Part 14

"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.

"Mr. Parry thinks indeed that Mr. Dane had poisoned my mind regarding them. But he also thought Mrs.----'s mind was jaundiced. Perhaps that question belongs to the doctors rather than the referees. Whether it be poison or jaundice it is to be hoped the disease may not spread.

"There are other parts of Mr. Parry's statements which I should like to lay before the referees, but I remember that they are mortal, and though the spirit is willing the flesh is weak, and I forbear.

"IN CONCLUSION,

I claim that my first contract for 'City Lights,' specially stipulating ten per cent., shall be carried out in good faith; and that it shall not be considered as changed or modified by any conversation remembered by Mr. Hunt, but absolutely denied by myself. And I claim that the word edition used therein shall be held to mean just what Mr. Parry admits it would mean in common acceptation with the book-trade, namely, one thousand copies.

"2. I claim that my second contract, covering 'Alba Dies,' 'Rocks of Offense,' and 'Old Miasmas,' was obtained from me under a total misapprehension of facts, that this misapprehension of mine was the result of a misrepresentation (I do not say intentional) made to me by Mr. Hunt in his letter of September 23, 1764, wherein he represents the arrangement as one uniform among their authors and as assuring me a rate of compensation, which he leaves me to infer, I might not otherwise obtain, whereas he knew that the arrangement was not uniform and that my percentage would amount to more as prices were then tending,--and the arrangement was made by him so as to prevent my ten per cent. from amounting to more than fifteen cents per copy. This I did not understand, and should not have assented to if I had understood it. I hold that neither in law, equity, morals, nor manners should I be held to an agreement which I did not comprehend, which the opposite party so presented as to prevent my comprehending it, and which deprived me of my proportionate share of an increase of profit admitted to have been made on the books published under it. The contract, therefore, should be set aside, and I should be paid according to the usage of publishers, or at the same rate as appears in the contract for 'City Lights,' namely, ten per cent.

"3. I claim that on my books published since the date of my second contract, and not alluded to or included in either contract, namely, 'Winter Work,' 'Holidays,' 'Pencillings,' 'Cotton Picking,' and 'Rights of Men,' my compensation shall be fixed by the usage existing among publishers and authors.

"4. I claim and must certainly be entitled to receive interest at the rate of seven per cent. on all sums found to be due me at the date of the several semi-annual settlements, counting my compensation uniformly at the rate of ten per cent. on the retail price of the books at the date of the settlement. This point is so plain that it can need no argument.

"5. I claim that I am equitably entitled to damages to compensate me for the loss that has resulted to me pecuniarily and otherwise from this unhappy occurrence. My pecuniary damage alone amounts to more than three thousand dollars. There are hurts of other kinds to which money bears no relation.

"My actual expenses in preparing for this reference have been very considerable, and under the award of costs I claim that I should have an ample allowance made me to cover my outlays in this regard."

After this statement had been read, Messrs. Hunt, Parry, & Co. were permitted to make whatever of reply they chose. They denied no fact, and challenged no inference in my statement.

The referees, after two days of deliberation, returned the following decision:--

"The undersigned, mutually agreed upon as referees in the matter in controversy between M. N. and Messrs. Hunt, Parry, & Co., on their own account, and as successors of Brummell & Hunt, hereby award to M. N. the sum of twelve hundred and fifty dollars, to be paid her by Hunt, Parry, & Co., within three days from the date of this paper in full compensation for her claims upon the matter in this controversy--and that hereafter M. N. shall receive ten per cent. copyright on the retail price of all her books printed by Hunt, Parry, & Co., except the three books embraced in the contract between the parties dated September 24, 1764. The referees decline any compensation for services or expenses and leave each party to pay their own costs.

"Signed and delivered, April 30, 1769.

"J. RUSSELL.

"G. W. HAMPDEN."

X.

SOBER SECOND AND THIRD THOUGHTS.

HAVING trespassed so far on the patience of the reader, I may as well presume a little further, and indulge in a few reflections.

First, from the investigations and observations of the last two years, I infer that authors are very much to blame in their business dealings. By their inexactness, their indifference, their unreasonable and indolent trust, and their excessive monetary stupidity, they not only become an easy prey of, but they offer a direct temptation to the cupidity of publishers. Not a single author to whom I appealed showed the slightest reluctance to answer my questions, nor, I may almost add, the slightest ability to answer them adequately. For instance, the points I wished to ascertain were whether a writer was paid by percentage or by a fixed sum: what was the percentage and what the fixed sum: and whether during or subsequent to the year 1764 any change was made in the mode or rate of payment.

See now how charmingly the authors met my points.

Says one, "Brummell and Hunt never published but ---- with me and I received on this the usual beggarly percentage;" leaving me entirely in the dark as to what was the beggarly percentage.

Says another: "What terms do I make with B. & H.? Yes, with all my heart. In regard to ----, they print and sell and allow me a certain sum on all copies sold;" but with the greatest inclination in the world giving me no hint of the amount of that "certain sum."

Says another: "Brummell & Hunt have, I believe, allowed me ten per cent. on the retail price of my books. That was the first arrangement at least, but I must confess I never look at their statements of account."

Says a fourth: "I have always received a percentage.... I remember no change in 1764, unless that B. & H. about that time (perhaps earlier) without my asking it, raised the sum they paid me for ----, etc.... The interests of authors and publishers are identical--a fact which they understand better than we do."

Yet the firm testified of this very writer that they had written agreements to pay him percentage, and that when prices advanced they waived the percentage, and paid him a certain (lower) sum per volume.

A fifth says: "I have not the least objection in the world in replying to your letter in the most straightforward way.... I have been contented with ten per cent. on the retail price of my printed books."

Yet the written contracts of this writer showed every variety of arrangement from twenty per cent. downward.

A sixth says: "Messrs. B. & H. have published four books for me.... The three first named sell for $1.25, and I receive twelve cents each copy."

But Messrs. B. & H. affirmed that these books sold for $1.50 each.

A seventh says: "I did not send your letter to ----, for the reason that she does not know as much as you do about the subject of its inquiry. The most she could tell you would be, that now and then there comes a bit of paper very neatly and tastefully diversified by red and blue lines, and dreadfully complicated by sundry hieroglyphics, which she has been told are figures, and that a check embellished with one of the rows of figures accompanies it.... I have an impression that years ago, when ---- was taking such sesquipedalian strides to public favor, Mr. Brummell told me that after the number of copies sold had reached a certain point, the author received a reduced percentage, and I think I remember wondering by what perversion of commercial philosophy, an article of which fifty thousand copies could be sold, was worth less, proportionally, than one of which only five thousand could be bartered, for of course the ratio of cost decreased with every successive thousand manufactured."

Here, it will be perceived, is a faint glimmer of sense, which will be completely extinguished by the next extract.

"---- said you made a mistake in thinking yourself differently used from the rest of the writing craft, and explained that the profits of the author did not keep up the same proportion in repeated editions, but went to pay the increased circulation. For his part he would rather be more poorly paid for the sake of being more widely read."

Must not that have been an explanation worth having? It is not difficult to conjecture the source whence that form of explanation originated, for another letter says, "Mr.---- went to see Mr. Hunt.... Mr. Hunt expressed great regret that it had all happened; said 'Rights of Men,' had done more for your reputation than any other book; that you made more than the publishers did, etc., and that they thought better to have a low per cent. and large sales, than the contrary; though I don't see what a low per cent. paid to the author has to do with large sales, if the price of the book is kept high to purchasers."

The fact, is that as a bad woman is said to be a great deal worse than a bad man, so a man innocent of business capacity, is far more innocent than any woman can be. A woman may be never so silly, but there is generally a substratum of hard sense somewhere. A man may be never so wise, and yet completely destitute of this practical ability. It is largely in behalf of these helpless, harmless, deluded, and betrayed gentlemen, that I have felt called to take up arms. What sword would not leap from its scabbard to maintain the cause of the weak and the wronged?

But though I admit and lament that authors are unpractical and unbusiness-like to the last degree, I must affirm that they have less inducement to be business-like and less opportunity to be practical than any other class of persons. Suppose a writer sets out with the determination to be prudent and sagacious, where shall he begin? If a farmer has a bushel of potatoes to sell, he knows, or can learn in a moment, precisely their market value. The Early Rose has its price, and the Jackson White has its price; there is no room for doubt, or misgiving, or mistake. But the author has not and cannot have the least notion of the market value of his products. He does not even know their intrinsic value. He does not know whether he has raised an Early Rose or a dead-and-gone Chenango. He may have spent his strength on what is absolutely unsalable. His work is production, but for its worth he must depend solely on the word of those who buy and sell. After a while he does indeed arrive at something like a scale of value, but he never reaches such a degree of certainty as to feel assured of any special piece of work. Every one must be judged by itself. Five successful books are no absolute guaranty that the sixth will not be worthless.

It seems to me, also, that there is no business in which so few checks exist as in that of publishing. An author, we will say, agrees to receive ten per cent. on the retail price of all copies of his works that are sold, but he has literally nothing but the publisher's word by which to know how many copies are sold. The manufacturer knows how many he has made, but it would be offensive to ask for the manufacturer's accounts, and moreover he would probably not render them if asked. He would consider it as betraying the secrets of the trade, or the trust of his employers, or otherwise impertinent and unwarranted. Of course a false return of sales would be fraud, and somewhat complicated fraud; but human ingenuity combined with human depravity has been known to surmount obstacles to crime as formidable as these, and the danger of detection is infinitessimally small. If there be any such thing in arithmetic as the Double Rule of Three,--and I seem to have a vague impression that there is,--it may well be brought to the solution of the problem: if a publisher may for years safely disregard, not to say violate, the condition of a contract which an author has before his eyes in plain black and white, how long may another publisher safely falsify accounts which an author never sees, and which he could not understand if he should see? I have no doubt that in nine cases out of ten, and perhaps also in the tenth, the returns of sales are as accurate as the moral law. What I maintain is, that the author, be he wise as Solomon, has no means of knowing whether they are or not, while the manufacturer of all other goods knows precisely how much raw material goes into the mill and how much of the manufactured article comes out.

If the author, instead of receiving a percentage, takes half profits, he is even more at the mercy of the publisher. In the very outset the wildest theories prevail as to what constitute profits, and though the author may make heroic struggles to be exhaustively mathematical, the probabilities are that the only draught made upon his science will be the very simple effort of dividing by two whatever sum the publisher has chosen to figure up. The plan adopted by actors and actresses, to take half the gross receipts, is far more simple and sensible.

It is true that an author may take advantage of competition and seek a second market if the first prove unsatisfactory, but it is also certain that he cannot do this to any effective extent without serious injury to himself. All the skill, the vitality, the invention, the thought, which he brings to the disposition of his wares is so much taken from his producing power. He ought to be wholly free to do his best work. He ought to be able to concentrate himself on his writing. If he must turn aside to study the state of the market and superintend the details of sale and circulation, that necessity will surely tell in the deterioration of his works; and even at that cost he will not be so good a business manager as one who is to the manner born. It is a very pretty thing to be a poet-publisher--in the newspapers, but if the poet's imagination happens to get loose among the publisher's facts, it makes sad work, and it is not merry work when the publisher crops out in the poet's verses.

What then remains? It has been proposed that authors combine and form a publishing-house by themselves, publishing their own books and receiving their own profits. This plan looks simple enough, but I must confess it seems to me chimerical in the last degree. Excepting the temptations of their trade, doubtless a hundred publishers are as honest as a hundred authors, and surely they have a great deal more business sagacity. But as soon as authors turn publishers they fall into all the publisher's temptations without acquiring his business power; so that when you have chemically combined author and publisher you have an amalgam wholly and disastrously different from either of the original simples, namely, a publisher minus his common sense.

No, the publisher is not an artificial member of society. Like all other middle-men he meets a real want. He exists because in the long run it is cheaper and better for writers to employ him than to do his work themselves. Of course, the wiser and more righteous he is, the better he answers the end of his creation; but with all his imperfections on his head, he is better than nobody. A man may as well undertake to build his house with his own hands to save himself from the short-comings and extortions of carpenters, as to manufacture and distribute his own books to save himself from the extortions of publishers. We may send missionaries among them, we may gather them in to our Sunday-schools, but we need not think to exterminate them.

Authors may form publishing houses, and those houses may be successful, but if so it will be simply by adopting substantially the methods of successful publishing-houses already established. It seems to me easier and more economical to let such institutions spring from the soil, rather than attempt to construct them out of material which has already been organized into another form of life.

Shall we then take the publishers _cum grano salis_, and try to guard our interests by keeping a strict look-out? We must turn publishers ourselves to make it of any account. A detective, to be worth anything, ought to be at least as wily as the rogue he watches, and to be so he must give his mind to it, and if he give his mind to that, where-withal shall he set up any other business? An author need not rush in among publishers as Cincinnati swine are said to invade the streets with whetted knives, crying "come and eat me"; but if he on the contrary objects, steadfastly and stoutly, to being devoured, he does not know where his vulnerable point is, and cannot therefore arm himself against attack. He is not and cannot become, consistently with the proper pursuit of his own profession, sufficiently acquainted with the details of publishing to know whether a measure proposed by a publisher be or be not fair. For instance, the publisher contracts to pay ten per cent. on the retail price of a sixty-two cent book. A war comes, bringing high prices, and the book goes up to a dollar and a quarter. The publisher continues to pay the author ten per cent. of sixty-two cents, making no reference to the increased price. The author presently chances to discover it, and remonstrates. The publishers say curtly, "You will make the price of the book so large that it will have no sale," oblivious of the fact that it is not the author but themselves who have raised the price of the book. He replies that the price is not his affair; he must insist upon the contract. The publishers yield, and the author is apparently victorious. But when a second author brings up this case as a reason why he should receive his percentage, the publishers reply, "True, we did continue percentage because he insisted, but, as a warning, the book had a very poor sale." But what effect on the sale can the author's twelve and a half, instead of six and a half cents have if the price to the buyer is the same? Until some better answer is given I shall believe that the sale diminishes because the publisher chooses it; because he prefers to sacrifice a small sum on a single volume as a warning to contumacious authors, rather than encourage rebellion by continuing to receive profits of which he must divert a larger share to the author. If he can, by one or two examples, show restive writers that the question is not between six and a half cents and twelve and a half cents on a thousand books, but between six and a half on a thousand, and twelve and a half on a hundred, the sum he sacrifices in showing it is not a bad investment.

Since, then, the publisher has matters within his own grasp so entirely that what he is forced to pay with one hand he can easily pluck with the other, I do not clearly see the advantage to be gained by insisting on any special bargain with him. Perhaps I do not quite know what I am talking about. I suspect, on the whole, I do not. But my remarks are all the more valuable for that. If, after two years of clapper-clawing among a quartette of cats, a mouse is still unskilled in feline ways, in what state of helplessness must be those unadventurous little things who have never left their holes?

But there are the books of the firm which the suspected publisher opens to you with a frankness of innocence that ought to disarm and convince the most hardened unbeliever. Any demur is met by an invitation to come and look at "the books." The trail of the Serpent is over all the rest of the world, but "the books" have escaped the contamination of original sin and shine with the purity of Paradise. Burglars blow open safes, banks and directors and cashiers and tellers come to grief, but "the books" always tell the truth, the whole truth, and nothing but the truth. Nowithstanding which I, from the beginning, instinctively gave those "books" a wide berth. They were to me like the "magick bookes" of Spenser's hermite. "Let none them read." That "the books" are not always "reliable gentlemen" will have been inferred from the account which they professed to have sent me, and which was--lost in the mail. That "the books" are not always intelligible witnesses would appear, could we know how many unwary persons have gone to them in pursuit of knowledge, and found the difficulty insurmountable. "We had the books here," said one benighted author of no mean repute, "and I examined them, and Kate examined them, and Frank examined them, and the Major examined them, and we could make nothing of them." That the books have been made to do yeoman's service in this battle has already been seen, and by various tokens it would seem that they have not yet been dismissed the service. Only to-day a letter says, "But the account of the sales of your book and the sums paid you for them, as I derived them from the books of Mr. Hunt, convinced me that whatever the bargain might be you had a better one than _I_ had. I have half profits--you have had more."