“On Friday, April 16, Mr. Dane sent to Messrs. Hunt, Parry, & Co. certain questions, in writing,which the referees now hold, asking them to cite their contracts with other authors, and giving a list of names. Did they meet this question fairly? On Friday, April 23, they made their reply to my statement. On the question of contracts, they cited A.'s collected poems, B.'s poems, F.'s ‘Old King Cole,’ M.'s works (collected), a part of which had to be bought from another publisher, and the works of Theodore Winthrop, which I believe were not asked for. All these they cited as examples of works on which similar contracts to mine had been made, and they cited no others. If these persons had written no other works this would have been fair as far as it goes. But these persons had written other works, and I maintain that Messrs. Hunt, Parry, & Co. had selected out of these works those that were most unlike mine in scope, style, cost, and probable circulation, and said nothing whatever about books by the same authors which would more nearly resemble mine in these respects. A., besides his collected poems, his blue and gold and cabinet editions of his poems, has written separate poems and prose works, which have been issued in separate editions, and which, therefore, furnish a far more proper basis of comparison with mine. But about these separate books they said nothing. Of his separate books, a, b, c, d, e, they made no mention. They brought up B. as one whose workswere treated in the same way as mine; but they mentioned only his Poems, blue and gold, and his Songs. They never hinted that he had printed and they had published any prose book for him. Yet it is these prose books, his novels and essays, which form the true basis of comparison between him and me. They cited F., but they cited only his ‘Old King Cole,’ which they did not originally publish, and which they own by a peculiar bargain, and said nothing about the original books which they have published for him, novels, essays, and stories. They cited M., but while bringing in his collected poems, which were entangled in a bargain with some previous contumacious publisher, one Fussey, they said nothing of his separate volumes. They cited Winthrop, but Winthrop, like Marley, was dead to begin with; and if the living have hard work to hold their own against this enterprising firm, what can be expected of the dead?
“Here they rested their case so far as the contracts go; but as a desire was expressed to see the contracts, they promised to produce them next morning. On Saturday, accordingly, we began with one set of contracts which proved to be a most perplexing medley—a sort of contra dance between written contracts and verbal agreements with the rattling of stereotype plates for tambourines. As the government of Russia is said to bedespotism tempered by assassination, so the business of Messrs. Hunt, Parry, & Co. may be said to be conducted on the basis of written contracts annulled by verbal agreements. If we were met for the purpose of preparing a Mars Hill House Shorter Catechism and should ask, ‘What is the chief end of a written contract?’ Messrs. H., P., & Co. would promptly reply, ‘A written contract's chief end is to be canceled by a verbal agreement and annihilated forever!’ According to their practice, it seems that we all agree, in writing, as to what we will do, for the sake of saying afterwards that we won't do it.
“However, plodding my way along as best I could through the contracts, with Mr. Markman's kind assistance, I found, or thought I found, that for one book its author received at first twenty per cent., he owning the stereotype plates. Whether this was by written contract or verbal agreement Mr. Markman does not recollect. From 1762 to 1764, he received twenty cents a volume, the retail price, meanwhile, having advanced from one to two dollars. Since then a written contract gives him twenty cents a volume, the retail price being two dollars.
“A second book by the same author is on the same principle, except that there is no written contract.
“A third, in 1762, either by contract or verbalagreement, was receiving twenty per cent. on $1.00, retail price, the author owning stereotype plates. In 1764 it was changed verbally from percentage to twenty cents a volume, the price having gone up to two dollars.
“While I was painfully thridding these labyrinthine ways, I was arrested by a proposition from some quarter that time should be saved by intrusting the further examination of these contracts to the referees. I had every confidence in the referees, but how could I make my argument concerning these contracts without having seen them? It was said that I should be present and examine them with the referees; but the referees were about to disperse to the four quarters of the earth—or, as there are only two of them, I suppose it might be more strictly accurate to say, the two hemispheres—not to meet again till Thursday, when I was to make my final statement. Mr. Markman then said that he would have the principal points of the contracts copied and sent to me either Saturday afternoon or Monday; but on Tuesday I received a letter from him saying that his time has been so much occupied with matters relating to Mr. Hunt's absence, that he has not had time to complete the copyright memorandum which he promised to send me, but will surely send it to-morrow—all of which I do not in the least doubt, but it does notalter the fact that the information concerning the contracts, for which I asked ten days ago, has not yet been furnished; that I am to hand in my argument on Wednesday, and find myself at home to write up the play of Hamlet with a pretty important part of Hamlet left out.
“From what goes in, however, I am left, like Providence among the heathen, not without witness. Accepting alleged verbal agreements, it seems that the author cited, in changing from percentage to a fixed sum, came down to a sum fixed as high as the highest of my percentage. That is, he, at his lowest, is precisely where I was at my highest. My sole ambition was to climb as high as the point where he stopped falling! Does this fairly make out the assertion, ‘this arrangement we make now with all our authors’?
“But I cannot reason upon contracts which I have never seen. I fall back upon the statements made to me by the authors I have quoted, and on this ground I affirm that I have not fared as the other authors, even of Messrs. Hunt, Parry, & Co., have fared. Neither can I accept their allegations of verbal agreements which cancel written contracts. The only verbal agreement I know anything about is one that never existed. I did not intend to mention Mrs.—— any further than I have done, but Mr. Parry has cited her case and I may thereforebe permitted to say that verbal agreements and explanations were brought to bear on her in the same way. In a letter to me dated August 9, 1768, she says, ‘A letter arrived from Mr. Hunt [Thursday] telling me thathe had explained as I knew, just what he had never once explained as he knew—and I read it and denied totally all his assertions.’ August 20, 1768, she says, ‘Do you see all the contracts Mr. Hunt tells Mr. E. were verbal. I do not believe Mr.—— ever consented to change to ten per cent., because he would have told me, and besides you see he had fifteen per cent. for the very last book he gave them!... And now they say he made a verbal agreement with Mr. Brummell who is dead and cannot say anything. But they show no papers.’
“I have been a practitioner at law but four days, and it becomes me to be modest; yet I will hazard the remark, that a verbal agreement without witnesses, between two dead men, is as near nothing as anything in the way of evidence can well be.
“Mr. Parry affirms that Mrs.——'s sister afterwards examined their books and found nothing wrong therein, and that Mrs.—— was subsequently satisfied. I saw Mrs.—— in Paris on her way to Asia, and it seemed to me that she was very far from satisfied, but that shewasworried out, and preferred peace to pence. One canimagine Miss—— hunting up Messrs. Hunt, Parry, & Co.'s account books in pursuit of knowledge!
“Neither do I accept accounts as proofs of a verbal agreement. My accounts ran on for years, unchallenged, without any such agreement, though that agreement is now alleged as the basis of the accounts. J. wrote to me, May 11, 1768, ‘In the accounts of sale I believe the price paid me was ten per cent. of theoriginalretail price, that is, the ‘Ambrosia’ was published at a dollar fifty and I have always received fifteen cents a copy on that. When paper became so high during the war, the price of the book was raised to $1.75, but I am pretty sure I never received seventeen and a half cents, but always only fifteen, yet, as the papers are at home, I cannot be certain; only in a little account of sale sent here this winter the reckoning was at fifteen cents a copy for one, and twelve and a half cents for the other, but the account covered a space of three years during which the books had been selling at $1.75 and $1.50 respectively; so that, literally, he has not been paying me ten per cent.; but I did not think much about it, taking it for granted that the extra price was due to hard times. But I do not know why our labor is the only labor to remain low-priced.’ Here it will be seen that for three years J.'s accounts might havebeen cited at any time as proof of a verbal agreement, though no such agreement had ever been made or even alleged. Messrs. H., P., & Co. may say that they have a right to infer that silence gives consent, and that authors have no right to be so loose in money matters. Leaving out any silence which might arise from delicacy, I would say, it is true that they ought to be more accurate and systematic, but surely we may say to our publishers, as the crab remarked to his father, when rebuked for going sidewise, ‘Gladly, my father, would we walk straight, if we could first see you setting the example!’
“But authors are not always to be blamed for their silence. We are not very large buyers of our own books and do not always know when the price is raised. Surely we cannot be expected to sit inflexibly upon our property, like Miss Betsy Trotwood, watching the rates of sale. It was a considerable time after L.'s story-book advanced in price before its author discovered it; as soon as she did, she made a note of it, and after a little trouble succeeded in having her contract fulfilled. But any time between the change and her discovery of it, her account might have been alleged as proof of a verbal agreement which did not exist. I am, of course, not saying that it would have been so, but that it might have been so. What we want, therefore, isfacts, Mr. Gradgrind.
“Since writing this, Mr. Markman's memoranda of contracts have put in an appearance, and if correct, show beyond question, that their letter of September, 1768, was true, and that the statement in Mr. Hunt's September 1764 letter was not true. There is scarcely an approach to uniformity in the arrangements made with authors. Taking those books which most resemble mine, the contracts are of every species. There are contracts for twenty per cent. where the author owns the plates, and ten per cent. where the publisher owns them. Books that retail at $1.25 pay the author ten cents per volume, or fifteen cents per volume, he owning the stereotype plates, or twelve cents per volume, or twelve and a half cents per volume; books that retail at $1.50 pay the author fifteen cents, and ten cents; books that retail at seventy-five cents pay five per copy; books that retail at $1.00 pay twenty cents per copy; books that retail at $2.00 and $1.75 do the same; books that retail at $1.12 pay ten cents. When a verbal agreement is alleged as a substitute for a written contract, the substitute also varies. Some of the contracts are for half profits. I do not find a single example of a book that retails at $2.00 and pays the author fifteen cents. I shall depend upon the referees to discover any fault in my figures, but I believe they are correct. When a change is made from percentage to a fixed sum,there is generally a decrease to the author, but not so great as in my case. The aggregate of one set of books at a percentage was $1.36¼; after the change to a fixed sum it amounted to $1.68. On some of the books there has been no change. So that when Mr. Hunt says, ‘this arrangement we make now with all our authors,’ whether he means that they change from percentage to a fixed sum, or whether he means that they make with all the same ratio of decrease that they make with me, he is equally incorrect. There is no sense in which his words can be understood, in which they are true.”
[There is one sense in which they may be counted correct. If we construe them to mean, “We pay all our authors just as little as we think they will stand. You, being rather the most pliable of any, will bear the greatest reduction, and we have accordingly reduced you to the lowest point,” they appear to be marvellously accurate.]
“I claim, therefore, that I never assented to the second contract because I never understood it, and because the representations made to me as inducements were not correct. I claim that Mr. Hunt's letter was calculated (I do not say intentionally) to mislead and deceive me; that I was misled and deceived by it, and as the result of this deception,I signed a contract which deprived me of my plainest rights in the premises; and the accounts subsequently rendered were accepted by me in the same good faith with which I sought the contract, with scarcely an examination, certainly without the least suspicion.
“Of the books not named in the contracts I believe I need say little. Even had the second contract been valid, no understanding can be inferred from it as to the five books not included in it. Why should the second contract be taken as a guide any more than the first? The first was made under ordinary circumstances, the second under peculiar ones which soon changed. They did not themselves understand that the second contract governed all the rest, for they did not pay me fifteen cents but only ten cents on ‘Holidays.’ They say that it was a small book; but so was ‘The Rights of Men.’ Yet ‘Holidays’ contained 141 pages, was retailed at $1.50, and paid me ten cents, while ‘The Rights of Men’ contained 212 pages, retailed at $1.50, and paid me fifteen cents—no accounts being rendered till after the trouble began. Mr. Parry says that ‘Holidays’ was a different kind of book, a children's book with pictures, and therefore he supposed they did not class it with the others, but simply fixed a price which they thought equitable. But X.'s story-book was also a juvenile book, with pictures, of the same class as mine; yeton that they paid by contract ten per cent. C.'s story-book was also an illustrated juvenile, and on that they paid half profits.
“But I hold that the contract pretending to cover ‘Dies Alba,’ ‘Rocks of Offense,’ and ‘Old Miasmas,’ is inoperative and void, and cannot regulate the compensation to which I am entitled by copyright on these three books; still less can it regulate the compensation to which I am entitled on subsequent ones. If a contract is void in the direct operation claimed for it, its inferential operation must be shadowy indeed. With all due respect, I hold that it is little less than absurd for Messrs. Hunt, Parry, & Co. to claim that I am bound to accept that contract as the basis of settlement for subsequent publications. I hold that on these five books, published under no contract, I may claim what is just according to the usages of the trade.
“I do not know what may be the result of the inquiries of the referees among publishers. Mr. Dane, as his letter shows, made careful investigations, and found no one who did not say that ten per cent. was the minimum price. I believe that no respectable publisher can be found in the country who, regarding the cost of the books and the number sold, will not say that ten per cent. on the retail price is the very lowest sum that an honorablepublisher would have paid me had the whole matter been referred to his own honor.
“Nor is it necessary to scour the country for evidence, since Messrs. Hunt, Parry, & Co. recognize such a usage themselves, even if they do not follow it. On what other principle did they allow me ten per cent. in the beginning on ‘City Lights,’ when I was a new author, and they had the whole matter of price in their own hands? During the reference they have also offered to return to ten per cent. Why should they offer ten per cent. in the beginning, and ten per cent. at the close, and skip about meanwhile from six and two thirds to seven and a half per cent. according to their fancy or caprice? This is a specimen of piping on the part of publishers, and dancing on the part of authors, that I do not propose to take part in.
“My claim to compensation on five hundred of the fifteen hundred books exempted in the first edition of ‘City Lights,’ needs no labored argument. Their attempt to prove from their books that I had due notice of the fact, proves that I ought to have had notice, while the accounts received and produced by me prove that no such notice was given me. Mr. Markman thinks it may have been lost in the mail, but the accounts which I hold cover the whole time of my transactions with Messrs. Brummell & Hunt, and I submit that the mails shall be believedinnocent till they are proved guilty, and that Messrs. Brummell & Hunt must be nipped in the bud, or they will soon, as Sidney Smith says, be speaking disrespectfully of the equator. Mr. Parry admits that without explanation the word edition means a thousand copies. He also admits that in all cases when more than a thousand copies are exempted, the specific number is given. He believes mine to be the only exception to this rule. He alleges as the reason of this unusual exemption the unusual cost of my books, saying that they cost a great deal more than any other on their list. To this I reply that I should have been told in the beginning that they did or would cost more than others. Mr. Markman then brings forward a letter of mine to prove that Iwastold, and did know that the books cost more. This letter bears date September 20th, 1762, two days after the publication of ‘City Lights,’ and the extract says: ‘The fact that I wish to impress upon your mind is that you have tricked out my book so beautifully that nothing could be lovelier. You would not have done it though, if I had not threatened you within an inch of your life, would you? [etc., etc., etc.] But now see, I never thought till yesterday that they must cost more than the other way, and I have been distressed all along and this makes me more so,’ etc.
“This does not prove what Mr. Markman introduced it to prove, but it proves just the opposite, which is the next best thing. It shows that until the day after the book was published I had never thought of the book's cost, and that then the thought was spontaneous, not suggested to me by others. It proves beyond question that nothing had ever been said to me about it.
“On one or two other points, not strictly necessary to the case but introduced by Mr. Parry, I must beg a moment's forbearance. Mr. Parry, feeling that my claim involves fraud, reads extracts from my early letters, to show that I was very urgent to publish ‘City Lights,’ that I expressed the greatest confidence in them, and that, in short, I came to them in such a way as, to use his own language, would have almost held out a temptation to defraud me. So that if they had been disposed to defraud me at all they would have done it then.
“Fraud is a hard word, and I believe I have not used it; but if Mr. Parry insists, I will say that the exemption of the fifteen hundred books under cover ofan editionoccurred with the first edition of my first book, and I really don't see how they could have begunmuchearlier if they had tried.
“Mr. Parry mentions as a proof of their friendly intentions, that they desired to refer the whole matter to Mr. Rogers because they thought he was my friend; that they offered to refer it to my friendMr. Brook, of whom they knew nothing, and to my friend Mr. Greatheart, of whom they knew very little. It will be observed that they did not once ask me to select a friend, but generously took the whole burden of the selection upon themselves.
“The first person to whom they offered to refer it was Mr. Rogers, and I accepted him gladly. I was so much in earnest that I wrote him myself begging him not to decline—and this although I had never seen him. On account of his health he felt obliged to decline; but before he had declined, Messrs. Hunt, Parry, & Co. proposed to relinquish him, for what reason I do not know. They proposed that I should give up Mr. Russell, and they should give up Mr. Rogers, and we should each make a new selection. I was entirely satisfied both with my choice and theirs, and I saw no reason for changing. So that I not only accepted the nail they drove, but I clinched it myself. I not only kept to my own choice, but I had to make them keep to theirs. It was while they stood thus shivering on the brink, after Mr. Rogers had been proposed and accepted, and before he had declined, that they proposed Mr. Brook and Mr. Greatheart.
“But was it friendly in them to turn away from their own choice, and go about among my friends choosing persons of whose qualifications they wereignorant, forcing me to reject them, and thus to discriminate against my own friends? Did not Messrs. Hunt, Parry, & Co. know that this was a matter not to be settled by sentiment? I should have considered it a far more unequivocal sign of friendliness if they had permitted me to appear before the referees with the friend whom I had intelligently chosen, who had stood by me through the whole trouble, who was familiar with all the details of my case, and capable of understanding all the details of theirs, and by whose aid, therefore, arbitration might be satisfactory as well as conclusive. Instead of which they compelled me to stand alone, unaided, without preparation, without the possibility of being prepared, in a position for which their long acquaintance with me must have told them I was eminently unfit, and which one at least of their number must have known would be to me peculiarly embarrassing and distressing. Their idea of a friendly arbitration seems to be that of imposing upon me the friends I do not want, and taking away from me the friend I do want.
“Mr. Parry thinks indeed that Mr. Dane had poisoned my mind regarding them. But he also thought Mrs.——'s mind was jaundiced. Perhaps that question belongs to the doctors rather than the referees. Whether it be poison or jaundice it is to be hoped the disease may not spread.
“There are other parts of Mr. Parry's statementswhich I should like to lay before the referees, but I remember that they are mortal, and though the spirit is willing the flesh is weak, and I forbear.
“IN CONCLUSION,
I claim that my first contract for ‘City Lights,’ specially stipulating ten per cent., shall be carried out in good faith; and that it shall not be considered as changed or modified by any conversation remembered by Mr. Hunt, but absolutely denied by myself. And I claim that the word edition used therein shall be held to mean just what Mr. Parry admits it would mean in common acceptation with the book-trade, namely, one thousand copies.
“2. I claim that my second contract, covering ‘Alba Dies,’ ‘Rocks of Offense,’ and ‘Old Miasmas,’ was obtained from me under a total misapprehension of facts, that this misapprehension of mine was the result of a misrepresentation (I do not say intentional) made to me by Mr. Hunt in his letter of September 23, 1764, wherein he represents the arrangement as one uniform among their authors and as assuring me a rate of compensation, which he leaves me to infer, I might not otherwise obtain, whereas he knew that the arrangement was not uniform and that my percentage would amountto more as prices were then tending,—and the arrangement was made by him so as to prevent my ten per cent. from amounting to more than fifteen cents per copy. This I did not understand, and should not have assented to if I had understood it. I hold that neither in law, equity, morals, nor manners should I be held to an agreement which I did not comprehend, which the opposite party so presented as to prevent my comprehending it, and which deprived me of my proportionate share of an increase of profit admitted to have been made on the books published under it. The contract, therefore, should be set aside, and I should be paid according to the usage of publishers, or at the same rate as appears in the contract for ‘City Lights,’ namely, ten per cent.
“3. I claim that on my books published since the date of my second contract, and not alluded to or included in either contract, namely, ‘Winter Work,’ ‘Holidays,’ ‘Pencillings,’ ‘Cotton Picking,’ and ‘Rights of Men,’ my compensation shall be fixed by the usage existing among publishers and authors.
“4. I claim and must certainly be entitled to receive interest at the rate of seven per cent. on all sums found to be due me at the date of the several semi-annual settlements, counting my compensation uniformly at the rate of ten per cent. on the retail price of the books at the date of the settlement. This point is so plain that it can need no argument.
“5. I claim that I am equitably entitled to damages to compensate me for the loss that has resulted to me pecuniarily and otherwise from this unhappy occurrence. My pecuniary damage alone amounts to more than three thousand dollars. There are hurts of other kinds to which money bears no relation.
“My actual expenses in preparing for this reference have been very considerable, and under the award of costs I claim that I should have an ample allowance made me to cover my outlays in this regard.”
After this statement had been read, Messrs. Hunt, Parry, & Co. were permitted to make whatever of reply they chose. They denied no fact, and challenged no inference in my statement.
The referees, after two days of deliberation, returned the following decision:—
"The undersigned, mutually agreed upon as referees in the matter in controversy between M. N. and Messrs. Hunt, Parry, & Co., on their own account, and as successors of Brummell & Hunt, hereby award to M. N. the sum of twelve hundred and fifty dollars, to be paid her by Hunt, Parry, & Co., within three days from the date of this paper in full compensation for her claims uponthe matter in this controversy—and that hereafter M. N. shall receive ten per cent. copyright on the retail price of all her books printed by Hunt, Parry, & Co., except the three books embraced in the contract between the parties dated September 24, 1764. The referees decline any compensation for services or expenses and leave each party to pay their own costs.
“Signed and delivered, April 30, 1769.
SOBER SECOND AND THIRD THOUGHTS.
HHAVING trespassed so far on the patience of the reader, I may as well presume a little further, and indulge in a few reflections.
First, from the investigations and observations of the last two years, I infer that authors are very much to blame in their business dealings. By their inexactness, their indifference, their unreasonable and indolent trust, and their excessive monetary stupidity, they not only become an easy prey of, but they offer a direct temptation to the cupidity of publishers. Not a single author to whom I appealed showed the slightest reluctance to answer my questions, nor, I may almost add, the slightest ability to answer them adequately. For instance, the points I wished to ascertain were whether a writer was paid by percentage or by a fixed sum: what was the percentage and what the fixed sum: and whether during or subsequent to the year 1764 any change was made in the mode or rate of payment.
See now how charmingly the authors met my points.
Says one, “Brummell and Hunt never published but —— with me and I received on this the usual beggarly percentage;” leaving me entirely in the dark as to what was the beggarly percentage.
Says another: “What terms do I make with B. & H.? Yes, with all my heart. In regard to ——, they print and sell and allow me a certain sum on all copies sold;” but with the greatest inclination in the world giving me no hint of the amount of that “certain sum.”
Says another: “Brummell & Hunt have, I believe, allowed me ten per cent. on the retail price of my books. That was the first arrangement at least, but I must confess I never look at their statements of account.”
Says a fourth: “I have always received a percentage.... I remember no change in 1764, unless that B. & H. about that time (perhaps earlier) without my asking it, raised the sum they paid me for ——, etc.... The interests of authors and publishers are identical—a fact which they understand better than we do.”
Yet the firm testified of this very writer that they had written agreements to pay him percentage, and that when prices advanced they waived the percentage, and paid him a certain (lower) sum per volume.
A fifth says: “I have not the least objection in the world in replying to your letter in the most straightforward way.... I have been contented with ten per cent. on the retail price of my printed books.”
Yet the written contracts of this writer showed every variety of arrangement from twenty per cent. downward.
A sixth says: “Messrs. B. & H. have published four books for me.... The three first named sell for $1.25, and I receive twelve cents each copy.”
But Messrs. B. & H. affirmed that these books sold for $1.50 each.
A seventh says: “I did not send your letter to ——, for the reason that she does not know as much as you do about the subject of its inquiry. The most she could tell you would be, that now and then there comes a bit of paper very neatly and tastefully diversified by red and blue lines, and dreadfully complicated by sundry hieroglyphics, which she has been told are figures, and that a check embellished with one of the rows of figures accompanies it.... I have an impression that years ago, when —— was taking such sesquipedalian strides to public favor, Mr. Brummell told me that after the number of copies sold had reached a certain point, the author received a reduced percentage, and I think I remember wondering bywhat perversion of commercial philosophy, an article of which fifty thousand copies could be sold, was worth less, proportionally, than one of which only five thousand could be bartered, for of course the ratio of cost decreased with every successive thousand manufactured.”
Here, it will be perceived, is a faint glimmer of sense, which will be completely extinguished by the next extract.
“—— said you made a mistake in thinking yourself differently used from the rest of the writing craft, and explained that the profits of the author did not keep up the same proportion in repeated editions, but went to pay the increased circulation. For his part he would rather be more poorly paid for the sake of being more widely read.”
Must not that have been an explanation worth having? It is not difficult to conjecture the source whence that form of explanation originated, for another letter says, “Mr.—— went to see Mr. Hunt.... Mr. Hunt expressed great regret that it had all happened; said ‘Rights of Men,’ had done more for your reputation than any other book; that you made more than the publishers did, etc., and that they thought better to have a low per cent. and large sales, than the contrary; though I don't see what a low per cent. paid to the author has to do with large sales, if the price of the book is kept high to purchasers.”
The fact, is that as a bad woman is said to be a great deal worse than a bad man, so a man innocent of business capacity, is far more innocent than any woman can be. A woman may be never so silly, but there is generally a substratum of hard sense somewhere. A man may be never so wise, and yet completely destitute of this practical ability. It is largely in behalf of these helpless, harmless, deluded, and betrayed gentlemen, that I have felt called to take up arms. What sword would not leap from its scabbard to maintain the cause of the weak and the wronged?
But though I admit and lament that authors are unpractical and unbusiness-like to the last degree, I must affirm that they have less inducement to be business-like and less opportunity to be practical than any other class of persons. Suppose a writer sets out with the determination to be prudent and sagacious, where shall he begin? If a farmer has a bushel of potatoes to sell, he knows, or can learn in a moment, precisely their market value. The Early Rose has its price, and the Jackson White has its price; there is no room for doubt, or misgiving, or mistake. But the author has not and cannot have the least notion of the market value of his products. He does not even know their intrinsic value. He does not know whether he has raised an Early Rose or a dead-and-gone Chenango. Hemay have spent his strength on what is absolutely unsalable. His work is production, but for its worth he must depend solely on the word of those who buy and sell. After a while he does indeed arrive at something like a scale of value, but he never reaches such a degree of certainty as to feel assured of any special piece of work. Every one must be judged by itself. Five successful books are no absolute guaranty that the sixth will not be worthless.
It seems to me, also, that there is no business in which so few checks exist as in that of publishing. An author, we will say, agrees to receive ten per cent. on the retail price of all copies of his works that are sold, but he has literally nothing but the publisher's word by which to know how many copies are sold. The manufacturer knows how many he has made, but it would be offensive to ask for the manufacturer's accounts, and moreover he would probably not render them if asked. He would consider it as betraying the secrets of the trade, or the trust of his employers, or otherwise impertinent and unwarranted. Of course a false return of sales would be fraud, and somewhat complicated fraud; but human ingenuity combined with human depravity has been known to surmount obstacles to crime as formidable as these, and the danger of detection is infinitessimally small. If there be any such thing in arithmetic as the Double Rule of Three,—andI seem to have a vague impression that there is,—it may well be brought to the solution of the problem: if a publisher may for years safely disregard, not to say violate, the condition of a contract which an author has before his eyes in plain black and white, how long may another publisher safely falsify accounts which an author never sees, and which he could not understand if he should see? I have no doubt that in nine cases out of ten, and perhaps also in the tenth, the returns of sales are as accurate as the moral law. What I maintain is, that the author, be he wise as Solomon, has no means of knowing whether they are or not, while the manufacturer of all other goods knows precisely how much raw material goes into the mill and how much of the manufactured article comes out.
If the author, instead of receiving a percentage, takes half profits, he is even more at the mercy of the publisher. In the very outset the wildest theories prevail as to what constitute profits, and though the author may make heroic struggles to be exhaustively mathematical, the probabilities are that the only draught made upon his science will be the very simple effort of dividing by two whatever sum the publisher has chosen to figure up. The plan adopted by actors and actresses, to take half the gross receipts, is far more simple and sensible.
It is true that an author may take advantage ofcompetition and seek a second market if the first prove unsatisfactory, but it is also certain that he cannot do this to any effective extent without serious injury to himself. All the skill, the vitality, the invention, the thought, which he brings to the disposition of his wares is so much taken from his producing power. He ought to be wholly free to do his best work. He ought to be able to concentrate himself on his writing. If he must turn aside to study the state of the market and superintend the details of sale and circulation, that necessity will surely tell in the deterioration of his works; and even at that cost he will not be so good a business manager as one who is to the manner born. It is a very pretty thing to be a poet-publisher—in the newspapers, but if the poet's imagination happens to get loose among the publisher's facts, it makes sad work, and it is not merry work when the publisher crops out in the poet's verses.
What then remains? It has been proposed that authors combine and form a publishing-house by themselves, publishing their own books and receiving their own profits. This plan looks simple enough, but I must confess it seems to me chimerical in the last degree. Excepting the temptations of their trade, doubtless a hundred publishers are as honest as a hundred authors, and surely they have a great deal more business sagacity.But as soon as authors turn publishers they fall into all the publisher's temptations without acquiring his business power; so that when you have chemically combined author and publisher you have an amalgam wholly and disastrously different from either of the original simples, namely, a publisher minus his common sense.
No, the publisher is not an artificial member of society. Like all other middle-men he meets a real want. He exists because in the long run it is cheaper and better for writers to employ him than to do his work themselves. Of course, the wiser and more righteous he is, the better he answers the end of his creation; but with all his imperfections on his head, he is better than nobody. A man may as well undertake to build his house with his own hands to save himself from the short-comings and extortions of carpenters, as to manufacture and distribute his own books to save himself from the extortions of publishers. We may send missionaries among them, we may gather them in to our Sunday-schools, but we need not think to exterminate them.
Authors may form publishing houses, and those houses may be successful, but if so it will be simply by adopting substantially the methods of successful publishing-houses already established. It seems to me easier and more economical to let suchinstitutions spring from the soil, rather than attempt to construct them out of material which has already been organized into another form of life.
Shall we then take the publisherscum grano salis, and try to guard our interests by keeping a strict look-out? We must turn publishers ourselves to make it of any account. A detective, to be worth anything, ought to be at least as wily as the rogue he watches, and to be so he must give his mind to it, and if he give his mind to that, where-withal shall he set up any other business? An author need not rush in among publishers as Cincinnati swine are said to invade the streets with whetted knives, crying “come and eat me”; but if he on the contrary objects, steadfastly and stoutly, to being devoured, he does not know where his vulnerable point is, and cannot therefore arm himself against attack. He is not and cannot become, consistently with the proper pursuit of his own profession, sufficiently acquainted with the details of publishing to know whether a measure proposed by a publisher be or be not fair. For instance, the publisher contracts to pay ten per cent. on the retail price of a sixty-two cent book. A war comes, bringing high prices, and the book goes up to a dollar and a quarter. The publisher continues to pay the author ten per cent. of sixty-two cents, making no reference to the increased price. Theauthor presently chances to discover it, and remonstrates. The publishers say curtly, “You will make the price of the book so large that it will have no sale,” oblivious of the fact that it is not the author but themselves who have raised the price of the book. He replies that the price is not his affair; he must insist upon the contract. The publishers yield, and the author is apparently victorious. But when a second author brings up this case as a reason why he should receive his percentage, the publishers reply, “True, we did continue percentage because he insisted, but, as a warning, the book had a very poor sale.” But what effect on the sale can the author's twelve and a half, instead of six and a half cents have if the price to the buyer is the same? Until some better answer is given I shall believe that the sale diminishes because the publisher chooses it; because he prefers to sacrifice a small sum on a single volume as a warning to contumacious authors, rather than encourage rebellion by continuing to receive profits of which he must divert a larger share to the author. If he can, by one or two examples, show restive writers that the question is not between six and a half cents and twelve and a half cents on a thousand books, but between six and a half on a thousand, and twelve and a half on a hundred, the sum he sacrifices in showing it is not a bad investment.
Since, then, the publisher has matters within his own grasp so entirely that what he is forced to pay with one hand he can easily pluck with the other, I do not clearly see the advantage to be gained by insisting on any special bargain with him. Perhaps I do not quite know what I am talking about. I suspect, on the whole, I do not. But my remarks are all the more valuable for that. If, after two years of clapper-clawing among a quartette of cats, a mouse is still unskilled in feline ways, in what state of helplessness must be those unadventurous little things who have never left their holes?
But there are the books of the firm which the suspected publisher opens to you with a frankness of innocence that ought to disarm and convince the most hardened unbeliever. Any demur is met by an invitation to come and look at “the books.” The trail of the Serpent is over all the rest of the world, but “the books” have escaped the contamination of original sin and shine with the purity of Paradise. Burglars blow open safes, banks and directors and cashiers and tellers come to grief, but “the books” always tell the truth, the whole truth, and nothing but the truth. Nowithstanding which I, from the beginning, instinctively gave those “books” a wide berth. They were to me like the “magick bookes” of Spenser's hermite. “Let none them read.” That “the books” are notalways “reliable gentlemen” will have been inferred from the account which they professed to have sent me, and which was—lost in the mail. That “the books” are not always intelligible witnesses would appear, could we know how many unwary persons have gone to them in pursuit of knowledge, and found the difficulty insurmountable. “We had the books here,” said one benighted author of no mean repute, “and I examined them, and Kate examined them, and Frank examined them, and the Major examined them, and we could make nothing of them.” That the books have been made to do yeoman's service in this battle has already been seen, and by various tokens it would seem that they have not yet been dismissed the service. Only to-day a letter says, “But the account of the sales of your book and the sums paid you for them, as I derived them from the books of Mr. Hunt, convinced me that whatever the bargain might be you had a better one thanIhad. I have half profits—you have had more.”
That is what “the books” say unquestionably; but what a stiff-necked and perverse author refuses to believe without further proof. When a publisher shows me receipted bills for the sums he has actually paid in manufacturing and publishing my books, and for the sums he has received from their sale, I will—take them to an expert for examination; butwhen he proposes to set me down before a mighty maze of figures, which for aught that appears, may all have been conjured up by his imagination, and begs me to deduce from them any conclusion whatever, I decline with thanks. That contention I leave off before it be meddled with. It is not necessary to be a Solomon in order to know enough to keep away from figures which it is necessary to be a Solomon to understand, and which when understood are much like the “litle flyes cal'd out of deepe darknes dredd” by the hermite before referred to, and which,—