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Compleat World Copyright Website Raymond Birn The Profits of Ideas: Privilèges en librairie
in Eighteenth-Century France Eighteenth-Century Studies,
4
(2),
Winter,
1970-1971, 131-168 |
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ON 30 AUGUST
1777 - fifteen months after the fall of Turgot and three months into Necker’s first ministry - six royal arrêts overturned the fundamental commercial principles upon which the French book trade
had rested for a century. The first four
of these orders suppressed certain provincial communities of sellers and
printers, the so-called chambres syndicales, while creating others;
revised criteria for accepting master libraires
and imprimeurs; established two public sales annually for the disposition of literary
property; and ruled on the conduct and discipline of the journeyman
printers. [1] The
Sixth arrêt, recognizing how a clique of
favored publishers had monopolized the industry by extending over many
generations exclusive rights of reproduction, the privileges en librairie, thus
reducing less favored colleagues to the recourse of counterfeit editions, now
legitimized these editions, provided that owners presented their volumes to a
royal inspector or official of the community to be stamped. [2] But the Fifth arrêt of 30 August was the most significant of
all. For the first time
legislation distinguished between the nature of literary property in the hands
of an author and in the hands of a publisher.
The privilege, granted to the writer
for his labor or to the publisher for his
investment, was newly defined. The arrêt stated that hereafter no first edition
could be published in France without either a royal privilege or permission
awarded by the keeper of the seals.
Previous legislation had required
this of all titles, classics as well as new books. I wish to express my gratitude to the
Fulbright Commission for its financial support in 1968-69, when I conducted the
research for this article. A shorter and
somewhat different version was read at the annual meeting of the Society for
French Historical Studies, held in Washington, D.C. on 20 March 1970. 1. Bibliothêque
Nationale. Fonds Francais 22180, Nrs. 81, 82, 87, 91. 30 August 1777. See also Isambert, Jourdan, and Decrusy eds., Receuil
general des anciennes lois franfaises (Paris, 1922-30), XXIII, 108-28. 2. F. Fr. 22180, Nr. 84. 30 August 1777. 131 Yet
what was most original about the new ruling was the distinction it made between a privilege possessed by authors or their
heirs on the one hand,
and publishers on the other. When owned
by the first group, the nature
of the privilege was perpetual as well as exclusive. Retaining it, the writer and his descendants might negotiate freely
with a printer and participate
in any way deemed desirable and through as many editions as
were necessary to effect the distribution and sale of the book in question.
All other parties were restrained from publishing the work. However, once a publisher purchased the
manuscript from its author and assumed responsibility for the edition himself,
the royal privilege accompanying the
transfer would be valid for a minimum of ten years or the lifetime of
the work’s author. As soon as the
publisher’s privilege expired, the work would enter the public domain. A publisher might renew his privilege only if
he had the text of his edition increased by
at least one-fourth. It was assumed that
“anciennes éditions non-augmentées”
would fall into the public domain whether or not an old privilège
protected them. All publishers were
commanded to declare an inventory of privilèges en librairie in their
possession so that new determinations on the limits of their validity could be
made. The spirit of the ruling was
expressed in language intended to assuage publishers for a sudden loss of
property which they held to be as real as a piece of land or a marriageable
daughter: “Sa Majesté a
pensé qu’un Règlement qui restreindroit le droit exclusif des
Libraires au temps qui sera porté
dans le Privilège seroit leur avantage, parce qu’une jouissance limitée, mais certaine, est préférable
a une jouissance indéfinie, mais illusoire.” [3] The difficulty was that few holders of privileges en
librairie in 1777 - or for the past century
for that matter - considered their possessions to be illusions. They were
based, it was believed, upon sound theory and concrete example. Colbert had established the precedent early
in the reign of Louis XIV, when, to maintain economic and ideological controls over the librairie, he linked a policy on
privileges to two other aspects of his program, censorship, and the
limitation and careful surveillance of presses in France. Authority
over censorship, of course, he inherited from predecessors. [4] When
he established a royal board of examiners for theological 3 F.
Fr. 22180, Nr. 80. 30 August 1777. Amendments. F. Fr. 22180, Nr. 175. 30 July 1778. 4. No comprehensive study of censorship under the Ancien Régime exists. Aspects of the problem have been studied, however, either as specialized monographs or as a part of more general works on the book trade and its administration. In the former category are J.-P. Belin, Le Commerce des livres prohibés à Paris de 1750 et 1789 (Paris, 1913); Albert [Bachman, Censorship in France from 1715-1750: Voltaire’s Opposition (New York, 1934); and Nicole Herrmann-Mascard, La Censure des livres à Paris à la fin de l’Ancien Regimé (1750-1789) (Paris, 1968). In the latter are Lucien Febvre and Henri-Jean Martin, L’ Apparition du livre (Paris, 1958), pp. 371-75 ; David T. Pottinger, The French Book Trade in the Ancien Régime, 1500-1791 (Cambridge, Mass., 1958), pp. 54-81; Madeleine Ventre, L’Imprimerie et la librairie en Languedoc au dernier siècle de l’Ancien Régime (1700-1789) (Paris and The Hague, 1958), pp. 75-215; Pierre Grosclaude, Malesherbes: témoin et interprète de son temps (Paris, 1961), pp. 63-208, 665-82; and Henri-Jean Martin, Livre, pouvoirs et société à Paris au XVIIe siècle (1598-1701) (Geneva, 1969) I, 440-71; II, 695-98, 764-74.] HHC: [bracketed] displayed on page 133 of original
132 works, But a far more serious element in the Colbertian
program, since for many it meant
disappearance altogether, was the policy of limiting the number of presses in 5. F. Fr. 22071, Nr. 108. 11 September 1665. As may be expected, preventive and repressive censorship was a constant
preoccupation of the Crown from the reign of Louis XIV until the revolution, and literally hundreds
of royal arrêts were promulgated on the subject. Two comprehensive
rulings attempted to coalesce the specific legislation
of the seventeenth and early eighteenth centuries. The first was issued in 1686 (F. Fr. 22061,
Nr. 121. “Edit du Roy pour le règlement des imprimeurs
et libraires de Paris, avec les autoritez
des anciennes ordonnances, statuts, arrests & règlements” 133 but
also in Lyon, Something
went wrong, however. The censorship
controls broke down. Too many French
readers desired books printed in the freer climes
of 6. Martin, Livre, pouvoirs et société, I, 319-26; II, 678-83, 699, 704. The crisis of recession which
helps to explain Colbert’s retrenchment policies from the economic angle has
been a
fruitful topic for revisionist historians rightly wishing to deglamorize the
Sun King’s reign. Roland Mousnier
brilliantly analyzed the background of the crise and the royal response
in Les XVIe et XVIIe siècles (“Histoire
générale des civilisations”), IV ( 7. Paul Chauvet, Les Ouvriers
du livre en 8. Martin, Livre,
pouvoirs et société,
II, 739-53. 134 publishing
centers for books for French consumption in As it stood, Colbert’s privilege system conspired with
the policy of reducing the number of presses to create,
by the beginning of the eighteenth century,
a book trade thoroughly dominated by a handful of Paris
libraires-imprimeurs, who dictated contracts with authors while rendering
colleagues in the capital and provinces submissive and economically
impotent. These favored publishers,
customarily the officers of the Paris Community
of Sellers and Printers, formed a patriciate closely associated with the
regime - registering privilèges and permits, as imprimeurs du Roi dividing
monopolies over the publication of government documents, and, above all,
obtaining exclusive privileges for as many books as possible, old titles and
new ones, classics, and best sellers. [11] 9. C.-G. Lamoignon de
Malesherbes, Mémoires sur la librairie et sur la
liberté de la presse ( 10.
F. Fr. 21990. 11. As the foremost economic
consideration of French publishers of the Ancien Regimé, the privilège en librairie
has not escaped the attention of scholars.
During the second half of the
nineteenth century the historiography of the privilèges was marred by the fact that
those who approached the subject did so to justify personal positions in the
then current debate over perpetual
copyright. For example, Edouard
Laboulaye and Georges [Guiffrey defended
the principle of perpetual copyright by stressing the need for reestablishing
continuity with tradition - that is, with their interpretation of pre-1777
tradition. They stressed the principle
that under the Ancien Régime an author and his heirs might retain a privilege
ad infinitum, and that, until 1777, publishers justifiably might expect
identical protection. By employing
historical precedent to defend the ambitions
of publishers of their own day, however, Laboulaye and Guiffrey neglected to mention
that before 1777 the author and his heirs were prohibited from exploiting the privilège.
Only a libraire or imprimeur could engage in the commerce of books, and
the Paris Community of Sellers and Printers urged members of the guild
to insist upon an author’s surrender of his privilège
before undertaking publication of his manuscript. In the overwhelming number of cases
this intra-community collusion seems to have worked,
and it was not until 1769 that an author overtly challenged publishers’
practice by finding a printer who would undertake his work without
insisting upon purchase of the privilège as
well, and then locating several libraires who would distribute and sell
it. Though the logic of Laboulaye and
Guiffrey was shaky, the documents reprinted in their volume, La Propriété littéraire au XVIIIe
siècle. Recueil de pièces et de documents. Publié par le Comite de l’Association pour la défense
de la propriété littéraire et artistique ( HHC: [bracketed] displayed on page 136 of original 135 The earliest privilèges en librairie dated back to the first decades of the sixteenth century and were granted either to authors
or publishers. The original intent was
to allow the principal investor in an edition the opportunity
to recover his money and earn a profit within a fixed period of time - five to
ten years customarily. After this period
the 136 book
in question was to become free copy. The
University, Parlement of Paris, Court of Châtelet,
and king shared in the issuance of privilèges. In the second
half of the sixteenth century, however, the Crown assumed
exclusive authority to award them. The
wars of religion activated the press as never
before, and royal advisors sought to convert a commercial favor of the
king’s into a means of censorship control.
In 1566 royal privileges for all first editions became obligatory.
Enforcing such an ordinance outside 137 publishers. The issues at
hand would involve the exclusive privilèges for popular editions of classical texts, automatic
renewals of privileges, and the privilèges généraux. When
Louis XIV assumed control of the government in 1661, however, no settled
privilege policy, governed by royal ordinance, existed. A General Ruling on the
librairie in 1649 had recognized the principle of exclusive privileges for
classics, but Parlement refused to register that part of the
document. Chancellor Séguier abided by
it nevertheless and awarded privileges and
renewals to the 12 Martin, Livre,pouvoirs et société, I, 51-57, 331-61, 423-29,
440-60; II, 555-96, 678-95. The essential documents on the evolution of the privilège system
from the sixteenth through mid-seventeenth
centuries are as follows: Chevillier, L’Origine de l’imprimerie de Paris (Paris, 1695), p. 395 - an enumeration of the first privileges;
Isambert, Jourdan, and Decrusy, Recueil
général, XIV, 210-11 - the Edict of Moulin (February 1566) obliging royal privilèges for all first editions; F. Fr.
22071, Nr. 69. 19 July 1618. Art. XXXIII - the article in the royal patent
letters establishing the Paris Community of Sellers and Printers, which
prohibited renewals of privilèges without
a corresponding augmentation of the text;
F. Fr. 22061, Nr. 93. December 1649.
Art. XXVI - the controversial article in the General Ruling over the librairie which recognized
exclusive privileges for classics; F. Fr. 22071, Nr. 107. 27 February 1665 - the last royal arrêt until the
mid-eighteenth century that made any genuine attempt to slow down the
contraction of the public domain. 13. Charles Jourdain, Histoire de l’Universite de
Paris aux XVIIe et XVIIe siècles ( 138 d’Andilly and Louis of
Granada, for “des offices de l’Église, de la Messe & de la Semaine sainte
en Latin & en Francois, que pour le Vieux et du Nouveau Testament,” [14]
for certain translations of the Books of Psalms, Proverbs and Ecclesiastes,
and, finally, for the translated writings of
St. John Chrysostom and Gregory the Great. [15] Such
a policy presaged disaster for publishers in the country, accustomed to assume
that translated classics and patristic texts belonged to the public domain, and
all that was needed, in order to make an
edition of one of them, was censorship approval from a local procureur du Roi.
In the last years of the
seventeenth century, Lyon and 14.
Most likely this-was Nicolas Fontaine’s Histoire du Vieux & Nouveau
Testament ( 15.
F. Fr. 22074, Nr. 37. 3 August 1675. 16. F. Fr. 22061, Nr. 121.
Art. LXVI. See Roubert, “La Situation de l’imprimerie lyonnaise,” pp. 86-87. 17. F. Fr. 22074, Nr. 66. 30 August 1692. F. Fr.
22074, Nr. 68. [1694]. F. Fr. 22074, Nr. 70. 20 June
1699. The second seizure, instigated at
the request of André Pralard of 18.
F. Fr. 22071, Nr. 195. 2 October 1701. 139 published books,
these surely would be denied; for Parisians, gaining wind of their intentions, would get to the
Administration first and acquire exclusive privilèges for the works in
question. Every day, complained the Between 1704
and 1725, the non-privileged publishers of One
of the most publicized cases involved two members of the patriciate,
Jean-Baptiste II Coignard and Jacques Mariette.
It had become fairly common for the
chancellor’s office to tempt a Parisian with privilège prolongations for works
that sold well if only the 19. F. Fr. 22071,
Nr. 196. “A nosseigneurs des Requestes de l’Hôtel”[1702]. 20 F. Fr. 22065, Nr. 63.
21 July 1704. 21.
F. Fr. 22071, Nr. 223. 30 January 1706. 22. Mellottee, Histoire economique, I, 196-99. 23. Chauvet, Les Ouvriers du
livre, pp. 150-55. The General
Ruling of 1723 officially authorized use
of the alloués. 140 publisher
would undertake the re-edition of a costly venture whose profit was not guaranteed. In 1707, such an opportunity was presented to
Coignard, imprimeur du Roi et de l’Académie
francaise. Six years earlier Coignard had obtained a twelve-year
privilege for several works,
including the immensely successful Dictionnaire of Moréri. In hopes of publishing a new edition of the Moréri,
Coignard decided to share the priviège for it with Mariette. Nothing immediate came of the partnership.
But then the chancellor’s office proposed an eighteen-year
continuation of the priviège for the Moréri
provided that Coignard undertake publication of the out of print Antiquitates
Constantinopolitana of Père Anselme.
Coignard proceeded to inform Mariette
that by virtue of the partnership in the Moréri, the two were to share
expenses for the Anselme. Mariette did
not see it that way, maintaining that the
two enterprises were wholly independent of each other. He invoked a long abused
arrêt of 1665 stating the necessity of considerable augmentations of
text before a priviège prolongation would be granted, and added that both he
and Coignard possessed sufficient new material to merit a legitimate
continuation of the Moréri. But greed alone had motivated Coignard,
Mariette wrote, since the imprimeur du Roi failed to mention that in addition
to the Moréri, he had managed to
wangle fifty additional prolongations of privièges in his possession - if only he would undertake
the Anselme. [24] In the long run Mariette
obtained satisfaction. I can find no subsequent
re-edition of the Anselme, and in 1712 a new edition of Moréri
appeared with Mariette cited as publisher. [25] According to one source, admittedly
exaggerated, the profits accruing from it were enormous, if not
exorbitant. [26] Eight
years later, however, a grave crisis struck the necessaires pour ses Classes, avec des Notes ou sans Notes, &
specialement une suite d’Auteurs Grecs & Latins,
avec des Notes & des Index... [to be printed]
autant de fois que leur bon semblera & de les faire vendre & 24. The memoir of Coignard is F. Fr. 22072, Nr.
14. [1710] “Au Roy & a nosseigneurs de son Conseil.” The memoir of Mariette is F. Fr. 22072, Nr.
16. [1710] “Au 25. Catalogue générales des livres imprimes de
la Bibliothèque Nationale. Vol. 119, 529-30. 26. [Jacques-Pierre Blondel], “Mémoire sur les vexations qu’exercent les libraires & les imprimeurs de Paris” (Paris [1725]), p. 4. 141 débiter par tout notre Royaume pendant le temps de cinquante
années consécutives. Though
the award categorically denied prejudice against publishers holding privileges for editions contemplated by
the University, it nevertheless prohibited libraires and imprimeurs of the
capital from printing the same works that the Sorbonne
might undertake. The rector looked for a
publisher with whom he might entrust the vast concession. He did not have to go far. His brother, Lambert Coffin, had
recently resigned his professorship to take up a new profession - that of libraire. [28] The issue bore the earmarks of a
put-up job, and the Parisians found
themselves duped at a game in which they themselves had acquired great
skill. They cried that the grant to the
University was a privilèges général, now out of fashion, [29] and that the
advancement of scholarship would all but cease. Editors, they claimed, would be willing to
undertake only University-sponsored ventures.
Conveniently forgetting their own relentless hunt for privilèges, the Parisians added that the free market in classical
texts and indexes was now ruined, and
compounding self-interest with hypocrisy, the patriciate suddenly
displayed concern for brethren in the country, “dont la plupart ne subsistent
que pour l’Impression & le Débit des Feuilles de Classes & des livres à
l’usage des Etudians.”
Once the provincial universities
imitated Important
as this affair was in itself, it also must be seen as an effort on the part of the University to regain a degree
of influence over an area in which
it once had played such a preponderant role.
Prior to printing, the
librairie had been within the domain of its authority. In the sixteenth century, however, its
controls over censorship had whittled away,
and in the seventeenth century its position on the free trade in books had become a dead letter. In the view of the doctors, a 27.
F. Fr. 22072, Nr. 33. 8 August 1720. 28. F. Fr. 22072, Nr. 34. [1720]
“Memoire pour le sieur Lambert Coffin, ancien professeur en Universite.” Lambert Coffin had to pay dearly for his
windfall. His former colleagues deeply resented his commercial
ambitions, maintaining that the profession of libraire, at one time
linked closely to the academy, “n’est pas aujourd’hui sur l’ancien pied… &
que comme elle n’a rien d’incompatible avec l’Art d’un Relieur, elle n’a aussi rien de compatible avec la Profession noble &
libérale de Maistre de l’Université.”
The binders, incidentally, had been driven out of the community
in 1686. 29. Late in the seventeenth century authors had been
prohibited from obtaining privilèges
généraux. F. Fr. 22071,
Nr. 136. 18 February 1673; F. Fr. 22071, Nr. 138. 4 June 1674; F. Fr. 22173, Nr. 46. 13 May 1686. I can find nothing in the registers, however,
that prohibited publishers from obtaining them. 30. F. Fr. 22072, Nr. 35.
“Mémoire pour les libraires & imprimeurs de 142 once
noble profession had fallen prey to the state and crafty businessmen.
[31] Worst of all, in 1703 a royal order
opened the academic community itself to all master libraires and imprimeurs,
not merely the two dozen favored ones
sanctioned by medieval tradition. [32] After all the humiliations
perhaps now the opportunity arose for a bit of vengeance, and Rector Coffin
decided to make the most of circumstances. But
the Parisians were too firmly entrenched.
They launched a counter-attack against the university, and in 1721 the
officers of the chambre syndicale obtained
major concessions from the Royal Council. Most significant was the fact that the
volumes which the university intended to
undertake were not to be protected by a privilège after all. They rather would obtain special permissions
simples. This meant that commercial
publishers would be allowed to print subsequent versions of the university
editions as freely as they wished. They
merely would have to acquire their own permissions. Only published lecture notes would keep their
exclusive character. [33]
The Parisians thus could
breathe more easily, but at the price of principle. For
a moment they had to reverse their position on privilèges and were forced
to acknowledge additions to the public domain.
The storm passed, and they soon returned to customary habits of
obtaining privilèges and protecting
them. The Sorbonne affair of 1720-21 was
to be considered an anomaly. They might
renew their course again. Indeed,
they had to. The sudden aggressiveness
of the Sorbonne perhaps was symptomatic of
the deep social and economic crisis which arose in 31. Jourdain, Histoire de
l’Université, II, 28-29, 176-78. Olivier-Martin, L’Organisation
corporative,
pp. 55-60. 32. F. Fr. 21748, Nr. 62. 6
October 1703. Formerly, membership had
been restricted to twenty-four masters, a
custom dating back to the fourteenth century.
In 1725 the University saved some
face by obtaining the right to examine all candidates for masterships in
the book trade, ostensibly to determine literacy in Latin and Greek. Obviously the examination was nothing more
than a formal gesture. 33. F. Fr. 22072, Nr. 38. 13 September 1721. 143 ignored
altogether. In 1744 the “Reglement du Conseil”
became known as the “code de la librairie” and was
applied formally to the entire kingdom. [34] Though the revisions of 1777 were to
alter completely its treatment of the privilèges, it remained the fundamental document governing the book trade for the
remainder of the Ancien Régime. [35] Divided into sixteen chapters and 123 articles, the
ruling covered the administration and
composition of the community, censorship procedures, the policing of published
works, the rights of authors, the role of itinerant peddlers (the colporteurs),
the auxiliary trades, and finally the
privilèges and permits. Curiously
enough, the ruling failed to define privilèges per se, or state criteria for their prolongation. But Article 103 assumed that all books
printed in The
patriciate countered provincial protests against the ruling by having drawn up in 1725 a theoretical argument
justifying the legislation. No longer did the Parisians intend to depend
solely upon historical precedent or
economic necessity, as had been traditional with them. Nor
would they pay much attention to the contradictory elements in seventeenth
century arrêst on the privilèges. T hey would appeal rather to a fundamental idea on property which had its
source, so they believed, in Natural Rights themselves. They called upon a parlementary lawyer, Louis d’Héricourt, to prepare their
brief, which they submitted to Keeper of the Seals Fleuriau
d’Armenonville early in 1726. [36] 34. F. Fr. 22062, Nr. 85. 24
March 1744. Saugrain, Code de la librairie et de
l’imprimerie ( 35. Isambert, Jourdan, Decrusy, Recueil général, XXI,
216-31. 36. By no means was d’Héricourt’s argument wholly
original. As early as 1694, a memoir of
the 144 To
their bewilderment d’Armenonville became furious when he read it. He forced
the resignations of the syndic and adjunct of the community, and the printer of the Mérnoire had
to flee What was so outrageous about the argument which now
threatened the alliance molded by Colbert half a
century earlier? Essentially, d’Héricourt and the Parisians defined the royal
privilege in so restrictive a way
that it became no more than the confirmation of an anterior right - and
that right was property: “Il est certain,” wrote the jurist, “selon les
principes que l’on vient d’établir, que ce ne soot point les Privilèges que le Roi accorde aux Libraires qui
les rendent proprietaires des Ouvrages qu’ils impriment, mais uniquement
l’acquisition du Manuscrit, dont l’auteur
leur transmet la propriété, au moyen du prix qu’il en recoit.” By what right is a manuscript the property of
an author, d’Héricourt asked rhetorically?
His reply was an extension of Locke’s : “C’est le fruit d’un travail qui lui est
personnel, dont it doit avoir la liberté de disposer à son gré, pour se
procurer, outre l’honneur qu’il en espère, un profit qui lui fournisse ses
besoins.” Of course, d’Héricourt
neglected to mention that the Ruling of 1723 prohibited
all who were neither libraires nor imprimeurs from engaging in the
commerce of books, so that authors had no other choice than to transfer
ownership of the product of their toil.
To d’Héricourt, once the manuscript
changed hands, the new owner obtained full and outright possession: “[Il] doit demeurer perpétuellement propriétaire du Texte de cet Ouvrage, lui & ses descendans,
comme d’une terre ou d’une maison qu’il auroit acquise, parce que
l’acquisition d’un héritage ne differe en rien par la nature de l’acquisition
de celle d’un manuscrit.” Therefore, a
privilège, strictly speaking, could have no temporal
limits. It simply acknowledged a right
of property. “Le Roi, n’ayant
aucun droit sur les Ouvrages des Auteurs, ne peut les transmettre à personne sans le consentement de ceux qui s’en trouvent les légitimes propriétaires.” Once a manuscript passed censorship and
the publishers acquired a royal privilège over it, the king “se trouve dans une
heureuse impuissance d’ôer les Privilèges qu’il a 37. F. Fr. 22072, Nr. 62. “A
Monseigneur le Garde des Sceaux” ( Ce mémoire a
tellement irrité le Garde des Sceaux qu’il en insulta le sindic Mariette &
son confrère adjoint Ganeau, qu’ils luy
donnèrent leur démission, & à leur place furent nommés par arrest du
Conseil Brunet sindic, Prudhomme & Saugrain adjoints. In 1764 the librairie official
Francois Marin noted that the printer of the memoir, Vincent, had had to flee Paris (F. Fr. 22183. March, 1764). 145 accordés
a un libraire propriétaire d’un Manuscrit, pour en gratifier un autre qui n’y a
aucun droit.” [38] Franklin
Ford has noted how early eighteenth century Robe theoreticians adapted to French circumstances certain of the justifying
principles for the Glorious Revolution.
Customarily it was the contractual theory of the state that intrigued
them. [39] D’Héricourt,
however, was dipping into two other areas
dear to the men of 1688, the labor
theory of property and the inviolability of commercial contracts. The merging of these concepts would
serve the self-interest of the privilège monopolists of the French book trade
for another half century. Nevertheless,
the year 1726 marks a watershed in another way.
No longer would the Administration react with automatic sympathy to the
wishes of the Still,
between 1726 and 1750, the regime made no concerted effort to revise the
privilège system. Only once between
these dates did it seem genuinely threatened.
This was in 1739. Two 38. F. Fr. 22072, Nr. 62. The memoir was reprinted, with slight
variants, in the Oeuvres posthumes de Maitre Louis d’Héricourt, Avocat au
Parlement ( 39.
Franklin L. Ford, Robe and Sword: The
Regrouping of the French Aristocracy After Louis XIV (New York, 1965), p. 224. See also Denis Richet, “Autour des Origines idéologiques lointaines de la Revolution francaise. Elites et despotismes,” Annales.
Economies, Societes, Civilisations (1969),
1-23. 40. [Blondel], “Mémoire sur les vexations.”
In his Journal et mémoires sur la
Régence et sur le regne de Louis XV, ed. de Lescure (Paris, 1863-68), III, 176 and 310, Matthieu
Marais notes that Blondel’s memoir was thought to have been the work of
disgruntled journeyman printers. The memoir has been edited by Lucien Faucou
and published under its original title by the Moniteur
du Bibliophile ( 146 d’Héricourt’s argument
that privilèges protected real property and therefore
were indissoluble without consent of the owners. That fears
of a new royal policy lay behind their plea appears evident from their
remarks: “[Si] Sa Majesté jugeroit apropos aujourd’huy de retrancher toutes les
continuations des Privilèges, ce retranchement ne
pouroit équitablement tomber que sur les Privilèges qui se sont accordes
postérieurement à ce nouveau Règlement, & non sur les suppliants.” [41] But no change in policy occurred. Maboul soon replaced d’Argenson as director, and the patriciate could breathe more easily.
The year 1739 brought a further reduction in the number of provincial presses, and five years later the
Ruling of 1723 officially became applicable for the entire land. It was in 1750, the date traditionally viewed as the turning point in the intellectual life of prerevolutionary France, that the book trade entered a new era. The guiding spirit of this transition was
Malesherbes, son of Chancellor Lamoignon,
who at twenty-seven became chief of
the royal bureau de la librairie. During
Malesherbes’ thirteen-year stint the
department expanded in size and scope, and the director assumed the
awesome responsibility of deciding most of the ideological ground rules for
dissemination of the Enlightenment in 41 F. Fr. 22072, Nr. 98.
April, 1740. 42 Indigestible as it is, Pierre
Grosclaude’s monumental Malesherbes: témoin et
interprète
de son temps remains
the definitive biography of this remarkable man. Grosclaude devotes a considerable amount of his work (pp.
63-208, 665-81) to Malesherbes and the librairie, but spends only two pages (pp. 180-82) on the
privilèges. A recent book, Edward P. Shaw, Problems and Policies
of Malesherbes as Directeur de la librairie in 147 d’ailleurs du privilège exclusif de la plupart des
livres qui s’impriment, jouissent de leur
maîtrise sans soin & sans travail, comme on jouit d’une terre qui rapporte un gros revenu.” [43] Clearly this was an ironic twist of the Parisians’ celebrated argument. Yet Malesherbes found it difficult to attack the patriciate
frontally. After all, often its officers
shared his libertarian views and wished as much as he to spread the
gospel of the new ideas. Was not the
syndic Le Breton one of the partners in the Encyclopedic, the publication
of which Malesherbes pledged himself to protect at all costs
? The oblique
way Malesherbes chose to attack the privileges and numbing orthodoxy was via
the permissions tacites. We know of
course that the permissions tacites were employed to circumvent censorship.
One may hypothesize that they were used to circumvent the privilège
system as well. In the first place, as is revealed by Robert
Estivals’ compilation of the data preserved in the registers of the Paris Community
of Sellers and Printers, the average annual number of privilèges, continuations,
and permissions de sceau sought and authorized under Malesherbes did not
increase materially from previous decades, and in fact, never did attain the
averages for the last years of Louis XIV’s reign. [44] The permissions tacites, however, tell
a far different story. Beyond the pale
as far as regulations on censorship and privilege were concerned, they
nonetheless were recorded - too sloppily, too haphazardly to meet the standards
of the quantifier of modern voter statistics perhaps, but as well as the
historian working in the murky shadows of the Ancien Régime can hope for. For the period
1724-46, that is before Malesherbes’ assumption of the
directorship over the librairie,
the average number of permissions tacites requested per annum came to
twenty-five; the average number authorized, fourteen. These figures represented approximately 72 percent of the number of privilèges and permissions de sceau requested and 61 percent of the number
authorized. For the period 1751-63, the
era of Malesherbes, the average annual number of permissions tacites requested came to 135; the average annual number authorized, 79. These
figures represented 38 percent of the number of privilèges and permissions de
sceau requested and 40 percent of those authorized, or, put another way,
nearly 28 percent of the total requests and 29 percent of the total
authorizations. For Malesherbes’ 43 Malesherbes, Mémoires sur la
librairie, p. 172. 44 Robert Estivals, La
Statistique bibliographique de la 148 TABLE
OF ANNUAL AVERAGES OF REQUESTS FOR PUBLICATION, APPROVALS, HHC – not
reproduced period, between two and three of every ten books approved by
governmental authorities in 45. In “La `Librairie’ du Royaume,” p. 9, Furet
hypothesizes that until the 1750s the regime
may well have tolerated a significant number of books without sanctioning them via
a permission - either expresse or tacite. In subsequent years these clandestine authorizations became known generically as simples tolerances. They might stem from virtually any source in the government or at
Court interested in protecting a book otherwise considered
dangerous. At the present stage of
research on the librairie it is as impossible
to weigh the influence of these books upon the general state of production as it
is impossible to weigh the influence of illicit books upon it. The importance of both [underground categories
will come to light not by way of register statistics but as a result of careful
studies of individual publishing houses and their surviving account books. To my knowledge no one
has yet attempted to track down such sources in HHC: [bracketed] displayed on page 150 of original 149 Malesherbes
himself boasted that he was attacking privilèges in direct fashion by prohibiting continuations of them. [46] The absence of a
regular series of protests on the part of the 46.
F. Fr. 22146, Nr. 87. 14 February 1760. Malesherbes to
Semonville. 47.
F. Fr. 22178, Nr. 16. 14 September 1761. 48.
F. Fr. 21832, Nr. 195. 2 November 1761. Malesherbes to St.
Priest. 49. F. Fr. 22073, Nr. 57. 12
October 1761. Extract of the Registers
of the Community of libraires and imprimeurs of HHC: [bracketed] displayed on page 151 of original 150 The
following year the patriciate took another whipping. Back in November 1760 the Lyon printer
Jean-Marie Barret had obtained assurance of permissions de sceau for several
works, including the popular de Beuil edition of the Imitation de
Jesus-Christ. [50] True to pattern, the chambre syndicale of Immediately Desprez initiated a countersuit, to which
Barret replied with exceptional vigor. He attacked d’Héricourt’s theory of literary property with the assumption that a
book, like any other item of commerce, might be freely reproduced once
it was placed on the market: Un
livre n’appartient à son auteur ou au libraire à qui il l’a remis, qu’autant qu’il est dans son cabinet; mais aussitôt qu’il est mis
au jour, il appartient au Public,
& des Tors il est loisible à tous libraires de l’imprimer autant de fois qu’il
leur plaira, en prenant les permissions requises à moins que pour des raisons particulières il n’ait plu à Sa Majeste d’en accorder à quelqu’un un Privilège exclusif. Conveniently Barret was
wedding the medieval notion of free copy to the absolutist doctrine of the
royal grace. It was indisputably the
privilège itself, and not the anterior contract between author and publisher,
which assured rights of exclusive jouissance: “Il
suit de là que la propriété qui confere un Privilège nait du Privilège même &
non de la chose.” [53]
The Barret-Desprez case did not produce immediate repercussions
in the book trade. The leading houses of
50. F. Fr. 21999. 13 November
1760. “Registre des privilèges et permissions simples de la librairie, 1760-1763,” p. 28. In this instance also the term permission
simple means permission de sceau. 51.
F. Fr. 21999. 16 July 1761. 52. F. Fr. 22073, Nrs. 61-62. 15
March 1762. The language of the arrêt
called Barret’s permission a privilège, an inaccuracy by no means
uncommon. 53. F. Fr. 22073, 64. [September, 1762] “Réplique pour
Jean-Marie Barret …à la requete présentée ... par le sieur Desprez,
imprimeur-libraire à 151 ments
of property rights. In December 1762,
however, a declaration of the king strictly
limited all privilèges for inventions to fifteen years and prohibited unauthorized cession of the
licenses to anyone except the inventors’ heirs. [54] Subsequent arguments by the
disestablished publishers responding to the claims of the patriciate would link
privilèges en librairie to these
primitive patents. In
October 1763, as a consequence of Chancellor Lamoignon’s disgrace, Malesherbes
had to resign his directorship. In hopes
of convincing his successor, Sartine, of the solidity of their claims to
privileges en librairie, the officers of the But
Guerin’s report was simply prologue. The
patriciate next prepared a set of “Représentations”
which, it was hoped, would prove to the new royal administrators of the
librairie that historical precedent, logic, and moral rectitude were all
arguing for acceptance of its claims to literary property. Unlike the occasion in 1726, the Parisians bypassed the judiciary in seeking an individual
to prepare their brief. Instead they selected a man of letters, an author,
who by laying claim to his rights, they believed, would validate
their own. Le Breton, syndic for the
community, had a master rhetorician at his disposal - Diderot. Perhaps it is the greatest irony in the
entire history of the privilèges in the eighteenth century that the writer’s
writer of the Enlightenment - himself
abused and underpaid by publishers, on the eve of the worst betrayal of
all, Le Breton’s doctoring of the page 54.
F. Fr. 22073, Nr. 72. 24 December 1762. 55.
Bibliothèque Nationale. Salle de R6serve. F. 718. “Réflexions sur quelques articles du règlement
général de la librairie & de l’imprimérie” (November, 1763). 152 proofs
for the last volumes of the Encyclopédie - should find himself apologizing for men he despised. Jacques Proust, to whom we are indebted for dating
correctly at last Diderot’s so-called “Lettre historique et politique sur le
commerce de la librairie,” [56] makes a valiant
attempt to rise above the dilemma by positing the theory that when first
commissioned by Le Breton to compose the “Lettre,” Diderot intended it to be a
“Mémoire sur la liberté de la presse.” [57] True, in a letter in 1769, Diderot refers to his
essay in these terms. [58]
And in the piece itself, Diderot notes how useful it
would be both for trade and for letters if permissions tacites could be
multiplied “a l’infini.” But he fully
intends these permissions to be as exclusive commercially as privilèges. [59] He defended the
patriciate’s claims as vigorously as had d’Héricourt. To give Diderot his due, however, it appears most likely that when he spoke up in
favor of protecting the literary
property of publishers, he had the rights of authors primarily in
mind. In one place he is quite explicit : Si
je laissais à mes enfants le privilège de mes ouvrages, qui oserait les en spoiler? Si forcé par
leurs besoins ou par les miens d’aliéner ce privilège, je
substituais un autre propriétaire à ma place, qui pourrait, sans ébranler tous
les principes de la justice, lui contester sa propriété?...
Je le répéte, l’auteur est maître de son ouvrage, ou
personne dans la société n’est maître de son bien. Le libraire le possède comme it est possédé par l’auteur. [60] Modifying
and suppressing whenever he judged the language too vigorous, Le Breton
presented Diderot’s memoir to Sartine as the “Représentations” of the 56. Thé Assézat-Tourneaux edition
of the OEuvres completes de Diderot ( 57.
Proust, “Présentation,” pp. 7-37. 58. Denis Diderot, Correspondance,
ed. Georges Roth ( 59. Sur la liberté de la presse, p. 88. 60.
Ibid., p. 42. 61. F. Fr. 22183. “Representations & observations
en forme de mémoire sur l’état ancien & actuel de la librairie &
particulièrement sur la propriété des privilèges, &c., [présentées à M.
de Sartine par les Syndic & Adjoints, & en marge les observations que
M. Marin a faites sur chaque article, d’après les notes instructives que je
[d’Hémery] lui ai remises par ordre du magistrat” (March, 1764).] HHC: [bracketed] displayed on page 154 of original. 153 alliance forged by Colbert between the Administration and the
great libraires had come unstuck. Marin rejected the analogy made by the patriciate between literary property and real
estate. In his view, once the
Parisians turned privièges into simple guarantees of anterior rights, the royal prerogative to distribute a grace
would be destroyed: “On verroit les seuls libraires propriétaires des
privilèges causer la ruine de leurs confrères de Paris & des Provinces,
& composer une petite république indépendante de toute autorite.” [62] In essence, of course, this already had become a historical
fact. What alternative did Marin now propose? Drawing upon the arguments once presented by the les privilèges ne sont que des grâces passagères, bien
différentes de la possession d’une maison,
d’une terre. Les
libraires ne sont que des marchands qui
achétent une marchandise.
Es obtiennent un privilège, pour la fabriquer
& pour la vendre exclusivement pendant un certain nombre d’années.
Le Roi devient le maître ensuite de transmettre le même droit ou à l’auteur, ou au même libraire, ou à un autre, selon les raisons qu’il peut avoir pour se
déterminer dans ses grâces. [63] Marin went on to
illustrate the individual abuses generated by the Parisians’ interpretation of the privilège system. He blamed it for the high price and low quality of But what could a writer do with his privilège in 1764? He might keep it if he could afford to pay a printer of the community
for the costs of 62.
Ibid., p. 1. 63.
Ibid., pp. 37-38. 64.
Ibid., pp. 56, 97, 101. 65.
Ibid., p. 85. 154 publication,
should that same printer be willing to risk professional disgrace by taking the job without a transfer of the
privilège. Once in possession of the printed volumes, the author
himself could neither sell nor distribute them.
Nor could he contract with a sympathetic libraire to do so, for
the D’Hémery,
Marin’s superior, understood this. In
August 1764, he sent a memorandum to Sartine in which he complained that, in
the view of obtaining and selling as many
privièges as possible for a single successful work, authors were
defrauding the public by offering different publishers manuscripts of that work
with the most minor distinctions - a new title, chapters switched about, a new
preface or introduction. To d’Hémery the proprietorship mentality was
stimulating the greed of authors and publishers alike. Rather than restore privilèges to authors
when they expired in the hands of publishers, d’Hémery
proposed that writers be encouraged to hold on to their privilèges in
the first place. This meant of course
relaxing the restrictions prohibiting their participation in sale and
distribution. But, in the face of the
still considerable influence of the 66. For example, F. Fr. 22072, Nr.
60. “Mémoire pour la veuve de Pierre Ribou, libraire a 67.
F. Fr. 22073, Nr. 4. 15 May 1752. 68. F. Fr. 22183.
“Représentations,” p. 85. “II seroit
bien flatteur, bien honorable pour le ministere, de le tirer de la misère en
lui donnant le renouvellement du privilège apres l’expiration de celui qui
auroit été accorde au libraire.” 69. F. Fr. 22073, Nr. 83 bis. “Mémoire sur les abus qui se sont
introduits dans la librairie à. l’occasion des
privilèges” [August, 1764]. D’Hémery
wished to place authors and publishers on an equal footing regarding the use
of privilèges, but in each case he desired
surrender to the public domain on the date of expiration. In contrast, Marin and Sartine
considered privilèges in the hands of authors as sacrosanct. Since the Ruling of [1723/44 made them useless as
well, it might be said that the secrétaire-général and directeur were begging the real
question. In her Etude sur le droit
d’auteur (p. 122), Mlle. Dock mistakenly
identifies d’Hémery as the author of the marginal comments to the
“Représentations.” 155 But the
inspector underestimated Sartine’s own commitment to change. The director was as
sympathetic to the interests of authors as Malesherbes had been. In 1764 he rejected d’Hémery’s proposal
permitting authors to engage in the commerce of books - because, like François
Marin, he still thought in terms of the restoration of privilèges to writers upon expiration in publishers’ hands. [70] But making
little progress in this regard, he came around to accept d’Hémery’s position six years later. The occasion which offered him a chance to
act was a case concerning a wealthy, crabby, and courageous author named
Luneau de Boisjermain, who was to achieve some distinction in the struggle for
consumers’ rights by suing unsuccessfully
the publishers of the Encyclopédia for having tripled the number of
volumes and original price agreed to by subscribers. [71] Despite the policies
of the patriciate discouraging publishers from accepting a manuscript without a transfer of its privilège,
Luneau had managed to have printed, at his own expense, three of his
books - the Nouvelle Manière d’enseigner la géographic., Cours d’histoire
universelle, and Commentaires sur Racine - all the while retaining possession of his
privilèges. In 1769 he located five
small 70. F. Fr. 22073, Nr. 83 bis. 71. John Lough, “Luneau de
Boisjermain v. the Publishers of the Encyclopédie,”
Studies on Voltaire and the 18th
Century ( 72. F. Fr. 22069, Nr. 10. 17 February 1770. 156 revoltantes
pour tout homme de lettres. Je le dis, je l’écrivis.
Je le dirais, je l’écrirais encore.” [73] Favorable
to authors, Sartine tried to help the nonprivilèged publishers by enlarging
upon Malesherbes’ policy regarding the permissions
tacites. The few regional studies made
thus far emphasize the apparent decadence of the provincial edition in
the eighteenth century. Admittedly, most
of these studies have been based largely upon government documents rather than
the account books of the publishers themselves.
Therefore they tend to concentrate upon accepted norms of publishing and
trade - those which concerned the universe of privilèges, permissions de sceau,
and permissions tacites. A royal arrêt occasionally might punish a
provincial publisher caught with an
illicit edition, but official documents fail to take the measure of the
extent of clandestine publishing or distribution. Without a doubt the underground industry
played a role in the country, but it remains
an open question whether it did so to the point of brightening significantly
the patches of economic gloom thus far revealed to us. In 73. M. Tourneux, “Un Factum inconnu de Diderot: ‘Au
Public & aux magistrats,’ “ Bulletin du
Bibliophile (1901), 361. 74. Ventre, L’Imprimerie et
la librairie en 75. Albert Ronsin, “L’Industrie
et le commerce du livre en 76. J. Querinort, “L’Imprimerie rouennaise au XVIIIe
siècle,” unpublished thesis, 77. F. Fr. 22128, Nr. 99. 24 December 1763. Bourgelat to Sartine. Louis Trénard, “Commerce et culture: le livre à 157 sors attempted to reverse this trend by making more
permissions tacites available than ever
before. From 1764-77, for every ten books
authorized via a privilège or
permission de sceau, 6.1 were authorized via a permission tacite. This
came to 38 percent of the total number of authorizations. [78]
How many of these permissions tacites were awarded for books printed in From 1774-76, the nonfavored bookmen were in a position to hope that the privilege system, if not the communities themselves,
might crumble beneath the hammer blows of Turgot. On the eve of Louis XV’s death the 78. See Table of Annual Averages, p. 149. 79. Nicole Herrmann-Mascard, La Censure des livres
à 89. F. Fr. 22073, Nr. 42. “Au Roi & nosseigneurs de son Conseil” [March, 1774]. 158 criminating
book was found. [81]
The The
concrete aims stated in the memoir of the provincials were similar to those given by the In responding to the definitions of property rights upon
which the Parisians had built their case for half a century, the provincials
leaned heavily upon the counterarguments presented by
their colleague Barret back in 1762. [83] They acknowledged that a property
transfer took place once an author sold his manuscript to a publisher. And when the publisher converted the
manuscript into an edition, the volumes in
his stocks most certainly represented his property as well: “Cette propriété peut à tous égards être comparée a
81. F. Fr. 22073, Nr. 144. “Mémoire
a consulter. Pour les libraires
& imprimeurs de Lyon, 82.
Ibid., pp. 1-3, 10-29. 83. Ibid., pp. 28-29. 159 the
provincials were referring to individual volumes, not to the contents therein.
Once he sold a single one of his volumes to the public, the
publisher relinquished all rights to that book and could place no limit upon what the purchaser might do with his
copy. He could not prevent the purchaser from transcribing or
multiplying the volume. A book,
according to the provincials, was simply a piece of merchandise, an article of commerce. Again, the implications of the 1762 ruling on
inventions came in handy. When an
inventor sold his product to the public, “il lui communique en même temps le droit, non pas de s’emparer
de l’original, mais très certainement de l’imiter ou copier, si l’objet
lui est utile ou agreable.” What then
was a privilège? Not a royal
acknowledgment of the “droit exclusif naturel” claimed by the Parisians, but
the king’s reward, granted over a restricted period of time, for the industriousness of the inventor, creativity of the author,
or financial risk of the publisher.
The sovereign awards to inventors “la faculté exclusive de vendre à ses
sujets, pendant un temps limité, la participation & la jouissance de leurs
inventions.” In the same way he
rewards authors and publishers with privilèges: “La faculté d’imprimer & de vendre exclusivement un livre rendu public nâit du Privilège seul &
non à l’acquisition de la possession du Manuscrit, puisque l’Auteur lui-même n’a ce droit par aucun titre, s’il ne
l’obtient du Gouvernement.” [84] From
this it can be seen that, while recognizing that they suffered common persecution with authors, the provincial
publishers were of no mind to admit to
writers special claims of proprietorship for having created a manuscript. The
provincials wished instead to remind authors how the latter were being
victimized into selling manuscripts at low prices and how unjust it was for
them to be prohibited from printing and selling their own books if they so
chose. Writers
simply were urged to join the disestablished publishers in the struggle against perpetuation of privilèges. Once the great The
provincials concluded their memoir with an analysis of the current state of the book trade. Their main point was that the privilège system kept prices high and editions scarce. The Parisians, they wrote, were only interested in pot-boilers. They hoarded their privilèges for out-of-print,
but desperately needed works, thus preventing others 84.
F. Fr. 22073, Nr. 144, pp. 30-36. 85.
Ibid., pp. 37-50. 160 from
undertaking these books. Therefore,
while provincial publishers were prohibited
from making an edition of the out-of-print Dictionnaire de Commerce of
Savary, because the work was protected by a
privilège, a The Crown’s reaction to the pleas of the provincials was
the Ruling of 30 August 1777. (Interestingly enough, in a decision three
years earlier, the House of Lords had ruled against perpetual copyright in 86.
Ibid., pp. 51-85. 87. There are differences as
well as parallels between 161 rights
over them, the Fifth arrêt of 30 August struck out at the exclusive character of the merchant-printer communities. After 1777, an author might at least count on finding a publisher who
would serve as his agent and nothing
more. He might contract with the
publisher, share costs and profits, and, retaining his privilège, hope to do
the same for a second edition or more.
And the publisher, discovering that a
non-renewable privilege no longer possessed the glitter of yore, would now be more likely to swallow pride and be
willing to engage in such a commercial venture. But not immediately. The initial response of the Parisians to the
Ruling of 30 August was to try and have it amended or repealed. Their pamphleteers and lawyers denounced
it. One, abbé Pluquet, predicted that a
crisis of overproduction for previously fast-selling works would result, and
publishers would be reluctant to undertake new
editions or old, rare ones - thus incurring grievous damage upon the
trade. [88] The journalist Linguet,
bundle of contradictions that he was (he had been one of Luneau de
Boisjermain’s defense counsels back in
1770), repeated an argument he had made three years earlier, [89] namely that privilèges en librairie were
irrevocable in nature, that they were notarial acts recognizing the
rights of citizens to their civil possessions. Like Pluquet, Linguet stated his belief that
authors would be the ones to pay the
price for the ruling, once they discovered how much publishers were hesitating to contract with them under the new arrangements. [90] The direct reaction of the Parisians
ranged from high melodrama - a march upon Fontainebleau by the widows of
libraires, dressed in full mourning [91] - to the hiring of avocats au
Parlement and au Conseil du Roi to present theoretical briefs in
hopes of amendment or repea1 [.92]
Linguet reported that publishers in the capital were refusing to present to officers of the librairie the status
of privilèges in their hands, and that one officer of the community, de 88. F. Fr. 22063, Nr. 68. 15 November 1777. [Abbé
Pluquet], “Lettre à un ami sur les arrêts du
Conseil du 30 aôut 1777, concernant la librairie et l’imprimerie,” in Laboulaye and Guiffrey, La Propriété
littéraire, pp. 277-358. 89. Bibliotheque Nationale. Salle
de Réserve. F. 718 [S. N. H. Linguet], “Mémoire sur les propriétés &
privileges exclusifs de la librairie présentée en 1774.”
22 pp. 90. Annales
politiques, civiles et littéraires du dix-huitième
siècle (December 1777), Vol. III, Nr. 17, 9-57. 91. [J.-B.-A. Suard],
Discours impartiel sur les affaires actuelles de la librairie (1777), p.
6. 92. “Requête au Roi &
consultations pour la librairie & l’imprimerie de Paris, au sujet des deux arrêts du 30 aôut
1777,” in Laboulaye and Guiffrey, La Propriété littéraire, pp. 159-98. “Consultation des avocats au Parlement
pour le corps de la librairie & imprimerie de Paris” (23 December 1777), in
ibid., pp. 199-209. “Consultation des avocats au Conseil du Roi pour le corps de la librairie et
imprimerie de Paris” (9 January 1778), in ibid.,
pp. 211-20. 162 Bure,
had been thrown into the Bastille for refusing to apply the Royal Seal
of legitimacy to the contrefaçons presented to him. [93] The courts and police were extremely reluctant to enforce
the ruling right away, and it
was not sent to Parlement for registration.
Thus the inevitable
hassles ensued. In September 1777, police
inspector Lenoir decided in four separate
instances that raids conducted by the Paris community
against sellers and printers in Lyon back in 1770, 1771, and 1773 were justified, and those caught with
counterfeit editions were as guilty now as they had been prior to the existence
of the Sixth arrêt of 30 August.
The ruling was not retroactive. [94] Then, in a friendly suit instituted to test the Fifth arrêt, the Court of
Châtelet ruled as valid a privilège transfer effected prior to 30
August, between the author Paucton and the Paris publisher, veuve Dessaint
- victor in Lenoir’s decisions - despite the fact that according to the terms
of the transaction, the privilège was to be
permanent in the hands of the widow. [95] Was
the Ruling of 30 August enforced at all?
Pottinger calls it a dead letter. [96] But evidence to the contrary does
exist. A register probably drawn up in 1778 would free for the
public domain a list of 325 titles “owned” by the 93. Annales politiques (15 February, 1778),
Vol. III, Nr. 20, 239. 94. F. Fr. 22070, Nr. 53; F. Fr.
22180, Nr. 112; F. Fr. 22180, Nr. 113; F. Fr. 22180, Nr. 114. 27 September 1777. Judgments of
Police Inspector Lenoir. 95. See Falk, Les Privilèges
de librairie, pp. 136-38. The
Chatelet decision was made on 11 August
1778 and confirmed by the Parlement of Paris on 10 February 1779. 96. Pottinger, The
French Book Trade, p. 134. 97. F. Fr. 21832, Nr. 2. “Tableau des ouvrages jugés
communs ou qui le deviendront à l‘expiration
des privilèges dont ils sont revêtus, en execution de l’article XI de de
l’arrêt du Conseil du 30 août 1777 portant règlement
sur la durée des privilèges en librairie.” 98. F. Fr. 22018, 22019. Estivals, La
Statistique bibliographique, p. 88. 99. F. Fr. 22180, Nr. 175. 30 June 1778. D’Hémery had
recommended this in his memoir to Sartine back in 1764 (F. Fr. 22073, Nr. 83 bis). The clarifying amendment stated that tout Auteur qui aura
obtenu en son nom le Privilège de son Ouvrage non-seulement aura le droit de le
faire vendre chez lui, mais it pourra encore, autant de fois qu’il le voudra,
faire imprimer, pour son compte, son Ouvrage par tel Imprimeur & le faire
vendre aussi par tel Libraire qu’il aura choisi, sans que les traités ou conventions qu’il fera pour
imprimer ou débiter une édition de son Ouvrage puissent être réputés cession de
son Privilège. The amendment was in part the
result of a request for clarification stated in a séance of the Académie française in
February 1778. Certain members of the
Académie, led by Suard, appear to have been
active lobbyists for the 30 August Ruling.
See Laboulaye and Guiffrey, La Propriété littéraire, pp.
625-28. 163 of course obtained and held on to
privilèges whenever they could. Mme. Herrmann-Mascard estimates that
they secured 78 percent of the total in
1778 and 81 percent in 1783, as compared to 40-50 percent for the 1770-76 period. [100] What is most interesting would be to
know just how many writers actually
retained their privilèges through distribution; at present we cannot
make such a determination. Perhaps a
comparison between the actual privilège registers for 1778-89 and
writer-publisher contracts preserved in the Minutier Central of the Archives
Nationales would be of help. Certainly
the dépouillement would be an arduous task. In order to discourage direct judicial appeals, the arrêts of 30 August
1777 were not issued
as patent letters and were not sent to Parlement for registration. But the
recourse of the Parisians to the courts as a channel of protest, and most
especially Parlement’s review of the Paucton-Dessaint
case, made a general inquiry inevitable.
In 1779 the Parlement of Paris
discussed the arrêts on at least four distinct occasions
The government
requested avocat-général Seguier to present its case to the body.
This proved to be the last major theoretical analysis of the
privilèges en librairie under the Ancien Regime. [101] It was a long-winded, extremely
redundant report, and one can more than suspect that Seguier was arguing with
half a heart. For the sympathies of the
majority of parlementaires, hostile to the Royal Council, now lay with the
patriciate. [102] The
avocat- général admitted
that in their definition of privilèges as property, the Parisians had a better
juridical argument than their opponents.
But Seguier also admitted that the issue at hand was a practical one,
the health of the nation’s book trade, and
therefore principle had to yield to expediency: “Si le droit naturel milite en faveur de la propriété, l’avantage
national exige qu’on facilite le
commerce en détruisant les entraves dont it est plus ou moins
embarrassé.” [103] In delineating a
rationale between the two types of
privilèges enunciated by the Ruling of 1777 - a permanent one in the
hands of an author, a temporary one in the hands of a publisher - Seguier again
had to resort to the brute facts of the situation
as opposed to principle or consistency.
He found that as long as the
law had forced authors to yield their privilèges to publishers, men of
letters did not receive fair financial compensation for their manu‑ 100. Herrmann-Mascard, La
Censure des livres a 101. Archives Nationales. Sér.
X1B 8973.
Reprinted in Laboulaye and Guiffrey, La Propriety
litteraire, pp. 481-596. 102. A.N. Sér. X1B
8972. 23 April 1779. “Welt d’un
des Messieurs de Parlement [Duval d’Epremesnil].”
Reprinted in Laboulaye and Guiffrey, La Propriete
litteraire, pp. 468-78. 103. A.N. Ser. X1B 8973. Laboulaye and Guiffrey, La Propriété littéraire, p. 577. 164 scripts. Therefore, it
was necessary to encourage them to keep the privilèges
if they so desired. The avocat-général
wriggled on the horns of his dilemma, believing in the genuine character of
literary property at the same time as he felt himself obliged by his
office to defend the royal grace. Thus he attempted to define the privilège as
an act of royal justice for an author, and as
an act of royal liberality for a publisher. Recognizing at length the impossibility of
reconciling principle with duty,
Seguier rather desperately concluded by admitting that “ce qui est bon dans un temps n’a plus le même avantage dans
un autre, & la multiplicité des abus appelle une nouvelle législation.”
[104] Assuming that
the arrêts of 30 August were at least partially enforced, a pair of essential questions remain:
were they responsible for any noteworthy economic changes in the book
trade? Did the disestablished publishers
recover significantly as a result of the legislation
against monopoly? In an article which
will appear shortly, Robert Darnton hypothesizes that the great 104.
Ibid., p. 596. 105.
Robert Darnton, “ 106.
Estivals, La Statistique bibliographique, pp. 247-48.[See
Table of Annual Averages, p. 149 107.
Estivals, 288. See Table of Annual Averages, p. 149. 108.
Estivals, p. 296. Furet, “La `Librairie’ du Royaume,” p. 8. 165 As a message
of homage to his teacher, Estivals proudly notes that his statistics for
1778-83 appear to confirm the compliance of yet another industry to Labrousse’s curve of recession. [109] A certain amount
of evidence on the other side, however, must modify his findings. In the first place,
the registers after 1778 had to be affected by the fact that privilège
continuations, previously recorded as new privilèges, simply ceased to exist. Furthermore, in the wake of the reform of
1777, an entirely new category of permissions, the permissions simples, came
into being; and the registers for privileges or permissions tacites failed to account for books falling under this rubric.
Next, another category of publications for which the registers do not adequately account - the periodical press
- blossomed forth in the late
seventies. [110] A
permission tacite register recorded a new journal only once; but the
periodical brought continuous activity to its publisher as long as it
lasted. Estivals’ own computation of
works 109.
See especially his article, “La Production des livres dans les derrieres années
de 1’Ancien Régime,” Actes du 90e Congrès
National des Sociétés Savantes. Nice, 1965.
Section d’histoire modern et
contemporaine. Vol. II (
110. In La Statistique bibliographique, Estivals
is not unaware of the mushrooming periodical
press. He writes (p. 343): “… Ils passent de 6 en 1772, à 5 en 1773, 8
en 1774, 30 en 1775, 36 en 1776, 72
en 1777, 87 en 1778, 118 en 1779, 97 en 1780, 103 en 1781, 59 en 1782,
71 en 1783, 56 en 1784, 103 en 1785, 284 en 1786.” Gabriel Bonno’s “Liste chronologique des périodiques de langue française
du XVIIIe siècle,” Modern
Language Quarterly (1944), 19-25, cites thirty-three new periodicals
established or sold in 166 that appeared in the years 1778-83,
derived from depositions into the Bibliothèque du Roi and citations in the weekly
catalogue, the Journal de la librairie,
casts a large shadow upon the
validity of his registration
statistics. Average annual entries into
the Bibliothèque du Roi for 1751-63,
1764-77, and 1778-83 read as follows: Titles-218, 315, 422. Volumes-294, 434, 541.
[111] The Journal
de la librairie, which initiated its record keeping in 1763,
presents even greater difficulties. For the period 1764-77, its annual average of
livres de privilèges came to 397; for 1778-83, it was 416; for 1784-89,
it was 761. [112] Adding Estivals’
statistics, the Journal de la librairie listed the appearance of more
livres de privilèges for 1778-83 than the registers themselves recorded,
permissions tacites included (2494 to 2300)! [113] The preceding shows clearly how far we still are
from estimating the total economic effects of the arrêts of 1777, if
indeed there were any. It is probable that a brief genuine slump did
occur in the industry from late 1771 through 1774, and possibly through
1776, Terray’s paper tax hurting the Parisians and his import tax hurting the
provincials. After 1777, however, the
registers of the On the other
hand, no doubt exists whatsoever as to the
deterioration in relations between the provincial publishers and their
colleagues in 111. Estivals, La Statistique
bibliographique, p. 356. See Table
of Annual Averages, p. 149. 112. Estivals, p. 366. See Table of Annual Averages,
p. 149. 113. Estivals, pp. 309, 366. 167 trade
from 1784 until the revolution. On the
contrary, it was the Parisians - very
likely those whose monopolies were the objects of the arrêt of 1777 -
who were the chief profiteers.114 But if the provincials failed to recover, the lot of
writers improved. From 1777 on their social and economic dependence upon
patrons and publishers must have declined. And they were an inspired lot. Beaumarchais led the dramatists in their
protests against the traditional monopoly of the Comédie francaise during the
1780s, though it took the revolutionary
legislation of 1791 to award playwrights the liberty of representing
their pieces wherever they pleased. [115]
Concerning authors of nondramatic works, however, the Convention’s press
law of 1793, while no longer recognizing the term privilège en librairie of course, retained the spirit of the
Fifth arrêt of 1777. There were two departures in detail. An author’s heirs might enjoy his rights for only ten years after his death, at
which moment the book in question
had to enter the public domain. And if
an author had ceded rights to a
publisher, the latter likewise could enjoy them for ten years after the
author’s death. [116] In conclusion, it appears that the evolution of the
privilège system, with its climax in 1777,
offers a lesson in administrative history.
In one instance at least, the Ancien
Régime saw how imperative it was to adapt an institution to social
needs. When the government finally
acted, it did so painfully and indecisively as far as the disestablished publishers of 114. F. Fr. 21833, Nr. 68. “Mémoire pour les Sieurs
Piestre & Cormon, libraires à 115. Dock, Etude sur le droit d’ auteur, pp.
143-54. 116. Ibid., pp. 155-57. 168
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