Primary Sources on Copyright (1450-1900)
www.copyrighthistory.org
Identifier: uk_1747

Commentary on Warburton's Letter from an Author (1747)
Ronan Deazley

School of Law, University of Birmingham, UK

Please cite as:
Deazley, R. (2008) ‘Commentary on Warburton's Letter from an Author (1747)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

1. Full title

2. Abstract

3. William Warburton and Alexander Pope

4. Warburton, the nature of property and copyright as a natural right

5. Copyright and Patents

6. References

1. Full title
William Warburton, A Letter from an Author, to a Member of Parliament concerning Literary Property (1747)

2. Abstract
The first of a number of public commentaries contributing to the mid-eighteenth century debate over the nature of literary property (see also: An Enquiry into the Nature of Literary Property (uk_1762a); An Argument in Defence of Literary Property (uk_1774a)).

Warburton, a strong proponent of the common law rights of the author, provided the first significant commentary upon the nature and classification of property and its relevance to, and relationship with, an author's work. Part of this commentary discusses Warburton's attempts to articulate a clear conceptual distinction between the claim of an inventor to the protection of a patent provided by the state, and the natural right of an author to the property in his work.

3. William Warburton and Alexander Pope

"I also give and bequeath to the said Mr. Warburton the property of all such of my Works already printed, as he hath written, or shall write Commentaries or Notes upon, and which I have not otherwise disposed of, or alienated; and all the profits which shall arise after my death from such editions as he shall publish without future alterations."[1]

So ran that part of Alexander Pope's (1688-1744) will which, in 1744, appointed William Warburton (1698-1779) as guardian, editor, and beneficiary, of his literary estate. Although Pope had only met Warburton for the first time four years earlier, following an introduction arranged by their mutual acquaintance William Murray (later Lord Mansfield) (1705-1793),[2] the two men quickly became both good friends and close literary collaborators.[3] It was Warburton's idea, for example, that Pope should write a fourth book for the Dunciad, as well as suggesting that he replace Cibber for Theobald as the hero of the poem. By the same token, as Knapp observes, Pope "repeatedly sought and won Warburton's editorial guidance and contributions of notes and explanatory essays to accompany his poems".[4] During the last years of Pope's life the two men began work on a general edition of Pope's works, which Warburton eventually completed in 1751 when John Knapton (bap. 1696, d. 1767/70) published The Works of Alexander Pope Esq., In Nine Volumes Complete. With his last Corrections, Additions and Improvements; As they were delivered to the Editor a little before his Death: Together with the Commentaries and Notes of Mr. Warburton.[5] For his trouble, Warburton received a £4000 bequest from Pope, in addition to which he netted in excess of £2500 in profits from the first five editions of the published collection.[6]

John Knapton was the publisher who had been recommended by Pope, after Warburton had some trouble following the death of his previous publisher, Fletcher Gyles. The executors of the publisher's estate had disputed the amount of royalties previously promised to Warburton. William Murray offered to act on Warburton's behalf (and without any fee),[7] but Warburton let the matter drop and moved to Knapton instead.[8] In the same year that Knapton's edition of The Works of Alexander Pope appeared, Warburton wrote to his publisher about a recent case of copyright infringement by Thomas Osbourne, in the following terms:

"[W]hile the trade only uses this temporary expedience to stop the mischief from time to time, it will always be breaking out, till at last it will end in a settled confusion and destruction of property. Whereas a quarter of that money well employed to solicite justice, either of the judges, or legislature, would put an effectual end to the mischief, either by a sentence of the acknowledged property, or by the procuring a new Law."[9]

He continued that "the true remedy for any temporary invasion of property is the Court of Chancery. And the only effectual remedy is an application to Parliament".[10] Four years earlier Warburton had set out his thoughts on the interrelationship between the legislature, chancery and literary property when he published A Letter from an Author, to a Member of Parliament; concerning Literary Property. In doing so, he proved to be the first of a number of writers to contribute to the eighteenth century debate over the nature of copyright outside the confines of the courtroom. As beneficiary of Pope's literary estate,[11] as well as an accomplished author and editor in his own right, Warburton was, not surprisingly, robust in his defence of an author's right to control the publication of his work in perpetuity. As he put it himself in A Letter: "if there be degrees of right, that of Authors seemeth to have the advantage over most others; their property being, in the truest sense, their own, as acquired by a long and painful exercise of that very faculty which denominateth us MEN".[12]

4. Warburton, the nature of property, and copyright as a natural right
Having trained and practiced as a lawyer before taking orders in the church, and indeed having published a work on the relationship between chancery and the rolls court,[13] Warburton was at ease in handling legalistic arguments as to the nature of the relationship between the statute and the contested common law right,[14] as well as the potential importance of earlier chancery decisions in building a case for the existence of that common law right.[15] The real importance of Warburton's commentary, however, lies in the fact that he provided the first significant exposition as to the nature and classification of property and its relevance to, and relationship with, an author's work, which examination, he claimed, would prove "that an author has an undoubted right of property in his works".[16] Beginning his classification of property with the observations that property, as traditionally understood, exhibited two essential criteria "that they be useful to mankind; and that they be capable of having their possession ascertained",[17] he proceeded by setting out a series of simple and seductive binary constructs. Property was either moveable (goods) or immovable (land). Movable property was either natural (gained by occupancy) or artificial (gained by improvement). Artificial movable property was either the product of the hand (for example, a utensil) or the product of the mind (for example, a book). The book, of course, exhibited traces of both the hand as well as the mind. As regards the former, every book could be considered to be no more than paper and ink in which case the property therein pertains only "to the individual thing"; however, for Warburton, "a book considered merely in this light, is considered inadequately and unjustly". Instead, the "true and peculiar property in a book", as a work of the mind, extended beyond the physical object "to the doctrine contained in it". "[I]n a book composed", he continued, "the principal expence is in the form given: which as the original maker only can supply, it is but reasonable, how greatly soever the copies of his work may be multiplied, that they be multiplied to his own exclusive profit".[18] In Pope v. Curl (1741),[19] six years earlier, Lord Chancellor Hardwicke (1690-1764) had pronounced that the recipient of a letter only acquires "a qualified interest in it" such that "the composition does not become vested in him as property".[20] Warburton built upon that earlier elaboration as to the distinction between the physical page and the intangible text. In the words of Rose: "in Warburton's Letter, the notion of a property in pure signs abstracted from any material support was being systematically developed".[21]

5. Copyright and Patents
Yet there was a potential fly in the ointment. Warburton's binary classification of artificial movables into those of the hand and those of the mind did not properly accommodate one kind of property "of a complicated nature, which holds of both the other in common ... mechanic engines".[22] Patents for inventions had long been recognized as a monopoly privilege granted by the state in the interests of promoting economic and industrial development, historically grounded in the exercise of the royal prerogative, albeit subject to limitation and invalidation at common law.[23] No one had ever seriously tried to maintain that an inventor enjoyed a natural and perpetual right in his invention at common law.[24] In Liardet v. Johnson (1778) Lord Mansfield, the arch-exponent of an author's right of property at common law,[25] summed up the nature of the quid pro quo which lay at the heart of the patent system, as well as the importance of patent specification therein:

"[T]o be sure, there are two extremes in such trials always to be avoided. The one is not to deprive the inventor of the benefit of his invention for the sake of the public; because the public is concerned that men should have such an advantage, as they get by their endeavours many new discoveries in looking for things which never succeed ... The other extreme is, the suffering men to get monopolies of what is in use and in the trade..."[26]

In short, monopolies in new inventions were to be tolerated for the public good. Inevitably, opponents of copyright at common law would begin to draw structural links between patents and copyright in this regard.[27] Indeed, one of the advocates of the common law right considered that to break the associations between the two would "demolish the strongest hold, wherein the opponents of literary property have entrenched themselves".[28] Mansfield himself, in Millar v. Taylor (1769),[29] did not specifically address the analogy between the two; however, Aston J. (1717-1778), speaking in agreement with Mansfield, did:

"That the comparison made betwixt a literary work and a mechanical production; and that the right to publish the one, is as free and fair, as to imitate the other; carries no conviction of the truth of that position, to my judgment. They appear to me to be very different in their nature. And the difference consists in this, that the property of the maker of a mechanical engine is confined to that individual thing which he has made; that the machine made in imitation or resemblance of it, is a different work in substance, materials, labour and expence, in which the maker of the original machine can not claim any property; for it is not his, but only a resemblance of his: whereas the reprinted book is the very same substance; because its doctrine and sentiments are its essential and substantial part; and the printing of it is a mere mechanical act, and the method only of publishing and promulging the contents of the book."[30]

In distinguishing the two, Aston J. was in effect simply replicating Warburton's binary distinction between the work of the hand, in which "the property ... is confined to the individual thing made",[31] and the work of the head, such as literary property, in which the property extended beyond the physical manuscript to "the doctrine contained in it".[32] Warburton's own treatment of the mechanical engine was, however, a more subtle affair. While machines were, in essence, no different from a utensil, in that "its materials are its principal expence", nevertheless, Warburton continued:

"[B]ecause the operation of the mind is so intimately concerned in the construction of these works, their powers being effected and regulated by the right application of geometric science, all states have concurred in giving inventors of them a licence of monopoly, for a term of years, as on a claim of right. Now the reason of this, we say, can be explained only on the principles here advanced, that the construction of a piece of mechanism hath his property confined to the individual thing made; and the composer of a scholastic work hath his, extended to the ideal discourse itself. And a mathematical machine holding of the nature of both, but more essentially of the former, there was no way of adjusting and satisfying an imperfect right but by such a grant as is here mentioned."[33]

In portraying machines as exhibiting qualities both manual and mental, Warburton presented them as the phenomenon that bridged the gap between, while at the same time validating, his classification of artificial movable property into two basic types.[34] In so doing, his conception of the fundamental nature of property remained undisturbed, and within it the place of the author's natural right to reproduce his works in perpetuity remained sacrosanct.

6. References

Cases

Pope v. Curl (1741) 2 Atk. 342

Tonson v. Collins (1761) 1 Black W. 301

Millar v. Taylor (1769) 4 Burr. 2303

Liardet v. Johnson (1778) Morning Post, 23 February 1778

Liardet v. Johnson (1780) 1 Y.&C.C.C. 527.

Books and Articles

Anon., A Vindication of the Exclusive Right of Authors, to their own works: A subject now under consideration before the 12 judges of England (London: Griffiths, 1762)

Burroughs, S., and W. Warburton, W., The Legal Judicature in Chancery Stated (London: Walthoe, 1727)

Campbell, J., Lives of the Lord Chancellors, Vol 6 (London: John Murray, 1857)

Evans, A.W., Warburton and the Warburtonians: A Study in some Eighteenth Century Controversies (London: Humphrey Milford, 1932)

Hulme, E.W. "On the History of Patent Law in the Seventeenth and Eighteenth Centuries", Law Quarterly Review, 18 (1902): 280-88

Knapp, E.F., "Community Property: The Case for Warburton's 1751 Edition of Pope", Studies in English Literature, 26 (1986): 455-68

Mack, M., Alexander Pope: A Life (New Haven & London: Yale University Press, 1985)

McLaverty, J., "Warburton's False Comma: Reason and Virtue in Pope's "Essay on Man"", Modern Philology, 99 (2002): 379-92

Nichol, D.W., Pope's Literary Legacy: The Book-Trade Correspondence of William Warburton and John Knapton with other letters and documents, 1744-1780 (Oxford: The Oxford Bibliographical Society, 1992)

Nichols, J., Literary Anecdotes of the Eighteenth Century, Vol 5 (London: Nichols, 1812)

Patterson, L.R., Copyright in Historical Perspective (Nashville: Vanderbilt University, 1968)

Rogers, S., "The Use of Royal Licenses for Printing in England, 1695-1760", The Library, 1 (2000): 133-92

Rose, M., Authors and Owners: The Invention of Copyright (London: Harvard University Press, 1993)

Warburton, W., "A Letter from an Author to a Member of Parliament; concerning Literary Property". Reprinted in The Works of the Right Reverend William Warburton, 12 vols. Edited by Hurd, R. (London: Cadell & Davies, 1811) Vol.12, 405-416.

Young, B.W., "Warburton, William (1698-1779)", Oxford Dictionary of National Biography, (Oxford: Oxford University Press, 2004). Online edn (Oct. 2005), http://www.oxforddnb.com/view/article/28680

[1] Quoted in D. W. Nichol, Pope's Literary Legacy: The Book-Trade Correspondence of William Warburton and John Knapton with other letters and documents, 1744-1780 (Oxford: The Oxford Bibliographical Society, 1992), xxxii.

[2] B.W. Young, "Warburton, William (1698-1779)", Oxford Dictionary of National Biography, (Oxford: Oxford University Press, 2004), online edn (Oct. 2005), http://www.oxforddnb.com/view/article/28680 [accessed 1 May 2007]. Later, in 1746, Murray would also be responsible for securing for Warburton the lucrative position of preacher at Lincoln's Inn; see J. Nichols, Literary Anecdotes of the Eighteenth Century, 9 vols. (London: Nichols, 1812-15), 5: 594-95. When Warburton published a third edition of the second volume of his most famous work, The Divine Legation of Moses, in 1758, it was dedicated to Murray (then Lord Mansfield); see also A.W. Evans, Warburton and the Warburtonians: A Study in some Eighteenth Century Controversies (London: Humphrey Milford, 1932), 135-40.

[3] See in general: E.F. Knapp, "Community Property: The Case for Warburton's 1751 Edition of Pope", Studies in English Literature, 26 (1986): 455-68; J. McLaverty, "Warburton's False Comma: Reason and Virtue in Pope's "Essay on Man"", Modern Philology, 99 (2002): 379-92; M. Mack, Alexander Pope: A Life (New Haven & London: Yale University Press, 1985), 736-45.

[4] Knapp, 456.

[5] The other booksellers involved in the production of this edition were: Henry Lintot, Jacob and Richard Tonson, Somerset Draper, Paul Knapton and Charles Bathurst.

[6] Nichol records that the precise figure was £2626 0s. 9d; Nichol, xxxiii.

[7] Warburton, in a letter dated 3 March 1742, wrote as follows: "From Widcome I returned with Mr. Pope to London; where my unsettled affairs with my Bookseller's Executor detained me till almost now. My accounts with Mr. Gyles were altogether unsettled. And, as I had made no agreement with him, nor assigned any copy, they were altogether at my mercy for all the profits, farther than the bookseller's allowance, as it is called. But, with regard to my friendship for the deceased, I asked only half the clear profits of the editions sold, and two thirds of a third edition of the first volume of the Divine Legation, and a second edition of the second volume, just going to press when Gyles died; for I saw no reason my favours should be entailed upon a rich family that wanted nothing. This last demand of two-thirds stuck with them; and after much ill-usage in delaying me from time to time, they pressed I should be contented with half the profits, both for the editions sold and unsold; which against the advice of my friends, I rather chose to comply with than go to law; though it was a clear case, and I had Mr. Murray for my standing counsel without fees. But I have followed the old adage, dimidium plus toto. However I have tied them from printing any more than these editions, and only a moderate number of them; and have got a legal acknowledgement of the entire copy-right in myself"; quoted in Nichols, 5: 577.

[8] Evans, 140-41.

[9] British Library, Egerton MSS., 1954, f.29, Warburton to Knapton (9 September 1751); quoted in Evans, 141-42. Warburton continued in the same letter: "As for the property I have, if the established Courts of Justice will not secure me in it, I would give my selfe no concern ab[ou]t it, it is a most indifferent thing to me. But you know I hope, my friendship for you would engage me to serve you every way in my power, for the security of your great property. But let me tell you that you and your brother are the only persons in the trade for whom I have the least regard in this matter. I have been used in various ways, so indifferently by most of the rest ... I say that was in not on acc[oun]t of a man of so much worth as your selfe, and whom I so sincerely love, I could, with satisfaction enough, see literary property turned upon the common, to teach those men the business of their actions"; Egerton MSS., 1954, f.29, Warburton to Knapton (9 September 1751).

[10] Ibid.

[11] In 1759, fifteen years after Pope's death, Warburton also obtained "the Royal Licence for the sole printing and vending the works of the late [author]"; Nichols, 5: 614. For more information see: S. Rogers, "The Use of Royal Licenses for Printing in England, 1695-1760", The Library, 1 (2000): 133-92 (141).

That Warburton took an active part in the management of Pope's literary estate is revealed in a series of correspondence between himself, John Knapton, and the Rev John Sayer who had embarked upon the production of a Latin translation of Pope's Essay on Man to which he wished to append the English version of the work. On 26 January 1754, Sayer wrote to Warburton asking for "leave to print the original with the translation", observing that "the printing a small number by subscription, or even a large number can be of little or no prejudice to your editions". Warburton replied, on 28 January, that "[s]oon after Mr Pope died I was necessitated to put half a dozen people, who pirated the Essay on Man, into Chancery. Since which I have been little injured in my property of it: which is now divided between Messrs Knapton and me. They are the best judges whether giving you permission to print it with your translation will injure the sale of that, which at a considerable expense, they have always in trade". On 7 February Warburton subsequently wrote to Knapton, referring to Sayer's "silly affair"; while leaving the matter in Knapton's hands ("[I] desire you would absolutely do what you think is proper"), Warburton nevertheless suggested that "[i]f you find any reason to allow him to print any number of the original in Q[uarto] we perhaps may have this advantage of binding him under his hand never to print any more of this nor any other of Mr Pope's works without leave obtained in writing"; Egerton MSS., 1954, f.29.

[12] W. Warburton, "A Letter from an Author to a Member of Parliament; concerning Literary Property", reprinted in R. Hurd, ed., The Works of the Right Reverend William Warburton, 12 vols. (London: Cadell & Davies, 1811), 12: 405-16, 405.

[13] S. Burroughs and W. Warburton, The Legal Judicature in Chancery Stated (London: Walthoe, 1727).

[14] For example, on the question as to why, if the common law right existed, the statute was necessary at all, he observed: "[I]t is no unfrequent practice for the claimants of a perfect right to apply to the magistrate, or Legislature, for the better security of an acquired property", and continued that the Statute of Anne, 1710, was best understood as "an accumulative law, brought in aid of a natural right"; Warburton, 411, 415.

[15] About these Warburton wrote: "[I]n cases where the sense of the Legislature is uncertain or obscure, There the interpretation of the supreme Magistrates of Justice hath been always deemed to have the force of a legal decision. And this decision hath been made in favour of property, on the Act in question. For, in the High Court of Chancery, actions for damages have been sustained, where the action for forfeiture and penalties on this statute was not competent in any other Court: Which shows that the great Magistrate did not consider this Act as a restrictive, but as an accumulative law ... [f]or an additional security of property, made for the benefit, and at the request of the proprietors, can never be deemed to exclude them from having recourse, at pleasure, to that legal remedy, which on the common principles of a Court of Equity, they had a claim to, prior to the grant of such additional security"; Warburton, 414-15.

[16] Ibid., 408.

[17] Ibid.

[18] Ibid., 408-09.

[19] Pope v. Curl (1741) 2 Atk. 342.

[20] See the report of the Lord Hardwicke's decision in J. Campbell, Lives of the Lord Chancellors, 8 vols. (London: John Murray, 1846-1869), 6: 202.

[21] M. Rose, Authors and Owners: The Invention of Copyright (London: Harvard University Press, 1993), 73; see: uk_1741a.

[22] Warburton, 410.

[23] See: uk_1624.

[24] As Patterson observes, "[a]n inventor in England was never conceded to have the common-law right to a monopoly of manufacture by reason of his invention. The exclusive right of manufacture based on a new invention was derived solely from the prerogative of the sovereign, and was made statutory by the Statute of Monopolies"; L.R. Patterson, Copyright in Historical Perspective (Nashville: Vanderbilt University, 1968), 195.

[25] See: uk_1769.

[26] Liardet v. Johnson (1778) Morning Post, 23 February 1778, quoted in E.W. Hulme, "On the History of Patent Law in the Seventeenth and Eighteenth Centuries", Law Quarterly Review, 18 (1902): 280-88 (285); see also Liardet v. Johnson (1780) 1 Y.&C.C.C. 527.

[27] See for example the arguments of Edward Thurlow in Tonson v. Collins (1761) 1 Black W. 301; see: uk_1762.

[28] Anon., A Vindication of the Exclusive Right of Authors, to their own works: A subject now under consideration before the 12 judges of England (London: Griffiths, 1762), 9.

[29] Millar v. Taylor (1769) 4 Burr. 2303.

[30] Ibid., 2348-2349.

[31] Warburton, 408.

[32] Ibid.

[33] Ibid., 410-11.

[34] Warburton considered that his exposition of the nature of the mechanic engine would "support and illustrate what hath been said above of the two more simple kinds"; ibid., 410.