispose of their Copies upon valuable Considerations, to be printed by the Purchasers ... but of late Years such Properties have been much invaded by other Persons printing the same Books, either here in England, or beyond the Seas ... to the great Discouragement of Persons from writing Matters, that might be of great Use to the Publick, and to the great Damage of the Proprietors; And praying, that Leave may be given to bring in a Bill for the securing of Property in such Books, as have been, or shall be, purchased from or reserved to, the Authors thereof." 
Again, on 12 December 1709, when a conglomerate of booksellers submitted the petition which would lead to the securing of the Statute of Anne, they complained that "divers Persons have of late invaded the Properties of others, by reprinting several Books, without the Consent, and to the great Injury, of the Proprietors, even to their utter Ruin, and the Discouragement of all Writers in any useful Part of Learning". As Rose observes, it was in this way that Defoe provided the London booksellers with "a new strategy for pursuing their own interests". This was the social quid pro quo which provided the rationale for, and led to the securing of, the Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of Such Copies, during the Times therein mentioned.
Governmental papers and legislation
An Act for the more effectual suppressing of Blasphemy and Prophaneness 1698, 9&10 Will.III, c.32, s.1
Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of Such Copies, during the Times therein mentioned (the Statute of Anne), 1710, 8 Anne, c.19
Books and Articles
Black, J., The English Press in the Eighteenth Century (London & Sydney: Croom Helm, 1987)
Cranfield, G.A., The Development of the Provincial Newspaper, 1700-1760 (Oxford: Clarendon Press, 1962)
De Beer, E.S., ed., The Correspondence of John Locke, in Eight Volumes, Vol. VIII. (Oxford: Clarendon Press, 1978)
Defoe, D., An Essay on the Regulation of the Press, reprinted by the Luttrell Society (Oxford: Blackwell, 1958)
Downie, J.A., Robert Harley and the Press: Propaganda and Public Opinion in the Age of Swift and Defoe (Cambridge: Cambridge University Press, 1978)
Dugas, D-J., "The London Book Trade in 1709 (Part Two)", Papers of the Bibliographical Society of America, 95 (2001): 157-72
Feather, J., "The Book Trade in Politics: The Making of the Copyright Act of 1710", Publishing History, 8 (1980): 19-44
Feather, J., Publishing, Piracy and Politics: An Historical Study of Copyright in Britain (London: Mansell, 1994)
Holmes, G., British Politics in the Age of Anne (London: MacMillan, 1967)
Holmes, G., The Making of a Great Power, Late Stuart and early Georgian Britain, 1660-1722 (London: Longman, 1993)
How, J., Some Thoughts on the Present State of Printing and Bookselling (London: How, 1709)
Kishlansky, M., A Monarchy Transformed, Britain 1603-1714 (London: Penguin, 1997)
Rose, M., Authors and Owners: The Invention of Copyright (London: Harvard University Press, 1993)
Snyder, H.L., "The Circulation of Newspapers in the Reign of Queen Anne", The Library, 5th ser., 23 (1968): 206-35.
Sutherland, J.R., "The Circulation of Newspapers and Literary periodicals, 1700-1730", The Library, 4th ser., 15 (1934-35): 110-124
Temple, K., Scandal Nation: Law and Authorship in Britain, 1750-1832 (Ithaca and London: Cornell University Press, 2003)
 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. Of these, only one would prove successful, 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"; An Act for the more effectual suppressing of Blasphemy and Prophaneness, 1698, 9 & 10 Will.III, c.32, s.1.
 The Earl of Rochester was appointed Lord Lieutenant of Ireland; the Earl of Nottingham, Secretary of State; and Sir Edward Seymour, Comptroller of the Household and Cabinet Minister; G. Holmes, The Making of a Great Power, Late Stuart and early Georgian Britain, 1660-1722 (London: Longman, 1993), 201. See also M. Kishlansky, A Monarchy Transformed, Britain 1603-1714 (London: Penguin, 1997), 316-20.
 Journal of the House of Lords (LJ), 17: 322.
 G. Holmes, British Politics in the Age of Anne (London: MacMillan, 1967), 99; on the question of occasional conformity in general see Holmes, 97-108.
 This was required to meet the demands of the Corporation Act 1661 and the Test Act 1673; Holmes, 100.
 The Observator, 8-11 December 1703.
 This was not John How's first brush with authority; he had, on a number of occasions in the 1680s and 1690s been accused of printing libelous and seditious materials. See D-J Dugas, "The London Book Trade in 1709 (Part Two)", Papers of the Bibliographical Society of America, 95 (2001): 157-72 (159-63).
 Journal of the House of Commons (CJ), 14: 269-70. For more information on the Tutchin affair, see J. Feather, "The Book Trade in Politics: The Making of the Copyright Act of 1710", Publishing History, 8 (1980): 19-44 (28), and J. A. Downie, Robert Harley and the Press: Propaganda and Public Opinion in the Age of Swift and Defoe (Cambridge: Cambridge University Press, 1978), 67.
 Clarke wrote to Locke about this Bill in a post-script to a letter dated 13 January 1704 commenting that "A Byll to Restrayn the Liberty of the Presse was this day brought in, Read, and ordered a Second reading upon Tuesday next, when I hope it will be thrown out againe"; E.S. De Beer, ed., The Correspondence of John Locke, in Eight Volumes (Oxford: Clarendon Press, 1978), 8: 162-63.
 D. Defoe, A Review, 3 December 1709.
 D. Defoe, An Essay on the Regulation of the Press, reprinted by the Luttrell Society (Oxford: Blackwell, 1958).
 Ibid., 10.
 Ibid., 12, 5.
 Ibid., 15.
 Ibid, 22.
 Defoe's tract, "The Shortest way with the Dissenters", written in December 1702, had angered High Tories everywhere by satirically advocating the hanging of Dissenting preachers. After its publication he went into hiding. The work was condemned in February 1703, in his absence, as a seditious libel, and in May 1703 he was finally apprehended and committed to Newgate. It was Harley who managed to secure Defoe's release from Newgate, as a consequence of which Defoe was persuaded to use his considerable talents on Harley's behalf. For an in depth examination on the relationship between Harley and Defoe at this time, see Downie, 57-79.
 See: uk_1690.
 Defoe, Essay, 3.
 Ibid., 25.
 Ibid., 28.
 Ibid., 27.
 It seems that it was Defoe who first made consistent use of the term ‘pirate' to refer to printers and booksellers who reproduced works without authorisation. Temple writes as follows: "Although practices that we now refer to as piracy had existed since the spread of manuscript culture, references to literary piracy became more common after 1700. It is not surprising that Defoe, who may have written piracy into the public imagination in The History of the Pirates, is credited with the first use of the word to describe ‘some dishonest Booksellers, called Land pirats' (OED)"; K. Temple, Scandal Nation: Law and Authorship in Britain, 1750-1832 (Ithaca and London: Cornell University Press, 2003), 52.
 The Tatler, 1 December 1709.
 On the periodical press at this time see: H. L. Snyder, "The Circulation of Newspapers in the Reign of Queen Anne", The Library, 5th ser., 23 (1968): 206-35; J. R. Sutherland, "The Circulation of Newspapers and Literary periodicals, 1700-1730", The Library, 4th ser., 15 (1934): 110-24; G. A. Cranfield, The Development of the Provincial Newspaper, 1700-1760 (Oxford: Clarendon Press, 1962); J. Black, The English Press in the Eighteenth Century (London & Sydney: Croom Helm, 1987).
 Defoe, A Review of the Affairs of France, 8 November 1705.
 Defoe, A Review, 3 Nov. 1709.
 Defoe, A Review, 26 Nov. 1709.
 Reasons humbly Offer'd for a Bill for the Encouragement of Learning, and the Improvement of Printing, 1706, Lincoln's Inn Library, M.P.102, Fol.312 (see: uk_1706). The reason for suggesting that How was the bookseller behind this pamphlet lies in the fact that, in a later pamphlet published on 28 November 1709, How makes reference to the fact that he had "for many Years last spent his Time and Money to secure Property, as [the] Proposals Printed in 1706, to be produc'd upon Occasion, will shew"; J. How, Some Thoughts on the Present State of Printing and Bookselling (London: How, 1709).
 Reasons humbly Offer'd, 1706.
 Ibid; see also How's comments in his later tract Some Thoughts on the Present State of Printing and Bookselling in which he urged that Parliament might "think fit to secure Property in Books by a Law".
 The signatories of this petition were as follows: Edward Brewster, Daniel Browne, Richard Chiswell, Robert Clavell, Freeman Collins, Timothy Goodwin, Charles Harper, Henry Mortlock, William Rogers, Samuel Roycroft, Jacob Tonson, Benjamin Tooke and John Walthoe. Of these thirteen, six were former or future Masters of the Stationers' Company, and ten were former or future Wardens of the Company. For more information on the influential position which this cabal of booksellers enjoyed amongst the London book trade, see J. Feather, Publishing, Piracy and Politics: An Historical Study of Copyright in Britain (London: Mansell, 1994), 56-58.
 CJ, 15: 313.
 CJ, 16: 240.
 M. Rose, Authors and Owners: The Invention of Copyright (London: Harvard University Press, 1993), 35.
 Statute of Anne, 1710, 8 Anne, c.19.