tom jones and the economies of copyright · 2018. 7. 17. · 1 william blackstone. comrmntarics on...

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Tom Jones and the Economies of Copyright Simon Stem

D espite the extraordinary outpouring of research in recent years on the interrelations of literature and law, literary critics have had lit-

tle to say about what is, perhaps, the most forceful pronouncement on imaginative power in the history of English law, Blackstone's asser- tion that "nothing ... so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the ex- ternal things of the world, in total exclusion of the right of any other individual in the universe."' Not the least notable feature of this sweep- ing declaration is its inaccuracy: as Robert Gordon has observed, the legal doctrine of the time affords "very few plausible instances of absolute dominion right^."^ Blackstone's vision of autocratic control at once rationalizes and illuminates the remarkably captivating force of the property right, implicitly deriving its powerful effectkits ability to "strike" and "engage" the human mind-from the despotic power it confers on

1 William Blackstone. Comrmntarics on the laws of England: A Famimi& of lhe Fin1 Edition of 1765-1769, ed. Stanley N. Karz (Chicago: University of Chicago FTess. 1979). 2 2 . In his discussion of Tom Jones in Models of Value: Eighteenth-Century Political Economy nnd the Novel (Durham: Duke University Press. 1996). James Thompson quotes almost rhe entire pwagmph that contains this passage (pp. 152-53). but his argument focuses on its implications for the inheritance plot rafher than on the rhetorical relationship between pmpeRy and the imagination. In his useful arricle "Authorship and Imagination in Blackstone's Comnvntarics on the Law of Englnnd," Eightmth-Centuq Life 16 (1992), 111-26, Michael M e e k describss this passage as an exemplary instance of Blackstone's tendency to mat ?he aesfhetic instinct8 ... as the most appropriate and most elevated locus of legal response" (p. 116). but again, he does not dwell on the nexus between imagination and pmperty in particular.

2 Robert W. Gordon. "Paradoxical Property." Early Modem Conceplionr of Pmpny, ed, John Brewer and Susan Staves (New York: Routledge. 1995). p. 96.

EIOHTEENTH-CENTURY FICTION, Volume 9, Number 4, July 1997

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430 EIGHTEENTH-CENTURY FICTION

the owner, while evidently producing that despotism itself as a hallu- cinatory effect of the right in question. Whatever this passage tells us about the scope of property rights, it suggests that property is so inextri- cably bound up with imagination, so thoroughly shrouded in its nimbus, that even the logic of doctrinal analysis may grow hazy under its ir- resistible sway. The right of property, it seems, may convert the legal commentator into a writer of fiction.

As it happens, this disquisition in the Commentaries was not Black- stone's first engagement with the beguiling effects of property. In 1762, four years before the second volume of the Commentaries appeared, Blackstone represented Jacob Tonson in court, insisting that the bookseller's copyright in the Spectator was still valid even though the statutory term of protection had expired some twenty years earlier.' Striving to demonstrate that copyright derives from the common law and conse- quently lasts in perpetuity, Blackstone proceeds as if he were speaking not for Tonson but for Addison himself. By the 1760s. it had become conventional among proponents of copyright to emphasize the author's foundational property claim rather than the bookseller's derivative right to print copies of the text; in adhering to the convention, Blackstone di- minishes the force of one of his central arguments, seeking to clarify the exclusive nature of copyright by way of an analogy that comports per- fectly with the bookseller's position, but hardly suits the authorial role that he prefers to elaborate. A book is "a gift to the public," Blackstone insists, only "where the author conceals himself"; otherwise, the act of reading "is ... like making a way through a man's own private grounds, which he may stop at pleasure; he may give out a number of keys, by publishing a number of copies; but no man, who receives a key, has thereby a right to forge others, and sell them to other pe~ple."~ It is Ton- son, of course, who claims the exclusive right to give out the keys by multiplying copies of the Spectator; by conflating that role with Addi- son's, Blackstone goes far beyond a defence of the author's economic rights and suggests, impossibly, that even after publication the text remains a private estate from which the author might eject visitors "at pleasure." Treating the book as a key to the author's mind or perhaps the

3 The copyright act of 1710, which I discuss at greater length below, protected books for only a single term of fourteen years if the author died during that period. A.S. Collins suggests in Aurhorship in rheDaysofJohnson (London: Holden, 1927) that "since Addison died in 1719, his papers became common properly on the expiration of fourteen years from their first appearance" (p. 68). Steele. however, lived until 1729, three yean into the second fourteen-year term. which expired in 1740.

4 Tonson v. Cdlins (1762). 1 Black. W. 321. % English Repom 180. at 188 [heminer. E.R.1.

T H E ECONOMIES OF COPYRIGHT 431

imaginative space of his fiction, Blackstone makes piracy seem like an invasion of privacy, as if the reproduction of copies might somehow in- volve a violation of the author's inner sanctum. At a time when copyright was defined strictly in terms of the right to print copies of the text, Black- stone refers this limited property, enjoyed mainly by booksellers, back to a far more comprehensive-perhaps even despotic-power in the author. Surpassing even the imperious landlord of the Commentaries, the author seems poised to dictate who may read his book and how much they may read.s

One might almost suspect that Blackstone had gleaned his knowledge of literary property from a hasty perusal of Tom Jones, whose narrator, himself a compound of Fielding's various legal roles as lawyer and magistrate, famously asserts the right, as "Founder of a new Province of Writing," to enact his own laws-"And these Laws, my Readers, 'whom I consider as my Subjects, are bound to believe in and to obey."6 He im- mediately qualifies this demand, promising to consult their "Ease and Advantage" and scorning to preside over his dominion like an autocrat ("I do not, like a jure divino Tyrant, imagine that they are my Slaves or my Commodity," pp. 77-78); nevertheless, the narrator concludes with more grandiloquent talk about the "Dignity" and "Honour" due to him, and the question of who is accommodating whom remains unsettled. As with much of Fielding's irony, the effect of this lofty proclamation is difficult to specify: is he deflating the self-important writers who try to lord it over their audience, or mocking the familiar pretension to origi- nality? What would either answer tell us about his right to demand any kind of obedience from his readers, and the proper grounds for such a demand? If he means to indict the assumption that an author's tome is his castle, then what kind of property remains to the author once he has given his book over to the reading public-or to the bookseller who reserves the sole right to publish the text?

By way of elaborating this last question, I would like to look briefly at one reader who would have left Fielding without any property at all. One "Orbilius," styling himself after a Roman grammarian known for flog- ging his pupils, dissects the novel chapter by chapter, sometimes word

5 On the gendering of the author as male, see Richard G. Sw&, "Patrimony and the Figuration of Avthorshio in the Eiehteentl-Centun Literarv Pro~eRv Debates." Work ond Davs 7:2 11989). . .. 2 M 4 ; an> Mark RO&. "Molhers and ~utho; l o h h ; v. ~ a l v e n and the New children of Our Imaginations," Criricd Inquiry 22 (19%). 613-33.

6 Henry F~eldmg. Tlu Harrory of Tom Jones o F<,undlmg, cd Mmm C Bsllcstm and Fmdson Bowcm (Mlddleloxn. Conn Weslcyan Unlvcrslly Press. 1976). p 77 Rsferen~es are to thtr edmon Far a uwful dlscusslon of the n m l o r In Tom Jmcr ar pmecutor. judge. and defence attorney, r e Alexander Welsh Pnml: Rqrcr~nfosonr nor roo,^ m d C,rrumIanfrul Eh8denrr m Enfilmd (Bah~rnom John< H o p k m Untvrnnty Press 1992). pp 62-76

432 EIGHTEBNTH-CENTURY FICTION

by word, in An Examen of the History of Tom Jones, which probably re- produces more of the text in its hundred-odd pages than all of the other contemporary commentaries put together. Contesting Fielding's demands for respect and obedience, the examiner calls himself "a kind of invol- untary Rebel to King F." and resolves to oust the pretender, seeking to accelerate the death of the author by some two hundred years as he pro- poses that "a new High-Court of Criticism may be erected, where this great Prince may be tried, and executed before the Gates of his own Palace."' Where Blackstone assumes, and Fielding ironically suggests, that authors own their works absolutely, Orbilius seizes upon the impli- cation that the text can accommodate only one master, and he simply reassigns the control to the reader. Though perhaps motivated by an in- surgent energy all of his own, Orbilius describes a hostile takeover that probably would not have surprised either Fielding or Blackstohe, given the inhospitable view of author-reader relations they both draw on. Rather than asking how to split the property, then, I will start by examining the conceptual framework that fosters such a restrictive definition of textual space. As will become clear, the debate on copyright provides an important context for the allusions to property in Tom J o n e ~ . ~ The same property right that captures the lawyer's imagination may also capture the novelist's, though not necessarily with the same results.

The Tragedy of the Commons

To appreciate how dramatically Blackstone expands the writer's author-

7 "Orbilius," An E r a m of the History of Ton Jmcr, a Foundling. In TWO Lcmm to a Friend. Pmper 10 be bound with the Foundling (London: Owen. 1750 [1749]), pp. 18. 19. While the Eramcn bears the publication date of 1750 on its title page, it was advertised in Old England as published on 9 Deamber 1749, and was reviewed in that newspaper on 16 December 1749; see Hrnry Fielding: The Critical Heritage, ed. Ronald Pnulson and Thomas Lockwwd (London: Routledge and Kegan Paul, 1969). p. 187.

8 For a helpful discussion of the novel in relation to contemporaneous legal doctrine, see Hugh Amory, "Law and the Structure of Fielding's Novels" (PhD dissertation, Columbia Univenity, 1964). Fielding's treatment of literary properly is discussed briefly in Mark Rose. Authors and Owners: The hvention of Copyright (Cambridge: Harvard Univenily h s s , 1993). pp. 115- 16. In spite of its pmclaimed focus, Ian A. Bell's Henry FieLling: Authorship und Authority (London: Longman, 1994) never mentions the subject of literary properly or the author's legal slatus. In addition to Rose's invaluable account of the copyright debate, see John Feather, Publishing. Pimcy Md Politics: An HiEtoricnl Study of Copyright in Britain (London: Mansell, 1994). chap. 3. Manha Woodmansee. The Author. Art, and the Marht: Rereading the History of Aesthetics (New York: Columbia Univenity Press. 1994). also examines the proprietary author in terms of the history of copyright; it was her 1984 article. "The Genius and lhe Copyright" lincluded in her book in revised form). that oioneered lhis line of research. For an extensive. if onlv iatermiuentlv helaful. critiaue of Rose &d Woodmansee. see David Saunders. ~uthorshio on&Cop)npht (N'ew tork ~ou~iedge . 1992). v h ~ c h arguer that legal dec~s~onr engage spec& and contingent problems wnrh then oun log^ and ontology, and ought not to be decontcxtualmd and assimilated into broader genealogical narratives about the growth of an aesthetic personality.

THE ECONOMIES O F COPYRIGHT 433

ity, it may be useful to contrast his figuration of Addison's literary estate in the Spectator with a related image, introduced by Addison himself in his endorsement of England's first copyright statute (1710). Attacking the practice of literary piracy in one of his Tatler essays, Addison describes an "ingenious Drole" whose "Brain, which was his Estate, had as regular and different Produce as other Men's Land";Y but rather than elaborating the trope as an emblem of property, Addison uses it to detail the Drole's seasonal variety, exemplified by political, military, or metropolitan news depending on the time of year. Indeed, it is precisely when Addison focuses on property that the metaphor fails: "Before Men had come up to this bare-faced Impudence," he writes, "it was an Estate to have a Com- petency of Understanding" (2: 120). Notably, Addison locates the writer's insecure estate not in the produce it furnishes but in the brain, the men- tal capacity that ought to distinguish the ingenious wit from the insidious thief; only after identifying this productive space as the basis of the author's livelihood does Addison anive at the corollary that such "good Husbandry" (2120) should give the tiller some "Property in what he is willing to produce" (2:121). By contrast, Blackstone moves from the notion of property in writing, by this time encoded in the statutory law, to a much more comprehensive literary estate in which the question of com- petency applies at least as much to the reader as to the author, who monitors the process of admission.

Addison was one of the very few writers to comment at all on the copyright legislation then pending in Parliament; writers were, in fact, almost entirely absent from the discussion surrounding the bill, and as John Feather has shown, the original draft, with its strong support for authors' rights, would be significantly weakened before the bill was approved.1° While the title, "An Act for the Encouragement of Learning," suggests a concern with the rights of authors and readers, the law paid only cur- sory attention to either group, offering its encouragement mainly in the

9 Taler 101 (1 December 1709), The Tatler, ed. Donald F. Bond (Oxford: Clarendon. 1987). 2:120-21. References are to this edition.

10 John F e a r . "The Book Trade in Politics: The Making of the Copyright Act of 1710," Pub- lishing History 8 (1980). 36. See also Mark Rose's discussion of these changes in Aurhom ond Owners, pp. 45-46. There is no surviving evidence that Swift was actively involved in the adoption of the stltute, ns Lord Camden later claimed (Rose, p. 101). but the "Apology" and "Postscripf" in the 1710 edition of A Tale of a Tub comment extensively on questions of authorial manuscript property, attribution, and the legal regulation of booksellen. For fnzther discussion of Swift's engagement with the problems of manuscript and printed texts, see Harold Love, Scribol Publicafim in Seventeenth-Century Englnnd (Oxford: Clarendon, 1993). pp. 297- 307. For a discussion of the Tale as a critique of the "revived freedom of the press" produced by the lapse of the Licensing Act in 1695, see Kenneth Craven, Jonafhon SwiJi ond the Mil- lennium of Madness: The Informntion Age in Swifr's A Tole of o Tub (Leyden: Brill, 1992), pp. 59-50,

434 EIGHTEENTH-CENTURY PICTION

form of a prohibition on unauthorized reprints. The act recognized authors as the original owners of their writings and established a committee for monitoring prohibitive book prices, but the committee never actually met, and only the most avidly entrepreneurial writers managed to capi- talize on their ownership, since booksellers generally refused to publish any manuscript unless they could purchase the "copy"-the exclusive right to print-in its entirety, without any offer of royalties. Perhaps the most promising feature of the act was its limitation on the term of copyright: books published before 1710 would be protected for twenty-one years, and as for new books, the statute declared, "after the Expira- tion of ... fourteen Years, the sole Right of printing or disposing of Copies shall return to the Authors thereof, if they are then living, for another Term of fourteen Years."I1 This provision draws on the term limit for patents, but where inventors were forced to content themselves with a single fourteen-year term, authors were ostensibly presented with the opportunity to renew their claim, and hence to assess the book's value and negotiate accordingly. In limiting the protection to a twenty-eight-year maximum, the statute also seemed to ensure that readers could eventually purchase any book they wanted at a reasonably low price.

It was this clause, restricting the duration of literary property, that triggered the debate over copyright-a debate that generated numerous pamphlets and legal arguments, including Blackstone's defence of perpetuity in Tonson v. Collins. Having established a guild policy of exclusive copyright in the sixteenth century-at a time when copyrights and patents were not conceptually linked-the booksellers simply ignored the re- newal clause during the first few decades after the 1710 copyright act; but in the 1730s. confronted with the possibility that their statutory protection might expire, the industry began to lobby for stronger protection. Drawing on Locke's theory of property, which takes labouring on the commons as the classic means of acquisition, the booksellers insisted that copyright was a natural right, protected under the common law and find- ing only supplementary protection in the 1710 Act. This argument would achieve some limited success in the course of the debate, but the analogy between texts and real estate also provided fodder for the opponents of perpetuity-primarily the Scottish booksellers and those in the Lon- don trade who, lacking the capital to invest in copies, were forced to rely on jobs contracted out by their wealthier colleagues. Objecting to what they saw as a land grab, both of these groups quickly turned the trope to their own advantage.

THE ECONOMIES O F COPYRIGHT 435

The terms of this debate rest on two fundamentally different ways of understanding how books circulate. The analogy with land correlates with an economy of scarcity, driven by the logic of an inelastic marketplace. In this analysis, texts are implicated in a zero-sum game that compensates for an unusually successful title by siphoning off the sales of its competi- tors. This is the logic informing our use of terms such as "literary theft" and "plagiarism," derived from plagiarius, "kidnapper, slave-stealer": the author's brainchild has been abducted, not just cloned. The perception of literary imitation as a form of theft has ancient roots-the plagiarius conceit appears in one of Martial's epigrams-but as Laura Rosenthal has demonstrated, the eighteenth century witnessed an astonishing rise in charges of plagiari~m.'~ While perhaps motivated by economic consid- erations, the term suggests that texts themselves are diminished through copying, as if the novelist who "bomws" someone else's plot has sub- tracted something from the book, leaving it incomplete. Thus Richardson, himself a printer, felt compelled to write a sequel to Pamela in order to recuperate what the publishers of Pamela's Conduct in High Life had stolen: though extensions of others' works were commonplace in this period, Richardson advertises that he will '%ontinu[e] the Work himself, from Materials, that, perhaps, but for such a notorious Invasion of his Plan, he should not have publi~hed."'~ Focusing on the raided source instead of watching the copies spread, "plagiarism" recasts a scenario of proliferation as one of reduction. The narrative of plagiarism is the narrative of a physical object (a letter, a child) passed from hand to hand because only one person at a time can hold it. Perpetual copyright, according to its detractors, created precisely the same conditions in the

12 Laura Rosenthal. Piaywrighls and Plagiarise in Early Modern Engiond: Gender, Authorship, Literary Pmperfy (Ithaca: Cornell University Press, 1996). For Martial. see Epigmmr. 1.52. which develops an extended metaphor of the poet's works as his slaves, unjustly appropri- aIed by a rival. On the importation of Martial's coinage into English around 1600, see Harold Ogden White, Plagiarism md Imitation during the English Rcnnisronce: A Study in Critical Di$- tinetiom (Cambridge: Harvard University Ress. 1935). pp. 120-22. Julie C. Hayes presem an interesting variety of alternative etymologies for "plagiarism" in "Plagiarism and Legitimation in Eighteenth-Century France," Eighteenth Century: Theory and Interpremtion 34 (1993), LI& 17. Among the Latin mats Hayes offers isplogn, whose meanings include "an open expanse." By that account, Hayes notes. '?he text is free, unfeffered, and undefined, until the plagiarist wrong- fully appropriates it" (p. 117). This reading would make the text into ownable, enclosed property at the way moment of trespass, but some notion of literary property must precede the misap- propriation or it could not be recognized as such. Hayes thus appears to identify a nostalgia that paradaxicnlly mixes pre- and post-wpyright economies by recalling a mythical world of plenitude, when texts were freely available to all taker-who somehow never availed themselves of those opportunities.

13 Samuel Richardson. Doily Garetreer, 7 and 30 May 1741. quoted in T.C. Duncan Eaves and Ben D. Kimpel, Somuel Richardron: A Biography (Oxford: Clarendon. 1971), pp. 135, 137.


literary marketplace, "enclosing" the ideas, plots, and characters that had once been free for the taking.

Posed against this economy of scarcity is one of abundance, in which texts and their components circulate freely without any threat of depletion. This account of the literary economy may be observed in the etymology of "author," from augere, "augment, increase." Here, the author functions as a principle of multiplication, not merely recycling the materials in the literary commons but expanding their range, so that each use serves to enlarge the stock of the trade. Prevalent in Renaissance theories of authorship as imitation and amplification," the economy of abundance accords with an emphasis on the text's immateriality, a per- spective that focuses on the ontology of the work while ignoring its commercial circulation. To exclude the text's material dimensions is to exclude its only means of depletion, so that any future use becomes a form of increase. This notion provides the nostalgic alternative to the world of perpetual copyright, and it would be invoked repeatedly by the opponents of the booksellers as the debate wore on.

As even these brief etymological examples suggest, the contrast between abundance and scarcity was hardly a creation of the copyright debate; the dispute over perpetuity, however, helped to dramatize the economic alternatives in an unusually stark fashion. Both alternatives, in fact, may be seen in a 1735 leaflet that represents one of the first arguments of the booksellers for legislative reform. Having reprinted Addison's Tatler essay as a broadside,'5 the booksellers were promptly attacked in an anonymous Letter to a Member of Parliament, which argued that limiting the term of copyright would leave books "free and open to the Publick," whereas the proposed bill would create "a perpetual Monop~ly."'~ The booksellers fired back with A Lenerfmm an Author to a Member of Parliament, declaring that "The Field of Knowledge is large enough for all the World to find Ground to plant and improve."17

14 See, for example, G.W. Pigman 111. "Versions of Imitation in the Renaissance," Renaisssonce Quorrcrly 33 (1980). 1-32; Stephen Orgel. 'The Renaissance Anist as Plagiarist." ELH 48 (1981). 476-95; WhiIe, Plagiarism ondlmirnrion; Terence Cave, The Cornucopion Text: P ~ o b ~ lems of Wriring in rhe French Renoissmce (Oxford: Clarendon. 1979).

15 Presumably with the consent-and enthvs iasrof Tonson as Ule copyright-holder; as a mauer of law, however, such consent would not have been required, because the 1710 Act applied only to reprints of the entire texl and not to excerpts (see, for example. D,dsky v. Kinnerrley (1761). Amb. 403, 27 E.R. 270).

16 A Letter ro a Member of Parliamcnr Cmcerning rke Bill now Depending in rhe Howe ,fl Corn- mom, for Making More Effectual nn Act in rhe 8th Year ,#the Reign of Queen Anne (London. 1735). p. I .

17 A Lctrer jir,m on A u r h m u Member of P~orlinmcnt. Occosiomd by o Lofl Letter Concerning the Bill now Depending in the Hou,,ure qf Comons (London. 17351, p. 2.

THE ECONOMIES OF COPYRIGHT 437

In the following paragraph, however, this vision of an infinitely expan- sible field vanishes, and the Letter proceeds to confirm the argument it had set out to challenge, invoking the technicalities of land law to ar- gue that copyright "is a Monopoly in no other sense, than any Man's Estate is so. ... If a Cottager, who has a Right of Common in the Waste of a Manor, should offer to build or plant upon it, those Improvements would belong to the Lord of the Manor."" Erasing the difference between the landlord's property and the commoner's improvements, between the source text and any contiguous projects in the field of knowledge, the Let- ter embraces all the legal implications of the literary estate, confirming the threat of enclosure.

In the following decades, the debate continued to intensify, reaching its highest pitch in the early 1770s, when the House of Lords would finally affirm the term limits specified in Queen Anne's Act of 1710. By the 1740s, the language of scarcity and abundance had already begun to permeate the legal arguments over copyright. Fielding's bookseller, An- drew Millar, brought suit in 1743 in the first of a series of piracy cases between the booksellers of London and their counterparts in Edinburgh. In a lawsuit that would drag on for eight years, the Londoners sought to protect their property in three textsxhambers's Cyclopadia, Arm- strong's The Economy of Love, and Joseph Andrews. Recalling the time when "a Book once published became every Man's Right or Pr~perty,"'~ the Scottish booksellers argued in the Court of Session that their opponents would "confine" their "Monopoly" to themselves (p. 3). despite the fact that the cheap Scottish reprints, published "on a very small Q p e , and very coarse Paper" (p. 12). reached a market entirely dis- tinct from that of the Londoners. Ridiculing the notion of "real Property without a subject" (p. 9). the Scots concluded, "No doubt, we have Fic- tions in Law; but to frame a Fiction in Fact, and to sustain an Action upon it, as if it were a Reality, would be a Step very new and uncom- mon" (p. 12). Millar's effort to impoverish the plentiful resources of the book trade serves, in effect, to turn the conflict itself into material fit for a novel (and hence, perhaps, eligible for statutory protection). The overreaching proprietor seems to have passed once again from law into the realm of fiction.

18 A Lcrrer from an Aurhor. p. 2. 19 Memorial for thr Bookdlers ,fFdEdinburgh and Glargow, relaring to rhe Pmcess ngainrt them by

some ofthe London Bookrellers: which depended before rhe Coun of Session, and is now u d r appeal (Edinburgh. 1747), p. 1. References an to this edition. This case, repofled variously as Millar v. Kincaid, Midwinter v. Homiltm, and BovkrrNers of London v. Bookrcllcrs of Edinburgh and Glargow, was finally settled in 1751 by the House of Lords, who found for the Scots on a technicality, and invited the Londoners lo refry to the suit. They declined. William Morison, Decirions of rhe Coun ,#Session (Edinburgh: Bell and Bradfute, 1804), 19:8295-307.


A Book of One's Own

Tom Jones stages the conflict in more deliberately fanciful terms, ad- dressing the question of literary property most explicitly in a discourse on plagiarism, which figures the economies of abundance and scarcity in terms of the battle between the ancients and the modems. "The An- cients," the narrator announces, "may be considered as a rich Common, where every Person who hath the smallest Tenement in Pamssus hath a free Right to fatten his Muse" (p. 620). Claiming for himself and his "poor Neighbours" the right to take "whatever we can come at," the narrator asks only that the modems respect each other's property claims: "TO steal from one another, is indeed highly criminal and indecent; for this may be strictly stiled defrauding the Poor" (p. 621).21' Neither of the two economies comes off well in this parodic reading. To copy the works of the ancient, it seems, is to deplete the resources of Pamassus, since the narrator claims "a Property in all such Sentiments the Mo- ment they are transcribed into my Writings" (p. 621). The possibility of "strict Honesty" (p. 621) among thieves appears equally implausi- ble, to judge by the novel's most energetic poacher, Black George, who observes no such policy but steals indiscriminately from Western and Tom alike. Indeed, the vision of crafty modems raiding a "rich Com- mon" simply parodies Locke's theory of acquisition, substituting theft for labour.

Perhaps this ironic argument is intended to evoke its absent con- verse: the mentally and morally impoverished Grub Street scribblers would seem to find a counterpart in the genteel wit who imitates the

20 The distinction between ancients and modems as potential repositories of mMerial was, of course. already conventional by the 1740s. and had already been queried by Tom Brown: "Those who rob the Modem Writen, study to hide their Them; those who filch from the Ancients, account it their Glory. But why the [former] should be more reproach'd than the [latter]. I can't imsgine, since there is more Wit in disguising a thought of Mr. Lock's. Ulan in a lucky Translation of a Passage from Horace." Amusements Sen'ow ond Comical (London: Nutt, 17M)), p. 6. Reynolds would later question the distinction more seriously. revising the domain of the ancients to indude any writer no longer living: "no man need be ashamed of copying the antients. .... It must be acknowledged that the works of the modems are more the property of their authors; he, who borrows an idea from an antient. or even fram a &ern mist not his contemrarv. and so . . accommodates it to his own work. that it makes a Mlf of it. with no seam or ioinine aawarine. ~ ~~~~~ ~- ~. ~ , " , ,~ ~ -. can hardl) be charged with plsg~msm" D~scourv 6. dellbered 10 December 1774. Dacourrrr on An. ed Roben R Wark (Sm Mmno Huntnngton Labrar). 1959), pp. 106-7 Reynolds blun the distinction by mqutnng a mereulousl) careful dosetanling that pnrumabl) uould conceal the source of any copy, no matter how ancient or modem. At the same lime, his cam to distinguish contemporaries fmm near-contempararies reflects the same logic as the decision in DowIdson v. Becbt (1774), handed down less than a y w prior to his lecture. 4 Burrow 2408.98 ER. 257; 2 Bm. P.C. 129, 1 E.R. 837. By confirming the twenty-eighl-year term limit on copyright, the House of Lords established the public domain as a field of freely available material, in effect updating and reformulating the ancientlmodem distinction on a legal basis.

T H E ECONOMIES OF COPYRIGHT 439

classics, creatively altering his sources. But if the gentleman is to rec- oncile these untenable extremes-ancients who have no private property at all, and modems who jealously guard their every word--one must ask why Fielding dwells so intently on the furtive stratagems associated with the ruinous "Confederacy" (p. 620) of hacks. This combination of irony and fascination reappears in the chapter's final paragraph where Fielding invokes Pope, ostensibly as a righteous scourge of plagiarists. Perhaps not coincidentally, Pope had earned a fortune from his subscrip- tion editions of Homer, which may themselves be thought to illustrate the dearth of "strict Honesty" among the modems. While some critics asked whether the poetry was really Homer, others asked, even more pointedly, whether it was really Pope, since the poet had relied heavily on trans- lations by two unacknowledged assi~tants.~' Fielding leaves his readers to recall the Homer episode on their own, instead rehearsing the conflict between Pope and one of his dunces, James Moore-Smythe, who "stole" six lines from the "Epistle to a Lady." After permitting their use, Pope had changed his mind; Moore used the verses anyway, italicizing them to show that he was quoting.= Fielding offers an amused rehearsal of this affair, skipping over the matter of Pope's permission and ob- sewing that Moore exhibited a "highly blameable" indifference to the proprietary rights of the author, who

very luckily found [his words] in the said Play, and laying violent Hands on his own Property, transferred it back again into his own Works; and for a further Punishment, imprisoned the said Moore in the loathsome Dungeon of the Dm- ciad, where ... [he] eternally will remain, as a proper Punishment for such his unjust Dealings in the poetical Trade. (p. 621)

As he laughs at the imprisoned hack, Fielding also mocks Pope for his self-serving response: the poet "luckily" finds exactly what he was look- ing for, and his graphically physical behaviour as the repossession-man of the poetry business reaffirms his own commitment to an economy of scarcity while rendering him fully as comical as his victim. The chapter

21 For a fuller discussion of this affair, see Maynard Mack, "A Brief Account of Pope's Homer," Collected in H i m l f : Essays Critical, Biographical, m d Bibliogmphicd on Pope nnd Some of His Contemporaries (Newark: University of Delaware Press. 1982), pp. 249-76.

22 For the history ul the Pop-Mmm cpwde. see Dunoud Vunurum. 11.46 and James Sulkrland', notes on lhns lmc In Ihe Twrkenhm Edmon, rol 5 (3rd ed . Neu Haten Ytle Unnerrll) Press. 1963). 101-2. and the dlrcuwon of Moore on pp 33-34; rce also the note on "% Mrr. M.B. on her Birth-day" in vol. 6 of the wicke en ham Ed it ion, ed. Noman Ault and John Bun (New Haven: Yale University Press. 1954). p. 247; and F.W. Bateson's notes to lines 2 4 3 4 8 of lhe "EpisIIe lo a Lady" in vol. 3, part 2 of the Twickenham Edition (2nd ed.. New Haven: Yale University Press. 1961). pp. 69-70.


ends by heightening its ambivalence about the question of literary property: Moore may be unworthy of sympathy, and Pope deserves to be ridiculed for his obsessively proprietary stance, but the prospect of see- ing the property restored, and the thief punished, is not only entertaining but finally and "eternally" satisfying as well. Not only does this example portray plagiarism in action, but it also displays the revenge of the plagiarized, as few other examples could do.

This plot, in which property finally returns to its owner, is also the plot of Tom Jones, where, as one critic observes, "Fielding observes a kind of comic rule of conservation under which it is finally impossi- ble to lose anything."23 Lovers, banknotes, and plotlines themselves go astray only to converge at the novel's end. Reluctant to lose even a single opportunity for achieving what R.S. Crane calls "maximum realization of the [novel] form,"" Fielding repeatedly emphasizes his careful husbandry of resources, exemplified, for instance, by his adherence to the law of "Conservation of Character" (p. 405) and to Horace's rule for- bidding the profligate use of supernatural agents when a natural one will do.15 Yet despite its economical use of the raw materials of fiction, the novel contradicts this tendency in its preference for Tom's "open, gener- ous Disposition" (p. 166) over Blifil's chary stewardship. We learn early on that the prudent lad is "so careful of his Money, that he had laid up almost every Penny which he had received" (p. 144). Blifil's frugality also manifests itself in a sexual appetite meagre enough to be satisfied without a partner @p. 284. 558). but not so austere as to preclude him from seeking to make Sophia his "absolute Property" (p. 295) or "absolute Possession" (p. 346). Blifil seems to embody the novel's cherished principle of economy, and yet he displays all the possessiveness of a modern writer, or a Blackstonian landlord.

The villain, of course, is hardly the only character to lavish such care on his accounts. If the narrator's suzerainty anticipates Blackstone's "sole and despotic dominion," the elder Blifils might have helped to suggest the striking effect of the property right itself, with its ability to "engage the affections of mankind"-xcept that where Blackstone describes a pre- occupation with rights, the Blifils reserve their affections for property

23 Thompson, p. 134. 24 R.S. Crane. "The Concept of Plot and the Plot of Tom Jones." Critics and Criticism, ed. R.S.

Crane (abridged edition; Chicago: University of Chicago Press. 1957). p. 85.

25 The rule appears in Ars Poelico. 191-92: "let no god intervene, unless a knot come worthy of such a deliverer," trans. H.R. Fairelough (Cambridge, Mass.: Loeb Classical Library, 1929). Fielding alludes to the rule on pp. 397. 512. 561. and 876.

THE ECONOMIES OP COPYRIGHT 441

tout court. Dr Blifil nurses a "Passion" for "those Things, which Matri- mony only ... could put him in Possession of, or give him any T~tle to" (p. 62), while his brother finds himself "greatly enamoured" and "pas- sionately fond" of Allworthy's estate (p. 67). The novel, in fact, abounds in characters who confube romance and real estate, such as Squire West- em, who imagines the joining of bodies as a mere epiphenomenon in a greater union: "the two Estates," he observes, "are in a Manner joined together in Matrimony already" (p. 277). Explaining Lady Bellaston's decision to accept a subsidiary place in Tom's heart, Fielding remarks that "this Lady ... was contented with the Possession of that of which another Woman had the Reversion" (p. 748). Fielding casts her as the occu- pant of an entailed estate, resigned to the certainty that her tenure must eventually expire, but meanwhile determined to exploit the privileges of possession. Her limited tenure might be characterized less generously as an instance of squatting or poaching-the metaphor Fielding later applies to Harriet Fitzpatrick, who proves equally reluctant to let go of Tom. Listening to him declare his ''tender and passionate Regard" for Sophia, Harriet simply changes the names and imagines herself the object of his admiration: "some fine Women," Fielding observes, in a dictum that recalls Black George's theft of the banknotes, "are apt to lay hold of whatever Praise they meet with; and, though the Property of others, convey it to their own Use" (p. 869). Implicit in Fielding's characteri- zation is the notion that some fine women rarely meet with praise, and must make do with whatever presents itself.

While narrative thrift may not reflect the same covetous anx- ieties, it does partake of a similar logic. On the one hand, the plot finally requires Tom to make himself scarce by curbing his "naturally violent an- imal Spirits" (p. 252). His single-minded dedication to Sophia becomes quantifiable according to the same compulsion that induces Nightingale to convey his love to Nancy Miller: "she hath my Affections so absolutely," he proclaims, "that my Wife, whoever she is to be, will have very little Share in them" (p. 766). Tom adheres to the same credo when he finally sets his affections in one place, declaring that Sophia herself provides the "Security" for his own "Constancy," that she would "fix" even the most capricious lover (p. 973). Yet the novel not only conserves the hero's passion, it also hoards and invests information according to the same principles as Blifil. Always intent on collecting his percentage, Blifil manages his account of Tom's fight with Thwackum as if it were a stock fund in a bull market: Bilfil "resolved to hoard up this Business, till the Indiscretion of Jones should afford some additional Complaints; for he thought the joint Weight of many Facts falling upon


him together, would be the most likely to crush him" (p. 309). The birth- secret also has a place in Blifil's safe deposit box, where it serves the function of a real-estate deed-so long as he controls the story, Blifil se- cures the title to Allworthy's estate. The closely held secret is both an analogue of that more tangible property and the condition for its possession; indeed, the secret itself, nearly synonymous with the letter that contains it, might almost be a tangible object. If Fielding ultimately returns that story to the realm of immateriality, allowing it to circulate without restriction, he also cashes it in, collecting the interest that has been accumulating since the novel's opening pages. In one moment, the tale of Tom's parentage escapes the bounds of the letter to spread by word of mouth, while the revelation alters the significance of count- less comments and episodes throughout the novel. The story Blifil has been so careful to "fence and preserve," to use the idiom of Andrew Mil- lar's lawyers? loses its value to its fictional proprietor at the same time that it brings about a re-evaluation of the novel as a whole.

That re-evaluation becomes complete, of course, only on a second reading; Tom Jones may in fact be the first English novel plotted so as to send the reader back to the beginning. At a time when novels were widely seen as trivial time-killers, "written in anticipation of their own obsolescence," as William Warner puts it,27 this one seeks to extend its shelf-life, ensuring its status as a piece of property. Yet Fielding maintains his novel's value by means of a plot twist that also underscores the impossibility of confining the property, or even of apprehending it in material terms. While the resolution treats Allworthy's estate and Tom's affections as analogously limited and indivisible quantities, it removes the plot's central story from this exclusive class. After anchoring the story in an economy of scarcity whose tactics he studiously cultivates, Fielding ends by affiliating his text with an aura of luxuriant plenitude. Hinting at its hidden riches, he fashions it as a property shared between author and reader.

It may be misleading, however, to insist too emphatically on the &I-

vergence between this outcome and Fielding's stringently conservative tactics. After all, in the course of the novel Fielding does allow at least

26 Millar's counsel described the pmrective function of the 1710 copyright act in these terms in Uleir appeal of Millar v. Kincaid to the House of Lords, see William M m y and Andrew Lockhatt's legal brief, Millar, and Others, Appellants Kincuid. m d Orhem, Respondents. The Case of the Appellants. To be Heard or rhe Bar qftk House r,fPeer.s on Friday the 81thl Day of Feb. 1750 [N.S. 17511, p. 3.

27 William Warner, "'Licensing Pleasure: Literary History and the Novel in Early Modem Britain," T k Columbia Hismry ofthe British Novel, ed. John Richetti et al. (New York: Columbia Uni- versity Ress. 1994), p. 4.

THE ECONOMIES OF COPYRIGHT 443

one object to vanish for goodSophia 's "little Bird" (p. 159). named after the hero and maliciously released by Blifil. In the wrangling that ensues, Western's lawyer proves thoroughly incompetent, garbling various doctrines from the Game Laws and criminal law to conclude that if Western were to try a legal action he "must be nonsuited" (p. 164). even though the bird's value could in fact be recovered in a civil suit. This dispute, the novel's most elaborate discussion of property law, echoes one of the more unusual metaphors to emerge in the course of Millar v. Kin- mid, still pending when Fielding was completing Tom Jones. Challenging the demand by the Londoners for damages, the attorneys for the Scots likened Millar's property claim to the "Monopoly and exclusive Privilege granted to every Gentleman, of Wild-fowl within his own Inclosures"- a monopoly, as the attorneys noted, that persists only so long as the birds stay put, for if a poacher steals them, "the Proprietor ... has no Action of Damages" and "no Claim to the Wild-fowl taken."Zs The argument of the Scots here resembles Fielding's ironic treatment of the ancients as a rich commons: the wildfowl are indeed free for the taking if they are truly wild, but like Blifil, the thief is civilly liable if the landowner has actually raised and nurtured the birds. In treating Mil- lar not as a breeder but as one whose fields happen to attract the birds of the air, the analogy seems to rely tacitly on their abundance-since there is no shortage of wildfowl, it makes no difference where any particular bird goes and the issue of financial liability becomes irrelevant. Fielding, on the other hand, imagines an alternative career for "Tommy"; rather than simply transferring the property, he allows the bird to dis- appear completely, as we learn when Blifil reports that "a nasty Hawk carried it away" (p. 160). The alternative to Fielding's blend of scarcity and abundance, it seems, is an economy of pure loss. If the metaphor of the literary estate claims too much for the author at the reader's ex- pense, the effort to free the text from its terrestrial moorings proves equally hazardous, cancelling out the author's and the reader's property at once.

This possibility would ultimately find its way into the copyright case law, though not during Fielding's lifetime. In 1769, twenty years after the publication of Tom Jones and fifteen years after Fielding's death, An- drew Millar went to court again, this time with William Blackstone as his legal counsel. In Millar v. Taylor, the first decision to rule definitively on

28 Irrformntionfor Mess ffamr'lton ondBa&ur Bmkwllers in Edinburgh, Andrew Stalker Buokeller in Glwgow, and orher Boollscllcrs in these Cities, Defendcrs: Againrt Andrew Mlllnr, m d others, Book~ellerr in London, Pursucr.~ (Edinburgh, 3 December 1744), p. 9.


the duration of copyright, Blackstone established that the property lasts in perpetuity. His victory would be short-lived-the decision was over- ruled five years later-and in fact, Millar himself died the day after the oral arguments were concluded; had he survived to read the decision, the dissent would have sounded eerily familiar. Justice Joseph Yates, challenging the three-member majority, insisted that books cannot be recaptured after publication: "If the author will voluntarily let the bird fly, his property is gone; and it will be vain for him to say 'he meant to retain' what is absolutely flown and gone."2Y As he questions Black- stone's natural-law analysis of literary property, Yates draws on the same metaphor while echoing the lawyer's remarks on property in the Com- mentaries, published three years earlier: "This argument has a captivating sound; it strikes the passions with a winning address: but it will be found as fallacious as the rest. ... If, by publication, [a book] becomes common ... can the author complain of the loss? Can he complain of losing the bird he has himself voluntarily turned out?"M Blackstone's "captivating" argument for exclusive ownership cannot secure an inherently wayward creature, according to Yates, who later transposes these arrest- ing powers onto the very object in question as he warns against the "dangerous snares which this ideal property will lay."" Yet if he re- jects the fiction of a proprietor whose dominion extends so far beyond its legitimate boundaries, Yates seems unable to decide where the property should rest: the difference between a bird that has "flown and gone" and one that has "become common" is precisely the difference between loss and plenitude. In replacing the overreaching landlord, then, Yates introduces a legal fiction of his own, imagining a property at once con- crete and utterly diffuse, fleeting and yet durable. Even in its abolition, copyright engenders a logic that remains inescapably dividedJ2

University of California, Berkeley

29 Millnr v. Taylor (1769). 4 B u m w 2303.98 E.R. 201 at 234. 30 98 E.R. 201 a 231. 31 98 E R . 201 at 250. 32 For their helpful comrnenlary, I would like lo thank J a m s Grantham Turner. Eric Chandler,

and Alywn Bardsley. I would also like lo thank Wanen McDougall, who gave me access to the legal petitions filed in Millar v. Kincnid, and Sharon Marcus, who allowed me to try out a version of this argument on her Eighteenth-Century Novels class.

tom jones and the economies of copyright · 2018. 7. 17. · 1 william blackstone. comrmntarics on...

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