It was natural that they
should look up with hope and confidence to that victorious flag.
should look up with hope and confidence to that victorious flag.
Macaulay
Obstacles unparalleled in
any other country which has books must be surmounted by the student
who is determined to master the Chinese tongue. To learn to read is the
business of half a life. It is easier to become such a linguist as Sir
William Jones was than to become a good Chinese scholar. You may count
upon your fingers the Europeans whose industry and genius, even when
stimulated by the most fervent religious zeal, has triumphed over the
difficulties of a language without an alphabet. Here then is a country
separated from us physically by half the globe, separated from us
still more effectually by the barriers which the most jealous of all
governments and the hardest of all languages oppose to the researches of
strangers. Is it then reasonable to blame my noble friend because he has
not sent to our envoys in such a country as this instructions as full
and precise as it would have been his duty to send to a minister at
Brussels or at the Hague? The right honourable Baronet who comes forward
as the accuser on this occasion is really accusing himself. He was
a member of the Government of Lord Grey. He was himself concerned in
framing the first instructions which were given by my noble friend to
our first Superintendent at Canton. For those instructions the right
honourable Baronet frankly admits that he is himself responsible. Are
those instructions then very copious and minute? Not at all. They merely
lay down general principles. The Resident, for example, is enjoined to
respect national usages, and to avoid whatever may shock the prejudices
of the Chinese; but no orders are given him as to matters of detail.
In 1834 my noble friend quitted the Foreign Office, and the Duke of
Wellington went to it. Did the Duke of Wellington send out those copious
and exact directions with which, according to the right honourable
Baronet, the Government is bound to furnish its agent in China? No, Sir;
the Duke of Wellington, grown old in the conduct of great affairs, knows
better than anybody that a man of very ordinary ability at Canton is
likely to be a better judge of what ought to be done on an emergency
arising at Canton than the greatest politician at Westminster can
possibly be. His Grace, therefore, like a wise man as he is, wrote only
one letter to the Superintendent, and in that letter merely referred the
Superintendent to the general directions given by Lord Palmerston. And
how, Sir, does the right honourable Baronet prove that, by persisting in
the course which he himself took when in office, and which the Duke
of Wellington took when in office, Her Majesty's present advisers have
brought on that rupture which we all deplore? He has read us, from the
voluminous papers which are on the table, much which has but a very
remote connection with the question. He has said much about things which
happened before the present Ministry existed, and much about things
which have happened at Canton since the rupture; but very little that
is relevant to the issue raised by the resolution which he has himself
proposed. That issue is simply this, whether the mismanagement of the
present Ministry produced the rupture. I listened to his long and able
speech with the greatest attention, and did my best to separate
that part which had any relation to his motion from a great mass of
extraneous matter. If my analysis be correct, the charge which he brings
against the Government consists of four articles.
The first article is, that the Government omitted to alter that part of
the original instructions which directed the Superintendent to reside at
Canton.
The second article is, that the Government omitted to alter that part
of the original instructions which directed the Superintendent to
communicate directly with the representatives of the Emperor.
The third article is, that the Government omitted to follow the
advice of the Duke of Wellington, who had left at the Foreign Office a
memorandum recommending that a British ship of war should be stationed
in the China sea.
The fourth article is, that the Government omitted to authorise and
empower the Superintendent to put down the contraband trade carried on
by British subjects with China.
Such, Sir, are the counts of this indictment. Of these counts, the
fourth is the only one which will require a lengthened defence. The
first three may be disposed of in very few words.
As to the first, the answer is simple. It is true that the Government
did not revoke that part of the instructions which directed the
Superintendent to reside at Canton; and it is true that this part of the
instructions did at one time cause a dispute between the Superintendent
and the Chinese authorities. But it is equally true that this dispute
was accommodated early in 1837; that the Chinese Government furnished
the Superintendent with a passport authorising him to reside at Canton;
that, during the two years which preceded the rupture, the Chinese
Government made no objection to his residing at Canton; and that there
is not in all this huge blue book one word indicating that the rupture
was caused, directly or indirectly, by his residing at Canton. On the
first count, therefore, I am confident that the verdict must be, Not
Guilty.
To the second count we have a similar answer. It is true that there
was a dispute with the authorities of Canton about the mode of
communication. But it is equally true that this dispute was settled by
a compromise. The Chinese made a concession as to the channel of
communication. The Superintendent made a concession as to the form
of communication. The question had been thus set at rest before the
rupture, and had absolutely nothing to do with the rupture.
As to the third charge, I must tell the right honourable Baronet that
he has altogether misapprehended that memorandum which he so confidently
cites. The Duke of Wellington did not advise the Government to station a
ship of war constantly in the China seas. The Duke, writing in 1835,
at a time when the regular course of the trade had been interrupted,
recommended that a ship of war should be stationed near Canton, "till
the trade should take its regular peaceable course. " Those are His
Grace's own words. Do they not imply that, when the trade had again
taken its regular peaceable course, it might be right to remove the ship
of war? Well, Sir, the trade, after that memorandum was written, did
resume its regular peaceable course: that the right honourable Baronet
himself will admit; for it is part of his own case that Sir George
Robinson had succeeded in restoring quiet and security. The third charge
then is simply this, that the Ministers did not do in a time of perfect
tranquillity what the Duke of Wellington thought that it would have been
right to do in a time of trouble.
And now, Sir, I come to the fourth charge, the only real charge; for
the other three are so futile that I hardly understand how the right
honourable Baronet should have ventured to bring them forward.
The fourth charge is, that the Ministers omitted to send to the
Superintendent orders and powers to suppress the contraband trade, and
that this omission was the cause of the rupture.
Now, Sir, let me ask whether it was not notorious, when the right
honourable Baronet was in office, that British subjects carried on an
extensive contraband trade with China? Did the right honourable Baronet
and his colleagues instruct the Superintendent to put down that trade?
Never. That trade went on while the Duke of Wellington was at the
Foreign Office. Did the Duke of Wellington instruct the Superintendent
to put down that trade? No, Sir, never. Are then the followers of the
right honourable Baronet, are the followers of the Duke of Wellington,
prepared to pass a vote of censure on us for following the example of
the right honourable Baronet and of the Duke of Wellington? But I am
understating my case. Since the present Ministers came into office, the
reasons against sending out such instructions were much stronger than
when the right honourable Baronet was in office, or when the Duke of
Wellington was in office. Down to the month of May 1838, my noble friend
had good grounds for believing that the Chinese Government was about
to legalise the trade in opium. It is by no means easy to follow the
windings of Chinese politics. But, it is certain that about four years
ago the whole question was taken into serious consideration at Pekin.
The attention of the Emperor was called to the undoubted fact, that the
law which forbade the trade in opium was a dead letter. That law had
been intended to guard against two evils, which the Chinese legislators
seem to have regarded with equal horror, the importation of a noxious
drug, and the exportation of the precious metals. It was found, however,
that as many pounds of opium came in, and that as many pounds of silver
went out, as if there had been no such law. The only effect of the
prohibition was that the people learned to think lightly of imperial
edicts, and that no part of the great sums expended in the purchase
of the forbidden luxury came into the imperial treasury. These
considerations were set forth in a most luminous and judicious state
paper, drawn by Tang Tzee, President of the Sacrificial Offices. I am
sorry to hear that this enlightened Minister has been turned out of
office on account of his liberality: for to be turned out of office is,
I apprehend, a much more serious misfortune in China than in England.
Tang Tzee argued that it was unwise to attempt to exclude opium, for
that, while millions desired to have it, no law would keep it out, and
that the manner in which it had long been brought in had produced an
injurious effect both on the revenues of the state and on the morals of
the people. Opposed to Tang Tzee was Tchu Sing, a statesman of a very
different class, of a class which, I am sorry to say, is not confined to
China. Tchu Sing appears to be one of those staunch conservatives who,
when they find that a law is inefficient because it is too severe,
imagine that they can make it efficient by making it more severe still.
His historical knowledge is much on a par with his legislative wisdom.
He seems to have paid particular attention to the rise and progress of
our Indian Empire, and he informs his imperial master that opium is
the weapon by which England effects her conquests. She had, it seems,
persuaded the people of Hindostan to smoke and swallow this besotting
drug, till they became so feeble in body and mind, that they were
subjugated without difficulty. Some time appears to have elapsed before
the Emperor made up his mind on the point in dispute between Tang Tzee
and Tchu Sing. Our Superintendent, Captain Elliot, was of opinion that
the decision would be in favour of the rational view taken by Tang Tzee;
and such, as I can myself attest, was, during part of the year 1837, the
opinion of the whole mercantile community of Calcutta. Indeed, it was
expected that every ship which arrived in the Hoogley from Canton would
bring the news that the opium trade had been declared legal. Nor was
it known in London till May 1838, that the arguments of Tchu Sing had
prevailed. Surely, Sir, it would have been most absurd to order Captain
Elliot to suppress this trade at a time when everybody expected that it
would soon cease to be contraband. The right honourable Baronet must,
I think, himself admit that, till the month of May 1838, the Government
here omitted nothing that ought to have been done.
The question before us is therefore reduced to very narrow limits. It
is merely this: Ought my noble friend, in May 1838, to have sent out a
despatch commanding and empowering Captain Elliot to put down the opium
trade? I do not think that it would have been right or wise to send
out such a despatch. Consider, Sir, with what powers it would have been
necessary to arm the Superintendent. He must have been authorised to
arrest, to confine, to send across the sea any British subject whom he
might believe to have been concerned in introducing opium into China. I
do not deny that, under the Act of Parliament, the Government might have
invested him with this dictatorship. But I do say that the Government
ought not lightly to invest any man with such a dictatorship, and, that
if, in consequence of directions sent out by the Government, numerous
subjects of Her Majesty had been taken into custody and shipped off to
Bengal or to England without being permitted to wind up their affairs,
this House would in all probability have called the Ministers to a
strict account. Nor do I believe that by sending such directions the
Government would have averted the rupture which has taken place. I will
go further. I believe that, if such directions had been sent, we should
now have been, as we are, at war with China; and that we should have
been at war in circumstances singularly dishonourable and disastrous.
For, Sir, suppose that the Superintendent had been authorised and
commanded by the Government to put forth an order prohibiting British
subjects from trading in opium; suppose that he had put forth such an
order; how was he to enforce it? The right honourable Baronet has had
too much experience of public affairs to imagine that a lucrative trade
will be suppressed by a sheet of paper and a seal. In England we have a
preventive service which costs us half a million a year. We employ more
than fifty cruisers to guard our coasts. We have six thousand effective
men whose business is to intercept smugglers. And yet everybody knows
that every article which is much desired, which is easily concealed, and
which is heavily taxed, is smuggled into our island to a great extent.
The quantity of brandy which comes in without paying duty is known to
be not less than six hundred thousand gallons a year. Some people think
that the quantity of tobacco which is imported clandestinely is as great
as the quantity which goes through the custom-houses. Be this as it may,
there is no doubt that the illicit importation is enormous. It has been
proved before a Committee of this House that not less than four millions
of pounds of tobacco have lately been smuggled into Ireland. And all
this, observe, has been done in spite of the most efficient preventive
service that I believe ever existed in the world. Consider too that the
price of an ounce of opium is far, very far higher than the price of a
pound of tobacco. Knowing this, knowing that the whole power of King,
Lords, and Commons cannot here put a stop to a traffic less easy, and
less profitable than the traffic in opium, can you believe that an
order prohibiting the traffic in opium would have been readily obeyed?
Remember by what powerful motives both the buyer and the seller would
have been impelled to deal with each other. The buyer would have been
driven to the seller by something little short of torture, by a physical
craving as fierce and impatient as any to which our race is subject.
For, when stimulants of this sort have been long used, they are desired
with a rage which resembles the rage of hunger. The seller would have
been driven to the buyer by the hope of vast and rapid gain. And do
you imagine that the intense appetite on one side for what had become a
necessary of life, and on the other for riches, would have been appeased
by a few lines signed Charles Elliot? The very utmost effect which it
is possible to believe that such an order would have produced would
have been this, that the opium trade would have left Canton, where the
dealers were under the eye of the Superintendent, and where they would
have run some risk of being punished by him, and would have spread
itself along the coast. If we know anything about the Chinese
Government, we know this, that its coastguard is neither trusty nor
efficient; and we know that a coastguard as trusty and efficient as
our own would not be able to cut off communication between the merchant
longing for silver and the smoker longing for his pipe. Whole fleets
of vessels would have managed to land their cargoes along the shore.
Conflicts would have arisen between our countrymen and the local
magistrates, who would not, like the authorities of Canton, have
had some knowledge of European habits and feelings. The mere malum
prohibitum would, as usual, have produced the mala in se. The unlawful
traffic would inevitably have led to a crowd of acts, not only unlawful,
but immoral. The smuggler would, by the almost irresistible force of
circumstances, have been turned into a pirate. We know that, even at
Canton, where the smugglers stand in some awe of the authority of the
Superintendent and of the opinion of an English society which contains
many respectable persons, the illicit trade has caused many brawls and
outrages. What, then, was to be expected when every captain of a ship
laden with opium would have been the sole judge of his own conduct? It
is easy to guess what would have happened. A boat is sent ashore to fill
the water-casks and to buy fresh provisions. The provisions are refused.
The sailors take them by force. Then a well is poisoned. Two or three
of the ship's company die in agonies. The crew in a fury land, shoot
and stab every man whom they meet, and sack and burn a village. Is this
improbable? Have not similar causes repeatedly produced similar effects?
Do we not know that the jealous vigilance with which Spain excluded the
ships of other nations from her Transatlantic possessions turned men who
would otherwise have been honest merchant adventurers into buccaneers?
The same causes which raised up one race of buccaneers in the Gulf of
Mexico would soon have raised up another in the China Sea. And can
we doubt what would in that case have been the conduct of the Chinese
authorities at Canton? We see that Commissioner Lin has arrested and
confined men of spotless character, men whom he had not the slightest
reason to suspect of being engaged in any illicit commerce. He did so on
the ground that some of their countrymen had violated the revenue
laws of China. How then would he have acted if he had learned that
the red-headed devils had not merely been selling opium, but had been
fighting, plundering, slaying, burning? Would he not have put forth
a proclamation in his most vituperative style, setting forth that the
Outside Barbarians had undertaken to stop the contraband trade, but that
they had been found deceivers, that the Superintendent's edict was a
mere pretence, that there was more smuggling than ever, that to the
smuggling had been added robbery and murder, and that therefore he
should detain all men of the guilty race as hostages till reparation
should be made? I say, therefore, that, if the Ministers had done that
which the right honourable Baronet blames them for not doing, we should
only have reached by a worse way the point at which we now are.
I have now, Sir, gone through the four heads of the charge brought
against the Government; and I say with confidence that the interruption
of our friendly relations with China cannot justly be imputed to any one
of the omissions mentioned by the right honourable Baronet. In truth, if
I could feel assured that no gentleman would vote for the motion without
attentively reading it, and considering whether the proposition which it
affirms has been made out, I should have no uneasiness as to the
result of this debate. But I know that no member weighs the words of a
resolution for which he is asked to vote, as he would weigh the words
of an affidavit which he was asked to swear. And I am aware that
some persons, for whose humanity and honesty I entertain the greatest
respect, are inclined to divide with the right honourable Baronet, not
because they think that he has proved his case, but because they have
taken up a notion that we are making war for the purpose of forcing
the Government of China to admit opium into that country, and that,
therefore, we richly deserve to be censured. Certainly, Sir, if we
had been guilty of such absurdity and such atrocity as those gentlemen
impute to us, we should deserve not only censure but condign punishment.
But the imputation is altogether unfounded. Our course was clear. We may
doubt indeed whether the Emperor of China judged well in listening to
Tchu Sing and disgracing Tang Tzee. We may doubt whether it be a wise
policy to exclude altogether from any country a drug which is often
fatally abused, but which to those who use it rightly is one of the
most precious boons vouchsafed by Providence to man, powerful to assuage
pain, to soothe irritation, and to restore health. We may doubt whether
it be a wise policy to make laws for the purpose of preventing the
precious metals from being exported in the natural course of trade. We
have learned from all history, and from our own experience, that revenue
cutters, custom-house officers, informers, will never keep out of any
country foreign luxuries of small bulk for which consumers are willing
to pay high prices, and will never prevent gold and silver from going
abroad in exchange for such luxuries. We cannot believe that what
England with her skilfully organised fiscal system and her gigantic
marine, has never been able to effect, will be accomplished by the junks
which are at the command of the mandarins of China. But, whatever our
opinion on these points may be, we are perfectly aware that they are
points which it belongs not to us but to the Emperor of China to decide.
He had a perfect right to keep out opium and to keep in silver, if he
could do so by means consistent with morality and public law. If his
officers seized a chest of the forbidden drug, we were not entitled to
complain; nor did we complain. But when, finding that they could not
suppress the contraband trade by just means, they resorted to means
flagrantly unjust, when they imprisoned our innocent countrymen, when
they insulted our Sovereign in the person of her representative, then
it became our duty to demand satisfaction. Whether the opium trade be
a pernicious trade is not the question. Take a parallel case: take the
most execrable crime that ever was called a trade, the African slave
trade. You will hardly say that a contraband trade in opium is more
immoral than a contraband trade in negroes. We prohibited slave-trading:
we made it felony; we made it piracy; we invited foreign powers to join
with us in putting it down; to some foreign powers we paid large sums
in order to obtain their co-operation; we employed our naval force to
intercept the kidnappers; and yet it is notorious that, in spite of all
our exertions and sacrifices, great numbers of slaves were, even as
late as ten or twelve years ago, introduced from Madagascar into our
own island of Mauritius. Assuredly it was our right, it was our duty, to
guard the coasts of that island strictly, to stop slave ships, to bring
the buyers and sellers to punishment. But suppose, Sir, that a ship
under French colours was seen skulking near the island, that the
Governor was fully satisfied from her build, her rigging, and her
movements, that she was a slaver, and was only waiting for the night to
put on shore the wretches who were in her hold. Suppose that, not having
a sufficient naval force to seize this vessel, he were to arrest thirty
or forty French merchants, most of whom had never been suspected of
slave-trading, and were to lock them up. Suppose that he were to lay
violent hands on the French consul. Suppose that the Governor were
to threaten to starve his prisoners to death unless they produced the
proprietor of the slaver. Would not the French Government in such a case
have a right to demand reparation? And, if we refused reparation, would
not the French Government have a right to exact reparation by arms? And
would it be enough for us to say, "This is a wicked trade, an inhuman
trade. Think of the misery of the poor creatures who are torn from their
homes. Think of the horrors of the middle passage. Will you make war in
order to force us to admit slaves into our colonies? " Surely the answer
of the French would be, "We are not making war in order to force you
to admit slaves into the Mauritius. By all means keep them out. By
all means punish every man, French or English, whom you can convict of
bringing them in. What we complain of is that you have confounded
the innocent with the guilty, and that you have acted towards the
representative of our government in a manner inconsistent with the law
of nations. Do not, in your zeal for one great principle, trample on all
the other great principles of morality. " Just such are the grounds on
which Her Majesty has demanded reparation from China. And was it not
time? See, Sir, see how rapidly injury has followed injury. The Imperial
Commissioner, emboldened by the facility with which he had perpetrated
the first outrage, and utterly ignorant of the relative position of his
country and ours in the scale of power and civilisation, has risen in
his requisitions. He began by confiscating property. His next demand was
for innocent blood. A Chinese had been slain. Careful inquiry was made;
but it was impossible to ascertain who was the slayer, or even to
what nation the slayer belonged. No matter. It was notified to the
Superintendent that some subject of the Queen, innocent or guilty, must
be delivered up to suffer death. The Superintendent refused to comply.
Then our countrymen at Canton were seized. Those who were at Macao
were driven thence: not men alone, but women with child, babies at the
breast. The fugitives begged in vain for a morsel of bread. Our Lascars,
people of a different colour from ours, but still our fellow-subjects,
were flung into the sea. An English gentleman was barbarously mutilated.
And was this to be borne? I am far from thinking that we ought, in our
dealings with such a people as the Chinese, to be litigious on points
of etiquette. The place of our country among the nations of the world is
not so mean or so ill ascertained that we need resent mere impertinence,
which is the effect of a very pitiable ignorance. Conscious of superior
power, we can bear to hear our Sovereign described as a tributary of the
Celestial Empire. Conscious of superior knowledge we can bear to hear
ourselves described as savages destitute of every useful art. When our
ambassadors were required to perform a prostration, which in Europe
would have been considered as degrading, we were rather amused than
irritated. It would have been unworthy of us to have recourse to arms on
account of an uncivil phrase, or of a dispute about a ceremony. But this
is not a question of phrases and ceremonies. The liberties and lives of
Englishmen are at stake: and it is fit that all nations, civilised and
uncivilised, should know that, wherever the Englishman may wander, he is
followed by the eye and guarded by the power of England.
I was much touched, and so, I dare say, were many other gentlemen, by
a passage in one of Captain Elliot's despatches. I mean that passage in
which he describes his arrival at the factory in the moment of extreme
danger. As soon as he landed he was surrounded by his countrymen, all
in an agony of distress and despair. The first thing which he did was
to order the British flag to be brought from his boat and planted in
the balcony. The sight immediately revived the hearts of those who had
a minute before given themselves up for lost.
It was natural that they
should look up with hope and confidence to that victorious flag. For it
reminded them that they belonged to a country unaccustomed to defeat, to
submission, or to shame; to a country which had exacted such reparation
for the wrongs of her children as had made the ears of all who heard
of it to tingle; to a country which had made the Dey of Algiers humble
himself to the dust before her insulted Consul; to a country which had
avenged the victims of the Black Hole on the Field of Plassey; to a
country which had not degenerated since the Great Protector vowed that
he would make the name of Englishman as much respected as ever had been
the name of Roman citizen. They knew that, surrounded as they were by
enemies, and separated by great oceans and continents from all help, not
a hair of their heads would be harmed with impunity. On this part of the
subject I believe that both the great contending parties in this House
are agreed. I did not detect in the speech of the right honourable
Baronet,--and I listened to that speech with the closest attention,--one
word indicating that he is less disposed than we to insist on full
satisfaction for the great wrong which has been done. I cannot believe
that the House will pass a vote of censure so grossly unjust as that
which he has moved. But I rejoice to think that, whether we are censured
or not, the national honour will still be safe. There may be a change of
men; but, as respects China, there will be no change of measures. I have
done; and have only to express my fervent hope that this most righteous
quarrel may be prosecuted to a speedy and triumphant close; that the
brave men to whom is intrusted the task of exacting reparation may
perform their duty in such a manner as to spread, throughout regions
in which the English name is hardly known, the fame not only of English
skill and valour, but of English mercy and moderation; and that the
overruling care of that gracious Providence which has so often brought
good out of evil may make the war to which we have been forced the means
of establishing a durable peace, beneficial alike to the victors and the
vanquished.
*****
COPYRIGHT. (FEBRUARY 5, 1841) A SPEECH DELIVERED IN THE HOUSE OF COMMONS
ON THE 5TH OF FEBRUARY 1841.
On the twenty-ninth of January 1841, Mr Serjeant Talfourd obtained leave
to bring in a bill to amend the law of copyright. The object of this
bill was to extend the term of copyright in a book to sixty years,
reckoned from the death of the writer.
On the fifth of February Mr Serjeant Talfourd moved that the bill should
be read a second time. In reply to him the following Speech was made.
The bill was rejected by 45 votes to 38.
Though, Sir, it is in some sense agreeable to approach a subject with
which political animosities have nothing to do, I offer myself to your
notice with some reluctance. It is painful to me to take a course which
may possibly be misunderstood or misrepresented as unfriendly to the
interests of literature and literary men. It is painful to me, I will
add, to oppose my honourable and learned friend on a question which
he has taken up from the purest motives, and which he regards with a
parental interest. These feelings have hitherto kept me silent when
the law of copyright has been under discussion. But as I am, on full
consideration, satisfied that the measure before us will, if adopted,
inflict grievous injury on the public, without conferring any
compensating advantage on men of letters, I think it my duty to avow
that opinion and to defend it.
The first thing to be done, Sir, is to settle on what principles the
question is to be argued. Are we free to legislate for the public good,
or are we not? Is this a question of expediency, or is it a question
of right? Many of those who have written and petitioned against the
existing state of things treat the question as one of right. The law of
nature, according to them, gives to every man a sacred and indefeasible
property in his own ideas, in the fruits of his own reason and
imagination. The legislature has indeed the power to take away this
property, just as it has the power to pass an act of attainder for
cutting off an innocent man's head without a trial. But, as such an act
of attainder would be legal murder, so would an act invading the
right of an author to his copy be, according to these gentlemen, legal
robbery.
Now, Sir, if this be so, let justice be done, cost what it may. I am
not prepared, like my honourable and learned friend, to agree to a
compromise between right and expediency, and to commit an injustice for
the public convenience. But I must say, that his theory soars far beyond
the reach of my faculties. It is not necessary to go, on the present
occasion, into a metaphysical inquiry about the origin of the right of
property; and certainly nothing but the strongest necessity would lead
me to discuss a subject so likely to be distasteful to the House. I
agree, I own, with Paley in thinking that property is the creature of
the law, and that the law which creates property can be defended only
on this ground, that it is a law beneficial to mankind. But it is
unnecessary to debate that point. For, even if I believed in a natural
right of property, independent of utility and anterior to legislation, I
should still deny that this right could survive the original proprietor.
Few, I apprehend, even of those who have studied in the most mystical
and sentimental schools of moral philosophy, will be disposed to
maintain that there is a natural law of succession older and of higher
authority than any human code. If there be, it is quite certain that
we have abuses to reform much more serious than any connected with the
question of copyright. For this natural law can be only one; and the
modes of succession in the Queen's dominions are twenty. To go no
further than England, land generally descends to the eldest son. In Kent
the sons share and share alike. In many districts the youngest takes the
whole. Formerly a portion of a man's personal property was secured to
his family; and it was only of the residue that he could dispose by
will. Now he can dispose of the whole by will: but you limited his
power, a few years ago, by enacting that the will should not be valid
unless there were two witnesses. If a man dies intestate, his personal
property generally goes according to the statute of distributions; but
there are local customs which modify that statute. Now which of all
these systems is conformed to the eternal standard of right? Is it
primogeniture, or gavelkind, or borough English? Are wills jure divino?
Are the two witnesses jure divino? Might not the pars rationabilis
of our old law have a fair claim to be regarded as of celestial
institution? Was the statute of distributions enacted in Heaven long
before it was adopted by Parliament? Or is it to Custom of York, or to
Custom of London, that this preeminence belongs? Surely, Sir, even those
who hold that there is a natural right of property must admit that rules
prescribing the manner in which the effects of deceased persons shall be
distributed are purely arbitrary, and originate altogether in the will
of the legislature. If so, Sir, there is no controversy between my
honourable and learned friend and myself as to the principles on which
this question is to be argued. For the existing law gives an author
copyright during his natural life; nor do I propose to invade that
privilege, which I should, on the contrary, be prepared to defend
strenuously against any assailant. The only point in issue between
us is, how long after an author's death the State shall recognise a
copyright in his representatives and assigns; and it can, I think,
hardly be disputed by any rational man that this is a point which the
legislature is free to determine in the way which may appear to be most
conducive to the general good.
We may now, therefore, I think, descend from these high regions, where
we are in danger of being lost in the clouds, to firm ground and clear
light. Let us look at this question like legislators, and after fairly
balancing conveniences and inconveniences, pronounce between the
existing law of copyright, and the law now proposed to us. The question
of copyright, Sir, like most questions of civil prudence, is neither
black nor white, but grey. The system of copyright has great advantages
and great disadvantages; and it is our business to ascertain what these
are, and then to make an arrangement under which the advantages may be
as far as possible secured, and the disadvantages as far as possible
excluded. The charge which I bring against my honourable and learned
friend's bill is this, that it leaves the advantages nearly what they
are at present, and increases the disadvantages at least fourfold.
The advantages arising from a system of copyright are obvious. It is
desirable that we should have a supply of good books; we cannot have
such a supply unless men of letters are liberally remunerated; and the
least objectionable way of remunerating them is by means of copyright.
You cannot depend for literary instruction and amusement on the
leisure of men occupied in the pursuits of active life. Such men may
occasionally produce compositions of great merit. But you must not look
to such men for works which require deep meditation and long research.
Works of that kind you can expect only from persons who make literature
the business of their lives. Of these persons few will be found among
the rich and the noble. The rich and the noble are not impelled to
intellectual exertion by necessity. They may be impelled to intellectual
exertion by the desire of distinguishing themselves, or by the desire
of benefiting the community. But it is generally within these walls that
they seek to signalise themselves and to serve their fellow-creatures.
Both their ambition and their public spirit, in a country like this,
naturally take a political turn. It is then on men whose profession is
literature, and whose private means are not ample, that you must rely
for a supply of valuable books. Such men must be remunerated for their
literary labour. And there are only two ways in which they can be
remunerated. One of those ways is patronage; the other is copyright.
There have been times in which men of letters looked, not to the public,
but to the government, or to a few great men, for the reward of their
exertions. It was thus in the time of Maecenas and Pollio at Rome,
of the Medici at Florence, of Louis the Fourteenth in France, of Lord
Halifax and Lord Oxford in this country. Now, Sir, I well know that
there are cases in which it is fit and graceful, nay, in which it is a
sacred duty to reward the merits or to relieve the distresses of men of
genius by the exercise of this species of liberality. But these cases
are exceptions. I can conceive no system more fatal to the integrity and
independence of literary men than one under which they should be taught
to look for their daily bread to the favour of ministers and nobles. I
can conceive no system more certain to turn those minds which are formed
by nature to be the blessings and ornaments of our species into public
scandals and pests.
We have, then, only one resource left. We must betake ourselves to
copyright, be the inconveniences of copyright what they may. Those
inconveniences, in truth, are neither few nor small. Copyright is
monopoly, and produces all the effects which the general voice of
mankind attributes to monopoly. My honourable and learned friend
talks very contemptuously of those who are led away by the theory that
monopoly makes things dear. That monopoly makes things dear is certainly
a theory, as all the great truths which have been established by the
experience of all ages and nations, and which are taken for granted in
all reasonings, may be said to be theories. It is a theory in the same
sense in which it is a theory that day and night follow each other, that
lead is heavier than water, that bread nourishes, that arsenic poisons,
that alcohol intoxicates. If, as my honourable and learned friend seems
to think, the whole world is in the wrong on this point, if the real
effect of monopoly is to make articles good and cheap, why does he stop
short in his career of change? Why does he limit the operation of so
salutary a principle to sixty years? Why does he consent to anything
short of a perpetuity? He told us that in consenting to anything short
of a perpetuity he was making a compromise between extreme right and
expediency. But if his opinion about monopoly be correct, extreme right
and expediency would coincide. Or rather, why should we not restore the
monopoly of the East India trade to the East India Company? Why should
we not revive all those old monopolies which, in Elizabeth's reign,
galled our fathers so severely that, maddened by intolerable wrong, they
opposed to their sovereign a resistance before which her haughty spirit
quailed for the first and for the last time? Was it the cheapness and
excellence of commodities that then so violently stirred the indignation
of the English people? I believe, Sir, that I may with safety take it
for granted that the effect of monopoly generally is to make articles
scarce, to make them dear, and to make them bad. And I may with equal
safety challenge my honourable friend to find out any distinction
between copyright and other privileges of the same kind; any reason why
a monopoly of books should produce an effect directly the reverse of
that which was produced by the East India Company's monopoly of tea, or
by Lord Essex's monopoly of sweet wines. Thus, then, stands the case. It
is good that authors should be remunerated; and the least exceptionable
way of remunerating them is by a monopoly. Yet monopoly is an evil. For
the sake of the good we must submit to the evil; but the evil ought not
to last a day longer than is necessary for the purpose of securing the
good.
Now, I will not affirm that the existing law is perfect, that it
exactly hits the point at which the monopoly ought to cease; but this
I confidently say, that the existing law is very much nearer that point
than the law proposed by my honourable and learned friend. For consider
this; the evil effects of the monopoly are proportioned to the length
of its duration. But the good effects for the sake of which we bear
with the evil effects are by no means proportioned to the length of its
duration. A monopoly of sixty years produces twice as much evil as
a monopoly of thirty years, and thrice as much evil as a monopoly of
twenty years. But it is by no means the fact that a posthumous monopoly
of sixty years gives to an author thrice as much pleasure and thrice
as strong a motive as a posthumous monopoly of twenty years. On the
contrary, the difference is so small as to be hardly perceptible. We
all know how faintly we are affected by the prospect of very distant
advantages, even when they are advantages which we may reasonably hope
that we shall ourselves enjoy. But an advantage that is to be enjoyed
more than half a century after we are dead, by somebody, we know not by
whom, perhaps by somebody unborn, by somebody utterly unconnected with
us, is really no motive at all to action. It is very probable that in
the course of some generations land in the unexplored and unmapped heart
of the Australasian continent will be very valuable. But there is none
of us who would lay down five pounds for a whole province in the heart
of the Australasian continent. We know, that neither we, nor anybody for
whom we care, will ever receive a farthing of rent from such a province.
And a man is very little moved by the thought that in the year 2000 or
2100, somebody who claims through him will employ more shepherds than
Prince Esterhazy, and will have the finest house and gallery of pictures
at Victoria or Sydney. Now, this is the sort of boon which my honourable
and learned friend holds out to authors. Considered as a boon to them,
it is a mere nullity, but considered as an impost on the public, it is
no nullity, but a very serious and pernicious reality. I will take an
example. Dr Johnson died fifty-six years ago. If the law were what my
honourable and learned friend wishes to make it, somebody would now have
the monopoly of Dr Johnson's works. Who that somebody would be it is
impossible to say; but we may venture to guess. I guess, then, that
it would have been some bookseller, who was the assign of another
bookseller, who was the grandson of a third bookseller, who had bought
the copyright from Black Frank, the doctor's servant and residuary
legatee, in 1785 or 1786. Now, would the knowledge that this copyright
would exist in 1841 have been a source of gratification to Johnson?
Would it have stimulated his exertions? Would it have once drawn him out
of his bed before noon? Would it have once cheered him under a fit of
the spleen? Would it have induced him to give us one more allegory, one
more life of a poet, one more imitation of Juvenal? I firmly believe
not. I firmly believe that a hundred years ago, when he was writing our
debates for the Gentleman's Magazine, he would very much rather have had
twopence to buy a plate of shin of beef at a cook's shop underground.
Considered as a reward to him, the difference between a twenty years'
and sixty years' term of posthumous copyright would have been nothing or
next to nothing. But is the difference nothing to us? I can buy Rasselas
for sixpence; I might have had to give five shillings for it. I can buy
the Dictionary, the entire genuine Dictionary, for two guineas, perhaps
for less; I might have had to give five or six guineas for it. Do I
grudge this to a man like Dr Johnson? Not at all. Show me that the
prospect of this boon roused him to any vigorous effort, or sustained
his spirits under depressing circumstances, and I am quite willing to
pay the price of such an object, heavy as that price is. But what I do
complain of is that my circumstances are to be worse, and Johnson's none
the better; that I am to give five pounds for what to him was not worth
a farthing.
The principle of copyright is this. It is a tax on readers for the
purpose of giving a bounty to writers. The tax is an exceedingly bad
one; it is a tax on one of the most innocent and most salutary of human
pleasures; and never let us forget, that a tax on innocent pleasures
is a premium on vicious pleasures. I admit, however, the necessity of
giving a bounty to genius and learning. In order to give such a bounty,
I willingly submit even to this severe and burdensome tax. Nay, I am
ready to increase the tax, if it can be shown that by so doing I should
proportionally increase the bounty. My complaint is, that my honourable
and learned friend doubles, triples, quadruples, the tax, and makes
scarcely any perceptible addition to the bounty. Why, Sir, what is the
additional amount of taxation which would have been levied on the public
for Dr Johnson's works alone, if my honourable and learned friend's
bill had been the law of the land? I have not data sufficient to form
an opinion. But I am confident that the taxation on his Dictionary alone
would have amounted to many thousands of pounds. In reckoning the whole
additional sum which the holders of his copyrights would have taken
out of the pockets of the public during the last half century at twenty
thousand pounds, I feel satisfied that I very greatly underrate it. Now,
I again say that I think it but fair that we should pay twenty thousand
pounds in consideration of twenty thousand pounds' worth of pleasure and
encouragement received by Dr Johnson. But I think it very hard that we
should pay twenty thousand pounds for what he would not have valued at
five shillings.
My honourable and learned friend dwells on the claims of the posterity
of great writers. Undoubtedly, Sir, it would be very pleasing to see a
descendant of Shakespeare living in opulence on the fruits of his great
ancestor's genius. A house maintained in splendour by such a patrimony
would be a more interesting and striking object than Blenheim is to us,
or than Strathfieldsaye will be to our children. But, unhappily, it is
scarcely possible that, under any system, such a thing can come to pass.
My honourable and learned friend does not propose that copyright shall
descend to the eldest son, or shall be bound up by irrecoverable entail.
It is to be merely personal property. It is therefore highly improbable
that it will descend during sixty years or half that term from parent to
child. The chance is that more people than one will have an interest in
it. They will in all probability sell it and divide the proceeds. The
price which a bookseller will give for it will bear no proportion to the
sum which he will afterwards draw from the public, if his speculation
proves successful. He will give little, if anything, more for a term of
sixty years than for a term of thirty or five and twenty. The present
value of a distant advantage is always small; but when there is great
room to doubt whether a distant advantage will be any advantage at all,
the present value sink to almost nothing. Such is the inconstancy of
the public taste that no sensible man will venture to pronounce, with
confidence, what the sale of any book published in our days will be
in the years between 1890 and 1900. The whole fashion of thinking and
writing has often undergone a change in a much shorter period than
that to which my honourable and learned friend would extend posthumous
copyright. What would have been considered the best literary property
in the earlier part of Charles the Second's reign? I imagine Cowley's
Poems. Overleap sixty years, and you are in the generation of which Pope
asked, "Who now reads Cowley? " What works were ever expected with more
impatience by the public than those of Lord Bolingbroke, which appeared,
I think, in 1754? In 1814, no bookseller would have thanked you for the
copyright of them all, if you had offered it to him for nothing. What
would Paternoster Row give now for the copyright of Hayley's Triumphs of
Temper, so much admired within the memory of many people still living? I
say, therefore, that, from the very nature of literary property, it will
almost always pass away from an author's family; and I say, that the
price given for it to the family will bear a very small proportion to
the tax which the purchaser, if his speculation turns out well, will in
the course of a long series of years levy on the public.
If, Sir, I wished to find a strong and perfect illustration of the
effects which I anticipate from long copyright, I should select,--my
honourable and learned friend will be surprised,--I should select the
case of Milton's granddaughter. As often as this bill has been under
discussion, the fate of Milton's granddaughter has been brought forward
by the advocates of monopoly. My honourable and learned friend has
repeatedly told the story with great eloquence and effect. He has
dilated on the sufferings, on the abject poverty, of this ill-fated
woman, the last of an illustrious race. He tells us that, in the
extremity of her distress, Garrick gave her a benefit, that Johnson
wrote a prologue, and that the public contributed some hundreds
of pounds. Was it fit, he asks, that she should receive, in this
eleemosynary form, a small portion of what was in truth a debt? Why, he
asks, instead of obtaining a pittance from charity, did she not live in
comfort and luxury on the proceeds of the sale of her ancestor's works?
But, Sir, will my honourable and learned friend tell me that this event,
which he has so often and so pathetically described, was caused by the
shortness of the term of copyright? Why, at that time, the duration of
copyright was longer than even he, at present, proposes to make it. The
monopoly lasted, not sixty years, but for ever. At the time at which
Milton's granddaughter asked charity, Milton's works were the exclusive
property of a bookseller. Within a few months of the day on which the
benefit was given at Garrick's theatre, the holder of the copyright of
Paradise Lost,--I think it was Tonson,--applied to the Court of Chancery
for an injunction against a bookseller who had published a cheap edition
of the great epic poem, and obtained the injunction. The representation
of Comus was, if I remember rightly, in 1750; the injunction in 1752.
Here, then, is a perfect illustration of the effect of long copyright.
Milton's works are the property of a single publisher. Everybody who
wants them must buy them at Tonson's shop, and at Tonson's price.
Whoever attempts to undersell Tonson is harassed with legal proceedings.
Thousands who would gladly possess a copy of Paradise Lost, must forego
that great enjoyment. And what, in the meantime, is the situation of the
only person for whom we can suppose that the author, protected at such
a cost to the public, was at all interested? She is reduced to utter
destitution. Milton's works are under a monopoly. Milton's granddaughter
is starving. The reader is pillaged; but the writer's family is not
enriched. Society is taxed doubly. It has to give an exorbitant price
for the poems; and it has at the same time to give alms to the only
surviving descendant of the poet.
But this is not all. I think it right, Sir, to call the attention of
the House to an evil, which is perhaps more to be apprehended when an
author's copyright remains in the hands of his family, than when it is
transferred to booksellers. I seriously fear that, if such a measure
as this should be adopted, many valuable works will be either totally
suppressed or grievously mutilated. I can prove that this danger is
not chimerical; and I am quite certain that, if the danger be real,
the safeguards which my honourable and learned friend has devised are
altogether nugatory. That the danger is not chimerical may easily be
shown. Most of us, I am sure, have known persons who, very erroneously
as I think, but from the best motives, would not choose to reprint
Fielding's novels, or Gibbon's History of the Decline and Fall of the
Roman Empire.
any other country which has books must be surmounted by the student
who is determined to master the Chinese tongue. To learn to read is the
business of half a life. It is easier to become such a linguist as Sir
William Jones was than to become a good Chinese scholar. You may count
upon your fingers the Europeans whose industry and genius, even when
stimulated by the most fervent religious zeal, has triumphed over the
difficulties of a language without an alphabet. Here then is a country
separated from us physically by half the globe, separated from us
still more effectually by the barriers which the most jealous of all
governments and the hardest of all languages oppose to the researches of
strangers. Is it then reasonable to blame my noble friend because he has
not sent to our envoys in such a country as this instructions as full
and precise as it would have been his duty to send to a minister at
Brussels or at the Hague? The right honourable Baronet who comes forward
as the accuser on this occasion is really accusing himself. He was
a member of the Government of Lord Grey. He was himself concerned in
framing the first instructions which were given by my noble friend to
our first Superintendent at Canton. For those instructions the right
honourable Baronet frankly admits that he is himself responsible. Are
those instructions then very copious and minute? Not at all. They merely
lay down general principles. The Resident, for example, is enjoined to
respect national usages, and to avoid whatever may shock the prejudices
of the Chinese; but no orders are given him as to matters of detail.
In 1834 my noble friend quitted the Foreign Office, and the Duke of
Wellington went to it. Did the Duke of Wellington send out those copious
and exact directions with which, according to the right honourable
Baronet, the Government is bound to furnish its agent in China? No, Sir;
the Duke of Wellington, grown old in the conduct of great affairs, knows
better than anybody that a man of very ordinary ability at Canton is
likely to be a better judge of what ought to be done on an emergency
arising at Canton than the greatest politician at Westminster can
possibly be. His Grace, therefore, like a wise man as he is, wrote only
one letter to the Superintendent, and in that letter merely referred the
Superintendent to the general directions given by Lord Palmerston. And
how, Sir, does the right honourable Baronet prove that, by persisting in
the course which he himself took when in office, and which the Duke
of Wellington took when in office, Her Majesty's present advisers have
brought on that rupture which we all deplore? He has read us, from the
voluminous papers which are on the table, much which has but a very
remote connection with the question. He has said much about things which
happened before the present Ministry existed, and much about things
which have happened at Canton since the rupture; but very little that
is relevant to the issue raised by the resolution which he has himself
proposed. That issue is simply this, whether the mismanagement of the
present Ministry produced the rupture. I listened to his long and able
speech with the greatest attention, and did my best to separate
that part which had any relation to his motion from a great mass of
extraneous matter. If my analysis be correct, the charge which he brings
against the Government consists of four articles.
The first article is, that the Government omitted to alter that part of
the original instructions which directed the Superintendent to reside at
Canton.
The second article is, that the Government omitted to alter that part
of the original instructions which directed the Superintendent to
communicate directly with the representatives of the Emperor.
The third article is, that the Government omitted to follow the
advice of the Duke of Wellington, who had left at the Foreign Office a
memorandum recommending that a British ship of war should be stationed
in the China sea.
The fourth article is, that the Government omitted to authorise and
empower the Superintendent to put down the contraband trade carried on
by British subjects with China.
Such, Sir, are the counts of this indictment. Of these counts, the
fourth is the only one which will require a lengthened defence. The
first three may be disposed of in very few words.
As to the first, the answer is simple. It is true that the Government
did not revoke that part of the instructions which directed the
Superintendent to reside at Canton; and it is true that this part of the
instructions did at one time cause a dispute between the Superintendent
and the Chinese authorities. But it is equally true that this dispute
was accommodated early in 1837; that the Chinese Government furnished
the Superintendent with a passport authorising him to reside at Canton;
that, during the two years which preceded the rupture, the Chinese
Government made no objection to his residing at Canton; and that there
is not in all this huge blue book one word indicating that the rupture
was caused, directly or indirectly, by his residing at Canton. On the
first count, therefore, I am confident that the verdict must be, Not
Guilty.
To the second count we have a similar answer. It is true that there
was a dispute with the authorities of Canton about the mode of
communication. But it is equally true that this dispute was settled by
a compromise. The Chinese made a concession as to the channel of
communication. The Superintendent made a concession as to the form
of communication. The question had been thus set at rest before the
rupture, and had absolutely nothing to do with the rupture.
As to the third charge, I must tell the right honourable Baronet that
he has altogether misapprehended that memorandum which he so confidently
cites. The Duke of Wellington did not advise the Government to station a
ship of war constantly in the China seas. The Duke, writing in 1835,
at a time when the regular course of the trade had been interrupted,
recommended that a ship of war should be stationed near Canton, "till
the trade should take its regular peaceable course. " Those are His
Grace's own words. Do they not imply that, when the trade had again
taken its regular peaceable course, it might be right to remove the ship
of war? Well, Sir, the trade, after that memorandum was written, did
resume its regular peaceable course: that the right honourable Baronet
himself will admit; for it is part of his own case that Sir George
Robinson had succeeded in restoring quiet and security. The third charge
then is simply this, that the Ministers did not do in a time of perfect
tranquillity what the Duke of Wellington thought that it would have been
right to do in a time of trouble.
And now, Sir, I come to the fourth charge, the only real charge; for
the other three are so futile that I hardly understand how the right
honourable Baronet should have ventured to bring them forward.
The fourth charge is, that the Ministers omitted to send to the
Superintendent orders and powers to suppress the contraband trade, and
that this omission was the cause of the rupture.
Now, Sir, let me ask whether it was not notorious, when the right
honourable Baronet was in office, that British subjects carried on an
extensive contraband trade with China? Did the right honourable Baronet
and his colleagues instruct the Superintendent to put down that trade?
Never. That trade went on while the Duke of Wellington was at the
Foreign Office. Did the Duke of Wellington instruct the Superintendent
to put down that trade? No, Sir, never. Are then the followers of the
right honourable Baronet, are the followers of the Duke of Wellington,
prepared to pass a vote of censure on us for following the example of
the right honourable Baronet and of the Duke of Wellington? But I am
understating my case. Since the present Ministers came into office, the
reasons against sending out such instructions were much stronger than
when the right honourable Baronet was in office, or when the Duke of
Wellington was in office. Down to the month of May 1838, my noble friend
had good grounds for believing that the Chinese Government was about
to legalise the trade in opium. It is by no means easy to follow the
windings of Chinese politics. But, it is certain that about four years
ago the whole question was taken into serious consideration at Pekin.
The attention of the Emperor was called to the undoubted fact, that the
law which forbade the trade in opium was a dead letter. That law had
been intended to guard against two evils, which the Chinese legislators
seem to have regarded with equal horror, the importation of a noxious
drug, and the exportation of the precious metals. It was found, however,
that as many pounds of opium came in, and that as many pounds of silver
went out, as if there had been no such law. The only effect of the
prohibition was that the people learned to think lightly of imperial
edicts, and that no part of the great sums expended in the purchase
of the forbidden luxury came into the imperial treasury. These
considerations were set forth in a most luminous and judicious state
paper, drawn by Tang Tzee, President of the Sacrificial Offices. I am
sorry to hear that this enlightened Minister has been turned out of
office on account of his liberality: for to be turned out of office is,
I apprehend, a much more serious misfortune in China than in England.
Tang Tzee argued that it was unwise to attempt to exclude opium, for
that, while millions desired to have it, no law would keep it out, and
that the manner in which it had long been brought in had produced an
injurious effect both on the revenues of the state and on the morals of
the people. Opposed to Tang Tzee was Tchu Sing, a statesman of a very
different class, of a class which, I am sorry to say, is not confined to
China. Tchu Sing appears to be one of those staunch conservatives who,
when they find that a law is inefficient because it is too severe,
imagine that they can make it efficient by making it more severe still.
His historical knowledge is much on a par with his legislative wisdom.
He seems to have paid particular attention to the rise and progress of
our Indian Empire, and he informs his imperial master that opium is
the weapon by which England effects her conquests. She had, it seems,
persuaded the people of Hindostan to smoke and swallow this besotting
drug, till they became so feeble in body and mind, that they were
subjugated without difficulty. Some time appears to have elapsed before
the Emperor made up his mind on the point in dispute between Tang Tzee
and Tchu Sing. Our Superintendent, Captain Elliot, was of opinion that
the decision would be in favour of the rational view taken by Tang Tzee;
and such, as I can myself attest, was, during part of the year 1837, the
opinion of the whole mercantile community of Calcutta. Indeed, it was
expected that every ship which arrived in the Hoogley from Canton would
bring the news that the opium trade had been declared legal. Nor was
it known in London till May 1838, that the arguments of Tchu Sing had
prevailed. Surely, Sir, it would have been most absurd to order Captain
Elliot to suppress this trade at a time when everybody expected that it
would soon cease to be contraband. The right honourable Baronet must,
I think, himself admit that, till the month of May 1838, the Government
here omitted nothing that ought to have been done.
The question before us is therefore reduced to very narrow limits. It
is merely this: Ought my noble friend, in May 1838, to have sent out a
despatch commanding and empowering Captain Elliot to put down the opium
trade? I do not think that it would have been right or wise to send
out such a despatch. Consider, Sir, with what powers it would have been
necessary to arm the Superintendent. He must have been authorised to
arrest, to confine, to send across the sea any British subject whom he
might believe to have been concerned in introducing opium into China. I
do not deny that, under the Act of Parliament, the Government might have
invested him with this dictatorship. But I do say that the Government
ought not lightly to invest any man with such a dictatorship, and, that
if, in consequence of directions sent out by the Government, numerous
subjects of Her Majesty had been taken into custody and shipped off to
Bengal or to England without being permitted to wind up their affairs,
this House would in all probability have called the Ministers to a
strict account. Nor do I believe that by sending such directions the
Government would have averted the rupture which has taken place. I will
go further. I believe that, if such directions had been sent, we should
now have been, as we are, at war with China; and that we should have
been at war in circumstances singularly dishonourable and disastrous.
For, Sir, suppose that the Superintendent had been authorised and
commanded by the Government to put forth an order prohibiting British
subjects from trading in opium; suppose that he had put forth such an
order; how was he to enforce it? The right honourable Baronet has had
too much experience of public affairs to imagine that a lucrative trade
will be suppressed by a sheet of paper and a seal. In England we have a
preventive service which costs us half a million a year. We employ more
than fifty cruisers to guard our coasts. We have six thousand effective
men whose business is to intercept smugglers. And yet everybody knows
that every article which is much desired, which is easily concealed, and
which is heavily taxed, is smuggled into our island to a great extent.
The quantity of brandy which comes in without paying duty is known to
be not less than six hundred thousand gallons a year. Some people think
that the quantity of tobacco which is imported clandestinely is as great
as the quantity which goes through the custom-houses. Be this as it may,
there is no doubt that the illicit importation is enormous. It has been
proved before a Committee of this House that not less than four millions
of pounds of tobacco have lately been smuggled into Ireland. And all
this, observe, has been done in spite of the most efficient preventive
service that I believe ever existed in the world. Consider too that the
price of an ounce of opium is far, very far higher than the price of a
pound of tobacco. Knowing this, knowing that the whole power of King,
Lords, and Commons cannot here put a stop to a traffic less easy, and
less profitable than the traffic in opium, can you believe that an
order prohibiting the traffic in opium would have been readily obeyed?
Remember by what powerful motives both the buyer and the seller would
have been impelled to deal with each other. The buyer would have been
driven to the seller by something little short of torture, by a physical
craving as fierce and impatient as any to which our race is subject.
For, when stimulants of this sort have been long used, they are desired
with a rage which resembles the rage of hunger. The seller would have
been driven to the buyer by the hope of vast and rapid gain. And do
you imagine that the intense appetite on one side for what had become a
necessary of life, and on the other for riches, would have been appeased
by a few lines signed Charles Elliot? The very utmost effect which it
is possible to believe that such an order would have produced would
have been this, that the opium trade would have left Canton, where the
dealers were under the eye of the Superintendent, and where they would
have run some risk of being punished by him, and would have spread
itself along the coast. If we know anything about the Chinese
Government, we know this, that its coastguard is neither trusty nor
efficient; and we know that a coastguard as trusty and efficient as
our own would not be able to cut off communication between the merchant
longing for silver and the smoker longing for his pipe. Whole fleets
of vessels would have managed to land their cargoes along the shore.
Conflicts would have arisen between our countrymen and the local
magistrates, who would not, like the authorities of Canton, have
had some knowledge of European habits and feelings. The mere malum
prohibitum would, as usual, have produced the mala in se. The unlawful
traffic would inevitably have led to a crowd of acts, not only unlawful,
but immoral. The smuggler would, by the almost irresistible force of
circumstances, have been turned into a pirate. We know that, even at
Canton, where the smugglers stand in some awe of the authority of the
Superintendent and of the opinion of an English society which contains
many respectable persons, the illicit trade has caused many brawls and
outrages. What, then, was to be expected when every captain of a ship
laden with opium would have been the sole judge of his own conduct? It
is easy to guess what would have happened. A boat is sent ashore to fill
the water-casks and to buy fresh provisions. The provisions are refused.
The sailors take them by force. Then a well is poisoned. Two or three
of the ship's company die in agonies. The crew in a fury land, shoot
and stab every man whom they meet, and sack and burn a village. Is this
improbable? Have not similar causes repeatedly produced similar effects?
Do we not know that the jealous vigilance with which Spain excluded the
ships of other nations from her Transatlantic possessions turned men who
would otherwise have been honest merchant adventurers into buccaneers?
The same causes which raised up one race of buccaneers in the Gulf of
Mexico would soon have raised up another in the China Sea. And can
we doubt what would in that case have been the conduct of the Chinese
authorities at Canton? We see that Commissioner Lin has arrested and
confined men of spotless character, men whom he had not the slightest
reason to suspect of being engaged in any illicit commerce. He did so on
the ground that some of their countrymen had violated the revenue
laws of China. How then would he have acted if he had learned that
the red-headed devils had not merely been selling opium, but had been
fighting, plundering, slaying, burning? Would he not have put forth
a proclamation in his most vituperative style, setting forth that the
Outside Barbarians had undertaken to stop the contraband trade, but that
they had been found deceivers, that the Superintendent's edict was a
mere pretence, that there was more smuggling than ever, that to the
smuggling had been added robbery and murder, and that therefore he
should detain all men of the guilty race as hostages till reparation
should be made? I say, therefore, that, if the Ministers had done that
which the right honourable Baronet blames them for not doing, we should
only have reached by a worse way the point at which we now are.
I have now, Sir, gone through the four heads of the charge brought
against the Government; and I say with confidence that the interruption
of our friendly relations with China cannot justly be imputed to any one
of the omissions mentioned by the right honourable Baronet. In truth, if
I could feel assured that no gentleman would vote for the motion without
attentively reading it, and considering whether the proposition which it
affirms has been made out, I should have no uneasiness as to the
result of this debate. But I know that no member weighs the words of a
resolution for which he is asked to vote, as he would weigh the words
of an affidavit which he was asked to swear. And I am aware that
some persons, for whose humanity and honesty I entertain the greatest
respect, are inclined to divide with the right honourable Baronet, not
because they think that he has proved his case, but because they have
taken up a notion that we are making war for the purpose of forcing
the Government of China to admit opium into that country, and that,
therefore, we richly deserve to be censured. Certainly, Sir, if we
had been guilty of such absurdity and such atrocity as those gentlemen
impute to us, we should deserve not only censure but condign punishment.
But the imputation is altogether unfounded. Our course was clear. We may
doubt indeed whether the Emperor of China judged well in listening to
Tchu Sing and disgracing Tang Tzee. We may doubt whether it be a wise
policy to exclude altogether from any country a drug which is often
fatally abused, but which to those who use it rightly is one of the
most precious boons vouchsafed by Providence to man, powerful to assuage
pain, to soothe irritation, and to restore health. We may doubt whether
it be a wise policy to make laws for the purpose of preventing the
precious metals from being exported in the natural course of trade. We
have learned from all history, and from our own experience, that revenue
cutters, custom-house officers, informers, will never keep out of any
country foreign luxuries of small bulk for which consumers are willing
to pay high prices, and will never prevent gold and silver from going
abroad in exchange for such luxuries. We cannot believe that what
England with her skilfully organised fiscal system and her gigantic
marine, has never been able to effect, will be accomplished by the junks
which are at the command of the mandarins of China. But, whatever our
opinion on these points may be, we are perfectly aware that they are
points which it belongs not to us but to the Emperor of China to decide.
He had a perfect right to keep out opium and to keep in silver, if he
could do so by means consistent with morality and public law. If his
officers seized a chest of the forbidden drug, we were not entitled to
complain; nor did we complain. But when, finding that they could not
suppress the contraband trade by just means, they resorted to means
flagrantly unjust, when they imprisoned our innocent countrymen, when
they insulted our Sovereign in the person of her representative, then
it became our duty to demand satisfaction. Whether the opium trade be
a pernicious trade is not the question. Take a parallel case: take the
most execrable crime that ever was called a trade, the African slave
trade. You will hardly say that a contraband trade in opium is more
immoral than a contraband trade in negroes. We prohibited slave-trading:
we made it felony; we made it piracy; we invited foreign powers to join
with us in putting it down; to some foreign powers we paid large sums
in order to obtain their co-operation; we employed our naval force to
intercept the kidnappers; and yet it is notorious that, in spite of all
our exertions and sacrifices, great numbers of slaves were, even as
late as ten or twelve years ago, introduced from Madagascar into our
own island of Mauritius. Assuredly it was our right, it was our duty, to
guard the coasts of that island strictly, to stop slave ships, to bring
the buyers and sellers to punishment. But suppose, Sir, that a ship
under French colours was seen skulking near the island, that the
Governor was fully satisfied from her build, her rigging, and her
movements, that she was a slaver, and was only waiting for the night to
put on shore the wretches who were in her hold. Suppose that, not having
a sufficient naval force to seize this vessel, he were to arrest thirty
or forty French merchants, most of whom had never been suspected of
slave-trading, and were to lock them up. Suppose that he were to lay
violent hands on the French consul. Suppose that the Governor were
to threaten to starve his prisoners to death unless they produced the
proprietor of the slaver. Would not the French Government in such a case
have a right to demand reparation? And, if we refused reparation, would
not the French Government have a right to exact reparation by arms? And
would it be enough for us to say, "This is a wicked trade, an inhuman
trade. Think of the misery of the poor creatures who are torn from their
homes. Think of the horrors of the middle passage. Will you make war in
order to force us to admit slaves into our colonies? " Surely the answer
of the French would be, "We are not making war in order to force you
to admit slaves into the Mauritius. By all means keep them out. By
all means punish every man, French or English, whom you can convict of
bringing them in. What we complain of is that you have confounded
the innocent with the guilty, and that you have acted towards the
representative of our government in a manner inconsistent with the law
of nations. Do not, in your zeal for one great principle, trample on all
the other great principles of morality. " Just such are the grounds on
which Her Majesty has demanded reparation from China. And was it not
time? See, Sir, see how rapidly injury has followed injury. The Imperial
Commissioner, emboldened by the facility with which he had perpetrated
the first outrage, and utterly ignorant of the relative position of his
country and ours in the scale of power and civilisation, has risen in
his requisitions. He began by confiscating property. His next demand was
for innocent blood. A Chinese had been slain. Careful inquiry was made;
but it was impossible to ascertain who was the slayer, or even to
what nation the slayer belonged. No matter. It was notified to the
Superintendent that some subject of the Queen, innocent or guilty, must
be delivered up to suffer death. The Superintendent refused to comply.
Then our countrymen at Canton were seized. Those who were at Macao
were driven thence: not men alone, but women with child, babies at the
breast. The fugitives begged in vain for a morsel of bread. Our Lascars,
people of a different colour from ours, but still our fellow-subjects,
were flung into the sea. An English gentleman was barbarously mutilated.
And was this to be borne? I am far from thinking that we ought, in our
dealings with such a people as the Chinese, to be litigious on points
of etiquette. The place of our country among the nations of the world is
not so mean or so ill ascertained that we need resent mere impertinence,
which is the effect of a very pitiable ignorance. Conscious of superior
power, we can bear to hear our Sovereign described as a tributary of the
Celestial Empire. Conscious of superior knowledge we can bear to hear
ourselves described as savages destitute of every useful art. When our
ambassadors were required to perform a prostration, which in Europe
would have been considered as degrading, we were rather amused than
irritated. It would have been unworthy of us to have recourse to arms on
account of an uncivil phrase, or of a dispute about a ceremony. But this
is not a question of phrases and ceremonies. The liberties and lives of
Englishmen are at stake: and it is fit that all nations, civilised and
uncivilised, should know that, wherever the Englishman may wander, he is
followed by the eye and guarded by the power of England.
I was much touched, and so, I dare say, were many other gentlemen, by
a passage in one of Captain Elliot's despatches. I mean that passage in
which he describes his arrival at the factory in the moment of extreme
danger. As soon as he landed he was surrounded by his countrymen, all
in an agony of distress and despair. The first thing which he did was
to order the British flag to be brought from his boat and planted in
the balcony. The sight immediately revived the hearts of those who had
a minute before given themselves up for lost.
It was natural that they
should look up with hope and confidence to that victorious flag. For it
reminded them that they belonged to a country unaccustomed to defeat, to
submission, or to shame; to a country which had exacted such reparation
for the wrongs of her children as had made the ears of all who heard
of it to tingle; to a country which had made the Dey of Algiers humble
himself to the dust before her insulted Consul; to a country which had
avenged the victims of the Black Hole on the Field of Plassey; to a
country which had not degenerated since the Great Protector vowed that
he would make the name of Englishman as much respected as ever had been
the name of Roman citizen. They knew that, surrounded as they were by
enemies, and separated by great oceans and continents from all help, not
a hair of their heads would be harmed with impunity. On this part of the
subject I believe that both the great contending parties in this House
are agreed. I did not detect in the speech of the right honourable
Baronet,--and I listened to that speech with the closest attention,--one
word indicating that he is less disposed than we to insist on full
satisfaction for the great wrong which has been done. I cannot believe
that the House will pass a vote of censure so grossly unjust as that
which he has moved. But I rejoice to think that, whether we are censured
or not, the national honour will still be safe. There may be a change of
men; but, as respects China, there will be no change of measures. I have
done; and have only to express my fervent hope that this most righteous
quarrel may be prosecuted to a speedy and triumphant close; that the
brave men to whom is intrusted the task of exacting reparation may
perform their duty in such a manner as to spread, throughout regions
in which the English name is hardly known, the fame not only of English
skill and valour, but of English mercy and moderation; and that the
overruling care of that gracious Providence which has so often brought
good out of evil may make the war to which we have been forced the means
of establishing a durable peace, beneficial alike to the victors and the
vanquished.
*****
COPYRIGHT. (FEBRUARY 5, 1841) A SPEECH DELIVERED IN THE HOUSE OF COMMONS
ON THE 5TH OF FEBRUARY 1841.
On the twenty-ninth of January 1841, Mr Serjeant Talfourd obtained leave
to bring in a bill to amend the law of copyright. The object of this
bill was to extend the term of copyright in a book to sixty years,
reckoned from the death of the writer.
On the fifth of February Mr Serjeant Talfourd moved that the bill should
be read a second time. In reply to him the following Speech was made.
The bill was rejected by 45 votes to 38.
Though, Sir, it is in some sense agreeable to approach a subject with
which political animosities have nothing to do, I offer myself to your
notice with some reluctance. It is painful to me to take a course which
may possibly be misunderstood or misrepresented as unfriendly to the
interests of literature and literary men. It is painful to me, I will
add, to oppose my honourable and learned friend on a question which
he has taken up from the purest motives, and which he regards with a
parental interest. These feelings have hitherto kept me silent when
the law of copyright has been under discussion. But as I am, on full
consideration, satisfied that the measure before us will, if adopted,
inflict grievous injury on the public, without conferring any
compensating advantage on men of letters, I think it my duty to avow
that opinion and to defend it.
The first thing to be done, Sir, is to settle on what principles the
question is to be argued. Are we free to legislate for the public good,
or are we not? Is this a question of expediency, or is it a question
of right? Many of those who have written and petitioned against the
existing state of things treat the question as one of right. The law of
nature, according to them, gives to every man a sacred and indefeasible
property in his own ideas, in the fruits of his own reason and
imagination. The legislature has indeed the power to take away this
property, just as it has the power to pass an act of attainder for
cutting off an innocent man's head without a trial. But, as such an act
of attainder would be legal murder, so would an act invading the
right of an author to his copy be, according to these gentlemen, legal
robbery.
Now, Sir, if this be so, let justice be done, cost what it may. I am
not prepared, like my honourable and learned friend, to agree to a
compromise between right and expediency, and to commit an injustice for
the public convenience. But I must say, that his theory soars far beyond
the reach of my faculties. It is not necessary to go, on the present
occasion, into a metaphysical inquiry about the origin of the right of
property; and certainly nothing but the strongest necessity would lead
me to discuss a subject so likely to be distasteful to the House. I
agree, I own, with Paley in thinking that property is the creature of
the law, and that the law which creates property can be defended only
on this ground, that it is a law beneficial to mankind. But it is
unnecessary to debate that point. For, even if I believed in a natural
right of property, independent of utility and anterior to legislation, I
should still deny that this right could survive the original proprietor.
Few, I apprehend, even of those who have studied in the most mystical
and sentimental schools of moral philosophy, will be disposed to
maintain that there is a natural law of succession older and of higher
authority than any human code. If there be, it is quite certain that
we have abuses to reform much more serious than any connected with the
question of copyright. For this natural law can be only one; and the
modes of succession in the Queen's dominions are twenty. To go no
further than England, land generally descends to the eldest son. In Kent
the sons share and share alike. In many districts the youngest takes the
whole. Formerly a portion of a man's personal property was secured to
his family; and it was only of the residue that he could dispose by
will. Now he can dispose of the whole by will: but you limited his
power, a few years ago, by enacting that the will should not be valid
unless there were two witnesses. If a man dies intestate, his personal
property generally goes according to the statute of distributions; but
there are local customs which modify that statute. Now which of all
these systems is conformed to the eternal standard of right? Is it
primogeniture, or gavelkind, or borough English? Are wills jure divino?
Are the two witnesses jure divino? Might not the pars rationabilis
of our old law have a fair claim to be regarded as of celestial
institution? Was the statute of distributions enacted in Heaven long
before it was adopted by Parliament? Or is it to Custom of York, or to
Custom of London, that this preeminence belongs? Surely, Sir, even those
who hold that there is a natural right of property must admit that rules
prescribing the manner in which the effects of deceased persons shall be
distributed are purely arbitrary, and originate altogether in the will
of the legislature. If so, Sir, there is no controversy between my
honourable and learned friend and myself as to the principles on which
this question is to be argued. For the existing law gives an author
copyright during his natural life; nor do I propose to invade that
privilege, which I should, on the contrary, be prepared to defend
strenuously against any assailant. The only point in issue between
us is, how long after an author's death the State shall recognise a
copyright in his representatives and assigns; and it can, I think,
hardly be disputed by any rational man that this is a point which the
legislature is free to determine in the way which may appear to be most
conducive to the general good.
We may now, therefore, I think, descend from these high regions, where
we are in danger of being lost in the clouds, to firm ground and clear
light. Let us look at this question like legislators, and after fairly
balancing conveniences and inconveniences, pronounce between the
existing law of copyright, and the law now proposed to us. The question
of copyright, Sir, like most questions of civil prudence, is neither
black nor white, but grey. The system of copyright has great advantages
and great disadvantages; and it is our business to ascertain what these
are, and then to make an arrangement under which the advantages may be
as far as possible secured, and the disadvantages as far as possible
excluded. The charge which I bring against my honourable and learned
friend's bill is this, that it leaves the advantages nearly what they
are at present, and increases the disadvantages at least fourfold.
The advantages arising from a system of copyright are obvious. It is
desirable that we should have a supply of good books; we cannot have
such a supply unless men of letters are liberally remunerated; and the
least objectionable way of remunerating them is by means of copyright.
You cannot depend for literary instruction and amusement on the
leisure of men occupied in the pursuits of active life. Such men may
occasionally produce compositions of great merit. But you must not look
to such men for works which require deep meditation and long research.
Works of that kind you can expect only from persons who make literature
the business of their lives. Of these persons few will be found among
the rich and the noble. The rich and the noble are not impelled to
intellectual exertion by necessity. They may be impelled to intellectual
exertion by the desire of distinguishing themselves, or by the desire
of benefiting the community. But it is generally within these walls that
they seek to signalise themselves and to serve their fellow-creatures.
Both their ambition and their public spirit, in a country like this,
naturally take a political turn. It is then on men whose profession is
literature, and whose private means are not ample, that you must rely
for a supply of valuable books. Such men must be remunerated for their
literary labour. And there are only two ways in which they can be
remunerated. One of those ways is patronage; the other is copyright.
There have been times in which men of letters looked, not to the public,
but to the government, or to a few great men, for the reward of their
exertions. It was thus in the time of Maecenas and Pollio at Rome,
of the Medici at Florence, of Louis the Fourteenth in France, of Lord
Halifax and Lord Oxford in this country. Now, Sir, I well know that
there are cases in which it is fit and graceful, nay, in which it is a
sacred duty to reward the merits or to relieve the distresses of men of
genius by the exercise of this species of liberality. But these cases
are exceptions. I can conceive no system more fatal to the integrity and
independence of literary men than one under which they should be taught
to look for their daily bread to the favour of ministers and nobles. I
can conceive no system more certain to turn those minds which are formed
by nature to be the blessings and ornaments of our species into public
scandals and pests.
We have, then, only one resource left. We must betake ourselves to
copyright, be the inconveniences of copyright what they may. Those
inconveniences, in truth, are neither few nor small. Copyright is
monopoly, and produces all the effects which the general voice of
mankind attributes to monopoly. My honourable and learned friend
talks very contemptuously of those who are led away by the theory that
monopoly makes things dear. That monopoly makes things dear is certainly
a theory, as all the great truths which have been established by the
experience of all ages and nations, and which are taken for granted in
all reasonings, may be said to be theories. It is a theory in the same
sense in which it is a theory that day and night follow each other, that
lead is heavier than water, that bread nourishes, that arsenic poisons,
that alcohol intoxicates. If, as my honourable and learned friend seems
to think, the whole world is in the wrong on this point, if the real
effect of monopoly is to make articles good and cheap, why does he stop
short in his career of change? Why does he limit the operation of so
salutary a principle to sixty years? Why does he consent to anything
short of a perpetuity? He told us that in consenting to anything short
of a perpetuity he was making a compromise between extreme right and
expediency. But if his opinion about monopoly be correct, extreme right
and expediency would coincide. Or rather, why should we not restore the
monopoly of the East India trade to the East India Company? Why should
we not revive all those old monopolies which, in Elizabeth's reign,
galled our fathers so severely that, maddened by intolerable wrong, they
opposed to their sovereign a resistance before which her haughty spirit
quailed for the first and for the last time? Was it the cheapness and
excellence of commodities that then so violently stirred the indignation
of the English people? I believe, Sir, that I may with safety take it
for granted that the effect of monopoly generally is to make articles
scarce, to make them dear, and to make them bad. And I may with equal
safety challenge my honourable friend to find out any distinction
between copyright and other privileges of the same kind; any reason why
a monopoly of books should produce an effect directly the reverse of
that which was produced by the East India Company's monopoly of tea, or
by Lord Essex's monopoly of sweet wines. Thus, then, stands the case. It
is good that authors should be remunerated; and the least exceptionable
way of remunerating them is by a monopoly. Yet monopoly is an evil. For
the sake of the good we must submit to the evil; but the evil ought not
to last a day longer than is necessary for the purpose of securing the
good.
Now, I will not affirm that the existing law is perfect, that it
exactly hits the point at which the monopoly ought to cease; but this
I confidently say, that the existing law is very much nearer that point
than the law proposed by my honourable and learned friend. For consider
this; the evil effects of the monopoly are proportioned to the length
of its duration. But the good effects for the sake of which we bear
with the evil effects are by no means proportioned to the length of its
duration. A monopoly of sixty years produces twice as much evil as
a monopoly of thirty years, and thrice as much evil as a monopoly of
twenty years. But it is by no means the fact that a posthumous monopoly
of sixty years gives to an author thrice as much pleasure and thrice
as strong a motive as a posthumous monopoly of twenty years. On the
contrary, the difference is so small as to be hardly perceptible. We
all know how faintly we are affected by the prospect of very distant
advantages, even when they are advantages which we may reasonably hope
that we shall ourselves enjoy. But an advantage that is to be enjoyed
more than half a century after we are dead, by somebody, we know not by
whom, perhaps by somebody unborn, by somebody utterly unconnected with
us, is really no motive at all to action. It is very probable that in
the course of some generations land in the unexplored and unmapped heart
of the Australasian continent will be very valuable. But there is none
of us who would lay down five pounds for a whole province in the heart
of the Australasian continent. We know, that neither we, nor anybody for
whom we care, will ever receive a farthing of rent from such a province.
And a man is very little moved by the thought that in the year 2000 or
2100, somebody who claims through him will employ more shepherds than
Prince Esterhazy, and will have the finest house and gallery of pictures
at Victoria or Sydney. Now, this is the sort of boon which my honourable
and learned friend holds out to authors. Considered as a boon to them,
it is a mere nullity, but considered as an impost on the public, it is
no nullity, but a very serious and pernicious reality. I will take an
example. Dr Johnson died fifty-six years ago. If the law were what my
honourable and learned friend wishes to make it, somebody would now have
the monopoly of Dr Johnson's works. Who that somebody would be it is
impossible to say; but we may venture to guess. I guess, then, that
it would have been some bookseller, who was the assign of another
bookseller, who was the grandson of a third bookseller, who had bought
the copyright from Black Frank, the doctor's servant and residuary
legatee, in 1785 or 1786. Now, would the knowledge that this copyright
would exist in 1841 have been a source of gratification to Johnson?
Would it have stimulated his exertions? Would it have once drawn him out
of his bed before noon? Would it have once cheered him under a fit of
the spleen? Would it have induced him to give us one more allegory, one
more life of a poet, one more imitation of Juvenal? I firmly believe
not. I firmly believe that a hundred years ago, when he was writing our
debates for the Gentleman's Magazine, he would very much rather have had
twopence to buy a plate of shin of beef at a cook's shop underground.
Considered as a reward to him, the difference between a twenty years'
and sixty years' term of posthumous copyright would have been nothing or
next to nothing. But is the difference nothing to us? I can buy Rasselas
for sixpence; I might have had to give five shillings for it. I can buy
the Dictionary, the entire genuine Dictionary, for two guineas, perhaps
for less; I might have had to give five or six guineas for it. Do I
grudge this to a man like Dr Johnson? Not at all. Show me that the
prospect of this boon roused him to any vigorous effort, or sustained
his spirits under depressing circumstances, and I am quite willing to
pay the price of such an object, heavy as that price is. But what I do
complain of is that my circumstances are to be worse, and Johnson's none
the better; that I am to give five pounds for what to him was not worth
a farthing.
The principle of copyright is this. It is a tax on readers for the
purpose of giving a bounty to writers. The tax is an exceedingly bad
one; it is a tax on one of the most innocent and most salutary of human
pleasures; and never let us forget, that a tax on innocent pleasures
is a premium on vicious pleasures. I admit, however, the necessity of
giving a bounty to genius and learning. In order to give such a bounty,
I willingly submit even to this severe and burdensome tax. Nay, I am
ready to increase the tax, if it can be shown that by so doing I should
proportionally increase the bounty. My complaint is, that my honourable
and learned friend doubles, triples, quadruples, the tax, and makes
scarcely any perceptible addition to the bounty. Why, Sir, what is the
additional amount of taxation which would have been levied on the public
for Dr Johnson's works alone, if my honourable and learned friend's
bill had been the law of the land? I have not data sufficient to form
an opinion. But I am confident that the taxation on his Dictionary alone
would have amounted to many thousands of pounds. In reckoning the whole
additional sum which the holders of his copyrights would have taken
out of the pockets of the public during the last half century at twenty
thousand pounds, I feel satisfied that I very greatly underrate it. Now,
I again say that I think it but fair that we should pay twenty thousand
pounds in consideration of twenty thousand pounds' worth of pleasure and
encouragement received by Dr Johnson. But I think it very hard that we
should pay twenty thousand pounds for what he would not have valued at
five shillings.
My honourable and learned friend dwells on the claims of the posterity
of great writers. Undoubtedly, Sir, it would be very pleasing to see a
descendant of Shakespeare living in opulence on the fruits of his great
ancestor's genius. A house maintained in splendour by such a patrimony
would be a more interesting and striking object than Blenheim is to us,
or than Strathfieldsaye will be to our children. But, unhappily, it is
scarcely possible that, under any system, such a thing can come to pass.
My honourable and learned friend does not propose that copyright shall
descend to the eldest son, or shall be bound up by irrecoverable entail.
It is to be merely personal property. It is therefore highly improbable
that it will descend during sixty years or half that term from parent to
child. The chance is that more people than one will have an interest in
it. They will in all probability sell it and divide the proceeds. The
price which a bookseller will give for it will bear no proportion to the
sum which he will afterwards draw from the public, if his speculation
proves successful. He will give little, if anything, more for a term of
sixty years than for a term of thirty or five and twenty. The present
value of a distant advantage is always small; but when there is great
room to doubt whether a distant advantage will be any advantage at all,
the present value sink to almost nothing. Such is the inconstancy of
the public taste that no sensible man will venture to pronounce, with
confidence, what the sale of any book published in our days will be
in the years between 1890 and 1900. The whole fashion of thinking and
writing has often undergone a change in a much shorter period than
that to which my honourable and learned friend would extend posthumous
copyright. What would have been considered the best literary property
in the earlier part of Charles the Second's reign? I imagine Cowley's
Poems. Overleap sixty years, and you are in the generation of which Pope
asked, "Who now reads Cowley? " What works were ever expected with more
impatience by the public than those of Lord Bolingbroke, which appeared,
I think, in 1754? In 1814, no bookseller would have thanked you for the
copyright of them all, if you had offered it to him for nothing. What
would Paternoster Row give now for the copyright of Hayley's Triumphs of
Temper, so much admired within the memory of many people still living? I
say, therefore, that, from the very nature of literary property, it will
almost always pass away from an author's family; and I say, that the
price given for it to the family will bear a very small proportion to
the tax which the purchaser, if his speculation turns out well, will in
the course of a long series of years levy on the public.
If, Sir, I wished to find a strong and perfect illustration of the
effects which I anticipate from long copyright, I should select,--my
honourable and learned friend will be surprised,--I should select the
case of Milton's granddaughter. As often as this bill has been under
discussion, the fate of Milton's granddaughter has been brought forward
by the advocates of monopoly. My honourable and learned friend has
repeatedly told the story with great eloquence and effect. He has
dilated on the sufferings, on the abject poverty, of this ill-fated
woman, the last of an illustrious race. He tells us that, in the
extremity of her distress, Garrick gave her a benefit, that Johnson
wrote a prologue, and that the public contributed some hundreds
of pounds. Was it fit, he asks, that she should receive, in this
eleemosynary form, a small portion of what was in truth a debt? Why, he
asks, instead of obtaining a pittance from charity, did she not live in
comfort and luxury on the proceeds of the sale of her ancestor's works?
But, Sir, will my honourable and learned friend tell me that this event,
which he has so often and so pathetically described, was caused by the
shortness of the term of copyright? Why, at that time, the duration of
copyright was longer than even he, at present, proposes to make it. The
monopoly lasted, not sixty years, but for ever. At the time at which
Milton's granddaughter asked charity, Milton's works were the exclusive
property of a bookseller. Within a few months of the day on which the
benefit was given at Garrick's theatre, the holder of the copyright of
Paradise Lost,--I think it was Tonson,--applied to the Court of Chancery
for an injunction against a bookseller who had published a cheap edition
of the great epic poem, and obtained the injunction. The representation
of Comus was, if I remember rightly, in 1750; the injunction in 1752.
Here, then, is a perfect illustration of the effect of long copyright.
Milton's works are the property of a single publisher. Everybody who
wants them must buy them at Tonson's shop, and at Tonson's price.
Whoever attempts to undersell Tonson is harassed with legal proceedings.
Thousands who would gladly possess a copy of Paradise Lost, must forego
that great enjoyment. And what, in the meantime, is the situation of the
only person for whom we can suppose that the author, protected at such
a cost to the public, was at all interested? She is reduced to utter
destitution. Milton's works are under a monopoly. Milton's granddaughter
is starving. The reader is pillaged; but the writer's family is not
enriched. Society is taxed doubly. It has to give an exorbitant price
for the poems; and it has at the same time to give alms to the only
surviving descendant of the poet.
But this is not all. I think it right, Sir, to call the attention of
the House to an evil, which is perhaps more to be apprehended when an
author's copyright remains in the hands of his family, than when it is
transferred to booksellers. I seriously fear that, if such a measure
as this should be adopted, many valuable works will be either totally
suppressed or grievously mutilated. I can prove that this danger is
not chimerical; and I am quite certain that, if the danger be real,
the safeguards which my honourable and learned friend has devised are
altogether nugatory. That the danger is not chimerical may easily be
shown. Most of us, I am sure, have known persons who, very erroneously
as I think, but from the best motives, would not choose to reprint
Fielding's novels, or Gibbon's History of the Decline and Fall of the
Roman Empire.
