This doctrine of innocence is mainly a negative one, however, and its enforcement by courts will be mainly in the negative form of a refusal to recognize, and not of an absolute sequestration or condemnation of the improper composition. In the case, as we shall presently see, of works so bestial and obscene that there can be no possible doubt in the mind of a decent person as to their disgusting nature, the police regulation of the community will itself take cognizance to suppress and destroy; but such proceedings are statutory, and will not detain us here. Such matter cannot well be literary, and therefore cannot claim treatment in these pages. it 18. Owing to this negative nature of its supervision, may, and doubtless often does happen, that Equity stands by with folded hands and silently regards the publication of injurious and non-innocent matter, mischievous in its tendencies and dangerous to the public morals and the public peace. So, too, a man might build a nuisance upon his land, or circulate representations or statements which might induce two of his neighbors to quarrel. In either case the law might be blind and silent as to the irregularity from the necessity of the case, or the impossibility of interference, or in pursuance of a policy above the individual. But it would be very rash and unsafe to conclude from its silence that it would interfere positively to protect the wrong-doer in his wrong. The effect of the attitude of courts of equity to matters of this nature is to throw the burden of proof-where the burden ought always to be, in cases of denial of any right of property presumably established by law-upon the party intruding; in this case, upon the party defending the piracy or denying his liability for the piracy of a composition. It is for him to establish clearly that, notwithstanding a prima facie title by copyright in the complainant, there is no title in him, in reality, by reason of the dangerous character or tendencies of the book. "The soundness of this general principle," says Mr. Justice STORY,' can hardly admit of question. The chief embarrassment and difficulty lie in the application of it to particular cases. If a court of equity, under color of its general authority, is to enter upon all the moral, theological, metaphysical, and political inquiries which in the past times have given rise to so many controversies, and in the future may well be supposed to provoke many heated discussions; and if it is to decide dogmatically upon the character and bearing of such discussions, and the rights of authors growing out of them; it is obvious that an absolute power is conferred over the subject of literary property, which may sap the very foundations. on which it rests; and retard, if not entirely suppress, the means of arriving at physical as well as at metaphysical truths. Thus, for example, a judge who should happen to believe that the immateriality of the soul, as well as its immortality, was a doctrine clearly revealed in the scriptures (a point upon which very learned and pious minds have been greatly divided), would deem any work anti-christian which should profess to deny that point, and would refuse an injunction to protect it. So, while a judge who should be a Trinitarian, might most conscientiously decide against granting an injunction in favor of our author, enforcing Unitarian views, while another judge of opposite opinions might not hesitate to grant it." Great care is, therefore, to be observed in the application of this rule of the law. "In equity," says 12 Eq. Jur. § 936, n. 2. Curtis,' The sounder rule would be to refuse no injunction when the book is not illegal upon the face of it.'" And we think that both law and equity in this country would require the mischievous and harmful character of a book to be proved with unmistakable clearness, before they would refuse to interfere in cases of piracy or infringement. The burden of such proof will always be upon the infringer, and he cannot be relieved of it by any disposition on the part of the court to apply its own private opinions, doctrines, beliefs, or standards, to the publication before it." Prima facie, the copyright confers title, and the burden is on the other side to show clearly that, notwithstanding the copy, there is an intrinsic defect in the title." 3 19. It is submitted, however, that this principle is to be applied only to published works. An immoral or dangerous manuscript in the hands of its author is not an instrument of evil to the state, and dangerous to its morals or its peace, and its character cannot be pleaded as against the right of its owner to be protected in its possession. Where the famous Dr. Priestly brought an action for the loss of certain manuscripts, by the riotous proceedings of a mob at Birmingham, although it was alleged (but not proved) that the contents of these manuscripts were injurious to the government of the state, the court appears to have virtually held that the plaintiff was seeking damages only for what might have been a source of 1 Curtis on Copyright, p. 165. 2 Id., p. 166. And generally upon this subject see Am. Quarterly Review, April 1822; 6 Petersdorff's Abridg. 560, 561. 3 Curtis on Copyright, p. 160. Southey v. Sherwood, 2 Meriv. 434. And see Dr. Priestly's Case, cited in Wolcott v. Walker, 7 Ves. 1, and Shortt. L. L. p. 4. profit to him, like any other property. However, there is a difficulty in this case which the traditional reports do not help us in solving. It would seem that the owner of matter libellous to an individual, at least, will only be protected in his ownership by law, to the extent in which the matter contains innocent ingredients. So in the case where an artist exhibited to the public, for money, a picture, called "Beauty and the Beast," but which appeared to be a scandalous libel upon a gentleman and his wife, the defendant having destroyed the picture by cutting it in pieces, and plaintiff having brought suit thereupon for damages, Lord Ellenborough instructed the jury to award the plaintiff merely the value of the canvas and paint of the picture, and to disregard any other value which it might possess. 1 20. Any public libel is a seditious publication, and, therefore, not innocent, and not entitled to the protection of courts. So a libel upon public justice, said Lord Ellenborough in Hine v. Dale. "If the 1 Wolcott Du Bost v. Beresford, 2 Camp. 511. 2 Hine v. Dale, 2 Camp. 27 (note), was an action for pirating the words of a song called "Abraham Newland," published on a single sheet of paper. It appeared that the song, though pretending to be a panegyric upon money, was in reality a libel upon the administration of British justice, and its object and tendency, not to satirize folly, but to excite the people against the law, as was supposed to be apparent from a single verse: "The world is inclined To think justice blind; She will blink like a bat, At the sight of friend Abraham Newland. Oh, Abraham Newland, magical Abraham Newland! Can see through a stone, She can't see through Abraham Newland!' composition appeared upon the face of it to be a libel, so gross as to affect the public morals, I should advise the jury to give no damages. I know the court of chancery on such an occasion would grant no injunction.' 2 21. The rule in England is uniform, that the law will not class as innocent, works "contrary to religion and truth," and a court of equity refused an injunction to restrain infringement of the copyright of a work as to which it appeared doubtful as to whether it did or did "not intend to impugn the doctrine of the Scriptures." " But it does not seem probable that courts in the United States would carry the doctrine to this extent. 3 The test as to whether or not a work is innocent, was held by Lord Eldon to be "the possibility of making it the foundation of a successful action at law." "If the doctrine," said his lordship, "of Chief Justice Eyre' is right,--and I think it is, 1 4 The author or publisher of a work of a libelous or of an immoral tendency can have no property in it. Stockdale v. Onwhyn, 7 D. & R. 625; 5 B. & C. 173; 2 C. & P. 163. No action can be maintained for pirating a work which professes. to be an account of the amours of a courtesan; and it is no answer to the objection that the party is also a wrong-doer in publishing it, and that he ought not therefore to set up its immorality. Id. • Fisher's Digest of English Patent, Trademark, and Copyright Cases, art. Copyright. Lawrence v. Smith, Jacob. 471. 4 Southey v. Sherwood, I Meriv. 437. * In the case of Dr. Priestly (cited Walcott v. Walker, 7 Ves. 1), on the trial of an action brought by him against a hundred, to recover damages sustained by him in consequence of the riotous proceedings of a mob at Birmingham, amongst other property alleged by him to be destroyed, he asked for compensation for certain unpublished MSS. It was alleged, in defense, that the plaintiff was in the habit of publishing works injurious to the government of the state |