Part 12
(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.'