 12 After we had all slept upon it and returned to our moon-tone next morning, Messers Hunt Perry and Co. brought in proof to show that I did know that fifteen hundred books were exempted in the first edition. This was an account in one of their books in which the exemption appeared. But in their copy of the accounts sent to me, drawn up by their clerk for the referees, the letter remarked that no such item appeared. Messers Perry and Markman thought it might be the clerk's mistake in copying. The referees asked me if I had my accounts with me. As they had been my literature for sixteen months, I was inclined to think I had. The original papers were produced and no mention was found in them of any exempted copies. Mr. Perry said that as the item was down in the books, it must have been put there for the purpose of sending to me. Mr. Markman thought this particular account might have been lost in the mail. But the accounts which I held covered all the time of my transactions with Messers B and H. Mr. Perry thought the entry in their books would at least show their good intentions. The second edition of City Lights numbered five hundred copies. No edition was so large as the first, except the eleventh, which numbered two thousand copies. Another fact came out of which I had not before been aware, that three hundred copies had been exempted on every book. These, I suppose, had been distributed as advertisements. Regarding the change in payments from percentage to a fixed sum, the firm claimed that it was made with my full knowledge, understanding, and consent, as would be proved by Mr. Hunt's testimony, whereupon Mr. Perry gave place to Mr. Hunt, who deposed and said, or rather to his grief, did not depose, but was obliged to contend himself with, saying, that on a certain time he held a long conversation with me on the subject of the change, in which he fully explained to me its nature and necessity. He remembered that at first I was disposed to be trifling, but he begged that I would be serious and assured me that this was a serious matter. He remembered using the expression that their house was shaking in the wind. He explained to me over and over again to make sure that I understood the state of affairs and the reasons which necessitated the change, and repeatedly asked me, do you understand this clearly? And I said that I did, and do you assent to it? And I answered yes. Then, fastening upon me a look, apparently designed to be penetrating and powerful enough to reach the lowest depths of duplicity and to ring late confession even from a perjured soul, he exclaimed, I think MN, you must remember this. Of course I was overwhelmed with confusion, but having persisted in the falsehood so long it was hardly worthwhile to go down on my knees to the gentleman a second time, so I received his gaze in silence. In fact, Mars Hill House witnessed then what the hymn calls, the young dawn of heaven below, in as much as there was silence in the room for the space of not quite half an hour. It was broken by the referees, who said that it was perhaps proper to ask me here if I remembered any such conversation. I said that I did not recollect it. They asked Mr. Hunt if he had any correspondence which referred to it. He said no, only the letter of mine which I had myself produced in which I admitted it. But he remembered it with exact clearness. He could recall just the sofa on which he sat. He was so confident that he wished he could take his oath on it. They asked him whether I happened to be in Athens or whether he sent for me. He was not sure, but thought he sent for me. They asked him if in this conversation it was understood that city lights was to be included in the second contract. He said, distinctly, I asked if he could define the time when the conversation occurred. He could not, but it was some time before the second contract was made and was the basis of that contract. I asked if he could tell whether it was in the old shop or the new. He said it was in the new. He did not add what would have been a most effective parloration to his speech. I reside at Table Mountain, and my name is Truthful James. I am not up to small deceit or any sinful games. This little matter being thus comfortably disposed of, Mr. Perry again took up the thread of his discourse. With regard to the change in payment to authors, from a percentage to a fixed sum, he said that such a change was desirable because everything was changing and uncertain. He reiterated his statement as to the variations that had been made in the retail price of my books, said that authors generally did accede to the change, admitted that Mrs. Blank had had some difficulty that her mind seemed to have been jaundiced towards them, that her sister, Miss Blank, had examined their books, and that Mrs. Blank had now become satisfied that all was right, that I, before the reference, neither admitted nor denied that I had acceded to their proposal, but only affirmed that I did not recollect about it. He denied that there was any prescriptive custom of paying the author ten percent, though as before he objected to bringing in the modes of other publishers, as Hunt, Perry and Co. transacted business on their own account without consulting others, which is all very true doubtless, yet the prejudiced observer, seeing how much is said about the great liberality of this firm, can but marvel that they should have been willing to miss so brilliant an opportunity of contrasting their own liberality with the niggardliness of those sordid bookmen who publish not for glory and high-M prize, but simply to make money. Mr. Perry said this also was a reason why the questions propounded to them by Mr. Dane and to cedent to the reference seemed irrelevant. They were asked to state their income and that from the Adriatic, but they might make a great deal of money in outside ways by speculating in butter, for instance, of which it was not pertinent that they should give any account. He was asked why, if there was no prescribed custom to pay ten percent, they themselves fixed on ten percent as the rate of payment for city lights. He said that they were disposed to be liberal, that there were no fluctuations then, that such a prescriptive custom may then have existed. He would not say that ten percent was not common, though he did not himself know what was the custom among other publishers. He was asked why city lights was not by name included in the second contract if its provisions were intended to apply to city lights, and why the other works were not also included in a contract. He replied that it was because a verbal understanding had been reached, that if they had supposed or intended any wrong they would certainly have so included it, that the absence of contracts was owing to a basis of mutual understanding and verbal agreements. He was asked if they had any letters bearing on such verbal agreements, and he said they had not. He affirmed that the publishers made but insignificant profits on the books compared with mine, that up to September 1764, when the second contract was made, when city lights had been two years out, and Alba dies and Rocks of Offense had been published, and Old Measmas was about to be published, their net cash profit on the books for these two years had been three hundred dollars. Here they went into the details of the business with a minuteness altogether beyond my power to comprehend or report. The referees and themselves carried on a long discussion about the condition of business in general, and their business in particular, in 1762, 1764, and subsequently. The firm foresaw that they should have to advance the retail price of their books. Everything connected with their business advanced. The price and quality of paper, the size of books, taxes, interest, stereotype plates, pro-rata increase, press work, expenses of business, comparative costs of comparative thinness, if there is any such thing, number of pounds of paper in thin books and thick books, discounts to the trade, were discussed with apparent intelligence. I can give only a few of the mysterious tongues of flames that shot above the level of the luminous and still more mysterious corona. It will be seen that this part of my paper is like Milton's fatal and perfidious bark in being built in the eclipse, as well as rigged with curses dark. The stereotype plates of the nine volumes were estimated at three thousand nine hundred and fifty three dollars ninety seven cents. Paper printing and binding of about seventy two thousand volumes, thirty eight thousand four hundred twenty two dollars eight cents. Advertising in outside mediums, one thousand five hundred dollars. Advertising in their own periodicals, five hundred dollars. The latter embraced only cost of paper and printing. Government manufacturing tax, five percent on sales, October seventeen sixty four to July seventeen sixty six, one thousand eight hundred fourteen dollars four cents. Seven percent interest on stereotype plates, nine hundred ninety one dollars forty six cents. Expenses of doing business, ten percent on sales, seven thousand sixty one dollars fourteen cents. The latter included rent, insurance, clerk hire, packing, store expenses, business risks and losses, taxes on business property, except income tax, etc. Reckoning up the sums expended, they proved beyond doubt, if there be truth in figures, that their profits were not quite seven tenths as large as those of the opulent and insatiable author, who in spite of all this inequality was clamoring for more. But they admitted that, though their expenses had been out of all proportion to their profits since the rise in prices, their profits had lately been some larger than before. With all due respect to Mezzer's Hunt-Perion Co., I must still avow that these estimates are entirely valueless. What would have been of value was their cost book, which would have showed what they actually did pay. This I asked for, but it was not produced. They simply made an estimate. They brought forward not a single voucher. They reckoned the item of advertising at two thousand dollars, but they produced not a paper to show that they had paid anything. This advertising extended over several years, and embraced advertisements of nine books. Whether they counted in the three hundred volumes reserved on each book, whether they counted in the advertisements of every book advertised and issued simultaneously with mine, on what basis they did calculate or what sums they did pay, I have no means of knowing except their assertion. In the same way they make their estimate of the cost of paper and press work, but that it is anything more than an estimate, that it represents the actual sum which they paid to printers and binders, there is no proof. From the fact that I asked for their cost book and that it was not produced, I infer that it does not represent that sum, notwithstanding the laudable accuracy involved in the eight cents. Again having set down a certain sum for the cost of the stereotype plates, for the interest of that money, for the paper and press work, for the advertising and taxes, they bring in a grand finale for the expenses of doing business. That is, having charged once for the items specifically, they lump them together and charge for them all over again abstractly. For what is the advertising and the taxes but a part of the expenses of doing business? Why could not everything except the raw material of the book be classed under the head of doing business? What is there to a book but the book itself and the publication of it? And why again should interest be charged on the sum paid for stereotype plates any more than for that paid to the printer and binder? Since the reference I have showed their statement to several publishers, and I am assured that any person whose correct accounts should stand thus is unfit for the business, and that the profit on those books is from four to five times as much as Mr. Hunt, Perry and Co. represent it. But even supposing all these figures to be correct, it will at once be seen that the publishers set off their own net profits against the author's gross receipts. Having charged for every item of their own expense in producing the book and for some of them twice over, they make no allowance whatever for the authors having been at any expense in his part of the production. What the publisher gets after every expense is paid is set over against what the author gets to pay every expense with. But the publisher's profits, according to their showing, are only about one-tenth of his gross receipts. What then is the author's share of what may truly be termed profits? Or is the author's share in the production of the book to be considered as of no pecuniary value? The remainder of the case, as presented by Mr. Hunt, Perry and Co., will appear, to the best of my ability, in the written reply presented to the referees, and here subjoined. It must not be forgotten that one is always liable to misrepresent an opponent's case. I labor under the additional disadvantage of possessing a natural aptitude for conspicuous inexactness perfected by long practice. This innate depravity is, however, held in check at the present crisis, by the consciousness that I am reporting what took place in the presence of five persons, of whom three were on the other side, and two on neither side, so that any lapse from truth would be speedily detected. With such vigor does Providence barricade our weaker virtues. Introduction This introduction will doubtless induce in the reader a despair akin to that felt by a sleepy worshiper on a warm Sunday afternoon, when, nearing as he supposes the close of the discourse, the preacher turns over a new leaf and announces, secondly, introduction Before proceeding to the subject matter of the controversy, will the referees permit me to apologize for appearing before them to present the case myself? Nothing was further from my intention. Until the evening before the reference I did not mean to be present at all, and I then consented to be in the room only at Mr. Dane's urgent solicitation. I wished a full, clear, and exhaustive discussion. I knew that I was not able to enter into it myself. I have steadfastly refused to attempt it, even in private, with Missers Hunt and Perry, because I knew that I was so ignorant of the details of business that such a discussion would be fruitless. How much less then should I have attempted it before two gentlemen of the character and ability of the referees appealed to for a formal and final decision? The paper already presented to the referees was prepared originally for my own convenience, and was subsequently put into Mr. Dane's hands for his exact understanding of the matter. It was not designed for the referees. It contained much irrelevant matter, and my only excuse for offering it is the embarrassment and perplexity in which I suddenly found myself involved, and from which this seemed the only way of escape. The same circumstances must be my apology to Mr. Hunt for certain letters which appeared in that statement. They were placed there only for the sake of a few lines which were in them. These extracts were all that were designed to be read. But in the confusion of the moment I was entirely unable to make any separation or distinction. I mentioned this not because the letters contained anything discreditable to Mr. Hunt, for they did not, but because I would wish to avoid even the appearance of unnecessarily giving private letters to the semi-publicity of arbitration. Footnote. These letters do not appear in this publication. For the paper which I now present I must also beg the indulgence of the referees. I have done the best I could do under the circumstances, but I know that it must seem to them redundant, deficient, unsystematic, and perhaps inadequate. I can only assure them that had I thought it possible I should be forced to conduct the case myself, I should never have appealed to arbitration. I beg to thank the referees most sincerely for their unvarying kindness and forbearance. Subject matter of the controversy. I claim what is justly due for copyright on eight works, namely City Lights, Alba Dies, Rocks of Offense, Old Miasmas, Pencilings, Holidays, Cotton Picking, Winter Work, published by Messers Brummel and Hunt, Sins, Hunt, Perry, and Co. Were there no contracts, the authors share should, I suppose, be determined by the usage of publishers and authors as to similar works with similar sales. For four of these books there is no contract. On the first book, City Lights, there is a written contract at ten percent on the retail price after the first edition is sold. This price was fixed voluntarily by the publishers without suggestion from or consultation with me, and must be considered as expressing their idea of what was fair and usual under ordinary circumstances even with a new author. This contract has never been rescinded. Messers Hunt, Perry, and Co. claim that it has been rescinded. No one can be called upon to prove a negative. To prove that the contract exists, I produce the contract. To prove that the rescission exists, I demand that they produce the rescission. This they have utterly failed to do. Mr. Hunt simply asserts a verbal agreement which I deny. A verbal agreement between two parties, which one party stoutly maintains and the other flatly denies, is, I submit, an agreement more suited to the latitude and longitude of Dublin than of Athens. A verbal agreement, which on examination proves to be an utter and absolute disagreement, cannot cancel a written contract. They not only attempt to rescind the first contract, but to substitute another for it by including city lights in the second contract. But city lights is not named in the second contract. They do not even pretend that they intend to name it there. They simply assert a conversation in which both parties agreed that the first contract still existing, they would act as if it did not exist, and that city lights not being inserted in the second contract, both parties should act as if it were so inserted. I beg to inquire if there is anything in the union as it was, or the constitution as it is, that could make such a procedure reasonable. Is it credible that a shrewd business firm should rely on a verbal agreement to cancel a written one and leave the latter uncanceled in the possession of the other party? Dye's Alba, Rocks of Offense, and Old Miasma's were published at different periods subsequent to the publication of city lights. They are all embraced in one contract, which bears date September 24, 1764. This contract is not at 10% on the retail price, but at 15 cents a volume on all volumes sold. This contract I claim to be invalid because it was obtained from me under false representations and because it is not equitable. Mr. Hunt asserts that before entering into this contract, and as a basis of this contract, he had a long conversation with me in which he fully showed me the reason of the proposed change from 10% to 15 cents on a volume. His recollection of this conversation is so vivid that he even recalls the sofa on which he sat. He thinks he's sent for me, but is not quite sure. He remembers that I was disposed at first to be trifling, but he begged me to be serious and assured me that this was a serious matter. He remembers using the expression that their house was shaking in the wind. He says he explained to me over and over again the state of affairs and the reasons which necessitated the change, and repeatedly asked me, Do you understand this clearly? And I answered that I did. And do you agree to it? And I said yes. He is so positive in his assurance that he expresses the wish that he could take his oath on it. The referees ask him if, in that conversation, City Lights was included among the other books, and he replies distinctly. Then, in face of my repeated written and verbal assertions to him that I had no recollection of any such conversation, he fixes his eyes upon me and says with emphasis, I think, MN, you must remember this. I have already stated to the referees that I had no recollection of any such conversation or of any verbal agreement. I was willing to attribute the assertion to a mistaken impression on the part of Mr. Hunt. Now, after his positive, persistent, and circumstantial assertion, I go further. I deny his assertion in part and in whole, in every point and particular. I deny it not simply as a mistaken impression, but I deny it as a question of veracity between Mr. Hunt and myself. As I have said before, I cannot be called upon to prove a negative. The burden of proof lies on Mr. Hunt, who asserts the positive. He admits that he has no correspondence to show it, but affirms that I admit it myself in one of my early letters by saying, I dare say, I did have such a conversation. The letter to which he refers is my second letter of inquiry, written before my faith in him had been shaken, and before the question of such a conversation had assumed any prominence or arrested my attention. I had asked him, as my letters show, why he wanted me to take less than ten percent. He had replied that we had talked it over and I agreed to less. I replied that I knew I agreed to it, for here were the contracts, but why did he wish me to make such contracts? My exact words were, I don't remember ever talking the things over with you, but I dare say I did, or rather you talked and I nodded, as usual. And of course I agreed, for here are the contracts that say so. Don't you see the trouble lies back of the contracts? Why did you wish me to be having seven or eight percent when other people are getting ten? Here it is seen that in the very beginning, almost before any suspicion was aroused, and before my attention was at all fixed upon the importance of this conversation, I, first, carelessly but distinctly assert that I remember no such talk. Second, I found my recognition of my ascent not upon any remembered talk, but upon the written contract. And third, I reiterate my questions concerning what lay back of the contract in entire unconsciousness that the talk had anything to do with it. So then the only testimony which Mr. Hunt can produce of a verbal agreement which vitiates one contract and forms the basis of another is a letter of mine in which I distinctly affirm that I don't remember anything about it. Mr. Hunt is welcome to all the sunshine he can find in that cucumber. Again, Mr. Hunt cannot fix the time when this explanatory conversation occurred, and this verbal agreement was made, but it was the basis of a contract which was executed on the 24th September. It would naturally, therefore, be somewhere within speaking distance of that time. Now, in my statement of the case, made out on the 22nd October, 1768, and put into the hands of my friend, Mr. Dane, a few days after, and read before the referees, I said, I think it must have been at the time this contract was made out, but I cannot be sure as to the time that Mr. Hunt told me that they were going to pay me a fixed sum fifteen cents on a volume instead of a percentage, adopting this course with their authors on account of fluctuations, general uncertainties, and so forth. In the following January my vague recollections were confirmed by finding unexpectedly, and without seeking it or knowing that I had it, a letter from Mr. Hunt dated September 23, 1764, from which I make the following extract. The contract has been delayed for a sufficient cause. He then gives the cause of the delay, namely Mr. Brummel's absence. The percentage will read fifteen cents per copy, as the business times are fluctuating the prices of manufacture, so there is no telling tomorrow, or for a new addition, what may be the expenses of publication. So we reckon your percentage in every and any event as fixed at fifteen cents per volume on all your books. If it should cost a dollar fifty to make the volumes, you are sure of your author profit of fifteen cents. The price at retail may be one fifty, two dollars, or three dollars, as the high or low rates of paper, binding, etc., may be, but you are all right. This arrangement we make now with all our authors. As I write, the contracts are reported ready, so I enclose them, sign both, and send back the one marked with red X. You keep one and we the other. I submit that this extract bearing date the day before the contract has every sign of being fresh information. All the circumstances combine with my own distinct recollection, apart from them, to show that a new contract was made at my suggestion, not with any view whatever, of changing the terms, but because I thought if a contract was necessary with one book it was with another. I did not know that there had been or was to be any change from percentage to a fixed sum, until this letter told me. The retail price of the books had gone up to a dollar fifty, so that ten percent and fifteen cents were the same. In this letter no allusion whatever is made to any previous conversation on the subject of the change from percentage to a fixed sum. Is it credible, I ask, that Mr. Hunt should have sent for me, should have assured me that this was a very serious matter, should have explained it all to me over and over again, should have repeatedly asked me if I understood it, should remember the conversation five years after, so vividly that the intensity of his convictions cannot find adequate expression in simple declaration, but craves the relief of an oath? Is it credible that in his letter of the period he should have made no allusion to this conversation, but should have mentioned the arrangement as then communicated to me for the first time, as it actually was? But, further than this, my diary for 1764, carefully kept, with not a day missing, shows that during the whole summer and autumn preceding the 23rd September, 1764, I was not once in Athens. And yet again I set on foot an inquiry at the time, but did not get an answer in season to use it before the reference, Mr. Hunt distinctly remembered that he sat on a certain sofa in the new shop during the conversation which was the basis of the contract of September, 1764. But the firm did not move into the new shop till May, 1765. Now, if Mr. Hunt should gratify himself with the wished fore oath, I am sure that the accusing angel, who flies up to heaven's chancery with it, will blush as he gives it in, and the recording angel as he writes it down will drop a tear upon the word and blot it out forever. But it may be urged, giving up the conversation and relying only on the letter, that in any event I accepted and assented to the new contract with a full understanding of its meaning and effect, and am hence bound by it. This I deny. The law always scrutinizes transactions between parties in confidential relations as father and son, guardian and ward, attorney and client, husband and wife, and demands the utmost frankness and fullest disclosure of circumstances, allows no concealments, and sets aside all contracts where any advantages gained by reason of the confidence reposed. It recognizes the influence of superior position and the right to trust in the party occupying it, and demands the strictest honor on his part. I think my position with my publishers comes within the scope of this principle. In respect of the matters involved in this contract, were we or could we be equal? They were practiced businessmen living in the city with full knowledge of all the details of their affairs. It was their business to manage the external material parts of books. I was living in the country with no knowledge of these affairs, and as I supposed no need and no means of acquiring it. It was my part to attend to the interior and intangible souls of books. I could not look into their business without neglecting my own, as indeed I have been forced to do for sixteen months past, and as I should do with equal pertinacity for sixteen years were it necessary. I never sent for my accounts except when I wanted money and wished not to overdraw. When they came I scarcely did more than glance at the footing to ascertain what was due me. Nor do I now see of what use it would have been to examine them ever so minutely. I was proceeding entirely on a basis of confidence, which I think I had a clear right to assume, and which was complete and unimpaired until the date mentioned in my first paper, when I awoke to the fact that I was not receiving what I had seemed to be entitled to, and what, on the closest scrutiny, I believe to be my legal and equitable dues. Such being the relation of the parties, let us examine for a moment, that is a pulpit fiction, I mean for a good many moments, the inducements held out to me by my publishers as they are found in this letter. I maintain that the proposed change from percentage to a fixed sum is so mentioned as directly, I do not say intentionally, to mislead me. It is held up as an arrangement peculiarly to my advantage, as guaranteeing me in any event against a loss to which I might otherwise be exposed, and as securing me my profits by some stronger safeguard than I had before possessed. But whereas I was blind, I now see that it guarantees me against no loss, and the only safeguard it presents is a safeguard against any benefit which might accrue to me from the rise in prices. Mr. Hunt says, if it should cost a dollar fifty to make the volumes, you are sure of your author profits of fifteen cents. As if I should not have been just as sure of them had I received percentage. The price at retail may be a dollar fifty, two dollars, or three dollars, as the high or low rates of paper, binding, et cetera may be, but you are all right. Whereas I was all wrong, for if I had kept to a percentage, and the retail price had become three dollars, I should have thirty cents instead of fifteen. It was almost immediately after this contract that the retail price of all my books went up to two dollars, and has remained so ever since. This was a fact which my publishers had the means to foresee, but which I could not and did not anticipate, or even conjecture. The absolute identity of ten percent, and a fixed sum, at the time of the new contract, together with their representations of its superior advantage to me, and my confidence in them, all combined to deceive me. I should have adopted the same reasoning, and drawn the same inference, if a year earlier I had been asked to change the ten percent to twelve and a half cents, which at that time amounted to precisely the same thing. Had I been distinctly told that my books were largely to advance in price, but that all the profit of the advance was to accrue to the publishers, and none of it to me, should I have consented to such an arrangement? The referees and my publishers, in discussing these matters, plunged into an abyss of figures into which I cannot attempt to follow them. I do not even understand the jargon. I trust they will pardon the term, in which they appeared to be communicating ideas. I had provided myself with a friend, who was, I believed, fully competent to dive as deep as the best of them. But I was not allowed to retain him, and I could only sit in despair on the brink of the gulf and stare at the spectacle. From the few intelligible sounds that did reach me, I infer that the sacrifices of publishers in behalf of authors have never been fully appreciated. I felt that in claiming ten percent, I was guilty of an extortion second only to that of David Copperfield in suggesting to Mr. Dollaby, eighteen pence as the price of this here little wesquit. I should rob my family, says Mr. Dollaby, if I was to offer nine pence for it. It is gratifying to recollect that the last winter was a mild one, so that the cases of extreme suffering must have been rare. Were it not for an occasional glimpse at our impertinent income returns, one would be inconsolable. As it is, would the referees count it as bringing in new facts, if I should send one or two postage stamps to the retired clergyman, whose sands of life have nearly run out, and beg a receipt for returning an income of fifty thousand dollars on a biannual cash profit of three hundred dollars? But though I cannot bring up a fact from the bottom of the sea, I can see a fact when it stares me in the face on land. If there was any reason except uncovenanted mercies for advancing my copyright from twelve and a half cents to fifteen, when the books went from a dollar twenty five to a dollar fifty, it must have applied with equal force to advancing my copyright from fifteen to twenty cents when the books advanced from a dollar fifty to two dollars. I deny that the increased cost of doing business should be reckoned solely on the side of the publisher as the justification of his receipts and profits, while the author should be held down to the same fixed sum. The same causes that increased the cost of doing business to Messers Brummel and Hunt as publishers increased in quite as larger ratio the cost of my doing business as an author. Every conceivable form of expenditure to which I was subjected was all the time increasing, and I was as much in need of a pro-rata increase of receipts from my books as the publishers could be. But Messers Brummel and Hunt take the opposite ground, and maintain that no matter what the added expenditure of the author may necessarily become, only a fixed sum shall be allowed to meet it, while the vast increase of receipts and of profits shall be absorbed by the publisher alone. If this be justice, equity, or law, I think we would better stop hammering on the Jubilee House and begin back again at the Ten Commandments. The Jubilee House seems to be a reference to the institution of the Jubilee Year among the Hebrews, a year in which impoverished families might redeem the property from which, at any time during fifty years previously, they had been forced to part. Thus we are told that if a man purchased of the Levites the house that was sold should go out in the year of Jubilee. Such a house might long be known in the neighborhood as the Jubilee House. The hammering spoken of was probably connected with the repairing of some such lately redeemed house, and seems to point to an Eastern origin and locality for this narrative. Note by editor. End footnote. But though I was not able to follow my publishers through the techniques and tactics of their business, there were two ways in which I might have formed and presented some opinion of the justice of their course. Had I been allowed, I would have called in other publishers, and have asked them what would be a fair price for books with the character, dress, and sales of mine. I do not see that there could be any unfairness in this. They surely would not be likely to decide unjustly against their own craft, and they surely would be able to give an intelligent answer. From the inquiries which Mr. Dain has made among other publishers, I believe that the sum which measures Brummel and Hunt allege that they have made on all my books represents much more nearly the profits which they made on a single one of them, city lights, and that the profits which accrued to themselves from the rise in the prices of books are much larger than they represent them. End of section 12. Section 13 of A Battle of the Books. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. A Battle of the Books by Gail Hamilton. Battle of Gog and Magog. Part 4. It was for the purpose of elucidating this matter, also, that the questions were sent to Messer's Hunt-Perienco some days before the reference began. Had I known the profits of their firm, the number and sales of their books, and the profits of their periodicals, I should have been in a position to judge of the correctness of their statements regarding the cost and profits of my books. Mr. Perry objects to such testimony as he says they may make a great deal of money in outside ways by speculating in butter for instance. Precisely, but they advertise themselves as a publishing house solely, not as a publishing and butter house. It is Hunt-Perienco publishers, not publishers and dairymen. When I am charged in my books with the cost of store rent, I wish to know whether the rent is for packing cases or butter tubs. I am charged for insurance and clerk hire. How can I tell whether the insurance and clerk hire cover my share alone or whether they may not also embrace the safety and the management of the Adriatic? There is a separate item for the cost of advertising, but I am told that in a single year the receipts of the firm for advertising in their periodicals are ten thousand dollars more than the cost to them of all the advertisements which they publish elsewhere. Undoubtedly, the sagacity of the firm in managing their periodicals has much to do with that circulation which makes them so valuable as advertising mediums. But is it not just possible that the quality of the writing has some slight influence on their circulation? Yet not only are the authors of the books and of the magazine articles often one in the same, but the articles themselves are frequently but extracts from the books, and the books themselves are frequently made up in part or in whole from the articles. I do not mention this as an advantage to the publishers and a disadvantage to the author, but simply to show that the book business and the magazine business are so interwoven that an investigation of the one, to be exhaustive, must be, to some extent, an investigation of the other. Messers Hunt-Perry and Co. must give us all the data if we are to make their sums prove, as the children say. As they decline to do this, and as I never learned to cipher in Turkey rule, they have everything their own way in arithmetic. Another point in Mr. Hunt's letter of explanation was, as he says, this arrangement we make now with all our authors. When I wrote to Mr. Hunt about the last of August, 1768, that, contrary to what I had understood his assertion to be, several authors had ten percent, and therefore I thought I ought to have ten percent, the firm did not deny my premise, but simply said, in your letter you assume that we have but one set of terms with the various authors whose works we publish. In this you are in error. What we pay to any individual author is a matter quite between him or her and ourselves, and it is not our custom to make one author the criterion for another. Many elements enter into the case that would make a uniform rate impracticable, independently of other considerations, the varying cost of manufacture caused by different styles of publication would alone preclude such an arrangement. We must therefore decline to admit such an argument into the case. The fact is it was not necessary to admit it since it was already there, placed there by Mr. Hunt's own hands. It was offered as an inducement for me to accept the new terms. This arrangement we now make with all our authors. Either then, Messers, Brummel and Hunt do make a uniform arrangement with all their authors, or they do not. If they do, this last letter cannot be a correct statement of facts, and the question arises, what is that uniform arrangement? If they do not, then Mr. Hunt's letter of September 23, 1764, cannot be true, and the representation which he held out to me of a uniform mode of payment as an inducement for me to come into the arrangement, was not a correct representation. To ascertain whether or not they did make such an arrangement, I applied to such authors as were within reach to know what were and had been their rates of payment. A writes, I have always received a percentage. I remember no change in 1764 unless that B and H about that time, perhaps earlier, without my asking it, raised the sum they paid me for a poem by one-third. B says, I have been content with ten percent. Messers Hunt and Perri and Co. write to see. Even D now has only ten percent. E says, I never published but one book, prose, with Brummel and Hunt. I received on this the usual beggarly percentage. F says, generally we go on the system of half-profits. In regard to old King Cole, they print and sell and allow me a certain sum on each copy sold. G says, Brummel and Hunt have, I believe, allowed me ten percent on the retail price of my books. H says, I believe it, the book, was to have yielded ten percent, if anything. I says, Messers H. P. and Co. have published four books for me, the three-first sell for a dollar twenty-five, and I received twelve cents each copy. The last is a joint affair published by subscription. K says, all my contracts have been for one-half the net profits. The two volumes published by the troubadours were offered to Perri, but as he wanted to make other terms I declined, and they went to the troubadours. This is the sum of my transactions with Messers B and H. On Friday, April 16, Mr. Dain sent to Messers Hunt, Perri and Co. certain questions in writing, which the referees now hold, asking them to cite their contracts with other authors and giving a list of names. Did they meet this question fairly? On Friday, April 23, they made their reply to my statement. On the question of contracts, they cited A's collected poems, B's poems, F's Old King Cole, M's works collected, a part of which had to be bought from another publisher, and the works of Theodore Winthrop, which I believe were not asked for. All these they cited as examples of works on which similar contracts to mine had been made, and they cited no others. If these persons had written no other works, this would have been fair as far as it goes. But these persons had written other works, and I maintain that Messers Hunt, Perri and Co. had selected out of these works those that were most unlike mine in scope, style, cost, and probable circulation, and said nothing whatever about books by the same authors which would more nearly resemble mine in these respects. A, besides his collected poems, his blue and gold and cabinet editions of his poems, has written separate poems in prose works which have been issued in separate editions, and which therefore furnish a far more proper basis of comparison with mine. But about these separate books they said nothing. Of his separate books A, B, C, D, E, they made no mention. They brought up B as one whose works were treated in the same way as mine, but they mentioned only his poems blue and gold and his songs. They never hinted that he had printed, and they had published, any prose book for him. Yet it is these prose books, his novels and essays, which form the true basis of comparison between him and me. They cited F, but they cited only his old King Cole, which they did not originally publish, in which they owned by a peculiar bargain, and said nothing about the original books which they have published for him, novels, essays, and stories. They cited M, but while bringing in his collected poems, which were entangled in a bargain with some previous Contamaceous publisher, one Fusy, they said nothing of his separate volumes. They cited Winthrop, but Winthrop, like Marley, was dead to begin with. And if the living have hard work to hold their own against this enterprising firm, what can be expected of the dead? Here they rested their case so far as the contracts go, but as a desire was expressed to see the contracts, they promised to produce them next morning. On Saturday, accordingly, we began with one set of contracts, which proved to be a most perplexing medley, a sort of contra-dance between written contracts and verbal agreements with the rattling of stereotype plates for tambourines. As the government of Russia is said to be despotism tempered by assassination, so the business of Messer's Hunt-Perry and Co. may be said to be conducted on the basis of written contracts annulled by verbal agreements. If we were met for the purpose of preparing a Mars Hill House shorter catechism and should ask, what is the chief end of a written contract? Messer's H. P. and Co. would promptly reply, a written contract's chief end is to be cancelled by a verbal agreement and annihilated forever. According to their practice, it seems that we all agree in writing as to what we will do for the sake of saying afterwards that we won't do it. However, plotting my way along as best I could through the contracts with Mr. Markman's kind assistance, I found, or thought I found, that for one book its author received at first twenty percent, he owning the stereotype plates. Whether this was by written contract or verbal agreement Mr. Markman does not recollect. From 1762 to 1764 he received twenty cents of volume, the retail price, meanwhile having advanced from one to two dollars. Since then a written contract gives him twenty cents of volume, the retail price being two dollars. A second book by the same author is on the same principle except that there is no written contract. A third in 1762, either by contract or verbal agreement, was receiving twenty percent on one dollar retail price, the author owning stereotype plates. In 1764 it was changed verbally from percentage to twenty cents of volume, the price having gone up to two dollars. While I was painfully threading these labyrinthine ways, I was arrested by a proposition from some quarter that time should be saved by entrusting the further examination of these contracts to the referees. I had every confidence in the referees, but how could I make my argument concerning these contracts without having seen them? It was said that I should be present and examine them with the referees. But the referees were about to disperse to the four quarters of the earth, or, as there are only two of them, I suppose it might be more strictly accurate to say the two hemispheres. Not to meet again till Thursday, when I was to make my final statement. Mr. Markman then said that he would have the principal points of the contracts copied and sent to me either Saturday afternoon or Monday. But on Tuesday I received a letter from him, saying that his time had been so much occupied with matters relating to Mr. Hunt's absence, that he has not had time to complete the copyright memorandum which he promised to send me, but will surely send it to-morrow, all of which I do not in the least doubt, but it does not alter the fact that the information concerning the contracts, for which I asked ten days ago, has not yet been furnished, that I am to hand in my argument on Wednesday and find myself at home to write up the play of Hamlet with a pretty important part of Hamlet left out. From what goes in, however, I am left, like Providence among the heathen, not without witness. Accepting alleged verbal agreements, it seems that the author cited, in changing from percentage to fixed sum, came down to a sum fixed as high as the highest of my percentage. That is, he at his lowest is precisely where I was at my highest. My sole ambition was to climb as high as the point where he stopped falling. Does this fairly make out the assertion, this arrangement we make now with all our authors? But I cannot reason upon contracts which I have never seen. I fall back upon the statements made to me by the authors I have quoted, and on this ground I affirm that I have not fared as the other authors, even of Messer's Hunt-Perion Co. have fared. Neither can I accept their allegations of verbal agreements which cancel written contracts. The only verbal agreement I know anything about is one that never existed. I did not intend to mention Mrs. Blank any further than I have done, but Mr. Perry has cited her case, and I may therefore be permitted to say that verbal agreements and explanations were brought to bear on her in the same way. In a letter to me dated August 9, 1768, she says, a letter received from Mr. Hunt, Thursday, telling me that he had explained as I knew just what he had never once explained as he knew, and I read it and denied totally all his assertions. August 20, 1768, she says, do you see all the contracts Mr. Hunt tells Mr. E. were verbal? I do not believe Mr. Blank ever consented to change to ten percent, because he would have told me, and besides you see he had fifteen percent for the very last book he gave them. And now they say he made a verbal agreement with Mr. Brummel who is dead and cannot say anything, but they show no papers. I have been a practitioner at law but four days, and it becomes me to be modest, yet I will hazard the remark that a verbal agreement without witnesses between two dead men is as near nothing as anything in the way of evidence can well be. Mr. Perry affirms that Mrs. Blank's sister afterwards examined their books and found nothing wrong therein, and that Mrs. Blank was subsequently satisfied. I saw Mrs. Blank in Paris on her way to Asia, and it seemed to me that she was very far from satisfied, but that she was worried out and preferred peace to Pence. One can imagine Mrs. Blank hunting up Mr. Hunt Perry and Co's account books in pursuit of knowledge. Neither do I accept accounts as proofs of a verbal agreement. My accounts ran on for years unchallenged without any such agreement, though that agreement is now alleged as the basis of the accounts. Jay wrote to me, May 11, 1768, quote, In the accounts of sale I believe the price paid me was 10% of the original retail price. That is, the ambrosia was published at $1.50, and I have always received $0.15 a copy on that. When paper became too high during the war, the price of the book was raised to $1.75, but I am pretty sure I never received $0.17 and a half cents, but always only $0.15. Yet, as the papers are at home, I cannot be certain. Only in a little account of sale sent here this winter the reckoning was at $0.15 a copy for one, and $0.12 and a half cents for the other, but the account covered a space of three years during which the books had been selling at $1.75 and $1.50 respectively. So that, literally, he has not been paying me 10%, but I did not think much about it, taking it for granted that the extra price was due to hard times, but I do not know why our labor is the only labor to remain low priced, end quote. Here it will be seen that for three years Jay's accounts might have been cited at any time as proof of a verbal agreement, though no such agreement had ever been made or even alleged. Messers H. P. and Co. may say that they have a right to infer that silence gives consent and that authors have no right to be so loose in money matters. Leaving out any silence which might arise from delicacy, I would say it is true that they ought to be more accurate and systematic, but surely we may say to our publishers, as the crab remarked to his father, when rebuked for going sideways, gladly my father would we walk straight if we could first see you setting the example. But authors are not always to be blamed for their silence. We are not very large buyers of our own books and do not always know when the price is raised. Surely we cannot be expected to sit inflexibly upon our property, like Miss Betsy Trottwood, watching the rates of sale. It was a considerable time after Elle's storybook advanced in price before its author discovered it. As soon as she did, she made a note of it, and after a little trouble succeeded in having her contract fulfilled. But any time between the change and her discovery of it, her account might have been alleged as proof of a verbal agreement which did not exist. I am, of course, not saying that it would have been so, but that it might have been so. What we want, therefore, is facts, Mr. Gradgrind. Since writing this, Mr. Markman's memoranda of contracts have put in an appearance, and if correct, show beyond question that their letter of September 1768 was true, and that the statement in Mr. Hunt's September 1764 letter was not true. There is scarcely an approach to uniformity in the arrangements made with authors. Taking those books which most resemble mine, the contracts are of every species. There are contracts for twenty percent where the author owns the plates, and ten percent where the publisher owns them. Books that retail at $1.25 pay the author ten cents per volume, or fifteen cents per volume, he owning the stereotype plates, or twelve cents per volume, or twelve and a half cents per volume. Books that retail at $1.50 pay the author fifteen cents and ten cents. Books that retail at $0.75 pay $5 per copy. Books that retail at $1.00 pay $0.20 per copy. Books that retail at $2 and $1.75 do the same. Books that retail at $1.12 pay $0.10. When a verbal agreement is alleged as a substitute for a written contract, the substitute also varies. Some of the contracts are for half-profits. I do not find a single example of a book that retails at $2 and pays the author fifteen cents. I shall depend upon the referees to discover any fault in my figures, but I believe they are correct. When a change is made from percentage to a fixed sum, there is generally a decrease to the author, but not so great as in my case. The aggregate of one set of books at a percentage was $1.36 and a quarter. After the change to a fixed sum, it amounted to $1.68. On some of the books there has been no change, so that when Mr. Hunt says, this arrangement we make now with all our authors, whether he means that they change from percentage to a fixed sum, or whether he means that they make with all the same ratio of decrease that they make with me, he is equally incorrect. There is no sense in which his words can be understood in which they are true. There is one sense in which they may be found correct. If we construe them to mean, we pay all our authors just as little as we think they will stand. You, being rather the most pliable of any, will bear the greatest reduction, and we have accordingly reduced you to the lowest point. They appear to be marvelously accurate. I claim, therefore, that I never assented to the second contract because I never understood it, and because the representations made to me as inducements were not correct. I claim that Mr. Hunt's letter was calculated, I do not say intentionally, to mislead and deceive me, that I was misled and deceived by it, and as the result of this deception I signed a contract which deprived me of my plainest rights in the premises, and the accounts subsequently rendered were accepted by me in the same good faith with which I sought the contract, with scarcely an examination, certainly without the least suspicion. Of the books not named in the contracts, I believe I need say little. Even had the second contract been valid, no understanding can be inferred from it as to the five books not included in it. Why should the second contract be taken as a guide any more than the first? The first was made under ordinary circumstances, the second under peculiar ones which soon changed. They did not themselves understand that the second contract governed all the rest, for they did not pay me fifteen cents but only ten cents on holidays. They say that it was a small book, but so was the rights of men, yet holidays contained one hundred forty one pages was retailed at a dollar fifty and paid me ten cents, while the rights of men contained two hundred twelve pages retailed at a dollar fifty and paid me fifteen cents. No accounts being rendered till after the trouble began. Mr. Perry says that holidays was a different kind of book, a children's book with pictures, and therefore he supposed they did not class it with the others, but simply fixed a price which they thought equitable. But Ex's story book was also a juvenile book with pictures of the same class as mine, yet on that they paid by contract ten percent. C's story book was also an illustrated juvenile, and on that they paid half-profits. But I hold that the contract pretending to cover Dye's Alba, Rocks of Offense, and Old Miasma's is inoperative and void, and cannot regulate the compensation to which I am entitled by copyright on these three books. Still less can it regulate the compensation to which I am entitled on subsequent ones. If a contract is void in the direct operation claimed for it, its inferential operation must be shadowy indeed. With all due respect, I hold that it is little less than absurd for Misser's Hunt-Perry and Co. to claim that I am bound to accept that contract as the basis of settlement for subsequent publications. I hold that on these five books, published under no contract, I may claim what is just according to the usages of the trade. I do not know what may be the result of the inquiries of the referees among publishers. Mr. Dane, as his letter shows, made careful investigations and found no one who did not say that ten percent was the minimum price. I believe that no respectable publisher can be found in the country who, regarding the cost of the books and the number sold, will not say that ten percent on the retail price is the very lowest sum that an honorable publisher would have paid me had the whole matter been referred to his own honor. Nor is it necessary to scour the country for evidence, since Misser's Hunt-Perry and Co. recognize such a usage themselves, even if they do not follow it. On what other principle did they allow me ten percent in the beginning on city lights when I was a new author, and they had the whole matter of price in their own hands? During the reference they have also offered to return to ten percent. Why should they offer ten percent in the beginning and ten percent at the close and skip about meanwhile from six and two thirds to seven and a half percent according to their fancy or caprice? This is a specimen of piping on the part of publishers and dancing on the part of authors that I do not propose to take part in. My claim to compensation on five hundred of the fifteen hundred books exempted in the first edition of City Lights needs no labored argument. Their attempt to prove from their books that I had due notice of the fact proves that I ought to have had notice, while the accounts received and produced by me prove that no such notice was given me. Mr. Markman thinks it may have been lost in the mail, but the accounts which I hold cover the whole time of my transactions with Messers Brommel and Hunt, and I submit that the mails shall be believed innocent till they are proved guilty, and that Messers Brommel and Hunt must be nipped in the bud, or they will soon, as Sidney Smith says, be speaking disrespectfully of the equator. Mr. Perry admits that without explanation the word addition means a thousand copies. He also admits that in all cases when more than a thousand copies are exempted the specific number is given. He believes mine to be the only exception to this rule. He alleges as the reason for this unusual exemption, the unusual cost of my books, saying that they cost a great deal more than any other on their list. To this I reply that I should have been told in the beginning that they did or would cost more than others. Mr. Markman then brings forward a letter of mine to prove that I was told and did know that the books cost more. This letter bears date September 20th, 1762, two days after the publication of City Lights, and the extract says, quote, The fact that I wish to impress upon your mind is that you have tricked out my book so beautifully that nothing could be lovelier. You would not have done it, though, if I had not threatened you within an inch of your life, would you, etc., etc., etc. But now see I never thought till yesterday that they must cost more than the other way, and I have been distressed all along, and this makes me more so, end quote, etc. This does not prove what Mr. Markman introduced it to prove, but it proves just the opposite, which is the next best thing. It shows that until the day after the book was published I had never thought of the book's cost, and that then the thought was spontaneous, not suggested to me by others. It proves beyond question that nothing had ever been said to me about it. On one or two other points, not strictly necessary to the case, but introduced by Mr. Perry, I must beg a moment's forbearance. Mr. Perry, feeling that my claim involves fraud, reads extracts from my early letters to show that I was very urgent to publish City Lights, that I expressed the greatest confidence in them, and that, in short, I came to them in such a way as, to use his own language, would have almost held out a temptation to defraud me, so that if they had been disposed to defraud me at all they would have done it then. Fraud is a hard word, and I believe I have not used it, but if Mr. Perry insists, I will say that the exemption of the fifteen hundred books under cover of an edition occurred with the first edition of my first book, and I really don't see how they could have begun much earlier if they had tried. Mr. Perry mentions as a proof of their friendly intentions that they desired to refer the whole matter to Mr. Rogers because they thought he was my friend, that they offered to refer it to my friend Mr. Brooke, of whom they knew nothing, and to my friend Mr. Greatheart, of whom they knew very little. It will be observed that they did not once ask me to select a friend, but generously took the whole burden of the selection upon themselves. The first person to whom they offered to refer it was Mr. Rogers, and I accepted him gladly. I was so much in earnest that I wrote him myself begging him not to decline, and this although I had never seen him. On account of his health he felt obliged to decline, but before he had declined Mr. Hunt Perry and Co. proposed to relinquish him, for what reason I do not know. They proposed that I should give up Mr. Russell, and they should give up Mr. Rogers, and we should each make a new selection. I was entirely satisfied both with my choice and theirs, and I saw no reason for changing, so that I not only accepted the nail they drove, but I clinched it myself. I not only kept to my own choice, but I had to make them keep to theirs. It was while they stood thus shivering on the brink, after Mr. Rogers had been proposed and accepted, and before he had declined, that they proposed Mr. Brooke and Mr. Greatheart. But was it friendly in them to turn away from their own choice, and go about among my friends choosing persons of whose qualifications they were ignorant, forcing me to reject them, and thus to discriminate against my own friends? Did not Mrs. Hunt Perry and Co. know that this was a matter not to be settled by sentiment? I should have considered it a far more unequivocal sign of friendliness, if they had permitted me to appear before the referees with the friend whom I had intelligently chosen, who had stood by me through the whole trouble, who was familiar with all the details of my case and capable of understanding all the details of theirs, and by whose aid therefore arbitration might be satisfactory as well as conclusive. Instead of which they compelled me to stand alone, unaided, without preparation, without the possibility of being prepared, in a position for which their long acquaintance with me must have told them I was eminently unfit, and which one at least of their number must have known would be to me peculiarly embarrassing and distressing. Their idea of a friendly arbitration seems to be that of imposing upon me the friends I do not want, and taking away from me the friend I do want. Mr. Perry thinks indeed that Mr. Dane had poisoned my mind regarding them, but he also thought Mrs. Blank's mind was jaundiced. Perhaps that question belongs to the doctors rather than the referees. Whether it be poison or jaundice it is to be hoped the disease may not spread. There are other parts of Mr. Perry's statements which I should like to lay before the referees, but I remember that they are mortal, and though the spirit is willing the flesh is weak, and I forbear. In conclusion, I claim that my first contract for city lights specially stipulating ten percent shall be carried out in good faith, and that it shall not be considered as changed or modified by any conversation remembered by Mr. Hunt but absolutely denied by myself, and I claim that the word addition used herein shall be held to mean just what Mr. Perry admits it would mean in common acceptation with the book trade, namely, one thousand copies. Two, I claim that my second contract covering alba dyes, rocks of offence, and old miasmas was obtained from me under a total misapprehension of facts, that this misapprehension of mine was the result of a misrepresentation, I do not say intentional, made to me by Mr. Hunt in his letter of September 23, 1764, wherein he represents the arrangement as one uniform among their authors, and as assuring me a rate of compensation which he leaves me to infer I might not otherwise obtain, whereas he knew that the arrangement was not uniform and that my percentage would amount to more as prices were then tending, and the arrangement was made by him so as to prevent my ten percent from amounting to more than fifteen cents per copy. This I did not understand, and should not have assented to if I had understood it. I hold that neither in law, equity, morals, nor manners, should I be held to an agreement which I did not comprehend, which the opposite party so presented as to prevent my comprehending it, and which deprived me of my proportionate share of an increase of profit admitted to have been made on the books published under it. The contract, therefore, should be set aside, and I should be paid according to the usage of publishers, or at the same rate as appears in the contract for city lights, namely ten percent. Three. I claim that on my books published since the date of my second contract, and not alluded to or included in either contract, namely winter work, holidays, pencilings, cotton picking, and rights of men, my compensation shall be fixed by the usage existing among publishers and authors. Four. I claim and must certainly be entitled to receive interest at the rate of seven percent on all sums found to be do-me at the date of the several semi-annual settlements, counting my compensation uniformly at the rate of ten percent on the retail price of the books at the date of the settlement. This point is so plain that it can need no argument. Five. I claim that I am equitably entitled to damages to compensate me for the loss that has resulted to me pecuniarily and otherwise from this unhappy occurrence. My pecuniary damage alone amounts to more than three thousand dollars. There are hurts of other kinds to which money bears no relation. My actual expenses in preparing for this reference have been very considerable, and under the award of costs I claim that I should have an ample allowance made me to cover my outlays in this regard. After the statement had been read, Messer's Hunt-Perian Co. were permitted to make whatever of reply they chose. They denied no fact and challenged no inference in my statement. The referees, after two days of deliberation, returned the following decision. The undersigned mutually agreed upon as referees in the matter in controversy between M.N. and Messer's Hunt-Perian Co. on their own account, and as successors of Bromelin Hunt, hereby award to M.N. the sum of twelve hundred and fifty dollars to be paid her by Hunt-Perian Co. within three days from the date of this paper in full compensation for her claims upon the matter in this controversy, and that hereafter M.N. shall receive ten percent copyright on the retail price of all her books printed by Hunt-Perian Co., except the three books embraced in the contract between the parties dated September 24, 1764. The referees decline any compensation for services or expenses and leave each party to pay their own costs. Signed and delivered April 30, 1769, J. Russell G.W. Hampton. End of Section 13. Section 14 of A Battle of the Books. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Recording by Amelia Chesley. A Battle of the Books by Gail Hamilton. Chapter 10. Sober Second and Third Thoughts. Part One. Having trespassed so far on the patience of the reader, I may as well presume a little further and indulge in a few reflections. First, from the investigations and observations of the last two years, I infer that authors are very much to blame in their business dealings. By their inexactness, their indifference, their unreasonable and indolent trust, and their excessive monetary stupidity, they not only become an easy prey of, but they offer a direct temptation to the cupidity of publishers. Not a single author to whom I appealed showed the slightest reluctance to answer my questions, nor I may almost add the slightest ability to answer them adequately. For instance, the points I wish to ascertain were whether a writer was paid by percentage or by a fixed sum. What was the percentage and what the fixed sum, and whether during or subsequent to the year 1764 any change was made in the mode or rate of payment. See now how charmingly the authors met my points. Says one. Brummel and Hunt never published, but blank with me, and I received on this the usual beggarly percentage, leaving me entirely in the dark as to what was the beggarly percentage. Says another. What terms do I make with B and H? Yes, with all my heart. In regard to blank, they print and sell and allow me a certain sum on all copies sold. But with the greatest inclination in the world giving me no hint of the amount of that certain sum. Says another. Brummel and Hunt have, I believe, allowed me 10% on the retail price of my books. That was the first arrangement, at least, but I must confess I never look at their statements of account. Says a fourth. I have always received a percentage. I remember no change in 1764 unless that B and H about that time, perhaps earlier without my asking it, raised the sum they paid me for blank, etc. The interests of authors and publishers are identical, a fact which they understand better than we do. Yet the firm testified of this very writer that they had written agreements to pay him percentage and that when prices advanced they waived to the percentage and paid him a certain lower sum per volume. A fifth says, I have not the least objection in the world to replying to your letter in the most straightforward way. I have been contented with 10% on the retail price of my printed books. Yet the written contracts of this writer showed every variety of arrangement from 20% downward. A sixth says, Ms. Yours B and H have published four books for me. The three first named sell for $1.25 and I received 12 cents each copy. But Ms. Yours B and H affirmed that these books sold for $1.50 each. A seventh says, I did not send your letter to blank for the reason that she does not know as much as you do about the subject of its inquiry. The most she could tell you would be that now and then there comes a bit of paper very neatly and tastefully diversified by red and blue lines and dreadfully complicated by sundry hieroglyphics which she has been told are figures and that a check embellished with one of the rows of figures accompanies it. I have an impression that years ago when blank was taking such sesquipedalian strides to public favor, Mr. Brummel told me that after the number of copies sold had reached a certain point, the author received a reduced percentage and I think I remember wondering by what perversion of commercial philosophy and article of which 50,000 copies could be sold was worth less proportionally than one of which only 5,000 could be bartered for of course the ratio of cost decreased with every successive thousand manufactured. Here it will be perceived is a faint glimmer of sense which will be completely extinguished by the next extract. blank said you made a mistake in thinking yourself differently used from the rest of the writing craft and explained that the prophets of the author did not keep up the same proportion in repeated editions but went to pay the increased circulation for his part he would rather be more poorly paid for the sake of being more widely read must not that have been an explanation worth having it is not difficult to conjecture the source whence that form of explanation originated for another letter says Mr. blank went to see Mr. Hunt. Mr. Hunt expressed great regret that it had all happened said rights of men had done more for your reputation than any other book that you made more than the publishers did etc and that they thought better to have a low percent and large sales than the contrary though I don't see what a low percent paid to the author has to do with large sales if the price of the book is kept high to purchases the fact is that as a bad woman is said to be a great deal worse than a bad man so a man innocent of business capacity is far more innocent than any woman can be a woman may be never so silly but there is generally a substratum of hard sense somewhere a man may be never so wise and yet completely destitute of this practical ability it is largely in behalf of these helpless harmless deluded and betrayed gentlemen that I have felt called to take up arms what sword would not leap from its scabbard to maintain the cause of the weak and the wronged but though I admit and lament that authors are unpractical and unbusiness like to the last degree I must affirm that they have less inducement to be business like and less opportunity to be practical than any other class of persons suppose a writer sets out with the determination to be prudent and sagacious where shall he begin if a farmer has a bushel of potatoes to sell he knows or can learn in a moment precisely their market value the early rose has its price and the jackson white has its price there is no room for doubt or misgiving or mistake but the author has not and cannot have the least notion of the market value of his products he does not even know their intrinsic value he does not know whether he has raised an early rose or a dead and gone shenan go he may have spent his strength on what is absolutely unsaleable his work is production but fourth worth he must depend solely on the word of those who buy and sell after a while he does indeed arrive at something like a scale of value but he never reaches such a degree of certainty as to feel assured of any special piece of work everyone must be judged by itself five successful books are no absolute guarantee that the sixth will not be worthless it seems to me also that there is no business in which so few checks exist as in that of publishing an author we will say agrees to receive 10% on the retail price of all copies of his works that are sold but he has literally nothing but the publisher's word by which to know how many copies are sold the manufacturer knows how many he has made but it would be offensive to ask for the manufacturer's accounts and moreover he would probably not render them if asked he would consider it as betraying the secrets of the trade or the trust of his employers or otherwise impertinent and unwarranted of course a false return of sales would be fraud and somewhat complicated fraud but human ingenuity combined with human depravity has been known to surmount obstacles to crime as formidable as these and the danger of detection is infinitismally small if there be any such thing in arithmetic as the double rule of three and I seem to have a vague impression that there is it may well be brought to the solution of the problem if a publisher may for years safely disregard not to say violate the condition of a contract which an author has before his eyes in plain black and white how long may another publisher safely falsify accounts which an author never sees and which he could not understand if he should see I have no doubt that in nine cases out of ten and perhaps also in the tenth the returns of sales are as accurate as the moral law what I maintain is that the author be he wise as Solomon has no means of knowing whether they are or not while the manufacturer while other goods knows precisely how much raw material goes into the mill and how much of the manufactured article comes out if the author instead of receiving a percentage takes half profits he is even more at the mercy of the publisher in the very outset the wildest theories prevail as to what constitute profits and though the author may make heroic struggles to be exhaustively mathematical the probabilities are that the only draft made upon his science will be the very simple effort of dividing by two whatever some the publisher has chosen to figure up the plan adopted by actors and actresses to take half the gross receipts is far more simple and sensible it is true that an author may take advantage of competition and seek a second market if the first prove unsatisfactory but it is also certain that he cannot do this to any effective extent without serious injury to himself all the skill the vitality the invention the thought which he brings to the disposition of his wares is so much taken from his producing power he ought to be wholly free to do his best work he ought to be able to concentrate himself on his writing if he must turn aside to study the state of the market and superintend the details of sale and circulation that necessity will surely tell in the deterioration of his works and even at that cost he will not be so good a business manager as one who is to the manner born it is a very pretty thing to be a poet publisher in the newspapers but if the poet's imagination happens to get loose among the publisher's facts it makes sad work and it is not merry work when the publisher cropped out in the poet's verses what then remains it has been proposed that authors combine and form a publishing house by themselves publishing their own books and receiving their own profits this plan looks simple enough but i must confess it seems to me chimerical in the last degree accepting the temptations of their trade doubtless a hundred publishers are as honest as a hundred authors and surely they have a great deal more business sagacity but as soon as authors turn publishers they fall into all the publishers temptations without acquiring his business power so that when you have chemically combined author and publisher you have an amalgam wholly and disastrously different from either of the original symbols namely a publisher minus his common sense no the publisher is not an artificial number of society like all other middle men he meets a real want he exists because in the long run it is cheaper and better for writers to employ him than to do his work themselves of course the wiser and more righteous he is the better he answers the end of his creation but with all his imperfections on his head he is better than nobody a man may as well undertake to build his house with his own hands to save himself from the shortcomings and exertions of carpenters as to manufacture and distribute his own books to save himself from the extortions of publishers we may send missionaries among them we may gather them into our sunday schools but we need not think to exterminate them authors may form publishing houses and those houses may be successful but if so it will be simply by adopting substantially the methods of successful publishing houses already established it seems to me easier and more economical to let such institutions spring from the soil rather than attempt to construct them out of material which has already been organized into another form of into another form of life shall we then take the publishers cum grano solis and try to guard our interests by keeping a strict lookout we must turn publishers ourselves to make it of any account a detective to be worth anything ought to be at least as widely as the rogue he watches and to be so he must give his mind to it and if he give his mind to that wherewithal shall he set up any other business an author need not rush in among publishers as Cincinnati swine are said to invade the streets with wedded knives crying come and eat me but if he on the contrary objects steadfastly and stoutly to being devoured he does not know where his vulnerable point is and cannot therefore arm himself against attack he is not and cannot become consistently with the proper pursuit of his own profession sufficiently acquainted with the details of publishing to know whether a measure proposed by a publisher be or be not fair for instance the publisher contracts to pay 10 on the retail price of a 62 cent book a war comes bringing high prices and the book goes up to a dollar and a quarter the publisher continues to pay the author 10 percent of 62 cents making no reference to the increased price the author presently chances to discover it and remonstrates the publishers say currently you will make the price of the book so large that it will have no sale oblivious of the fact that it is not the author but themselves who have raised the price of the book he replies that the price is not his affair he must insist upon the contract the publishers yield and the author is apparently victorious but when a second author brings up this case as a reason why he should receive his percentage the publishers reply true we did continue percentage because he insisted but as a warning the book had a very poor sale but what effect on the sale can the author's 12 and a half instead of six and a half cents have if the price to the buyer is the same until some better answer is given i shall believe that the sale diminishes because the publisher chooses it because he prefers to sacrifice a small sum on a single volume as a warning to condemnatious authors rather than encourage rebellion by continuing to receive profits of which he must divert a larger share to the author if he can by one or two examples show restive writers the question is not between six and a half cents and twelve and a half cents on a thousand books but between six and a half on thousand and twelve and a half on a hundred the sum he sacrifices in showing it is not a bad investment since then the publisher has matters within his own grasp so entirely that what he is forced to pay with one hand he can easily pluck with the other i do not clearly see the advantage to be gained by insisting on any special bargain with him perhaps i do not quite know what i'm talking about i suspect on the whole i do not but my remarks are all the more valuable for that if after two years of clapper clawing among a quartet of cats a mouse is still unskilled in feline ways in what state of helplessness must be those unadventurous little things who have never left their holes but there are the books of the firm which the suspected publisher opens to you with a frankness of innocence they ought to disarm and convince the most hardened unbeliever any demure is met by an invitation to come and look at the books the trail of the serpent is over all the rest of the world but the books have escaped the contamination of original sin and shine with the purity of paradise burglars blow open safes banks and directors and cashiers and tellers come to grief but the books always tell the truth the whole truth and nothing but the truth notwithstanding which i from the beginning instinctively gave those books a wide berth they were to me like the magic books of spencer's hermit let none of them read that the books are not always reliable gentlemen will have been inferred from the account which they professed to have sent me and which was lost in the mail that the books are not always intelligible witnesses would appear could we know how many unwary persons have gone to them in pursuit of knowledge and found the difficulty insurmountable we had the books here said one benighted author of no mean repute and i examined them and kate examined them and frank examined them and the major examined them and we could make nothing of them that the books have been made to do yeoman's service in this battle has already been seen and by various tokens it would seem that they have not yet been dismissed the service only today a letter says but the account of the sales of your book and the sums paid you for them as i derived them from the books of mr hunt convinced me that whatever the bargain might be you had a better one than i had i have half profits you have had more that is what the books say unquestionably but what a stiff naked and perverse author refuses to believe without further proof when a publisher shows me receded bills for the sums he has actually paid in manufacturing and publishing my books and for the sums he has received from their sale i will take them to an expert for examination but when he proposes to set me down before a mighty maze of figures which for ought that appears may all have been conjured up by his imagination and begs me to deduce from them any conclusion whatever i decline with thanks that contention i leave off before it be meddled with it is not necessary to be a Solomon in order to know enough to keep away from figures which it is necessary to be a Solomon to understand and which when understood are much like the little flies called out of deep darkness dread by the hermit before referred to and which fluttering about his ever-domed head a weight where to their service he applies to aid his friends or fray his enemies there remains also to the wronged or suspicious author recourse to the law or to the more informal arbitration but this also is vanity to me a lawsuit seemed utterly intolerable but my experience of arbitration was so repulsive and is so hideous in memory and this solely from the nature of things since alike from the referees and from the messers Perry and markman who like st paul were the chief speakers on the other side i met only courtesy that a lawsuit seems attractive in comparison but if i had instituted a lawsuit without doubt adverse fate hereafter would have been implored to take any shape but that if two parties are really bent on getting at the vital facts presenting absolute truth securing exact and essential justice nothing can be more to the purpose apparently than a reference to disinterested non-professional intelligent and friendly persons but two parties honestly bent on such an object would probably have nothing to quarrel over even if they have it is not certain that the informal is better than the formal mode of settlement if there are no facts to be hushed up a legal investigation will do no harm if there are facts to be hushed up a legal investigation is necessary we look at the law as at best a clumsy roundabout way of arriving at just conclusions a method full of ingenious devices to entangle and confuse witnesses and make the worse appear the better reason we take the informal arbitration as a shortcut to the desired goal on the whole i am inclined to think that the law is the shortest cut in the known world the rules which obtain in courts of justice and which seem to the unprofessional mind a mere medley of arbitrary vexations and restrictions are the result of the experience of ages and with all their shortcomings and their longcomings do probably present the most expeditious and unerring mode of reaching truth which human wit and wisdom have yet devised if so we cannot depart from them without loss in ridding ourselves of their clumsiness we rid ourselves also of their effectiveness we rend away the red tape but the package immediately falls apart into a worthless heap of memoranda you avoid a lawsuit because of the publicity and multiplicity and infelicity of lawyers witnesses judge jury you adopt a reference because it dispenses with all these and goes straight at the heart of things but you find by experience that unless your opponent wishes it you may not get at the heart of things at all in a lawsuit you can enforce measures in a reference you are dependent upon courtesy your opponent presents only that which is good in his own eyes he produces what he chooses he withholds what he chooses to be sure you do the same but you angel that you are have nothing to hide while he the fiend has all manner of wiles and wigginess to conceal if now you were in court politeness and impertinence would be equally and wholly out of the question it is the duty and delight of lawyers to find out everything and such is the depravity of the legal heart it is especially their duty and delight to ferret out what the opposite party desires to conceal it is not what a man wishes and means to say but everything which he can be made to say that a lawyer wants his hand can put aside the proffered books and grab the books which are withheld he does not permit the opposite parties to select and exclude witnesses but goes out into the highways and hedges and compels to come in whom he wants the law winds a long way around but it sets you down as near your journey's end as the nature of things permits a private reference takes a shortcut but it has no inherent power to carry you far from your starting point arbitration has the advantage in respect of privacy and that is an advantage not to be overestimated still if there is anything to choose when both are intolerable it seems rather worse to speak yourself before five men than to have someone else to speak for you before five hundred it matters not how wise how impartial referees may be their jurisdiction is necessarily limited and they cannot go beyond it to compel or extort or present they must judge on what is spontaneously set before them if to avoid trouble and unpleasantness be your object it is better to submit everything and keep out of strife altogether if you set out to accomplish an end it is better to shut eyes and ears to disagreements and take the road which common experience designates as the surest and safest in the long run but i most hardly advise writers in general to do neither so far as the improvement of one's fortune goes nothing is more futile one should be exact prompt methodical and intelligent so far as possible he will thus exert a salutary influence over his publisher and will be far more likely to receive his dues than if he believes in unenquiring trust and lives wholly by faith but it is better for his purse to take what a publisher chooses to give than to make an adieu about it afterwards even if successful in regard to the particular sum he claims it is at a cost of time and trouble altogether disproportionate to it he plays an unequal game at best because the publisher's business goes on serenely during all the difficulty while the authors must be at a standstill the very instrument that he uses in defending his works is the instrument which he ought to be using in producing them even as a pecuniary transaction it is far more profitable to sow seed for future harvests than to spend strength in trying to secure the gleaning of last year's growth the money proceeds of the insurrection whose history has been given in these pages was twelve hundred and fifty dollars the whole amount claimed to make up ten percent was about three thousand dollars and considering that my whole plan of proceedings was demolished in the beginning and that the case had to present itself as one may say smothered in a mass of irrelevant details and deprived of much that was to the purpose I reckoned myself extremely well off but even had the whole sum been awarded it would have been no very munificent compensation for eighteen months of literary labor apart from the fact that the labor was of a kind for which no money could compensate in its baldest shape the results of a year and a half of work were twelve hundred and fifty dollars or a little more than one-third of what was claimed on previous work I think myself therefore justified in asserting that though quarreling with your publishers may be very good as a crusade it is a very poor way of getting a living let me hear correct an impression that seems to prevail somewhat extensively as to the rewards of literary life it certainly has its rewards and of the most delightful kind what joys it may bring in the higher walks I do not know but even on the lower levels I should like to live forever a thousand years to begin with at any rate I could speak as enthusiastically as a certain popular writer once more famous than now of all the blessings which my books have brought me blessings of inward wealth that cannot be so much as named blessings so rich so divine that I sometimes think nothing ever was so beautiful as to have written a book but so far as literature pays cash down it is not to be compared to shoemaking for instance the daily papers have been circulating a paragraph to the effect that a recent popular book had gone to a second edition and that its author had already received from it twelve thousand dollars I am not prepared to deny the statement but I know an author of nine books not it is to be hoped on the same footing of intrinsic merit but books which have traveled up to nine ten and fourteen editions whose author never has received and never expects to receive twelve thousand dollars on the whole lot let nothing in this remark be construed into anything like complaint on the contrary authors ought to be grateful to their publishers for allowing them so large a gruduity as mr. Perry remarked concerning the appropriation of an edition of fifteen hundred books to the use of the firm they might have taken more if they had chosen and when we reflect that not only do they bestow upon us these large sums of money but as sundria extracts in other parts of this volume show they first manufacture for us the fame which brings the money we are in the language of the him lost in wonder love and praise it must be heart-rending to fashion your graven image and then have that image turn upon you and demand a share of the profits end of section 14