Hinton v. Donaldson

July 28, 1999, is the 226th anniversary of the decision of the Scots Lords of the Court of Session in the case of Hinton v. Donaldson. (The opinions were delivered on July 27; the Lords formally found for the defendant Donaldson on July 28.) Lord Kames's opinion in the case reads, in part,

    ... I have no difficulty to maintain that a     perpetual monopoly of books would prove more     destructive to learning, and even to authors,     than a second irruption of Goths and Vandals.     And hence with assurance I infer, that a perpetual     monopoly is not a branch of the common law or     of the law of nature. God planted that law in     our hearts for the good of society; and it is     too wisely contrived to be in any case productive     of mischief.

        Our booksellers, it is true, aiming at     present profit, may not think themselves much     concerned about futurity. But it belongs to     judges to look forward; and it deserves to be     duly pondered whether the interest of literature     in general ought to be sacrificed to the pecuniary     interest of a few individuals... A monopoly would     put a final end to the commerce of books in a few     generations. And therefore, I am for dismissing     this process as contrary to law, as ruinous to the     public interest, and as prohibited by the statute.

(Ian Simpson Ross, _Lord Kames and the Scotland of His Day_, Oxford U. Press, 1972, pp. 141-142, quoting James Boswell, ed., _The Decisions of the Court of Session upon the Question of Literary Property_, Edinburgh, 1774, pp. 18-21. See also John Murray, "Some Civil Cases of James Boswell, 1772-1774", Juridical Review 52, 222-251(1940); W. Forbes Gray, "Alexander Donaldson and his Fight for Cheap Books," Juridical Review 38, 180-202(1926).)

In the following year the Lords of England heard the case of Donaldson v. Becket (17 Parl. Hist. Eng. 953-1003, 14 George III). Attorney General Thurlow, as counsel for the appellants, explicitly recalled the Session case to the Lords' attention on February 4, 1774:

    The booksellers [Attorney-General Thurlow] observed...     had not, till lately, ever concerned themselves     about authors, but had generally confined the     substance of their prayers to the legislature, to     the security of their own property; nor would they     probably have, of late years, introduced the authors     as parties in their claims to the common law right     of exclusively multiplying copies, had not they     found it necessary to give a colourable face to their     monopoly... He concluded his speech with... a hope,     that as the lords of session in Scotland had freed that     country from a monopoly which took its rise from the     chimerical idea of the actuality of literary property,     their lordships, whom he addressed, would likewise,     by a decree of a similar nature, rescue the cause of     literature and authorship from the hands of a few     monopolizing booksellers, in whom the perquisites of     other men's labors, the fruits of their inventions,     and result of their ingenuity, were at present wholly     centered. (Id., at 954-955.)

Tim Phillips
<hrothgar[_at_]telepath.com> Received on Wed Jul 28 1999 - 02:55:25 GMT