Chapter XXXIII: Introduction (1)

(This "Introduction" will doubtless induce in the reader a despair akin to that felt by a sleepy worshipper on a warm Sunday afternoon, when, nearing, as he supposes, the close of the discourse, the preacher turns over a new leaf, and announces, "Secondly!")

"INTRODUCTION.

"Before proceeding to the subject-matter of the controversy, will the referees permit me to apologize for appearing before them to present the case myself. Nothing was further from my intention. Until the evening before the reference I did not mean to be present at all, and I then consented to be in the room only at Mr. Dane's urgent solicitation. I wished a full, clear, and exhaustive discussion. I knew that I was not able to enter into it myself. I have steadfastly refused to attempt it even in private with Messrs. Hunt and Parry, because I knew I was so ignorant of the details of business, that such a discussion would be fruitless. How much less then should I have attempted it before two gentlemen of the character and ability of the referees, appealed to for a formal and final decision?

"The paper already presented to the referees was prepared originally for my own convenience, and was subsequently put into Mr. Dane's hands for his exact understanding of the matter. It was not designed for the referees. It contained much irrelevant matter, and my only excuse for offering it, is the embarrassment and perplexity in which I suddenly found myself involved, and from which this seemed the only way of escape.

"The same circumstances must be my apology to Mr. Hunt for certain letters which appeared in that statement. They were placed there only for the sake of a few lines which were in them. These extracts were all that were designed to be read. But in the confusion of the moment I was entirely unable to make any separation or distinction. I mention this, not because the letters contained anything discreditable to Mr. Hunt, for they did not; but because I would wish to avoid even the appearance of unnecessarily giving private letters to the semi-publicity of arbitration.[12]

"For the paper which I now present, I must also beg the indulgence of the referees. I have done the best I could do under the circumstances, but I know that it must seem to them redundant, deficient, unsystematic, and perhaps inadequate. I can only assure them that had I thought it possible I should be forced to conduct the case myself, I should never have appealed to arbitration.

"I beg to thank the referees most sincerely for their unvarying kindness and forbearance.

"SUBJECT-MATTER OF THE CONTROVERSY.

"I claim what is justly due for copyright on eight works, namely:--

"'City Lights,'
"'Alba Dies,'
"'Rocks of Offense,'
"'Old Miasmas,'
"'Pencillings,'
"'Holidays,'
"'Cotton-Picking,'
"'Winter Work,'

Published by Messrs. Brummell & Hunt, since Hunt, Parry, & Co.

"Were there no contracts, the author's share should, I suppose, be determined by the usage of publishers and authors, as to similar works with similar sales.

"For four of these books there is no contract.

"On the first book, 'City Lights,' there is a written contract at ten per cent. on the retail price after the first edition is sold. This price was fixed voluntarily by the publishers without suggestion from or consultation with me, and must be considered as expressing their idea of what was fair and usual under ordinary circumstances, even with a new author. This contract has never been rescinded. Messrs. Hunt, Parry, & Co. claim that it has been rescinded. No one can be called upon to prove a negative. To prove that the contract exists, I produce the contract. To prove that the rescission exists, I demand that they produce the rescission. This they have utterly failed to do. Mr. Hunt simply asserts a verbal agreement, which I deny. A verbal agreement between two parties, which one party stoutly maintains, and the other flatly denies, is, I submit, an agreement more suited to the latitude and longitude of Dublin than of Athens. A verbal agreement, which on examination proves to be an utter and absolute disagreement, cannot cancel a written contract.

"They not only attempt to rescind the first contract, but to substitute another for it by including 'City Lights' in the second contract. But 'City Lights' is not named in the second contract. They do not even pretend that they intended to name it there. They simply assert a conversation in which both parties agreed that, the first contract still existing, they would act as if it did not exist; and that 'City Lights' not being inserted in the second contract, both parties should act as if it were so inserted. I beg to inquire if there is anything in the Union as it was, or the Constitution as it is, that could make such a procedure reasonable? Is it credible that a shrewd business firm should rely on a verbal agreement to cancel a written one and leave the latter uncancelled in the possession of the other party?

"'Dies Alba,' 'Rocks of Offense,' and 'Old Miasmas,' were published at different periods subsequent to the publication of 'City Lights.' They are all embraced in one contract, which bears date September 24, 1764. This contract is not at ten per cent. on the retail price, but at fifteen cents a volume on all volumes sold.

"This contract I claim to be invalid, because it was obtained from me under false representations, and because it is not equitable.

"Mr. Hunt asserts that before entering into this contract, and as a basis of this contract, he had a long conversation with me in which he fully showed me the reason of the proposed change from ten per cent. to fifteen cents on a volume. His recollection of this conversation is so vivid that he even recalls the sofa on which he sat. He thinks he sent for me, but is not quite sure. He remembers that I was disposed at first to be trifling, but he begged me to be serious, and assured me that this was a serious matter. He remembers using the expression, 'that their house was shaking in the wind.' He says, he explained to me over and over again the state of affairs and the reasons which necessitated the change; and repeatedly asked me, 'Do you understand this clearly?' and I answered that I did, and 'Do you agree to it?' and I said yes. He is so positive in his assurance that he expresses the wish that he could take his oath on it; the referees ask him if, in that conversation, 'City Lights' was included among the other books, and he replies, 'distinctly.' Then, in face of my repeated written and verbal assertions to him that I had no recollection of any such conversation, he fixes his eyes upon me and says, with emphasis, 'I think, M. N., you _must_ remember this.'

"I have already stated to the referees that I had no recollection of any such conversation or of any verbal agreement. I was willing to attribute the assertion to a mistaken impression on the part of Mr. Hunt. Now, after his positive, persistent, and circumstantial assertion, I go further. I deny his assertion in part and in whole, in every point and particular. I deny it not simply as a mistaken impression, but I deny it as a question of veracity between Mr. Hunt and myself.

"As I have said before, I cannot be called upon to prove a negative. The burden of proof lies on Mr. Hunt who asserts the positive. He admits that he has no correspondence to show it, but affirms that I admit it myself in one of my early letters by saying, 'I dare say' I did have such a conversation. The letter to which he refers is my second letter of inquiry, written before my faith in him had been shaken, and before the question of such a conversation had assumed any prominence or arrested my attention. I had asked him, as my letters show, why he wanted me to take less than ten per cent. He had replied, that we had talked it over and I agreed to less. I replied that I knew I agreed to it, for here were the contracts, but why did he wish me to make such contracts? My exact words were, 'I don't remember ever talking the things over with you, but I dare say I did--or rather you talked and I nodded,--as usual. And of course I agreed, for here are the contracts that say so.... Don't you see the trouble lies back of the contracts. Why did you _wish_ me to be having seven or eight per cent. when other people are getting ten?' Here it is seen that in the very beginning, almost before any suspicion was aroused, and before my attention was at all fixed upon the importance of this conversation, I, first, carelessly but distinctly assert that I remember no such talk; second, I found my recognition of my assent not upon any remembered talk but upon the written contract; and third, I reiterate my questions concerning what lay back of the contract in entire unconsciousness that the talk had anything to do with it.

"So then, the only testimony which Mr. Hunt can produce of a verbal agreement which vitiates one contract and forms the basis of another, is a letter of mine in which I distinctly affirm that I don't remember anything about it! Mr. Hunt is welcome to all the sunshine he can find in _that_ cucumber.

"Again, Mr. Hunt cannot fix the time when this explanatory conversation occurred and this verbal agreement was made; but it was the basis of a contract which was executed on the 24th September. It would naturally, therefore, be somewhere within speaking distance of that time. Now, in my statement of the case, made out on the 22nd October, 1768, and put into the hands of my friend Mr. Dane a few days after, and read before the referees, I said, 'I think it must have been at the time this contract was made out--but I cannot be sure as to the time,--that Mr. Hunt told me that they were going to pay me a fixed sum, fifteen cents on a volume, instead of a percentage;' adopting this course with their authors, 'on account of fluctuations, general uncertainties, and so forth.' In the following January my vague recollections were confirmed by finding unexpectedly, and without seeking it or knowing that I had it, a letter from Mr. Hunt dated September 23, 1764, from which I make the following extract: 'The contract has been delayed for a sufficient cause.' [He then gives the cause of the delay, namely, Mr. Brummell's absence]. 'The percentage will read fifteen cents per copy, as the business times are fluctuating the prices of manufacture so there is no telling to-morrow, or for a new edition, what may be the expenses of publication. So we reckon your percentage in every and any event as fixed at fifteen cents per volume on all your books. If it should cost $1.50 to make the volumes you are sure of your author profit of fifteen cents. The price at retail may be $1.50, $2.00, or $3.00, as the high or low rates of paper, binding, etc., may be, but _you_ are all right. This arrangement we make now with all our authors....

"'As I write, the contracts are reported ready, so I enclose them. Sign both, and send back the one marked with red X. You keep one and we the other.'

"I submit, that this extract, bearing date the day before the contract, has every sign of being fresh information. All the circumstances combine with my own distinct recollection, apart from them, to show that a new contract was made at my suggestion, not with any view whatever of changing the terms, but because I thought if a contract was necessary with one book, it was with another. I did not know that there had been or was to be any change from percentage to a fixed sum, until this letter told me. The retail price of the books had gone up to $1.50, so that ten per cent. and fifteen cents were the same. In this letter no allusion whatever is made to any previous conversation on the subject of the change from percentage to a fixed sum. Is it credible, I ask, that Mr. Hunt should have sent for me; should have assured me that this was a very serious matter; should have explained it all to me over and over again; should have repeatedly asked me if I understood it; should remember the conversation five years after, so vividly that the intensity of his convictions cannot find adequate expression in simple declaration but craves the relief of an oath; is it credible, that in his letter of the period he should have made no allusion to this conversation, but should have mentioned the arrangement as then communicated to me for the first time,--as it actually was?

"But further than this, my diary for 1764, carefully kept, with not a day missing, shows that during the whole summer and autumn preceding the 23d September, 1764, I was not once in Athens!"

[And yet again,--I set on foot an inquiry at the time but did not get an answer in season to use it before the reference,--Mr. Hunt distinctly remembered that he sat on a certain sofa in the new shop during the conversation which was the basis of the contract of September, 1764. But the firm did not move into the new shop till May, 1765!

Now if Mr. Hunt should gratify himself with the wished-for oath, I am sure that the accusing angel who flies up to Heaven's chancery with it, will blush as he gives it in, and the recording angel as he writes it down, will drop a tear upon the word and blot it out forever.]

"But it may be urged, giving up the conversation and relying only on the letter, that in any event I accepted and assented to the new contract with a full understanding of its meaning and effect, and am hence bound by it. This I deny. The law always scrutinizes transactions between parties in confidential relations, as father and son, guardian and ward, attorney and client, husband and wife, and demands the utmost frankness and fullest disclosure of circumstances, allows no concealments, and sets aside all contracts where any advantage is gained by reason of the confidence reposed. It recognizes the influence of superior position, and the right to trust in the party occupying it, and demands the strictest honor on his part. I think my position with my publishers comes within the scope of this principle. In respect of the matters involved in this contract, were we or could we be equal? They were practiced business men living in the city, with full knowledge of all the details of their affairs. It was their business to manage the external material parts of books. I was living in the country, with no knowledge of these affairs, and as I supposed, no need and no means of acquiring it. It was my part to attend to the interior and intangible souls of books. I could not look into their business without neglecting my own; as indeed I have been forced to do for sixteen months past, and as I should do with equal pertinacity for sixteen years, were it necessary. I never sent for my accounts, except when I wanted money and wished not to overdraw. When they came, I scarcely did more than glance at the footing to ascertain what was due me. Nor do I now see of what use it would have been to examine them ever so minutely. I was proceeding entirely on a basis of confidence, which I think I had a clear right to assume, and which was complete and unimpaired until the date mentioned in my first paper, when I awoke to the fact that I was not receiving what I seemed to be entitled to, and what, on the closest scrutiny, I believe to be my legal and equitable dues.

"Such being the relation of the parties, let us examine for a moment--that is a pulpit fiction, I mean for a good many moments--the inducements held out to me by my publishers, as they are found in this letter. I maintain that the proposed change from percentage to a fixed sum is so mentioned as directly--I do not say intentionally--to mislead me. It is held up as an arrangement peculiarly to my advantage, as guaranteeing me in any event against a loss to which I might otherwise be exposed, and as securing me my profits by some stronger safeguard than I had before possessed. But whereas I was blind I now see that it guarantees me against no loss, and the only safeguard it presents, is a safeguard against any benefit which might accrue to me from the rise in prices. Mr. Hunt says, "if it should cost $1.50 to make the volumes, you are sure of your author profits of fifteen cents,"--as if I should not have been just as sure of them had I received percentage! "The price at retail may be $1.50, $2.00, or $3.00, as the high or low rates of paper, binding, etc., may be, but _you_ are all right,"--whereas I was all wrong, for if I had kept to a percentage, and the retail price had become $3.00, I should have had thirty cents instead of fifteen.

"It was almost immediately after this contract that the retail price of all my books went up to $2.00, and has remained so ever since. This was a fact which my publishers had the means to foresee, but which I could not and did not anticipate or even conjecture. The absolute identity of ten per cent. and a fixed sum at the time of the new contract, together with their representations of its superior advantage to me, and my confidence in them, all combined to deceive me. I should have adopted the same reasoning and drawn the same inference if a year earlier I had been asked to change the ten per cent. to twelve and a half cents, which at that time amounted to precisely the same thing.

"Had I been distinctly told that my books were largely to advance in price, but that all the profit of the advance was to accrue to the publishers and none of it to me, should I have consented to such an arrangement? The referees and my publishers, in discussing these matters, plunged into an abyss of figures into which I cannot attempt to follow them. I do not even understand the jargon--I trust they will pardon the term--in which they appeared to be communicating ideas. I had provided myself with a friend who was, I believed, fully competent to dive as deep as the best of them. But I was not allowed to retain him, and I could only sit in despair on the brink of the gulf and stare at the spectacle. From the few intelligible sounds that did reach me I infer that the sacrifices of publishers in behalf of authors have never been fully appreciated. I felt that in claiming ten per cent. I was guilty of an extortion second only to that of David Copperfield in suggesting to Mr. Dolloby eighteen pence as the price of 'this here little weskit.' 'I should rob my family,' says Mr. Dolloby, 'if I was to offer ninepence for it.' It is gratifying to recollect that the last winter was a mild one, so that the cases of extreme suffering must have been rare. If it were not for an occasional glimpse at our impertinent income-returns one would be inconsolable. As it is, would the referees count it as bringing in new facts if I should send one or two postage-stamps to the retired clergyman whose sands of life have nearly run out, and beg a receipt for returning an income of fifty thousand dollars on a bi-annual cash profit of three hundred dollars?

"But though I cannot bring up a fact from the bottom of the sea, I can see a fact when it stares me in the face on land. If there was any reason except uncovenanted mercies for advancing my copyright from twelve and a half cents to fifteen, when the books went from $1.25 to $1.50, it must have applied with equal force to advancing my copyright from fifteen to twenty cents when the books advanced from $1.50 to $2.00. I deny that the increased cost of doing business should be reckoned solely on the side of the publisher as the justification of _his_ receipts and profits, while the author should be held down to the same fixed sum. The same causes that increased the cost of doing business to Messrs. Brummell & Hunt as publishers, increased in quite as large a ratio the cost of my doing business as an author. Every conceivable form of expenditure to which I was subjected was all the time increasing, and I was as much in need of a _pro rata_ increase of receipts from my books as the publishers could be. But Messrs. Brummell & Hunt take the opposite ground and maintain that no matter what the added expenditure of the author may necessarily become, only a fixed sum shall be allowed to meet it, while the vast increase of receipts and of profits shall be absorbed by the publisher alone. If this be justice, equity, or law, I think we would better stop hammering on the jubilee house, and begin back again at the Ten Commandments.[13]

"But though I was not able to follow my publishers through the technics and tactics of their business, there were two ways in which I might have formed and presented some opinion of the justice of their course. Had I been allowed, I would have called in other publishers and have asked them what would be a fair price for books with the character, dress, and sales of mine. I do not see that there could be any unfairness in this. They surely would not be likely to decide unjustly against their own craft, and they surely would be able to give an intelligent answer.

"From the inquiries which Mr. Dane has made among other publishers, I believe that the sum which Messrs. Brummell & Hunt allege that they have made on all my books represents much more nearly the profits which they made on a single one of them, 'City Lights,' and that the profits which accrued to themselves from the rise in the prices of books are much larger than they represent them.

"It was for the purpose of elucidating this matter, also, that the questions were sent to Messrs. Hunt, Parry, & Co. some days before the reference began. Had I known the profits of their firm, the number and sales of their books, and the profits of their periodicals, I should have been in a position to judge of the correctness of their statements regarding the cost and profits of my books. Mr. Parry objects to such testimony, as he says they may make a great deal of money in outside ways, by speculating in butter, for instance. Precisely. But they advertise themselves as a publishing house solely, not as a publishing and butter house. It is Hunt, Parry, & Co., publishers, not publishers and dairymen. When I am charged in my books with the cost of store-rent, I wish to know whether the rent is for packing-cases or butter-tubs. I am charged for insurance and clerk-hire. How can I tell whether the insurance and clerk-hire cover my share alone or whether they may not also embrace the safety and the management of the "Adriatic?" There is a separate item for the cost of advertising; but I am told that in a single year the receipts of the firm for advertising in their periodicals are ten thousand dollars more than the cost to them of all the advertisements which they publish elsewhere. Undoubtedly the sagacity of the firm in managing their periodicals has much to do with that circulation which makes them so valuable as advertising mediums; but is it not just possible that the quality of the writing has some slight influence on their circulation. Yet not only are the authors of the books and of the magazine articles often one and the same, but the articles themselves are frequently but extracts from the books, and the books themselves are frequently made up in part or in whole from the articles. I do not mention this as an advantage to the publishers and a disadvantage to the author, but simply to show that the book business and the magazine business are so interwoven that an investigation of the one, to be exhaustive, must be, to some extent, an investigation of the other. Messrs. Hunt, Parry, & Co. must give us all the data if we are to make their 'sums prove,' as the children say. As they decline to do this, and as I never learned to 'cipher in turkey rule,' they have everything their own way in arithmetic.

"Another point in Mr. Hunt's letter of explanation was, as he says, 'This arrangement we make now with all our authors.'

"When I wrote to Mr. Hunt about the last of August, 1768, that, contrary to what I had understood his assertion to be, several authors had ten per cent., and therefore I thought I ought to have ten per cent., the firm did not deny my premise, but simply said, 'In your letter you assume that we have but one set of terms with the various authors whose works we publish. In this you are in error. What we pay to any individual author is a matter quite between him, or her, and ourselves, and it is not our custom to make one author the criterion for another. Many elements enter into the case that would make a uniform rate impracticable. Independently of other considerations, the varying cost of manufacture caused by different styles of publication would alone preclude such an arrangement. We must therefore decline to admit such an argument into the case.'

"The fact is, it was not necessary to admit it, since it was already there--placed there by Mr. Hunt's own hands. It was offered as an inducement for me to accept the new terms, "this arrangement we now make with all our authors." Either, then, Messrs. Brummell & Hunt do make a uniform arrangement with all their authors or they do not. If they do, this last letter cannot be a correct statement of facts, and the question arises, what is that uniform arrangement? If they do not, then Mr. Hunt's letter of September 23, 1764, cannot be true, and the representation which he held out to me of a uniform mode of payment as an inducement for me to come into the arrangement, was not a correct representation. To ascertain whether or not they did make such an arrangement, I applied to such authors as were within reach to know what were and had been their rates of payment. A. writes, '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 a poem, by one third.' B. says, 'I have been content with ten per cent.' Messrs. Hunt, Parry, & Co. write to C., 'Even D. now has only ten per cent.' E. says, 'I never published but one book (prose) with Brummell & Hunt.... I received on this the usual beggarly percentage.' F. says, 'Generally we go on the system of half profits.... In regard to 'Old King Cole,' they print and sell and allow me a certain sum on each copy sold.' G. says, 'Brummell & Hunt have, I believe, allowed me ten per cent. on the retail price of my books.' H. says, 'I believe it (the book) was to have yielded ten per cent. if anything.' I. says, 'Messrs. H., P., & Co. have published four books for me. The three first sell for $1.25, and I receive twelve cents each copy. The last is a joint affair, published by subscription.' K. says, 'All my contracts have been for _one half the net profits_. The two volumes published by the Troubadours, were offered to Parry, but as he wanted to make other terms, I declined, and they went to the Troubadours. This is the sum of my transactions with Messrs. B. & H.'

"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 works were 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 be despotism 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 verbal agreement, 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 not alter 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 therefore be 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 that _he 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 she _was_ worried out, and preferred peace to pence. One can imagine 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 the _original_ retail 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 have been 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, is _facts_, 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; yet on 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 honorable publisher 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 believed innocent 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 I _was_ told, 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 of _an edition_ occurred with the first edition of my first book, and I really don't see how they could have begun _much_ earlier 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 friend Mr. 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 were ignorant, 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.