PART II

THE COMMON LAW OF ENGLAND. (VOL. I)

CHAPTER VI.

THE COMMON LAW OF ENGLAND RELATIVE TO INTELLECTUAL PROPERTY.

SECTION I.

What is the Common Law of England?

In order to determine whether the Common Law of England sustains the right of authors and inventors to an absolute and perpetual property in their ideas, it is only necessary to determine what the Common Law of England really is.

To many unprofessional readers, the term Common Law will convey no very certain or precise idea; and as I am anxious that they should fully understand this discussion, at every step, I shall define the term more at length than would otherwise be necessary.

The Common Law of England, then, with a few exceptions, which are wholly immaterial to the question of intellectual property, consists of, and is identical with, the simple principles of natural justice. In ancient times, it was often called "right," "common right," and sometimes "common justice." Magna Charta calls it "justice and right." It is what unprofessional men have in mind when they speak of their "rights;" of "justice;" of men's "natural rights," &c. It is the principle, or rule, which rightfully determines what is one man's property, and what is another's. It is often called the science of mine and thine; meaning thereby the science, by which we ascertain what is rightfully one man's, and what is rightfully another's. It is the principle, which an honest man appeals to, when he says, this thing is mine, and such are my "rights." It is that rule of judgment and decision, which impartial men usually, naturally, and intuitively perceive to be just, for the settlement of controversies between individuals in regard to their rights. It is the same principle, which writers on law usually call the law of nature, and the universal law. It is that natural law of justice, which Cicero says is the same at Rome and at Athens, the same to-day and to-morrow, and which neither the senate nor the people can abrogate. It is that natural and universal law of justice, which, over all the world, among civilized and savage men alike, is acknowledged as the obligatory rule of adjudication, in all legal controversies whatsoever, except those few, in regard to which some special or peculiar institution or enactment has been arbitrarily established to the contrary, by particular governments or people. It is the law, of which Sir William Jones speaks, when he says, "It is pleasing to remark the similarity, or rather the identity, of those conclusions, which pure unbiassed reason, in all ages and nations, seldom fails to draw, in such juridical inquiries as are not fettered and manacled by positive institutions."* Kent says of it, "The Common Law includes those principles, usages, and rules of action, applicable to the government and security of person and property, which do not rest for their authority upon any express and positive declaration of the will of the legislature. A great proportion of the rules and maxims, which constitute the immense code of the Common Law, grew into use by gradual adoption, and received the sanction of the courts of justice, without any legislative act or interference. It was the application of the dictates of natural justice and cultivated reason to particular cases."†

The Common Law, or the law of nature, is often called "the perfection of reason;" meaning thereby the conclusions, to which the highest reason has arrived, in its searches after the true principles of justice.

It will be seen from what has been stated, that, with the exceptions before alluded to,* the Common Law, or, what is the same thing, the law of nature, is a science, as much so as any of the other sciences. It is the science of justice, as mathematics is the science of numbers and quantities. As a science, it is applicable to all the infinity of relations, in which men can stand to each other, and to each other's properties; and determines what are their respective rights, or what, in justice, belongs to one, and what to another. Like mathematics, it consists of certain elementary principles, the truth and justice of which are so nearly self-evident as to be readily perceived by nearly all persons of common understandings. And all the difficulty of settling new questions at Common Law, arises from the fact that every new law question depends upon a new state of facts, which call for new combinations, or applications, of these elementary principles; just as the solution of every new mathematical problem requires new combinations of the elementary principles of mathematics.

In the progress of the human race from savageism to civilization, and from brutish ignorance to the present state of enlightenment, this science of justice, which in England is called the Common Law, has of necessity made great progress; and this progress has been made from the same causes, by which the science of numbers and quantities has made progress—that is, from the fact that the circumstances and necessities of mankind have continually compelled them to such inquiries; and thus knowledge has been ever accumulating, in one science, as in the other. In the darkest periods of the human mind, doubtless men hardly knew that two and two were equal to four; or that two halves were equal to one whole. Now they can measure the size of planets, and the distances of stars. So in matters of justice—there was doubtless a time, when men were so nearly on a level with the brutes, as hardly to know that one man had not a right to kill his fellow man at pleasure. Now men have learned that they have separate, individual, and sacred rights of property in, and dominion over, things invisible by the eye, intangible by the hand, and perceptible only by the mind. And they have also learned at least the elementary principles, by which men's separate rights to these invisible and intangible commodities can be determined.

The Common Law of England is often called the unwritten law; by which is meant that it was never enacted, in the form of statutes, by parliaments, or any other legislative body whatever. And for the most part it necessarily must have been so, since no legislative body could ever foresee the infinite relations of men to each other, so as to be able to enact a law beforehand for each case that might arise. The Common Law, therefore, does not depend at all, for its authority, upon the will of any legislative assembly. It depends, for its authority, solely upon its own intrinsic obligation—that is, the obligation of natural justice. And it ought always to have been held to be of superior authority to any legislative enactments opposed to it; because it is intrinsically of infinitely higher obligation than any legislative enactments, contrary to it, can be. In fact, legislative enactments are intrinsically of no obligation at all, when in conflict with it; because governments are as much bound by the principles of justice as are private individuals. Nevertheless, kings and parliaments have long assumed the prerogative of setting aside the Common Law, and setting up their own will in its stead, whenever their discretion or selfishness has prompted them to do so. And having judges and soldiers at their service, they have succeeded in having their arbitrary enactments declared to be law, in place of the Common Law, and carried into effect as such, against the natural rights of men. All this, however, has been done in violation of the English constitution, as well as of natural right.

Having thus shown, perhaps sufficiently, what the Common Law of England is, in theory, let us look, for a moment, at what it has been in practice. And this, it is evident, must have depended wholly upon the degree of civilization, and the nature of the legal questions arising from adjudication; and also upon the degree of enlightenment, on the part of the tribunals appointed to administer it.

In the earlier times of the Common Law—say six hundred to one thousand years ago—the state of society in England was very rude and simple, such as we should now call barbarous. Agriculture, carried on in a very ignorant and clumsy manner, was the principal employment of the people. Wealth, knowledge, and the arts had made very little progress; and the legal questions arising were correspondingly few and simple, being such as related to the little properties, the common rights, and every day concerns of the common people; and such also as the common people would generally understand, almost instinctively, or rather intuitively, without the aid of any elaborate processes of reasoning.

The tribunals for deciding these questions were of a correspondingly simple and unsophisticated character. They consisted of twelve men, taken from the common people, almost or entirely at random. These juries sat alone, and were the real judges in every cause, civil and criminal. It was seldom that any other judge, learned, or supposed to be learned, in the law, sat with them. And when such was the case, he had no authority over them, and could dictate nothing to them, either of law or evidence. He could only offer them his opinion, which they adopted or rejected, as they thought proper.

Very few laws were enacted in those days. There was no such body in existence as the modern parliament, nor any other legislative assembly. What few laws were enacted, were enacted by the king alone. But none of them could be enforced against the people, without the consent of the juries; and the juries were under no legal obligation to enforce them, and did not enforce them, unless they considered them just. The jurors were never sworn to try causes according to law, but only according to justice, or according to their consciences. Indeed, they could try them by no other law than their own notions of natural justice; for they could not read the king's laws, since few or none of the common people could at that time read. Besides, printing being then unknown, very few copies of the laws were made. The laws, passed by the king, were generally made known, only by being proclaimed or read to such of the people, as might chance to be assembled on public occasions. Both theoretically and practically, they were simply recommendations, on the part of the king to the people, promulgated in the hope that the latter, as jurors, would enforce them.

Juries fixed the sentence in all criminal cases; and rendered the judgment in all civil cases; and no judgments could be given, except such as the twelve jurors unanimously concurred in as being just.

The decision of every jury was not necessarily enforced. An appeal was allowable to the king's court, consisting of the king and certain of the nobility, who were assisted in their adjudications, by the king's judges, or legal advisers. But this king's court could enforce no decisions of its own, adversely to those given by the juries. It could only invalidate the judgment of a jury, and refer the cause to a new jury for a new trial. So that no judgment could be enforced against the person, property, or civil rights of any one, except such as had been unanimously agreed to by twelve of the common people, acting independently, according to their own ideas of justice.

The consequence of this state of things was, that while the Common Law, (with the exceptions which have before been alluded to,) was, in theory, a science, applicable, from its nature and intrinsic obligation, to the settlement of every possible question of justice, that could ever arise among men, in the most advanced and enlightened state of which humanity is capable, it was, in practice, confined to the determination of such few and simple questions, as a very rude and uncultivated state of society gave rise to, and such also as tribunals, composed of twelve simple and unlearned men, could all understand, and would all concur in.

Why this law of nature, or natural justice, thus administered, was called, in England, the "Common Law," is a matter of some dispute; although the probability altogether is, that it was called the Common Law, because it was the law of the common people, as distinguished from the nobility, or military class of society.

This military class had both rights and duties different, in some particulars, from those of the common people. The law applicable to them was therefore somewhat different from the law of the common people. And individuals of each class were entitled to be tried by their "peers," or equals—that is, individuals of the military class were to be tried by tribunals of their own order, and the common people by tribunals (juries) of their own order. The Common Law, then, was the law which the common people administered to each other, as distinguished from the law, which the military class administered to each other; and there is little doubt that this is the true origin of the name. The ancient coronation oath strongly corroborates this idea, for one part of that oath was, that "the just laws and customs, which the common people have chosen, shall be preserved." By "the just laws and customs, which the common people have chosen," were meant those principles, which juries of the "common people," acting independently, and on their own consciences, were in the habit of enforcing as law—for the "common people," had no other legal mode of making their wishes, on matters of law, authoritatively known.

It was this Common Law, and the right of the "common people" to be judged by it, and to have their rights determined by it, in all civil and criminal cases, in the manner that has now been described—that is, by juries acting according to their own notions of justice, and independently of all legislative authority on the part of the government—that constituted the ancient boasted liberties of Englishmen, and the very essence and life of the English Constitution.*

The reader will now be able to judge for himself whether the Common Law of England does, or does not, in theory, sustain the right of authors and inventors to a perpetual property in their ideas. In order to settle this question, he has only to decide whether it be just, and according to those principles of natural law, by which mankind hold their rights of property in all the other products of their labor, that they should also have the same rights of property in their ideas. If it were just, that men should have a right of property in their ideas, then the Common Law authorized it, and it was the duty of all Common Law tribunals to maintain that principle in practice.

Taking it for granted that the reader will have no doubt that the right of property in ideas came within the theory, and was embraced in the principles, of the Common Law, I shall now proceed to show why this right has not been hitherto more fully acknowledged.