Hesse Enlightenment Epistemology 1990

Content

Introduction

The Invention of the Author

The Enlightenment Engages

The Revolution

The first initiative (1789-1791)

The second initiative (1791-1793)

Conclusion

Notes

WHAT IS THE RELATIONSHIP between authorship and the law, between the central mechanism of representation and the dominant system of discipline in the modern period? Though the history of modern authorship has long been a subject of interest to historians and literary critics, no single essay has been more influential in current investigations and discussions of it than Michel Foucault’s “What Is an Author?”‘ This essay has formed part of the poststructuralist effort to problematize the modern concept of the author as the “single center of truth to which all representation refers,” that is, as the unique originator and sole determinator of his own meanings, by challenging the epistemological ground upon which this notion of “the author” stands. [2] However, historical investigation of how the most important political event of the modern era, the French Revolution of 1789-99, reshaped the legal and political identity of the author suggests that the meaning of modern authorship has yet to be fully explored.

Foucault writes: “The coming into being of the notion of the ‘author’ constitutes a privileged moment of individualization in the history of ideas... It would be worth examining how the author became individualized in a culture like ours.” And, he continues, “Since the eighteenth century, the author has played the role of the regulator of the fictive, a role quite characteristic of our era... of individualism and private property.” [3] Foucault thus establishes a parallelism. The relation between the “author” and the “text,” he suggests, emerged historically as the cultural incarnation of a new axis in sociopolitical discourse: the inviolable relation between the rights- bearing individual and private property. Thus, according to Foucault, this “privileged moment of individualization” was also characterized as a moment of privatization of knowledge claims as property, in which the individual author came to be the exclusive principle by which meanings are composed, manipulated, and determined, or, to use his word, “regulated.” Because of the historical nature of his claims, Foucault’s characterization of the appearance and function of the modern concept of the author has provided poststructuralists a target for their theoretical critique. These historical claims bear further scrutiny.

to “examin[e] how the author became individualized.” Both Martha Woodmansee’s study of the development of the concept of the author in eighteenth-century Germany and Mark Rose’s exploration of the legal debates on authorship and literary property in eighteenth-century England tend to confirm Foucault’s thesis. They conclude that the concept of the individual author as proprietor of his work emerged in the eighteenth century as a result of the commercialization of the book trade. Thus Woodmansee writes:

The “author” in the modern sense... is the product of the rise in the eighteenth century of a new group of individuals: writers who sought to earn their livelihood from the sale of their writing to a new and rapidly expanding reading public. [4]

The emergence of the mass market for books, the valorization of original genius, and the development of the Lockean discourse of possessive individualism... occurred in the same period as the long legal and commercial struggle over copyright. Indeed, it was in the course of that struggle under the particular pressures of the requirements of legal argumentation that the blending of Lockean discourse and the aesthetic discourse of originality occurred and the modern conception of the author as proprietor was formed. [5]

For both these scholars, the advent of the modern cultural system can be marked by the translation of these new bourgeois socio-economic relations and cultural values into laws of copyright (in England in 1709 and in Prussia in 1794), that is, by their institutionalization as a system of legal regulation.

Does the legal history of French authorship and copyright further confirm the picture presented by Foucault and his successors? Discussions of “authors’ rights” among French and American legal theorists would tend to answer this question in the affirmative. Citing the majesterial work of the French legal philosopher Henri Desbois, a contemporary specialist in Franco-American copyright law has recently summarized the prevailing legal view of the French author in the following manner: “The French law, allegedly imbued from its revolutionary inception with natural rights philosophy, is said to enshrine the author: exclusive rights flow from one’s (preferred) status as a creator.” [6]

Yet, despite the theoretical assertions of literary critics and legal theorists, we know surprisingly little about the history of authorship and publishing during the period of the French Revolution, the particular moment in which the modern notion of the author crystallized into a legal identity in France. While there have been several important studies of individual publishing enterprises during the Revolution, recent historical interest in publishing and authorship has focused almost exclusively on the prerevolutionary period. [7] The multivolume Histoire de l’édition française (1983-), for example, devotes fewer than thirty pages to the revolutionary period. [8] More surprising, there has been to date no single volume treating the particular question of authorship during the Revolution.

dinary expansion of the commercial book trade, which opened up unprecedented opportunities for writers and publishers and which posed unprecedented challenges to public authorities. [9] But there were crucial differences that set the history of authorship in France apart from the rest of Europe in the eighteenth century: first, the presence of an absolute monarchy of unparalleled size and strength, and second, the explosion of the first great democratic revolution. The French Revolution offered the occasion for an unusually explicit and fascinating debate in France about the identity and role of the author in modern life, a debate whose legal resolution continues to provide the foundation for French copyright law. A close examination of this debate and its resolution throws into question some of the historical claims of Foucault and his successors, and thus their characterization of modern cultural life as well.

The French Revolution did not invent the legal notion of the author. The first legal recognition of the author in France can be dated quite precisely to the six royal decrees on the book trade of 30 August 1777. [10] Prior to this date there was no formal legal recognition of the author or his relation to his text. The decrees of 1777 represented the culmination of a fifty-year debate between the Crown and the Paris Corporation of Printers and Publishers concerning the nature and duration of royal “privileges” on texts.

According to the royal Code de la librairie, established to regulate the Parisian publishing world in 1723 and extended to the entire nation in 1744, there was no “property” in ideas or texts nor any legal recognition of authors. [11] Employing the doctrine of divine revelation and a long tradition of medieval thought, the king’s ministers argued that ideas were a gift from God, revealed through the writer. They were not owned by the author and could not be sold by him. The power to determine what was truly God’s knowledge, and who could enjoy the “privilege” of its “enjoyment” (literally, jouissance”), belonged not to the author but to God’s first representative on earth, the king, and by extension his administration. [12] Put another way, the king alone, by his “grace” and “pleasure,” had the exclusive power to determine what would be permitted to be published, by whom, and for what period of time. Publishers were required to submit all books for royal censorship prior to publication in order to receive from the king a “privilege,” which was at once an official approbation of the work, a permission to publish, and a kind of copyright, in that a “privilege” assured its holder a legal exclusivity on the publication of the work.

Authors were not allowed to publish their manuscripts. Only members of the royal guild of publishers and printers were permitted to engage in the printed publication of what was royally deemed to be God’s knowledge. Thus, despite the

increasing power of “the author” as a new figure in the sociocultural landscape of late seventeenth- and early eighteenth-century France, the author had yet to receive legal consecration of his relation to the texts he produced. From a strictly legal point of view there was no authorial claim upon a text. Authors sold their manuscripts to publishers who then submitted them to the Crown for “privileges.” Authors without independent fortunes survived by royal or aristocratic patronage rather than by commercial profits from the publication and sale of their works. The profits in “privileges” were the legal monopoly of the guild publishers. [13] Because there was no legal recognition of authorship, royal “privileges” to publish made no legal distinction between works by living or dead authors, anonymous, collective, or unattributable works.

While in principle the Crown could revoke or extend “privileges” at will, by the end of the seventeenth century the centralizing and corporatistic royal administration had in practice encouraged the consolidation of a monopoly on the lion’s share of the literary inheritance of France by the Paris Publishers’ and Printers’ Guild. [14] It did this by conferring extensive “privileges” to publish both individual texts and whole areas of knowledge to particular Paris publishers and then renewing these “privileges” automatically over generations. One of the most notorious examples of this practice was the Crown’s decision in 1670 to grant an exclusive “privilege” for fifty years to an editor of the Old and New Testaments. [15]

To protect their monopoly against the protests of excluded publishers, the Paris publishers began in the late seventeenth century to evolve their own interpretation of the meaning of the “literary privilege”. In 1726, the Publishers’ Guild commissioned the jurist Louis d’Hericourt to write a legal brief arguing that a “privilege” was not a royal “grace” to be conferred or revoked at the king’s pleasure but rather a royal confirmation of an anterior property right. Invoking John Locke’s notion of the origins of property in appropriation, d’Hericourt argued that the property in ideas is derived from labor: “It is the fruits of one’s own labor, which one should have the freedom to dispose of at one’s will”. [16] According to the guild, then, “privileges” were nothing more than the legal recognition of an existing property right founded in the author’s labor and transmitted to the publisher through a contract. Ironically, therefore, the argument that ideas were the property of the individual author was first advanced in defense of the monopoly of the Paris Publishers’ Guild on texts whose authors were long since dead. [17]

By the middle of the eighteenth century the issue of literary “privileges” became caught up in a more general movement by enlightened royal officials to deregulate commercial life, including commerce in ideas, by dismantling the corporate monopolies created in the seventeenth century by Louis XIV’s minister, Jean-Baptiste Colbert. Heeding the advice and counsel of successive officers of the Royal Administration of the Book Trade, the Crown announced in 1777 an important shift in its cultural policy, which resulted in the first legal recognition of the author in France. [18] The king’s Council of State issued a series of decrees

intended definitively to refute the Guild’s interpretation of literary “privileges” as confirmations of property claims and to decentralize the publishing world by breaking up the Parisian monopoly on the nation’s cultural inheritance. It achieved these ends by a double-edged stroke that revealed its interest in encouraging and empowering both the individual author and the public at large at the expense of the corporate monopoly of the Paris Publishers’ and Printers’ Guild. In the 1777 decrees the king’s council made its interpretation of “privilege” explicitly clear:

His majesty has recognized that a privilege for a text is a grace founded in justice... The perfection of the work requires that the publisher be allowed to enjoy this exclusive claim during the lifetime of the author... but to grant a longer term than this, would be to convert the enjoyment of a grace into a property right. [19]

The Crown thus reaffirmed the absolutist interpretation of royal law as an emanation of the king’s grace alone.

The decrees created two categories of literary “privilege”. Recognizing the author for the first time, the decree created “privilèges d’auteur” to be granted to authors in recompense for their labor and to be held by them and their heirs in perpetuity, unless sold to a third party. Authors were for the first time permitted, indeed encouraged, to hold on to their manuscripts and to engage in publication, rather than to sell their manuscripts to publishers. Publishers’ “privileges” (“privilèges en librairie”), by contrast, were to be limited to the lifetime of the author and nonrenewable. After the author’s death, these texts returned to the “public domain” to be enjoyed by any royally licensed publisher, with the king’s permission.

The Crown’s decrees thus signaled a new effort to consolidate the power to disseminate ideas in individual authors rather than in corporate publishers. This end was to be achieved, not through the recognition of property rights, but by a revision of the system of privileges. The first aim of the Crown was to individualize knowledge by creating the author as a privileged site of regulation - in both senses of the term, politically and legally. It was also the aim of the Crown to deprivatize texts whose authors were dead, to remove them from the private (property) claims of the Publishers’ Guild.

Foucault’s statement that the first legal recognition of the author occurred in the eighteenth century can be held to be true in the French case. But in France the author was a creation of the absolutist police state, not the liberal bourgeois revolution. Foucault is also correct in asserting that “the author” became the absolute principle by which fictions would be regulated. The “author’s privilege” was granted from the king in perpetuity, thus permitting the author to control his ideas forever, unless he alienated them. Like the king’s will, the author’s will was to operate not only during his lifetime but indefinitely over time as well, as a patrimony or a family trust. The author was thus conceived as a little mirror of

the king, the regulator of his fictions: they only fell back into the king’s domain if and when they were wilfully alienated (like any other feudal tenure).

The creation of the author by the absolutist state was the product of a political initiative within the royal administration rather than a result of commercial protest, and it had the explicit purpose of consolidating state control over the form, content, and means of disseminating knowledge by removing the publisher as intermediary between the state and the author. Now the author would be directly accountable to the Crown and its laws for the publication of knowledge.

The eighteenth-century dispute between the Paris Publishers’ and Printers’ Guild and the Royal Administration that led to the formulation of the royal decrees of 1777 drew key Enlightenment figures directly into the debate on literary property. As a consequence, the middle of the century witnessed the appearance of several systematic efforts to reground the discussion of the origins and nature of claims upon knowledge in the terms of Enlightenment epistemology. Two distinct positions emerged within enlightened circles.

In 1763, the philosopher-novelist Denis Diderot was hired by André-Francois LeBreton, the chief officer of the Paris Publishers’ and Printers’ Guild and the publisher of the Encyclopédie, to write a treatise to be presented to the new director of the Royal Administration of the Book Trade, Antoine-Raymond-Jean-Gaulbert-Gabriel de Sartine, defending the guild’s view of their “privileges” as a form of property. In his Lettre historique et politique sur le commerce de la librairie, Diderot argued that ideas are the most inviolable form of property because they spring directly from the individual mind, because they are a creation of the mind, indeed the very substance of the mind, the means by which it constitutes itself. Thus he writes:

What form of wealth could belong to a man, if not a work of the mind... if not his own thoughts... the most precious part of himself, that will never perish, that will immortalize him? What comparison could there be between a man, the very substance of man, his soul, and a field, a tree, a vine, that nature has offered in the beginning equally to all, and that an individual has only appropriated through cultivating it? [20]

Diderot made an even more individualistic argument for authorial claims than had the jurist d’Hericourt in 1726. Though Diderot’s epistemological stance, as well as his ideas on aesthetics, are rife with complexities, in this 1763 Lettre he depicted ideas as emerging sui generis from the mind rather than as a result of the labor of combining sensations emanating from nature. In contrast to d’Hericourt, Diderot argued that property in land is merely a social claim, based upon appropriation through labor and thus susceptible to social mediation. Ideas, originating

in the individual mind, and not acquired through appropriation or labor, are the most natural and inviolable form of property. [21]

Diderot thus argued that privileges for the texts of living authors should be recognized as legal confirmations of a perpetual property right. Similarly, works whose private lineage could no longer be traced should also be considered the perpetual property of the privilege holder, justified by the theory of “right of first use”. In contrast, then, to his general condemnation of commercial privileges, Diderot made an exception for those conferred upon texts, arguing that the protection of exclusive claims, rather than free-market competition, was the best guarantee of the progress of knowledge and the spread of enlightenment. [22]

The legal implications of Diderot’s line of reasoning were cogently formulated by the lawyer-journalist Simon-Nicolas-Henri Linguet in his Mémoire sur les propriétés et privilèges exclusifs de la librairie, presente en 1774:

What is a literary privilege? It is a recognition made by public authority of the property of the author or of those to whom he has ceded it. It is the literary equivalent of a notorial act which... assures the rights of citizens . The privilege is a seal that guarantees peaceful enjoyment; but it is not the source of that enjoyment... A privilege grants nothing to the author, it only ensures protection. [23]

These arguments, both philosophical and legal, advanced by two key figures of the French Enlightenment are consistent with, indeed they would seem further to confirm, the assertions of Foucault and others that the modern author was first conceived as individual property owner.

There was, however, a second Enlightenment position on the issue of literary “privileges” and property, articulated in France by the marquis de Condorcet in 1776, on the eve of the new Royal Regulations of the Book Trade, in a pamphlet entitled Fragments sur la liberté de la presse. Although the original context of the composition of this pamphlet remains obscure, it undoubtedly formed part of Condorcet’s efforts to assist the French Minister of Finance, Anne-Robert-Jacques Turgot, in his efforts to liberalize French commerce by suppressing the monopolies of the royal guilds. [24] The pamphlet was clearly intended to present a complete revision of the current royal code organizing and regulating the book trade. [25] Like all Old Regime codes on the book trade, Condorcet’s pamphlet treats the issues of censorship, liability, commercial regulation, protection, and policing together, as interconnected elements of a single regulatory vision. The lion’s share of the document was devoted to a refutation of prepublication censorship and the commercial monopolies of the guild. He proposed replacing these regulations with liberal laws on sedition and libel and freedom of commerce in the printing, publishing, and bookselling trades. Under such laws, the “author of the publication,” not the author of the work, would be held legally accountable and liable for its public consequences. [26]

of the problem of authorial claims and literary “privileges” as well. Drawing upon arguments formulated within sensationalist epistemology, Condorcet attacked both the royal theory of literary “privileges” and the theories of authorial property rights advanced by Diderot and the lawyers for the Publishers’ and Printers’ Guild. [27] He asserted that there was, formally speaking, no property in ideas. Thus he wrote:

There can be no relationship between property in ideas and that in a field, which can serve only one man. [Literary property] is not a property derived from the natural order and defended by social force, it is a property founded in society itself. It is not a true right, it is a privilege. [28]

Unlike a piece of land, an idea can be discovered, inhabited, and used by an infinite number of people at the same time. Ideas are not the creation of individual minds, be it through revelation, appropriation, or cognition. Rather, they inhere in nature, and hence are equally and simultaneously accessible through the senses to all. They therefore can belong to no single individual.

Further, Condorcet rejected the social value of any individual claims on ideas. Since true knowledge was objective, particular individual claims on ideas could consecrate and protect nothing more than the style, the individual form, rather than the substance of an idea. Far from viewing originality as the hallmark of the modern bourgeois author, Condorcet condemned particularities of style as attributes of aristocratic culture. He argued that any “privileges” that might be derived from these attributes should be abolished; style distorts nature’s truths and thus to privilege it encouraged the production of pleasant fictions and personal gain rather than the pursuit of useful knowledge and the public good.

It is thus uniquely for expressions, for phrases, that privileges exist. It is not for the substance of things [les choses], for ideas; it is for words [les mots], for the name of the author. [29]

Further, legal privileges derived from individual style inhibit the spread of ideas by restricting access to them.

Privileges of this sort, like all others, are inconveniences that diminish activity by concentrating it in a small number of hands... They are neither necessary, nor useful, and as we have seen, they are unjust. [30]

Condorcet argued that there should be no individual claims upon knowledge as either property or privilege. He imagined an authorless world of free manipulation and circulation of information and ideas. These observations led him to conclude that a commercial publishing industry which sold ideas rather than authors, substance rather than style, could be organized according to the principles of periodical rather than book publishing, as was the publication of the proceedings of the Académie des sciences or the Encyclopédie: through reader subscriptions to a genre of knowledge rather than through the marketing of unique works. [31]

The debate between Condorcet and Diderot played out a tension inherent in Enlightenment epistemology (in Locke’s Essay on Human Understanding itself) concerning the origins of ideas and hence the kinds of claims that could be made upon them. Did knowledge inhere in the world or in the mind? To what extent was it discovered and to what extent invented? Condorcet argued that knowledge was objective, inhering in nature, and thus fundamentally social in character, belonging to all. Diderot viewed ideas as inherently subjective and individual, originating in the individual mind and thus constituting the most inviolable form of private property.

Thus Foucault’s thesis needs to be revised: eighteenth-century France witnessed the emergence not of one modern position on the nature of the author and his relation to the text (i.e., the property-bearing individual) but rather of a modern tension between Diderot’s conception of the author as the original creator and hence inviolable proprietor of his works and Condorcet’s depiction of the ideal author as the passive midwife to the disclosure of objective knowledge. [32]

Between 4 and 11 August 1789, the newly constituted National Assembly abolished all “privileges” of the Old Regime, and a few weeks later, on 26 August, declared “freedom of the press” to be an inviolable right of man. [33] As I have demonstrated elsewhere, the years 1789 to 1791 witnessed a systematic effort to liberate thought and spread enlightenment by dismantling the entire infrastructure of licit publishing under the Old Regime.” The Royal Administration of the Book Trade, and its censors and inspectors, were formally suppressed in August 1790. [35] Then a decree of March 1791 ended the commercial monopoly of the Publishers’ and Printers’ Guild. [36] The revolutionaries wanted to free the minds of citizens from censorship and to liberate the means of spreading and exchanging thoughts - literally, the presses and bookshops.

But upon what basis was republican publishing to be founded? When the Revolution overthrew the absolutist monarchy, was it to consecrate or dethrone the “absolute author”? In formulating a resolution regarding the legal status of authors and publishers in relation to the texts they published, the revolutionaries could not escape the tension between the competing visions of modern cultural life presented by Diderot and Condorcet.

The revolutionary debate unfolded in two distinct stages. The first legislative effort to define the legal standing of claims upon ideas appeared as a subsection of a comprehensive law on sedition and libel that was presented to the National Assembly by Emmanuel Sieyès on behalf of the Committee on the Constitution, on 20 January 1790. [37] The law was born out of

a convergence of the commercial interests of book publishers and the political imperatives of the National Assembly.

With the collapse of the royal institutions that regulated the printed word and the constitutional challenge to the notion of literary “privileges” pirate publishing ventures flourished. One after another, the publishing elites of the Old Regime were driven into bankruptcy by the collapse of their monopoly on the printed word. [38] Thus the Paris publisher Jean-Francois Royer lamented in an avis of 1789 that “pirate editions are one of the principal reasons for the losses in the publishing business.” [39] And so too a Parisian police commissioner observed: “There is no author who will consecrate his efforts to the instruction of his century if pirating is made legal.” [40] Observations like these soon percolated upward into the discussions of the National Assembly. Publishers sent testimony that they were being driven to produce seditious and libelous material in order to stay afloat. Thus in the session of 12 January 1790 the deputy Charles de Lameth testified that “a Paris publisher has just reported to me that, unable to make any profit printing good books, he is being forced to go into the business of printing and selling libelous matter.... There are few printers in Paris who can afford not to.” [41] Hoping to gain the ear of the assembly, publishers thus linked the economic issue of literary property and its protection to the political questions of sedition, libel, and authorial accountability.

The National Assembly itself was in the throes of a conservative backlash against the collapse of all regulation of the printed word. In the face of a flood of anonymous, libelous, and seditious pamphlet literature, the assembly heard repeated demands for laws requiring authors to sign published works and holding authors accountable for their publications. Thus the economic complaints from publishers converged with the political outcry from Jacques-André d’Emeri for “a law on the freedom of the press” to outlaw seditious publications, or from the deputy Louis-Marie, marquis d’Estourmel for a law requiring authors, publishers, and printers to sign, and thus lay claim to, the works they produced as a means of holding them accountable. [42] As a consequence of this agitation, the assembly moved that “the Committee on the Constitution will be charged to present forthwith, a proposal for a law regulating the freedom of the press.” [43] Eight days later, on 20 January 1790, a proposal for a law on sedition, libel, and literary property was presented to the assembly by Sieyès on behalf of the committee. [44]

The initiation of the Sieyès proposal was part of the effort by moderates in Paris and in the assembly to restore order and check the radicalization of the Revolution in the wake of the popular revolt that swept the cities and countryside after the fall of the Bastille. [45] By the end of 1789, Sieyès was meeting with the group of moderates who had splintered off from the Jacobin Club, including Condorcet, Lafayette, the duc de la Rochefoucauld, the duc de Liancourt, and Dupont de Nemours. In early January 1790 these men officially founded the

Society of 1789. [48] There can be little doubt that this group, and in particular Condorcet, played a crucial role in drafting the National Assembly’s first legislative effort to regulate the printed word.

Significantly, the proposal was publicly attributed to Condorcet as well as Sieyès. [47] There is good evidence to support this attribution. In both form and content the proposal presented by Sieyès in 1790 bears a striking resemblance to the Fragments sur la liberté de la press that Condorcet had composed in 1776. [48] Indeed, close comparison of the two texts suggests that the Sieyès projet was drafted directly from Condorcet’s pamphlet. The two documents share virtually the same organizational structure, and the substantive parallels between the two texts are equally striking. Ironically, then, the pamphlet Condorcet had initially circulated as a radical indictment of the inquisitorial institutions of the Old Regime he in turn revived in 1790 to serve as a conservative check on the flood of ideas unleashed by the collapse of those very institutions, by proposing a law that would hold authors, publishers, and printers legally accountable for their publications.

This conservative turn is further disclosed in the one substantive change made in Condorcet’s earlier pamphlet as reworked for the proposal presented by Sieyès. This was the section on “privileges” and literary property. In 1776 Condorcet had argued that ideas were social rather than individual in origin and that as a consequence they could not be considered a form of private property to be protected as a natural right. Further, he had argued that “privileges” as private claims upon texts, inhibited rather than aided the spread of enlightenment. By 1790, Condorcet had evidently reconsidered his position in light of recent events, because nothing could have stood in sharper contrast to this position than the clauses on literary property that replaced this passage in the Sieyès projet. Instead of denouncing literary property as a privilege, they claimed instead that “the progress of enlightenment, and consequently the public good united with notions of distributive justice to necessitate that the property of a work should be guaranteed to the author by law.” [49] They went on to specify, however, that this property right was to be limited to the author’s life and ten years - the length of time deemed necessary to complete and sell an edition. The Sieyès proposal thus consecrated the notion of property in ideas, but in a limited form. The notion of limiting of authors’ property rights reflected the continuing influence of Condorcet’s original concern that the “progress of enlightenment” depended upon public access, rather than private claims to ideas.

Article 21 concluded the section on literary property with an effort to smooth the transition from the Old Regime of “privileges” to the new regime of property: “Publishers or others who at present have acquired for any work a privilege for a fixed term, will continue to enjoy this privilege for its entire duration.” [50] In direct contrast to Condorcet’s original position, the Sieyès proposal thus argued that the spread of enlightenment was best achieved, not by liberating ideas from

particular claims entirely, but rather by ensuring the viability of the book as a legally defined and protected commodity.

The main concern of the debates on the freedom of the press in the assembly, and of the Sieyès proposal itself, was to stem the flood of libels and seditious pamphlets that poured forth after the collapse of the systems of censorship and surveillance of the Old Regime. The projet was primarily an effort to determine the limits of what could be said in print and to establish the legal accountability of authors, printers, and booksellers for what they made public. Consequently, it is the repressive aspects of the projet that have received attention from historians. [51] The assembly, the Committee on the Constitution, and Sieyès had taken Lameth’s comments about the state of the book trade seriously. The connection between the crisis in book publishing and the boom in periodical and ephemeral literature was not lost upon them. If the commercial insecurity of book publishing was driving printers and publishers into ephemeral printed matter, then the flood of ephemeral matter (i.e., seditious and libelous pamphlets) might abate if book publishing could be restored to a commercially secure and profitable footing. It is only in light of these political concerns that we can understand why the National Assembly’s first legislative effort to define and protect literary property emerged within a law on sedition and libel, and why Condorcet’s original position had been reversed.

The first revolutionary effort to give legal recognition to the author’s claim on the text, then, was not a grant of freedom to the author, but the imposition of accountability and responsibility. Politically, it formed part of a conservative pro-order move, a police measure. The law made the author legally accountable for the text by defining it as his property.

Nor were the commercial motivations behind the law any more concerned with enhancing the power of the author over the text. In comparison with the royal decrees of 1777, authors were being dealt a rather poor deal by the revolutionary legislators. The proposal rejected the crown’s grant of authors’ claims in perpetuity. Instead, it argued for limiting authorial claims to ten years after the author’s death in the interest of the “progress of enlightenment” and “the public good”. Thus, while declaring that texts are authors’ property the law in fact severely diminished the author’s power to determine the fate of his texts, and put an end to the perpetual private claims (privileges) granted by the crown upon the literary inheritance of the nation. True to the spirit of Condorcet’s original pamphlet, he and Sieyès wanted to free those texts for the use of all citizens. This was no theoretical matter. By advancing the notion of “limited property” the two men were proposing that the entire literary inheritance of the nation pour forth from the hands of private publishers and the heirs of authors into the public domain: Rousseau and Voltaire, as well as Racine and Moliere, had all been dead for well over ten years. They would now be freely publishable, in any form, by all citizens.

While the proposal rendered publishers, authors, and heirs equal before the law, it failed to address or resolve the philosophical issue at the heart of the late-eighteenth-century debate. If property rights were inviolable natural rights, as the Declaration of the Rights of Man and the Citizen had recently proclaimed, what power did the state have to limit them or regulate their distribution? If claims upon property were instead socially constituted, were they not then just “privileges” by another name? The proposed law appeared incoherent and arbitrary: on the one hand it recognized a property right, and on the other, by defining it as noninheritable, it also advanced an instrumentalist notion of the public good that flew in the face of natural rights theory and explicitly undermined the actual power of individuals to exercise their constitutionally guaranteed right. It was an attempt at a compromise between the two epistemological stances, between individual and collective claims on ideas.

The Condorcet/ Sieyès proposal of 1790 broke on the shoals of its own contradictions. While applauded upon presentation in the assembly, the proposal suffered such virulent criticism from so many quarters that it was never even brought to a vote. Much of this criticism focused on the issues of libel and sedition, and, in particular, on the articles that proposed that authors and printers could be held accountable for the seditious and criminal actions that their works could be construed as intending to incite. [52] Radicals were quick to detect the repressive and conservative character of the entire proposal. The militant journalist Elysée Loustallot decried any law that limited the exercise of a natural right: “The patriotic public does not ask for a law granting freedom of the press… The only true limits of freedom are those in the nature of things themselves”. [53] There should be no civil laws, according to Loustallot, limiting or regulating what could be said in print - even if it seemed libelous or seditious to the men in power.

Apart from the issues of sedition and libel, the measure was also criticized for its treatment of the issues of literary privileges and property. This section of the law was attacked from three different positions from 1790 to 1791. The first line of attack came from pamphleteers who took up Condorcet’s position of 1776 specifically to denounce any measure that would reimpose private claims upon ideas. Thus, the comte de Keralio attacked the very notion of property in ideas as a threat to freedom of thought and, consequently, to the progress of enlightenment:

[The National Assembly] has negated all privileges as destroyers of liberty… And as liberty cannot be maintained without enlightenment and knowledge, a wise legislator will guard himself from conserving even the smallest of privileges, which, by limiting the freedom of the press, restrain freedom of thought and inhibit the expansion of human knowledge. [54]

He viewed the Condorcet/Sieyès proposal as an unprincipled and misguided effort to translate a regime of privilege into a rhetoric of property. According to

Keralio, the cause of “authors’ property rights” was no more than a political smokescreen, serving to conceal the commercial interests of publishers. [55] The commercial publishing world offered ample evidence to support these charges. Like Condorcet in 1776, Kêralio believed knowledge should be freely accessible to all - even to print, publish, and sell.

A second line of attack on the Condorcet/Sieyès proposal was advanced by the old corporate monopolists of the Paris Publishers’ and Printers’ Guild and the royally privileged theater directors, who revived and deployed Diderot’s arguments in a campaign to have their “privileges” recognized as unlimited property rights. They mounted a lobbying effort to kill the proposal in committee. The playwright Jean Francois de LaHarpe protested to the National Assembly on 24 August 1790:

Your decrees have pronounced the abolition of all privileges. Having enjoyed such privileges for over one hundred years, the directors of the Comédie francaise ... claim that all the plays that they have been given the exclusive privilege to perform since the establishment of their theater are now their eternal and inviolable property. [56]

A few weeks later on 6 September the officers of the Paris Publishers’ and Printers’ Guild joined in this corporatist reaction and presented a mémoire to the assembly in which they proposed to “put before the eyes of the Committee on the Constitution, the Code for the Publishing and Printing Trades edited by the great d’Aguesseau” [i.e., the code of 1723]. [57] It was the code of 1723 that had provided the basis for arguments that publishers’ “privileges” were automatically and perpetually renewable and hence actually the confirmation of an anterior property right. [58] How could a revolution that had declared property a natural and inalienable right now take steps to limit that right?

These arguments were forcefully reiterated in 1791 as the forces of cultural reaction mobilized with greater intensity to advance their corporatistic cause under the guise of defending “authors’ rights”. The Committee on Agriculture and Commerce reported on a letter from the Keeper of the Seals in which he testified that the lack of a law guaranteeing literary property was ruining French letters:

It is impossible to doubt that the vigilant and active protection that the government has always accorded the property of authors and those to whom they cede their works was one of the principal reasons that literature has flourished in France more than with any other modern people. There can be no doubt that pirates of our best books will incessantly inundate the kingdom, ruin proprietors, intimidate those who are in a position to purchase manuscripts, and exhaust, in a word, the most precious branch of our national industry. [59]

The Keeper of the Seals recommended that the Committees on the Constitution, Agriculture and Commerce, and Research meet together to resolve this question. The Committee on Agriculture and Commerce took the initiative to convene the

three committees “to propose a law on these issues which are crucial to the book trade and to literature”. [60]

The formal abolition of the Publishers’ and Printers’ Guild in March 1791 dealt a severe blow to the corporate lobby. [61] But individual publishers of the old guild, as well as public officials, continued to agitate for the protection of literary property. On 22 May the Minister of Justice (formerly the Keeper of the Seals) wrote to the Committee on Agriculture and Commerce urging action. [62] The following day Francois Hell, a member of the committee, received a letter from

MM. Jean-Marie Bruyset and Pierre-Marie Bruyset and son, printers of Lyon, requesting a law that will assure authors the property in their works and prohibit pirating… They state that this law is urgently needed, as at this moment someone has pirated a fifteen-volume edition of Valmont’s Dictionnaire which only appeared fifteen days ago, which cost 500,000 livres to produce, and the loss of which would reduce the author and printers to the state of beggars. [63]

The Committees on Agriculture and Commerce, and on the Constitution, resolved as a consequence of this report to charge Hell with the drafting of a new law.

The Hell projet, published by order of the National Assembly sometime in the summer of 1791, gave legislative embodiment to the principles long advocated by the Paris Publishers’ Guild and Diderot. Thus Hell announced to the National Assembly:

The first of all properties is that of thought; it is independent, it is anterior to all laws… All other forms of property are nothing but conventions, social concessions, those of the mind and of genius are gifts from nature, they ought to be beyond any restriction… The Old Regime named the act by which one guaranteed literary property a “literary privilege”. A privilege! What a gross abuse of words. You have destroyed the word… now you can consecrate the thing. [64]

Nothing could have been further from the views presented a year earlier by Sieyès and Condorcet. The specific clauses of the Hell projet de loi upheld all former “privileges” on the entire literary inheritance of France, which had been accrued by publishers in consequence of the code of 1723, as titles of property. Literary property was to be inheritable and transmissible in perpetuity like any other form of property. The law was to be printed at the end of every publication “replacing the text of the former privilege”. [65] This was precisely the interpretation that the Comédie francaise and the Paris Publishers’ and Printers’ Guild had long hoped to advance.

A third line of attack on the Condorcet/Sieyès proposal was voiced from within the camp of those who actually sympathized with the principle of a limited property right. Three days after the Sieyès proposal was presented to the assembly, Charles-Joseph Panckoucke, the wealthiest publisher in Paris, published the first of two articles in the Mercure de France exposing his own views on

how the crisis in book publishing could be resolved. [66] Like Sieyès and Condorcet, he expressed ideological concerns about unlimited exclusive claims on ideas: “An author or a publisher who would be the eternal proprietors of their books, would necessarily be monopolists.” [67] Panckoucke did not believe in monopolies in ideas. He shared Condorcet’s concern that perpetual monopolies on texts left the fate of public enlightenment and the spread of enlightened ideas totally in the hands of private individuals. Limits on private claims, he insisted, were justified by public interest.

He felt, however, that the limits on private claims proposed by Sieyes and Condorcet were too severe. Instead, he proposed that France adopt the model put into place by the English in 1774:

Every author enjoys at first a fourteen-year claim upon his work. If he survives that term, he obtains another fourteen years of enjoyment of his claim. At the expiration of that term, the book belongs to the public. The [English] nation has thought, with reason, that this is the proper means of reconciling private interest with the public good, and that as good books contribute to its enlightenment... it is just to favor its writers with these dispositions. [68]

As a publisher of multi-authored, multivolume works, Panckoucke sought to extend the legal definition of the unit of time deemed necessary to complete an edition from ten to fourteen years. Nonetheless, the arguments of even this large commercial publisher rested not upon the inviolability of property rights but, rather, upon the ideal of an enlightened nation. Writers merited special favor not as property holders but because they were the source of the “good books” through which the public received enlightenment. Once they had received their compensation, the public good dictated that these texts belong to all.

By 1791, then, the mid-century debate between Diderot and Condorcet had resurfaced within the Revolution itself. Caught between their interest in liberating public circulation of ideas from the inquisitorial and monopolistic institutions of the Old Regime and their fear of the political consequences of the cultural anarchy that had ensued from the “freeing of the press,” Condorcet and Sieyès had advanced the notion of a “limited property right” in an attempt to effect a legislative compromise between private interests and public enlightenment. But cultural libertarians, like Keralio, took up Condorcet’s arguments of 1776 and protested violently against any private claims on ideas. Alternately, the Publishers’ and Printers’ Guild, along with the directors of the Comédie francaise, mobilized a corporate lobby to argue for the inviolability of authors’ property rights. Even men like Panckoucke, who agreed with the basic premise of a “limited right,” found the particular stipulations of the proposal unacceptable. The Condorcet/Sieyès proposal of 1790 foundered in a sea of criticism. here was to be no law regulating claims upon ideas until 1793.

The revolutionary law of 19 July 1793, which defined the legal limits and powers of the author and laid the foundation for republican publishing, has served as the basis for French publishing to this date. It is still the first standard citation in French law school textbooks on literary property.[69] In order to understand how a law finally succeeded and why it took the form it did, critical changes in the revolutionary context between 1790 and 1793 must be considered.

In 1791 there was a crucial shift in the balance of forces for and against the notion of a “limited property right”. The suppression of the Publishers’ and Printers’ Guild in March 1791 had dealt a severe blow to the pro-property corporate lobby. A distinct law on libel and sedition was incorporated into the Constitution in September 1791, leaving the property question to be resolved independently of the issue of censorship. This separation significantly depoliticized the property issue. The Hell proposal, which circulated for public discussion in those uncertain months of the summer of 1791, appears never to have reached the floor of the assembly for a vote. By the fall of 1791, it had become clear that the advocates of perpetual private property in ideas had wasted their energies by courting the wrong legislative committee.

The transfer of power from the Constituent to the Legislative Assembly on 1 October 1791 was accompanied by a reorganization of the structure of the assembly’s committees. With this reorganization, jurisdiction over the question of literary property passed from the Committee on Agriculture and Commerce to the newly formed Committee on Public Instruction under the presidency of Condorcet. [70] He was joined on the committee by, among others, Sieyès. [71] Thus the question of literary claims, first raised in 1790 as part of a repressive police measure, and then as a commercial interest, was, by virtue of changing circumstances, recontextualized as a question of education and the encouragement of knowledge.

By 1791, moreover, the results of a second wave of agitation for authors’ rights reached legislative formulation. This agitation came, not from corporate interests, but rather from authors for the theater protesting the monopoly of the Comédie francaise on dramatic works. Since the founding of the Comêdie francaise in 1680, it was only theater directors, not playwrights, who could legally receive “privileges” to present and publish theatrical works. [72] This monopoly had not been affected by the reforms of 1777. The agitation of “unprivileged” playwrights was therefore crucial in disassociating the cause of “authors’ rights” from a rear-guard defense of old-regime privileges and realigning it politically within the prorevolutionary attack on privileged interests.

Theater authors began their agitation in 1790 with the creation of a committee led by the playwright Pierre-Augustin Caron de Beaumarchais in order to assert the rights of dramatic authors to their own works and to call for the aboli‑

tion of the privileges of the Comédie francaise. A petition of protest bearing the signatures of twenty-one writers was presented to the National Assembly by LaHarpe on 24 August 1790. This petition was essentially an effort to reintroduce into the assembly the clauses of the Sieyès proposal that had pertained to the theater and property in dramatic works. Anyone, they argued, should be free to open a theater. The works of authors dead for more than five years should be considered “public property,” but no one should be allowed to represent or publish the dramatic works of living authors without their written consent. [73] The petition was sent to the Committee on the Constitution. [74]

LaHarpe’s plea did not fall upon deaf ears. In fact, supporters of the Comédie francaise charged that the petition drive had been instigated by a key member of the very committee to which it was submitted: “It’s chez M. de Mirabeau… that this petition was cooked up”. [75] Whether true or not, there can be little doubt that Honoré-Gabriel de Mirabeau helped to advance the cause of the petitioners. [76] Less than a month later, on 13 January 1791, the Committee on the Constitution presented a projet de loi drafted by Mirabeau on behalf of the petitioners to the National Assembly.”

The Mirabeau proposal, presented by Isaac-Rene-Guy Le Chapelier on behalf of the committee, was essentially a redrafting of the articles of the Sieyès proposal pertaining to literary property, but this time on behalf of theater authors alone. In contrast to the Sieyès proposal, however, the preamble of the new proposal laid stress, not on authors’ rights, but rather upon the rights of the public. Thus Le Chapelier argued:

In soliciting for authors… exclusive property rights during their lifetime and five years after their death, authors acknowledge, even invoke, the rights of the public, and they do not hesitate to swear that after a period of five years the author’s works are public property… The public ought to have the property of great works… But despotism invaded that communal property and carved it up into exclusive privileges. [78]

The authors represented themselves as servants of the public good, of its enlightenment, in opposition to the private interests of publishers and theater directors. Thus the authors themselves rejected the Diderotist argument for unlimited and absolute claims upon their texts and, reviving the compromise position of Sieyès and Condorcet, presented themselves as contributors to “public property” and guardians of the public claim to the nation’s cultural commons. The author was now depicted as a hero of public enlightenment, rather than as a selfish property owner. Unlike the Sieyès proposal, that of Le Chapelier was passed into law, on 13 January 1791. The law abolished all past “privileges” and recognized the theater author’s claims as exclusive property rights until five years after the author’s death, at which point they would become part of the public domain.

This law, however, did not cover the work of authors in genres other than the theater. The initiative to define the legal status of all authors now passed to the

newly formed Committee on Public Instruction. Ironically, it was the recently empowered authors of dramatic works who again brought the issue to the attention of the committee. On 6 December 1791 the Committee on Public Instruction received a request from a deputation of authors headed by Beaumarchais to hear their charges against the directors of the theaters for noncompliance with the law of 13 January 1791. The theater directors had chosen to interpret this law to apply only to future works, leaving them free to present any work, even by a living author, which had already been printed or published. Further, they claimed publication rights on any work contracted by their companies prior to the law. [79]

As the result of a series of meetings, the committee drafted a projet de loi that was presented by Gilbert Romme on its behalf and passed in the Legislative Assembly on 30 August 1792. [80] The law represented a victory for the theater directors. It upheld all contracts between authors and the theaters prior to the passage of the law of 13 January 1791 and sustained the exclusive right of the theaters to stage any work performed prior to the passage of the law. Needless to say the law met with vociferous protest from authors. This time it was the playwright Marie-Joseph Chénier who headed up the protest with a letter and petition to the Committee on Public Instruction on 18 September 1792. [81] The law, Chénier argued, had been slipped through by Romme without the support of the majority of the committee members. [82] The committee reopened the question as a consequence of this protest. [83]

It was not, however, just writers of dramatic works who expressed discontent over the course of 1792. On 2 January 1792 the committee received a petition from thirty authors and editors of music, not covered by the law of 1791, in which they begged the “National Assembly, in all its wisdom, to find a means to protect their property and prevent pirating”. [84] The novelist Jean-Baptiste Louvet wrote to the convention as well, requesting permission to present a petition “calling for a law against piraters, who are destroying the book trade and bringing me to ruin”. [85] These appeals were not to go unnoticed. On 20 February 1793 the Committee on Public Instruction finally assigned Chénier the task of drafting a general law against pirate editions in all genres. [86] News of the forthcoming Chénier proposal was announced in the Moniteur in April, but Chénier did not succeed in getting the floor of the convention during the troubled spring of 1793. [87]

After the “revolution” of 31 May to 2 June 1793, which purged the Girondin faction from the convention, Condorcet ceased appearing at committee meetings. A month later he was in hiding. [88] Sieyès took over the presidency of the committee on 23 May, but he and Chénier both soon withdrew as wel1. [89] Denounced as Girondins, all three were formally excluded from the committee on 6 October 1793. [90] It is ironic that the Girondin law that founded the basis of modern French publishing should emerge precisely at the moment of the Jacobin victory that suppressed its authors. Indeed, it was the Jacobin consolidation of power that made it possible to pass the law. On 19 July 1793 the convention at last heard

Chénier’s proposal presented on behalf of the Committee on Public Instruction by Joseph Lakanal. [91] It was passed with no recorded discussion. [92]

The decree adopted on 19 July 1793 amounted to yet another version of the Condorcet/Sieyès proposal of 1790. No longer perceived as a “Girondin” police measure intended to ensure the accountability of authors, nor as a commercial regulation to protect the private property interests of publishers, it was now presented by the Committee on Public Instruction as a mechanism for promoting and ensuring public enlightenment by encouraging and recompensing intellectual activity - that is, by granting limited property rights to authors:

Citizens, of all the forms of property, the least susceptible to contest, whose growth cannot harm republican equality, nor cast doubt upon liberty, is property in the productions of the genius… By what fatality is it necessary that the man of genius, who consecrates his efforts to the instruction of his fellow citizens, should have nothing to promise himself but a sterile glory and should be deprived of his claim to legitimate recompense for his noble labors? [93]

Like the Sieyès proposal three years earlier, this law guaranteed authors, or those to whom they ceded the text by contract, an exclusive claim upon the publication of the text for the lifetime of the author plus an additional ten years for heirs and publishers. The Royal Administration of the Book Trade, which had registered the literary “privileges” of the Old Regime, was to be replaced by a national legal deposit at the Bibliothèque nationale, where all property claims were to be legally registered. The decree differed from the Sieyès proposal in one crucial respect: it gave no retroactive protection to the former holders of “privilèges en librairie” or “privilèges d’auteur.” With the law of 19 July 1793, then, the cultural capital of the Old Regime was definitively remanded from the private hands of heirs and publishers into the public domain. Rousseau and Voltaire, like Corneille, Racine, and LaFontaine, had now too been dead for well over ten years. Thus, as Condorcet had dreamed, the authors of the Enlightenment, as well as those of the classical age, became the inheritance of all.

The severing of the clauses on literary property from their original context in the Sieyès proposal on sedition and libel, the deletion of the clause reaffirming current “privileges” the mobilization of authors, and the new stress on public enlightenment significantly transformed the political meaning and impact of the law. Initially part of a concerted moderate effort to reregulate and police the printed word and ensure publishers profits, the recontextualized clauses came to be viewed as a “declaration of rights” presented as a Jacobin effort to abolish the vested interests of inherited privileges, to consecrate the bearers of enlightenment, and to enhance public access to the ideas of the Enlightenment.

But the law did not resolve the epistemological tension between Condorcet and Diderot. Rather, it produced an unstable synthesis between the two positions. It drew upon a Diderotist rhetoric of the sanctity of individual creativity as an

FIGURE 1. The Revolution celebrated the author as a hero of public enlightenment rather than as a private individual creator. A. Duplessis, La Revolution francaise, c. 1790, detail. Photo: Musée de la Révolution francaise, Vizille, France.

inviolable right, but it did not rigorously respect the conclusions Diderot drew from this position. In contrast to the “privilège d’auteur” of 1777, the law did not recognize the author’s claim beyond his lifetime but consecrated the notion that the only true heir to an author’s work was the nation as a whole. This notion of a “public domain” of democratic access to a common cultural inheritance upon which no particular claim could be made, bore the traces, not of Diderot, but of Condorcet’s faith that truths were given in nature and, though mediated through individual minds, ultimately belonged to all. Progress in human understanding depended not on private knowledge claims but rather on free and equal access to enlightenment. Authors’ property rights were conceived as a recompense for the author’s service as an agent of enlightenment through the publication of his ideas. The law of 1793 accomplished this task of synthesis through political negotiation rather than philosophical reasoning, that is, through a refashioning of the political identity of the author in the first few years of the Revolution, from a privileged creature of the absolutist police state into a servant of public enlightenment.

This understanding of the history of the formation of the legal identity of the author returns us to Foucault’s original question: What is an author? The author as a legal instrument for the regulation of knowledge was created by the absolutist monarchy in 1777, not by the liberal bourgeois democracy inaugurated in 1789. The author was created by a royal regime that exercised power through privilege rather than by a constitutional regime committed to ensuring the protection of the individual as a private property owner. The revolutionary legislation did redefine the author’s “privilege” as property, but not as an absolute right. The intention and the result of this redefinition of the author’s claim to his text as property was not to enhance the author’s power to control or determine the uses and meanings of the text. In fact, it was quite the opposite.

What the revolutionaries acknowledged and sought to ensure was not the individual dictation of meanings and truths but their maximum exchange, conflict, and social negotiation. Progress in understanding, they believed, occurred through enhanced access and exchange. In reshaping the cultural regime the revolutionaries sought to make a world appropriate not to an absolutist police state but to a liberal state founded on conflict and negotiation. The democratic bourgeois revolution did not mark a further step in the progressive consolidation of the notion of the author. Rather, the revolutionaries explicitly intended to dethrone the absolute author, a creature of privilege, and recast him, not as a private individual (the absolute bourgeois), but rather as a public servant, as the model citizen. This civic ideal of authorship was shared not just by liberal statesmen such as Condorcet and Sieyès but by even the most capitalistically inclined publishers like Panckoucke as well. Concern for the public good explains why the author’s regulative powers were not further consolidated, but rather eroded and destabilized by the revolutionary legislation.

Contrary to Foucault’s Diderotist interpretation, the revolutionary legislation actually reflected not one but both sides of the Enlightenment debate, effecting an epistemologically impure and unstable legal synthesis that combined an instrumentalist notion of the public good with a theory of authorship based upon natural rights. Precisely because of this legal instability, the regime by which the public exchange of ideas was regulated would be challenged and renegotiated repeatedly over the course of the revolutionary period. The legal history of French authorship thus suggests that Foucault’s essay requires a historical revision: the central mechanism of the modern regime of knowledge, as it emerged from the epistemology of the French Enlightenment, was unstable from its very beginnings.

If the Old Regime first accorded Voltaire and Rousseau the possibility of legal status as privileged authors with perpetual private lineages for their texts, the Revolution relocated these figures in the public domain, the legal parallel to the

civic rituals that reposed their bodily remains in the public temple of the Pantheon. By inventing the “public domain” the French revolutionary laws on authorship shifted the problem of determining the meaning of the text away from its source, the author, and toward its destination, its re-presentation and reception by the editor and reader. [94] In so doing the revolutionaries inaugurated a new cultural regime preoccupied as much with distinctions between different editions of texts as with epistemological debates about the origins of ideas. [95] The questions “Who is Voltaire?” and “What is Rousseau?” were thus joined by a new set of legal, and also literary, preoccupations: whose Voltaire? which Rousseau?

The French revolutionary laws on authorship also suggest that literary historians and critics may need a more complex view of the relationship between the law and cultural change, one that accounts for the political as well as the socio-economic forces at work in the reshaping of the legal world. Though there can be little doubt, as both Rose and Woodmansee suggest, that the expansion of commerce in the printed word in the eighteenth century put unprecedented pressures upon public authorities toward the legal recognition of authorial property, the legal responses of both prerevolutionary and revolutionary authorities did not merely reflect these socio-economic changes. Politics, and a concern for public life, mediated the successive negotiations between the private interests of authors and publishers and the concerns of legal authorities. As a consequence, the revolutionary legislators produced a legal conception of authorial identity that not only consecrated but also limited the author’s power of self-determination for the sake of the public good.

I would like to thank Laura Engelstein, Paul Clemens, Lynn Hunt, and Robert Post for their comments and criticisms.

1. Michel Foucault, “What Is an Author?” in Textual Strategies: Perspectives in Post-Structuralist Criticism, ed. Josue V. Harari (Ithaca, N.Y., 1979), 141-60; originally published in 1969. For its influence in critical debates, see Harari, Textual Strategies; Peggy Kamuf, “Criticism,” and the response by Nancy K. Miller, “A Feminist Critic and Her Fictions,” Diacritics 12, no. 2 (1982): 42-53; and Biddy Martin, “Feminism, Criticism, and Foucault,” New German Critique 27 (1982): 3-30. For its impact in orienting historical research, see Martha Woodmansee, “The Genius and the Copyright: Economic and Legal Conditions of the Emergence of the ‘Author’”, Eighteenth-Century Studies 17, no. 4 (1984): 425-48; Molly Nesbitt, “What Was an Author?” Yale French Studies 73 (1987): 229-57; Mark Rose, “The Author as Proprietor: Donaldson v. Becket and the Genealogy of Modern Authorship,” Representations 23 (1988): 51-85; and Carla Hesse, “Reading Signatures: Female Authorship and Revolutionary Law in France, 17501850”, Eighteenth-Century Studies 22, no. 3 (1989): 469-87.

2. The formulation is Peggy Kamuf’s; “Criticism,” 45. Appearing almost simultaneously

with Foucault’s essay, the other key theoretical contribution to this discussion was Roland Barthes’s essay “The Death of the Author,” in Image-Music-Text, ed. and trans. Stephen Heath (New York, 1977), 142-48 (first published in 1968). See also Jacques Derrida’s contribution in “Signature Event Context,” Glyph 1 (1977): 172-97, esp. 180-83 and 193 (originally published in 1972); and Derrida, “Limited Inc abc . ,” Glyph 2 (1978): 162-251, which explicitly problematizes the issue of authorial claims through the mechanism of copyright. These essays have been recently reprinted in Derrida, Limited Inc (Evanston, Ill., 1988).

6. Jane C. Ginzburg, “A Tale of Two Copyrights: Literary Property in Revolutionary France and America” (Paper presented at the Library of Congress Symposium on Publishing and Readership in Revolutionary France and America, May 1989), cited with permission of the author. Ginzburg’s purpose in characterizing this conventional view of French copyright theory, it should be noted, is to take issue with it. For an introduction to the French tradition of legal interpretation of “author’s rights,” see Henri Desbois, Le Droit d’auteur en France, 3rd ed. (Paris, 1978); and Claude Colombet, Propriete litteraire et artistique, 2nd ed. (Paris, 1980).

7. Alain Viala’s Naissance de l’ecrivain: Sociologie de la litterature a Page classique (Paris, 1985) deals exclusively with the seventeenth century. Similarly, Robert Darnton’s work on French writers in the eighteenth century does not extend into the revolutionary period. See Darnton, The Literary Underground of the Old Regime (Cambridge, Mass., 1982); and The Great Cat Massacre (New York, 1984). T he recent appearance of Robert Darnton and Daniel Roche, eds., Revolution in Print: The Press in France, 1775-1800 (Berkeley, 1989), has remedied this situation to some extent. But it too contains no sustained examination of the problem of authorship. Two specialized studies deserve special note for their contribution to the history of authorship and publishing during the Revolution: Robert Darnton, The Business of Enlightenment: A Publishing History of the “Encyclopedie,” 1775-1800 (Cambridge, Mass., 1979); and Gary Kates, The “Cercle social,” the Girondins, and the French Revolution (Princeton, N.J., 1985).

8. Roger Chartier and Henri-Jean Martin, eds., Histoire de l’edition francaise, vol. 2 (Paris, 1983). A recent effort to redress this lacuna has been made by Jean-Claude Bonnet, ed., La Carmagnole des muses: L’Homme des lettres et l’artiste dans la Revolution (Paris, 1989).

9. See Henri-Jean Martin, Livre, pouvoirs, et societe a Paris au XVIIe siecle (Geneva, 1969); Francois Furet, “La Librairie du royaume de France au 18e siecle,” in Livre et societe dans la France du XVII le siecle, ed. Furet (Paris, 1965); and especially Chartier and Martin, Histoire de redition francaise.

10. For the text of the six decrees of 1777 see Athanase Jean-Leger Jourdan, Decrusy, and Francois-Andre Isambert, eds., Recueil general des anciennes lois francaises, 29 vols. (Paris, 1826), 25:108-23.

11. Communaute des libraires et imprimeurs de Paris, Code de la librairie et imprimerie de Paris… arrete au Conseil d’etat du roi le 28 fevrier, 1723... (Paris, 1744).

12. For a full discussion of the history of literary “privileges” under the Old Regime, see Augustin-Charles Renouard, Traite des droits d’auteur dans la litterature, les sciences, et les beaux-arts, vol. 1 (Paris, 1838), 106-93; and Henri-Jean Martin, “Conditions politiques: La Librairie et les pouvoirs,” in Chartier and Martin, Histoire de redition francaise, 2:64-93. For discussions of the origins and history of legal theories of claims upon ideas and texts, and upon their transmission, under the Old Regime see Gaines

Post et al., “The Medieval Heritage of a Humanistic Ideal: Scientia Donum Dei Est, Unde Vendi Non Postest,” Traditio 11 (1955): 195-235; Natalie Z. Davis, “Beyond the Market: Books as Gifts in Sixteenth-Century France,” Transactions of the Royal Historical Society, 5th ser., 33 (1983): 69-88; and Raymond Birn, “The Profit in Ideas: ‘Privileges en librairie’ in Eighteenth-Century France,” Eighteenth-Century Studies 4, no. 2 (1971): 131-68.

13. For further discussion of the social and economic realities of authorship in the seventeenth and eighteenth centuries see Viala, Naissance de l’ecrivain; Martin, Livre, pouvoirs, et societe; and Darnton, Literary Underground of the Old Regime.

14. Martin, Livre, pouvoirs, et societe; Martin, “Le Preeminence de la librairie parisienne,” in Chartier and Martin, Histoire de redition francaise, 2:262; and Birn, “Profit in Ideas.”

15. This was Nicolas Fontaine’s Histoire du vieux et nouveaux testament (Paris, 1670); the case is cited by Birn, “Profit in Ideas,” 139.

16. “C’est le fruit d’un travail qui lui est personnel, dont it doit avoir la libertê de disposer a son gre”; cited by Birn, “Profit in Ideas,” 144. All translations are my own unless otherwise noted.

17. Rose makes a similar observation about the source of property arguments in the English context; “Author as Proprietor,” 56.

18. Malesherbes, the director of the Royal Administration of the Book Trade between 1750 and 1763, advanced arguments for revising the code of the book trade to allow authors to publish and sell their own works, rather than to require them to use licensed publishers and booksellers, in his “Quatrieme mêmoire sur la librairie: Sur les reglements a faire pour empecher l’impression, le commerce, et l’introduction des livres defendus,” written sometime between 1750 and 1764 and first published in Chretien-Guillaume Lamoignon de Malesherbes, Memoires sur la librairie et sur la liberte de la presse (Paris, 1809), 175-78. Notes for a second memorandum, advancing similar arguments, were written by Francois Marin, general secretary of the book trade, at the request of Joseph d’Hemery, inspector of the book trade in Paris and submitted to the new director of the Royal Administration of the Book Trade, Sartine, in 1764; see Marin, “Representations et observations en forme de mêmoire sur l’êtat ancien et actuel de la librairie et particulierements sur la propriete des privileges, etc., presentees a M. Sartine par les syndic et adjoints, et en marge les observations que M. Marin a faites sur chaque article, d’apres les notes instructives que je [d’Hemery] lui ai remises par ordre du magistrat,” March 1764, Fond francais 22183, Bibliotheque nationale; cited by Birn, “Profit in Ideas,” 153-54.

21. For a more extensive treatment of the complex subject of Diderot’s epistemology, its relation to the development of French aesthetic theory, and the idea of authorial originality in particular, see Jacques Chouillet, La Formation des idees esthetiques de Diderot (Paris, 1973), esp. 403-17; Chouillet, L’Esthetique des Lumieres (Paris, 1974), 73-82 and 120-25; and Roland Mortier, L’Originalite, une nouvelle categorie esthetique au siecle des Lumieres (Geneva, 1982), 153-63. The renaissance origins of the idea of authorial originality are treated extensively in David Quint, Origin and Originality in Renaissance Literature (New Haven, 1983). The standard work on the epistemology of the French Enlightenment is Ernst Cassirer, The Philosophy of the Enlightenment (New York, 1964). For a discussion of the complexities of Diderot’s epistemological stance in relation to both Locke and Descartes, see Robert Darnton, “Philosophers Trim the Tree of Knowledge: The Epistemological Strategy of the Encyclopedie,” Great Cat Massacre, 191–

214. Both Rose and Woodmansee note the contribution of the idea of authorial “originality” to arguments for authors’ property rights in Germany and England; see Woodmansee, “Genius and Copyright,” 427; and Rose, “Author as Proprietor,” 56.

23. Simon-Nicolas-Henri Linguet, Memoire sur les proprietes et privileges exclusifs de la librairie: Presente en 1774 (n.p., n.d.); cited in Renouard, Traite des droits d’auteurs, 175. For further discussion of Linguet’s views on the organization of the book trade, see also his Memoire signifie pour le sieur Luneau de Boisgermain, defendeur, contre les syndic et adjoints des libraires et imprimeurs de Paris, demandeurs (Paris, 1769).

24. Elisabeth Badinter and Robert Badinter, Condorcet: Un Intellectuel en politique (Paris, 1988), 99-142.

25. I have been unable to find any earlier reference to the pamphlet, Fragments sur la liberte de la presse, than the edition of Marie-Jean-Antoine Caritat, marquis de Condorcet, Oeuvres completes, ed. M. F. Arago, 12 vols. (Paris, 1847), 11:257-314. Arago provides the date 1776, but without explanation. The text is mentioned in neither Keith Michael Baker’s Condorcet: From Natural Philosophy to Social Mathematics (Chicago, 1975), nor the most recent biography by Badinter and Badinter, Condorcet. Nina Ratner Gelbart, however, notes that Condorcet contributed a series of articles, including one on the freedom of the press, to the Journal des dames in the later half of 1775. The Fragments, however, are clearly too extensive to have been intended only for publication as a journal article; see Gelbart, Feminine and Opposition Journalism in Old Regime France: “Le Journal des dames” (Berkeley, 1987), 229.

27. For the most definitive treatment of the intellectual origins, character, and development of Condorcet’s epistemology, see Baker, Condorcet.

31. Ibid. Interestingly, Woodmansee finds a similar line of argumentation advanced in the German context, although she does not explore its implications; “Genius and Copyright” 440.

32. Though it is beyond the purview of this particular inquiry, it could be argued that despite the conclusions of Woodmansee and Rose, their evidence suggests that a similar tension was present in both the English and German contexts as well. Though each of these authors clearly establishes the presence of arguments for unlimited property in ideas in eighteenth-century England and Germany, it is clear that these arguments did not go uncontested and that, ultimately, the laws that ensued from the debates in these countries did not reflect a victory for unlimited property rights. See Woodmansee, “Genius and Copyright”; and Rose, “Author as Proprietor.”

33. For the original text of these two documents see Keith Michael Baker et al., eds., University of Chicago Readings in Western Civilization, vol. 7, The Old Regime and the French Revolution (Chicago, 1987), 226-31 and 237-38.

34. See Carla Hesse, “Economic Upheavals in Publishing,” in Darnton and Roche, Revolution in Print, 69-97; and Hesse, Res Publicata: The Printed Word in Paris, 1789-1810 (Ph.D. diss., Princeton University, 1986).

35. France, National Constituent Assembly, article 13 of the decree of 10 August 1790, “Relative a la depense publique,” Archives nationales, F17, 1258, doss. 2.

36. France, National Legislative Assembly, decree of 17 March 1791, in Collection generale des decrets rendus par l’Assemblee nationale (Paris, 1791), 52-62.

37. France, National Constituent Assembly, Committee on the Constitution, “Projet de loi contre les &tits qui peuvent se commettre par la voie de l’impression et par la publi‑

cation des ecrits et des gravures, etc., presente a l’Assemblee nationale, le 20 janvier 1790, par le Comitê de constitution,” in Proces-verbal de l’Assemblee nationale, 76 vols. (Paris, 1790), 11:1-24; also in B.-J.-B. Buchez and P.-C. Roux, eds., Histoire parlementaire de la Revolution francaise, 40 vols. (Paris, 1834), 4:273-88.

38. Hesse, “Economic Upheavals in Publishing”; Hesse, “Le Sort des imprimeurs et libraires parisiens apres la chute de la chambre syndicale en 1791,” in Roger Chartier and Daniel Roche, eds., Melanges de la Sorbonne: La Revolution et le livre (Paris, 1989).

39. Jean-Francois Royer, Avis interessant aux gens de lettres et aux amateurs de bons livres et des bonnes editions, n.d. [1789/90], Archives nationales, F17, 1010D, doss. 4102. In a cover letter to the Committee on Public Instruction, dated “thermidor, an II” (1794), Royer states that he composed this letter “four years earlier.”

40. “Proces-verbal de Police de la section de Ste. Genevieve, 23-24 octobre 1791,” Archives de la Prefecture de police de Paris, AA200, items 182-83.

45. On the political reaction of the propertied classes to the popular revolution, see Georges Michon, Essai sur l’histoire du parti feuillant, Adrien Duport (Paris, 1924). For the connection of cultural elites to this conservative backlash of 1790-91, and especially of writers and publishers, see Darnton, Business of Enlightenment, 505.

47. See Francois Lanthenas, De la liberte indefinie de la presse (Paris, 1791), 6. Lanthenas writes: “A proposal of the Committee on the Constitution of the National Assembly to regulate the press, proposal attributed to MM. Condorcet and Sieyes, appeared a few months after this glorious revolution.”

48. Condorcet, Oeuvres completes, 11:252-314; and the “Projet de loi contre les delfts,” Proces-verbal de l’Assemblee nationale, 12:17-24; also in Buchez and Roux, Histoire parlementaire, 4:273-88.

51. See, for example, Alma Soderhjelm, Le Regime de la presse pendant la Revolution francaise (Geneva, 1971), 118-27 (originally published in Paris in 1900-1901); and Claude Bellanger, ed., Histoire generale de la presse francaise, 3 vols. (Paris, 1969), 1:432.

52. For an extensive discussion of the critical response of journalists and pamphleteers to the clauses on sedition and libel, see Soderhjelm, Le Regime de la presse, 123-28.

53. Elysee Loustallot, “De la liberte de la presse,” Revolutions de Paris, no. 29,23-30 January 1790, 17-18; emphasis in the original.

54. Louis Felix-Guyment de Kêralio, De la liberte d’enoncer, d’ecrire, et d’imprimer la pensee (Paris, 1790), 51-53.

56. Jean Francois de LaHarpe, Adresse des auteurs dramatiques a l’Assemblee nationale, prononce par M. de LaHarpe dans la seance du mardi soir 24 aout ([Paris, 1790]), 8.

57. Fernand Gerbaux and Charles Schmidt, eds., Proces-verbal des Comites d’agriculture et de commerce, 4 vols. (Paris, 1906), 1:518-19.

59. Gerbaux and Schmidt, Proces-verbal des Comites d’agriculture et de commerce, 1:756.

60. Comites d’agriculture et de commerce to the Comite des recherches, 13 January 1791, Archives nationales, D29 bis 16,182, doc. 10.

61./France, National Legislative Assembly, decree of 17 March 1791; in Collection generale des decrets, 52-62.

62. Gerbaux and Schmidt, Proces-verbal des Comites d’agriculture et de commerce, 2:256.

64. Francois Hell, Rapport fait a l’Assemblee nationale par M. Hell...sur la propriete des productions scientifiques ou litteraires, imprime par ordre de l’Assemblee nationale, Archives nationales, AD8, 16 (Paris, 1791), 5-8. I have been unable to determine if this proposal was ever actually presented on the floor of the National Assembly.

66. Charles-Joseph Panckoucke, “Sur les chambres syndicales,” Mercure de France, 23 January 1790; and “Sur l’etat actuel de l’imprimerie,” Mercure de France, 6 March 1790.

68. Ibid. There is much more to be said about the role of English copyright law in the French revolutionary debates. While Panckoucke here invokes it, the Hell proposal, for example, explicitly refuted arguments in favor of adopting the English model. See Hell, Rapport fait a l’Assemblee nationale.

69. See, for example, Desbois, Droit d’auteur, 416; or Claude Colombet, Propriete litteraire et artistique, 6.

70. M. J. Guillaume, ed., Proces-verbaux du Comite d’instruction publique de la Convention nationale, 7 vols. (Paris, 1891), 1:iv.

71. Ibid., 1:iv-xiii. Although the exact composition of the committee was constantly changing, both of these men were continuous and influential presences.

72. See Renouard, Traite des droits d’auteur, 211-25; see also Michele Marie Root-Bernstein, Boulevard Theater and Revolution in Eighteenth-Century Paris (Ann Arbor, Mich., 1984).

77. For the attribution of the projet to Mirabeau, see the letter written to the National Assembly on behalf of the authors of dramatic works on 18 September 1792, in Guillaume, Proces-verbaux du Comite d’instruction publique, 1:52.

78. Isaac-Rene-Guy LeChapelier, Rapport fait par M. LeChapelier au nom du Comite de constitution sur la petition des auteurs dramatiques, 13 January 1791, Archives nationales, AD 8, 16 (Paris, 1791), 4-6.

79. A succession of meetings and debates on the retroactive implications of the laws ensued between the authors and the theater directors within the Committee of Public Instruction on 9 and 23 December 1791 and 2, 6, 9, 13, and 23 January 1792. See M. Guillaume, ed., Proces-verbal du Comite d’instruction publique de l’Assemblee legislative (Paris, 1889), 47-48, 76, 78-79, 83, and 94. See also Pierre-Augustin Caron Beaumarchais, Petition a l’Assemblee nationale... contre l’usurpation des auteurs ([Paris, 179192J).

80. The presentation of the proposal was first attempted on 5 February 1792 but was deferred first to 8 February and then finally to 30 August 1792. See Guillaume, Prods-verbal du Comite d’instruction publique de l’Assemblee legislative, 96.

81. Guillaume, Proces-verbaux du Comite d’instruction publique, 1:52-53. For the original letter, the reference is now Archives nationales, F17, 1001, 39, 1.

83. The struggle between the theater owners and authors was as byzantine as it was, ultimately, fruitless; see ibid., 51. In February, P. C. L. Baudin was charged by the committee to draft yet another law concerning the rights of authors of dramatic works, with the intention of abrogating the law of 30 August 1792. See Baudin, Rapport et projet de claret sur la propriete des auteurs dramatiques presentes au nom du Comite d’instruction

publique par P. C. L. Baudin, Archives nationales, AD8, 16 (Paris, [1793]). The report was announced in the Journal des debats et des decrets, no. 168 (4 March 1793); cited in Guillaume, Proces-verbaux du Comite d’instruction publique, 1:347 and 349, note 1. On 28 February the playwright Michel Jean Sedaine sent a letter and a petition to the committee demanding that the heirs of Racine receive perpetual royalties on the presentation or publication of his works. His plea was to no avail; letter and petition from Sedaine to the Committee of Public Instruction, Archives nationales, F17, 1004B, 447, 1. On 4 March Baudin’s proposal, which abrogated the law of 30 August 1792 and reaffirmed the original law of 13 January 1791, was published by the committee and distributed to the members of the convention. Protest against the proposal was registered by the committee on 19 March. The proposal was pursued no further; Guillaume, Proces-verbal du Comite d’instruction publique, 1:367, 369-71, and 392, note 3.

84. Letter from authors and editors of music to the National Assembly, 2 January 1792, Archives nationales, F17, 1004A, 397. This letter and petition were forwarded to the Committee of Public Instruction on 2 June.

85. Jean-Baptiste Louvet to the National Convention, 23 February 1792, Archives nationales, C 147, no. 167.

86. Guillaume, Proces-verbaux du Comite d’instruction publique, 1:347 (session of 20 February 1793).

89. Alfred Jepson Bingham, Marie-Joseph Chenier: Early Political Life and Ideas, 1789-1794 (New York, 1939), 123-26.

91. For a textual analysis of the provenance of the projet, see Guillaume, Proces-verbaux du Comite d’instruction publique, 2:80. My hypothesis is that Chenier is responsible for drafting the version of the law ultimately presented by Joseph Lakanal, and that for political reasons he did not present it himself. In both the contemporary press and the Committee of Public Instruction’s proceedings, Chenier is assumed to be the author, and the proposal conforms closely to the views expressed in his petition of 18 September 1792. This theory is also supported by Bingham, Chenier, 123. It should be noted, however, that Lakanal later claimed credit for the proposal; see his Expose sommaire des travaux de Joseph Lakanal (Paris, 1838), 9-12.

92. Jerome Madival and Emile Laurent, eds., Archives parlementaires de 1787 a 1860, 1st ser., 82 vols. (Paris, 1875-1913), 69:186-87. A little over a month later, on 1 September 1793, the convention added a new clause to the law to clarify explicitly that this law was intended to supersede the LeChapelier law on theater authors of 1791 and to cover equally authors of dramatic works; ibid., 73:293-94.

93. Lakanal’s speech to the National Convention, 19 July 1793; in Guillaume, Proces-verbaux du Comite d’instruction publique, 2:82.

94. For recent developments in the history of reading see Roger Chartier, Lectures et lecteurs dans la France d’ancien regime (Paris, 1987); Chartier, ed., Les Usages de l’imprime (Paris, 1987); Chartier, “Texts, Printings, Readings,” in Lynn Hunt, ed., The New Cultural History (Berkeley, 1989), 154-75; and Robert Darnton, “Readers Respond to Rousseau: The Fabrication of Romantic Sensitivity,” Great Cat Massacre, 215-56.

95. For important theoretical reflections along these lines, see Gerard Genette, Seuils (Paris, 1987).