Popular Science Monthly/Volume 22/March 1883/Editor's Table
WHATEVER truth there may be in the declaration that "paper constitutions will not work as they are intended to work," it is very certain that written and unwritten constitutions do not work in the same way, and do affect the habits of mind of the people very differently. In England "the Constitution" is a body of precedents and practices, which are interpreted and applied to new cases in accordance with the historic spirit of the Government; while in this country "the Constitution" is a printed document that may be bought for a nickel, and learned by heart in a week. To find out the meaning and obligations of the English Constitution, we are referred to the principles of the national policy; to find out the requirements of our own Constitution, we are referred to its explicit clauses. These Constitutions do not work alike; and in one important respect they do not work as we should anticipate. We should naturally expect that the English Constitution would be so complex a thing as to be far removed from the people, and create a multitude of law interpreters, who would practically have the whole subject in their own hands. And at first sight it would seem that with a written constitution so much is gained in the way of simplicity, where everything is made as plain, definite, and positive as language can make it, that the people should perfectly understand the instrument, and there would be little need of professional commentators. But, in point of fact, the English Constitution is by no means withdrawn from the consideration of the English people, nor does the simplicity of our own written charter save us from the need of a host of lawyers. Yet there is a divergence in the function of the lawyers in the two cases, which corresponds to an equal diversity in the mental habits of the people in the respective countries. Where the supreme law is unwritten, and has to be sought in the usages and principles of the government, the process of its interpretation is far more open than in the other case, more a matter of adaptation and readjustment. Tendencies and progress and new circumstances are taken into account, and each step of the elucidation becomes a part of the continuous national process of establishing the Constitution. The people know the fundamental principles, the great landmarks of guidance, which are to control the course of lawyers and judges, and they can understand whether the supreme objects of the Constitution are fulfilled or defeated. Appeal will naturally be made to the more rational and liberal elements of the national policy, and the task of amending and improving the Constitution itself will be felt as a permanent responsibility. The men of to-day are, therefore, as much "founders of the Constitution" as those of former generations.
But it is very different where the Constitution is a written document which was made the supreme law in a former age. Only the glorified "fathers" are here ranked as founders of the Constitution. It embodied the ideas and the wisdom of its time; but all questions are closed by it, save those of the verbal significance of its clauses. It is amendable only through political spasms, and by an implied impeachment of the patriots who formed it, and whom there is an increasing tendency to regard as infallible. Questions of interpretation necessarily arising, tend to become narrow and technical, a matter of rules and definitions, while the lawyers will naturally become expert in all the arts and artifices of word-manipulation. Under such a system the letter of the law will tend to take the place of the spirit and purpose of the law. In these circumstances there will arise the habit, both on the part of lawyers and of citizens, of reverencing the forms of law more than the principles which lie behind them. The purposes by which all legislation should be animated and determined will come to be habitually overlooked. Questions of right and justice will be ruled out as irrelevant, the highest and only solicitude being as to the binding phraseology of specific clauses. In this way the whole apparatus of justice may be perverted to the work of stifling the national conscience, and the real purposes of government defeated by its own agencies. There are various exemplifications of this, to which it may be well to call attention. The London "Economist," when some time ago discussing the privateering question with reference to England, Russia, and America, recognized the point here made, by stating that the United States may be expected to fulfill its treaty stipulations, but that it will do so from a lawyer's point of view as to their meaning and obligation. It says: "The Government of the United States is not a dishonest Government, or even a tricky Government, widely as that impression is diffused. Owing to circumstances upon which it is unnecessary here to enter, it is a Government very much in the hands of lawyers, and of lawyers trained to encounter one another by means of the quibbles, devices, and 'sharp' interpretations of law which a generation ago were so much in vogue among ourselves. Such men are very apt to read contracts strictly, to seek loop-holes when clauses in those contracts are inconvenient, and to suggest interpretations which give them an apparent advantage, and this practice undoubtedly annoys foreign diplomatists, who do their little trickeries in a different and, as they think, a more gentlemanly way. But the same training inspires in the American party leaders a great respect for law itself, and especially for written law, great acuteness in interpreting it, and a great reluctance to see it neglected, and they are no more likely to break or evade unmistakable rules than English judges are."
The treatment of the slave question in England and the United States well illustrates the diverse working of their constitutions. It was by a recognition of the predominance of the spirit of the English Constitution that Chief-Justice Holt was led, early in the eighteenth century, to decide that "as soon as a negro slave comes into England he is free." This decision, after being long resisted, was reaffirmed by Lord Mansfield in 1772 in the celebrated case of Somerset. These decisions settled the principle that the English Constitution was adverse to slavery. But of that celebrated jurist and eminent legal reformer, Lord Mansfield, it has been remarked that "his eagerness to discourage technicalities and his preference of the principles of civil law occasionally led him to make the law instead of expounding it." This, however, is the American view of the American biographer who forgot the constitution making function of the English judge. Both Holt and Mansfield, in their great decisions, simply fell back upon the principles of natural justice, which they assumed it to be the supreme object of the English Constitution to secure; and, it being established forever that "a slave can not breathe in England," the policy of hostility to slavery became national, and was carried out in the gradual and pacific emancipation of all slaves in the British dependencies. The struggle was long and the progress slow, but the result was a triumph of the principles of right over the selfishness and greed that were legally embodied in the slave system.
It was far otherwise in tins country. Slavery created by law was unquestionably recognized and protected by the American Constitution. Yet there were provisions in the instrument which, if liberally and humanely interpreted, would have destroyed it. The Constitution, however, was construed literally, verbally, and technically, and no question was permitted to be raised in regard to the principles of justice which should underlie all such charters, and which were profusely declared in its preamble to pervade the American Constitution. The written Constitution thus, in fact, became the bulwark of slavery, and was accordingly denounced by the passionate reformers as "a league with death and a covenant with hell." To go behind the literal constitutional provisions for the protection of slavery was denounced as virtual treason. The question of abstract right and wrong was held to be irrelevant and impertinent; the slave system was legal, and therefore not to be meddled with. Henry Clay laid down the American formula upon the subject in the Senate of the United States in 1838, in the following words: "What the law declares to be property is property." This was the lawyer's view, and it was also the people's view; and it was this triumph of law over right that maintained slavery until, American civilization proving unequal to the contest, it was ended at last by the barbarism of war.
Equally marked has been the contrast of the English and American policies on the question of the rights of authors to property in their works. We have referred to this before, but our people can not be reminded of it too often. The question is one of no little perplexity, but very easily befogged, and it is well fitted to test statesmanship and national character.
It had been long felt in England that arrangements upon the subject of copyright, both national and international, were imperfect, and there was a growing demand for their amendment. The government understood its duty in the matter, and a few years ago a parliamentary commission was appointed to sift the whole subject, to report upon the deficiency of existing legislation, and what practical measures of improvement are demanded. The commission was ably constituted, and made a deliberate and exhaustive investigation, summoning before it the weightiest men both at home and abroad, and patiently taking their testimony, whatever its bearing or import. The report recognized the question as one of national importance, and as involving grave state obligations. There was no quibbling or paltering about the rights of authors. The sophistries of crotchety witnesses were brushed aside, and it was broadly affirmed as a matter of radical justice that when a man produces a book by his labor he has a right to property in it which the government is imperatively bound to protect. The subject, moreover, was lifted out of the sordid sphere of mere political expediency, which dominates so widely in international intercourse. The temptation was sore to reduce it to the trading basis of reciprocity, but this temptation was firmly resisted. It was felt that, whether America will grant copyright or not, the course of England is clear. In the report made by the commissioners in 1878, they say: "It has been suggested to us that this country would be justified in taking steps of a retaliatory character, with a view of enforcing, incidentally, that protection from the United States which we accord to them. This might be done by withdrawing from the Americans the privilege of copyright on first publication in this country. We have, however, come to the conclusion that it is advisable that our law should be based on correct principles, irrespective of the opinions or policy of other nations. We admit the propriety of protecting copyright, and it appears to us that the principle of copyright, if admitted, is one of universal application. We, therefore, recommend that this country should pursue the policy of recognizing the author's rights, irrespective of nationality."
Very different was the treatment of this question under similar circumstances by the American Government. Its attitude in regard to the rights of authorship has long been the scandal of the civilized world, and efforts from time to time have been made to induce a change in the national policy. A committee of the United States Senate was appointed in 1873 to consider the subject, and report what action it is desirable to take. The proceeding that followed was nothing less than disgraceful, evincing, as it did, a contemptuous indifference toward the whole subject. Not the slightest interest was expressed in it, either as a question of private right or public honor. While the English report opened the whole inquiry on broad moral grounds, the American report sharply closed it to all considerations of equity, justice, and right. While the hand of the lawyer was hardly discernible in the English document, no other hand was visible in ours. Instead of a valuable and instructive statement befitting the magnitude and seriousness of the question, the American report was but a shabby tract of half a dozen pages, arguing as usual that the Constitution is in the way of any change of existing practices. In the discussion before the committee, arguments on the right and wrong of the question were objected to by the senatorial chairman as irrelevant, and under his ruling the debate shrank into a mere pettifogging wrangle over constitutional clauses, and a ventilation of the most ridiculous projects, which were held in the report to show that the American people are not agreed upon the subject. The committee declared that they saw nothing wrong which it is desirable to correct, and recommend Congress to take no action in the matter. It was but another exemplification of the way legal and constitutional forms are used in this country for the protection of palpable wrongs. Instead of asking first what is right, and then demanding that the law shall be made to conform to it, the people, like the lawyers, ask first what is the law, and then hold that this determines the right.
We print a brief discussion of the copyright question, by Mr. Leonard Scott, under the title of "Piratical Publishers," which, whatever its demerits, has at least the merit of being thoroughly American. Although discussing the question how a given act should be morally characterized, his standard of judgment is but the dictum of American law.
It is not easy to defend a right and its opposite wrong by the same argument, as the reasons which favor the one destroy the other. Hence, in most discussions upon the subject, it will be found that those who oppose international copyright do it upon grounds that are equally subversive of domestic copyright. All arguments which put the public advantages of cheap literature above the rights of authors to property in their books, tell just as effectually against the American as the English author, and logically require the immediate destruction of American copyright laws. If the taking of Professor Tyndall's book from him without payment, that the American public may have it cheaply, is no crime, neither would the taking of Professor Silliman's book, for the same purpose, be a crime. Mr. Scott reasons that, although a right might be conceded in a Utopian state of society, where one universal government should legislate for the equal advantage of all, yet, as this is not the case, and dishonesty is the common policy, the right of the individual may be properly denied. But what is the limit to this principle? How does existing dishonesty make an excuse for still further dishonesty? If, because the nations are governed by selfishness, we may take an Englishman's literary property without paying him for it, is there not sufficient rascality, jobbery, fraud, corruption, plunder, and general selfishness in the operation of the American Government to justify the consistent fleecing of an American author also? Again, Mr. Scott maintains that because we send experts abroad to collect information about manufacturing processes, institutions, etc., and do not pay for it, therefore he sees no "moral wrong" in taking larger amounts of information in the shape of books without paying for them. But do not Western capitalists send on their experts to the East to pick up information for Western use in the construction and operation of manufacturing establishments for which appropriated knowledge they never think of paying? Would there, therefore, be no moral wrong in taking an American author's book on manufactures without compensation? If the! logic is good for anything, it cuts up all copyright, root and branch.
Mr. Scott furthermore says, "The whole system of laying duties upon foreign merchandise is one of pure selfishness, and as much a robbery or piracy of the natural rights of the foreigner as anything yet done by an American republisher." But because we shackle our trade, and thus injure the foreign manufacturer, certainly affords no good reason for robbing a foreign author of his property.
But Mr. Scott is most eminently American in the following statement: "The withholding of an international copyright law does not take away from them [foreign authors] what they never possessed or had any right to claim. The American republisher, therefore, in the absence of such a law, buys the English book at the English price, and thinks that he has done all that is required of him to become its absolute owner, to do with it whatever the laws of his country do not forbid. Who shall say that among these rights is not the right to reprint it? "
Must we not conclude that this paragraph betrays some perversion of the moral sense? The author who creates the book by his labor, and makes it valuable property, is denied even the poor "right to claim" the ownership of that property; while the publisher, who simply buys a single copy, becomes its "absolute owner," with "the right to reprint it" and to go on multiplying it as long as he can make money out of its market value. This is pretty rank doctrine, and we do not see how those who hold it need have much squeamishness about the terms in which it is characterized. Yet Mr. Scott's article is a protest against the calling of American republishes pirates, as he alleges is done by their foreign "calumniators."
Now, there are two questions here: (1.) Is the term "piracy" properly applicable to any form of republication in this country? And (2), if so, who is chargeable with it? The taking by one person of another person's property without consent or payment is held as a crime, is called stealing, and he who takes it is known as a thief. If such appropriation is accompanied by violence, it is commonly called robbery. If the property has that peculiar form which is termed literary, and is appropriated by indirection, as where the embodiment of it is indefinitely copied, the taking of it, without permission and without remuneration, has in it the peculiar meanness which has led to its being metaphorically branded as "piracy." It is the flagrant wrong of the transaction that is marked by the term of reprobation, and those are pirates who are guilty of perpetrating it. Where American republishes negotiate with the foreign owners of books, and pay them for the liberty of reprinting, there is of course no piracy, and there has been an increasing tendency in recent years on the part of American re-publishers to recognize the foreign author s ownership of his book, and to pay him for it. But, while this practice has been growing on the part of reputable publishers, so as to have become a rule with many of them, another class has come into the field who scout all notions of authors' rights, and re-print everything they can get hold of and make a profit on. These are not shop-lifters, or burglars, or highway-robbers, or horse-thieves, but they are book-thieves: they steal literary property by pirating the works which they have not paid for and which do not belong to them.
But an objection will be raised here—an American objection—and, if an American dictionary is consulted, it will be found that piracy is defined as an "infringement of the law of copyright by publishing the writings of other men without permission." Therefore, it will be said, American republishes break no law, and are, therefore, not pirates. The escape is but technical; the moral quality of the transaction remains, and only where the moral sense has been bedeviled, so that men are insensible to the intrinsic nature of the act, will any such pretext be urged. The foreign author has a copyright by law, and we recognize that copyright by law is in itself a righteous thing. If he can not extend the law as far as his books are demanded, it is no fault of his; he has done everything in his power to protect his own rights. His books are stolen by our publishers, and they quibble that they are not pirates because there is no American law against such literary theft. But this changes nothing in the essential nature of the transaction; it only shifts the responsibility. If our thieving publishers are not piratical, it is because the Government gives them a technical relief from the charge by itself assuming the odium. If the publishers sneak behind their Government to shelter themselves from an opprobrium, then the opprobrium must be fastened upon the Government. The wrong is committed in its most deliberate and aggravated form, and if we have not "Piratical Publishers" then we have a piratical Government. There is no blinking the scandalous fact; and the responsibility of it must rest somewhere. When a whole class of men are engaged in open, systematic, and extensive stealing—appropriation to themselves, without payment or consent, of property not their own—if the state abets them in the practice by refusing to forbid it, the state is entitled to all the execration demanded by the crime. The attitude of the American Government on this question is a reflection upon the national character in the eyes of the civilized world. We may meet this with brazen-faced assurance, and twaddle about the dissemination of cheap information among the people, but we can not divorce cause from effect in the political any more than in the physical world, and the consequences of perpetuating a great national injustice will tell with infallible certainty in the degeneration and degradation of the national character.