Overview

1. Wat Tyler, Robert Southey’s three-act play inspired by the British Peasants’ Revolt of 1381, was first published 13 February 1817 by Sherwood, Neely and Jones.  Composed in 1794, the play came to public view in 1817 as a result of literary piracy, stolen and published without Southey's permission.

2. Southey had written Wat Tyler when he was a 19-year-old university student and political radical, in need of money to realize his plans of matrimony. He entrusted the manuscript to his brother-in-law, Robert Lovell, to sell in London. Lovell gave the manuscript to Samuel Ridgeway, a radical publisher then serving a term in Newgate prison, who offered to publish the book without attaching Southey’s name to it.

3. What happened after the sale of the manuscript is a matter of speculation. Likely because of increasing governmental pressure against London radicals, Ridgeway decided not to publish the manuscript. 1794 had seen the leaders of the London Corresponding Society tried for treason for debating Parliamentary reform. Although Thomas Hardy, John Horne Tooke and John Thelwall were eventually acquitted and released, the Society was outlawed, Thomas Paine’s The Rights of Man was banned, and, by decade’s end, the government had suspended habeas corpus and instituted sweeping restrictions on freedom of the press and of assembly.

4. In the midst of anti-revolutionary sentiment and the twenty years of war that were to follow, Wat Tyler was never published. If we are to judge from his 14 February 1817 letter to John Murray, Southey thought little of the manuscript in Ridgeway's hands (Curry 150), or of the fact that it had never been officially registered in Stationers' Hall. Wat Tyler thus was officially without a copyright.

5. By 1817, the political climate if anything had become more dangerous. With Napoleon defeated and Great Britain controlling a sizable portion of the world's land mass and GNP, British citizens again looked at the questions of reform that over twenty years of world war had put on hold. The result were a series of protests and a sense of internal crisis over issues of taxation and workers’ rights. Part of the political agitation came from a small, influential group of radicals, among them William Hone and Richard Carlile. In response to their activities, the Tory ministry undertook many of the same actions they had undertaken in the mid-1790s, giving the months following the publication of Wat Tyler a sense of political deja vu. In March 1817, habeas corpus was again suspended, and the Home Office began the same active program of domestic spying that had affected Samuel Coleridge, Percy Shelley, and William Wordsworth during the years of war with France. Over these same two decades, however, Southey's own situation and opinions had changed markably. He was now a controversial Poet Laureate who, for all his own ideological complexities, was perceived as being a Tory spokesman who advocated the deportation of dissenters and who published condemnations of radical ideas on Parliamentary reform. This apparent apostasy made him a target for radical publishers, who managed to procure the manuscript of Wat Tyler and bring it to press.

6. While estimates vary, most place the number of copies of Wat Tyler sold at 60,000, ranging in price from one-half pence to five shillings. By 1827, twelve publishers had printed seventeen editions. At the time of Sherwood, Neeley, and Jones's 1817 publication, the play's value as a literary commodity stemmed from its power to embarrass Southey and to undermine his authority. Yet over the next ten years radical publishers continued to publish the text as a way of exposing what they saw as governmental hypocrisy.

7. The controversy that erupted upon publication of the work lasted several months. It involved not only printers and booksellers but also the House of Commons, the British courts, and some of Southey’s most notable literary colleagues. Southey's anger over the publication—in spite of his attempts to appear uninterested—is evident in his attempts to suppress the play's publication and in his private correspondence, which discusses the subject for some two months.


Radical Piracy and Wat Tyler

8. Scholars are uncertain about how Southey’s original manuscript of Wat Tyler came to be published. In his correspondence, Southey points to his own error in leaving the manuscript with the publisher Ridgeway in the mid-1790s (Southey 348). Such an account agrees with that of Sherwood, who claimed that he had received a copy of Wat Tyler from H.D. Symonds, the bookseller who was imprisoned with Ridgeway and with whom Sherwood had apprenticed.

9. Still, other accounts of the manuscript’s transmission exist. During the 1817 Chancery hearing in which Southey requested the suppression of the play, the dissenting minister William Winterbottom of Plymouth swore that Southey had given the manuscript to him to publish after rejection by Ridgeway. Southey denied in his correspondence ever having given Winterbottom the play (Southey 351), and some accounts suggest that Winterbottom may have stolen it while in prison with Ridgeway. Under such a scenario, Winterbottom would have retained possession of the manuscript for years, bringing it to light only at a time he deemed politically advantageous.

10. There also exists an account, related by Southey’s son Cuthbert, of the manuscript being purloined by friends of Winterbottom’s. These men supposedly borrowed the manuscript from Winterbottom to read when they were all rooming at the same house in Worcester, and hand-copied it with the purpose of smuggling it out of Winterbottom’s possession (Southey 351). Cuthbert Southey, however, questions the validity of this account.




English Copyright Law at the time of Wat Tyler’s Publication

11. In England before the second decade of the 19th century, there was no legal guarantee that an author would be able to control or benefit from his or her own work. During the 17th century, literary property and liability was regulated through the mechanism of the Licensing Act of 1662, which, as Mark Rose notes, "made it illegal to publish anything without first securing a license...[and] confirmed the Stationers' Company's near monopoly on the British book trade and its powers of search and seizure for illegal presses and books" (Rose, Authors and Owners, 31). The usual way of obtaining what is now called copyright for a work, then, was simply to enter the title of the work in the records at Stationers' Hall, pay the requisite fee, and then print it. Whoever did these things would then have permanent rights to the work in question. While printers and booksellers often bought from writers the rights to a given work, they also engaged in a kind of "legalized piracy," in which they registered works and thus falsely claimed that they owned them.
    
    
12. When the Licensing Act was allowed to expire on 3 May 1695, however, agitation began to grow for a more author-centered idea of copyright. Fresh from the pillory and prison for writing The Shortest Way with the Dissenters, Daniel Defoe published An Essay on the Regulation of the Press (1704), which argued against reinstituting the old system of licensing. Allowing the licentiousness of the press to be a problem requiring some form of regulation, Defoe argued for requiring the author's name to be printed on the title page of all publications along with those of the printer and bookseller. This seemingly obvious step was intended to prevent booksellers and printers from pirating each other's registered works. Authors, however, still possessed no inherent right of ownership over their works.
    
    
13. For the next several years Defoe, with Joseph Addison and others, agitated for an act of copyright. The resulting law—the Statute of Anne—became law on 10 April 1710. The Act of 1710 restricted the concept of rights to published works by establishing strictly limited periods of copyright. Existing copyrights were automatically renewed for 21 years from the date of the Act's enactment; new copyrights were set at 14 years with optional renewal for a second 14-year period if the original copyright holder were still alive. During the eighteenth century similar acts were passed in Denmark (1741), the United States (1790), and France (1793). While printers and booksellers liked the Statute of Anne because it firmly established their rights in law and gave them an instrument with which to pursue pirates, they were circumspect about its benefits because of time limit it placed on these rights (Saunders, Authorship and Copyright, 53ff).
    
    
14. To circumvent this second difficulty, booksellers began arguing for the concept of an author's perpetual copyright, which could then be transferred to a bookseller through the sale of a work. A series of Chancery verdicts in the 1730s, affirming the property rights of booksellers even for works whose copyright had expired under the 1710 Statute of Anne, suggested that booksellers would be successful in securing perpetual copyright. As Mark Rose argues in Authors and Owners, "authors" and their rights in many ways were the accidental but necessary creations of this legal process, since booksellers felt themselves on surer footing arguing for authorial rights than for their own. In 1774, however, the landmark case Donaldson v. Becket reversed this process. The House of Lords ruled that copyright was not perpetual and in fact was subject to the 1710 Statute of Anne. The case also permanently changed bookselling practices in Britain, producing an explosion of cheap reprints of favorite authors in the form of ambitious anthologies and comprehensive collections. Thus, we find, among other publications, John Bell's Shakspeare (11 vols., 1774), Bell's British Theatre (20 vols., 1774-6), Bell's Poets of Great Britain from Chaucer to Churchill (109 vols., 1777-82), and its rival Works of the English Poets (60 vols., 1779), with introductory essays by Samuel Johnson, published by a group of thirty-six London booksellers.
    
    
15. After Donaldson v. Beckett, authors and booksellers redirected their energies to increasing the term of copyright, which under the Statute of Anne stood at 28 years. The Copyright Act of 1814, for example, succeeded in establishing the author's lifetime (or 28 years, whichever was longer) as the period of time for which copyright protection was available. While in some measure a victory for the authors and booksellers, it was hardly perpetual copyright, and left authors like "Southey, Wordsworth, Coleridge, and Scott still lamenting the loss of their 'perpetual' right" (Saunders, Authorship and Copyright, 69). In 1837, Thomas Noon Talfourd, a friend of Wordsworth's and an MP, led a further charge to revise copyright, proposing the author's lifetime plus 60 years. It met with heavy opposition, and Wordsworth, Southey, Hartley Coleridge, and Thomas Carlyle submitted petitions in 1839. The resulting Copyright Act of 1842 revised the term of copyright to 42 years or 7 years beyond the author's lifetime, whichever was longer.
    
    
16. Within this shifting legal environment, pirated texts like Wat Tyler presented additional problems. Foremost was the question of whether a radical play of "seditious" nature should be protected by copyright. On one hand, the existing Tory government did not wish Southey to profit from the political errors of his youth; at the same time, it hardly wished radical publishers to mock the Laureate and profit from his youthful indiscretions. This paradoxical situation was to be addressed in the courts of Chancery by Lord Eldon to the confusion and dismay of Robert Southey and the delight of his radical opposition.


Injunctions, Lord Eldon, and the Strange Case of Southey v. Sherwood


Few things would more puzzle a literary foreigner, who should now, for the first time, visit London, than the disproportionate prices at which he would find different works of the same living author circulated.  If he wished to enrich his library with Mr. Southey's poems, he would be told that some of them were out of print, and that in the purchase of others he must pay for typographical luxury and valuable copyright.  One of them alone would be obtruded on him in unlimited abundance and at a price scarcely more than nominal.... If he asked for an explanation for all this, we doubt whether his original surprise would be diminished by the answer.  He would be told that Wat Tyler and Cain and Lawrence's Lectures were allowed to be circulated without restriction because it was supposed that their intentions might be injurious to society—that Wat Tyler was supposed to be an attempt to support the worst passions by the worst reasoning and to inflame the idle and the abandoned into an attack on the property and the laws of the kingdom. ("Art VI" 23)

17. Published in the 1822 Quarterly Review, these arguments were part of a much longer essay attacking the strange judicial history of Chancery Court Injunctions. Its author (possibly Nassau Senior or Southey himself) purports to trace the history of injunctions back to the 18th century, when the Court of Chancery took over issues of literary propriety from the common law courts. In cases of literary propriety, authors were able to bring their complaints to Chancery and have an "injunction" issued against piracy of their work. Designed to halt injurious acts in progress or in immeditate contemplation, such injunctions required piracy to cease until the court could decree on the given work's status as "property." Ideally, injunctions functioned as stopgap measures until the court could arrive at a permanent solution to the dispute. As the Quarterly's writer comments, however, "they were almost inevitably permanent since the average defendant could not afford to appeal them" (Zall 437). Thus, the Court of Chancery and interim injunctions functioned as an author's only real defense from literary piracy during the last quarter of the 18th century.
    
    
18. When the case of Southey v. Sherwood was brought before the Lord Chief Justice Eldon in 1817, Southey, being more or less unaware of the intricacies of the case history of injunctions, applied to the Court of Chancery to prevent further piracy of Wat Tyler following its initial publication earlier that year. Southey was dumbfounded, then, when Lord Eldon refused his request:

    I have examined the cases that I have been able to meet with containing precedents for injunctions of this nature, and I find that they all proceed from the ground of a title to property in thee plaintiff.  On this head a distinction has been taken, to which a considerable weight of authorty attaches, supported, as it is, by the opinion of Lord Chief Justice Eyre, who has expressly laid it down that a person cannot recover in damages for a work which is, in its nature, calculated to do injury to the public.  Upon the same principle this court refused an injunction in the case of Walcot vs. Walker, inasmuch as he could not recover damages in the action.  After the fullest consideration, I remain of the same opinion as that which I entertained in deciding the the case referred to. (qtd. in "Article VI" 127)

Here Eldon bases his decision on the case involving Dr. Joseph Priestly in 1791. Priestley had attempted to gain damages from manuscripts destroyed by a mob in Birmingham. In this case, the defense argued that Priestley "was in the habit of publishing works injurious to the government of the state" ("Article VI" 125). In light of this testimony, Justice Eyre had determined that any work found to be seditious or injurious to society could not be considered "property." And because injunctions were matters of establishing propriety, Eyre had ruled that one could not be granted in this case.


19. Eldon, who had come to be Lord Chief Justice of Chancery in 1801, had earlier upheld this precedent in the case of Walcot v. Walker. John Walcot was a satirist whose reputation as a radical made him unable to protect his work from other publishers. In this case, Eldon summarily refused to grant an injunction on the basis of Eyre's precedent regarding "injurious" work.
    
    
20. The controversy surrounding Wat Tyler's status as a radical, and therefore pernicious, text might have warned Southey or his friends of the danger of applying to the court of Chancery for an injunction. Southey seems to have assumed that the only real question was whether he had signed away his right to the play, and he was certain he had not. However, for Lord Eldon, the real issue was the play's potential to be injurious to British government.
    
    
21. While the decision against Walcot had been clearly intended to punish him for his views by depriving him of his property, Eldon's ruling on Wat Tyler was directed at a man who supposedly shared his views. The outcome of Southey v. Sherwood, moreover, produced multiple ironies. Aside from undermining a writer of national prominence holding government office, it allowed the radical press to continue to pirate Southey's play. Byron's Cain and Shelley's Queen Mab would receive similar treatment in subsequent years. What had seemed a reasonable protection from radical publications had become a public embarrassment. Assuming that the deprivation of literary property rights would prevent publication, the court found much to its dismay that the opposite held true.