Part 13

"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.